«Бургазли проти України»: Для встановлення невідповідності умов тримання під вартою вимогам статті 3 Конвенції слід довести, що такі умови у сукупності досягали необхідного рівня жорстокості (ст. 8, ст. 34 Конвенції, заява № 41920/09, від 21.03.2019 р.)
Фабула судового акта: Заявник, громадянин України О.І. Бургазли, стверджував порушення Конвенції під час ув'язнення у зв'язку з неналежними умовами тримання під вартою, неадекватною медичною допомогою, перехопленням і моніторингом кореспонденції та ін.
На момент подій Заявник відбував покарання у вигляді довічного позбавлення волі. Під час відбування покарання Заявник неодноразово скаржився адміністрації колонії та до прокуратури на жорстоке поводження з боку працівників колонії, неякісне харчування, неналежні побутові умови, невчасне постачання товарів у крамницю та ін.
Під час початкового медичного огляду Заявник був здоровим, проте через рік у нього виявили туберкульоз. Після виявлення хвороби було проведено низку аналізів, а Заявнику призначено стандартне лікування; згодом за медичними показаннями Заявника протягом декількох років обстежували у лікарні. Заявник стверджував, що після повернення до колонії він не отримав адекватної медичної допомоги, а лікування у лікарні було припинене зарано. Заявник також стверджував, що адміністрація колонії здійснювала моніторинг його листування із ЄСПЛ, прокуратурою, Уповноваженим ВРУ з прав людини та іншими суб`єктами, кореспонденція з якими згідно чинного законодавства не підлягала перегляду.
ЄСПЛ відхилив частину скарги Заявника на порушення статті 3 Конвенції у зв`язку з неналежними умовами тримання під вартою як явно необґрунтовану. ЄСПЛ відзначив, що Заявник скаржився не на нестачу простору у камерах, а на їх неналежний санітарно-гігієнічний стан. ЄСПЛ відзначив, що скарги Заявника були досить короткими і на відміну від заяв інших ув`язнених, мали загальний характер. Проаналізувавши скарги Заявника, ЄСПЛ констатував, що умови тримання під вартою у своїй сукупності не досягали необхідного рівня жорстокості для розгляду цієї частини заяви згідно статті 3 Конвенції.
ЄСПЛ зазначив, що скарга Заявника на неадекватність наданої йому медичної допомоги є дуже короткою і неточною, не містить необхідних деталей. ЄСПЛ наголосив, що сама по собі затримка у передачі Заявника спеціалізований заклад для лікування не може вважатися доказом недостатньої медичної допомоги – слід довести, що така затримка мала серйозні негативні наслідки для стану здоров'я Заявника. ЄСПЛ також підкреслив, що поява побічних ефектів під час лікування не дає підстави вважати, що лікування було неефективним або неадекватним. Після лікування стан здоров`я Заявника покращився, також було вжито заходів для усунення побічних ефектів від призначеного лікування. З огляду на вказане, ЄСПЛ відхилив скаргу Заявника щодо ненадання йому адекватної медичної допомоги як явно необґрунтовану.
ЄСПЛ встановив порушення Конвенції, оскільки втручання у право Заявника на повагу до його кореспонденції відповідно до пункту 1 статті 8 Конвенції не було здійснене «відповідно до закону». ЄСПЛ дійшов до висновку про порушення Конвенції зокрема на підставі даних журналу вхідної кореспонденції, який містив короткий виклад листів, адресованих ув'язненим.
ЄСПЛ також дійшов висновку, що Україна не виконала свої зобов'язання відповідно до статті 34 Конвенції у зв`язку з контролем листування Заявника з його представником в ЄСПЛ. Інші скарги Заявника було відхилено.
«Енеа проти Італії» [ВП] (Enea v. Italy [GC]), заява № 74912/01
«Глінов проти України» (Glinov v. Ukraine), заява № 13693/05
CASE OF BURGAZLY v. UKRAINE
(Application no. 41920/09)
21 March 2019
This judgment is final but it may be subject to editorial revision.
In the case of Burgazly v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Síofra O’Leary, President,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 26 February 2019,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 41920/09) 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 Ivanovich Burgazly (“the applicant”), on 10 July 2009.
2. The applicant was represented by Ms L. Pankratova and Ms I. Boykova, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.
3. On 21 November 2012 the applicant’s complaints were communicated to the Government. Under Article 3 of the Convention the applicant complained of the conditions of his post-conviction detention and the allegedly inadequate medical assistance for his tuberculosis that he had received while in detention. Under Articles 8 and 34 of the Convention he complained of alleged interception and monitoring of his correspondence in detention.
4. The Government objected to the examination of the application by a Committee, but provided no reasons other than that they considered that the complaints were not the subject of well-established case-law. After having considered the Government’s objection, the Court rejects it (see, for similar approach, Nedilenko and others v. Ukraine [Committee], no. 43104/04, § 5, 18 January 2018; Lada v. Ukraine[Committee], no. 32392/07, § 4, 6 February 2018; and Geletey v. Ukraine [Committee], no. 23040/07, § 4, 24 April 2018).
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1964.
6. On 29 May 2007 he arrived to serve a life sentence at correctional colony no. 39 in Ladyzhyn, Vinnytsia Region (“prison no. 39”), where (with an interruption between 13 June and 3 November 2010 related to medical treatment that he received in correctional colony no. 61 in Kherson (“prison no. 61”) he has since been detained.
A. Physical conditions of the applicant’s detention
7. The present application covers the period of the applicant’s detention from May 2007 until September 2013.
1. Prison no. 39
8. In his initial submissions before the Court, the applicant complained of a poor diet (which usually consisted of water with cabbage, boiled maize, or porridge); a lack of cleaning products and utilities in the cells; and delays in the supply of goods to the prison store and in his being provided with cigarettes. He had unsuccessfully complained about those issues to the prison governor and to the public prosecution office.
9. The Government submitted that from May 2007 until October 2008 the applicant had been held in cell no. 9 (which had measured 6.8 sq. m and had been designed to accommodate one prisoner), and that from October 2008 he had shared cell no. 10 (measuring 8.9 sq. m) with another prisoner. Certificates – issued on 14 February 2013 by the governor of prison no. 39 following inspections of the above-mentioned cells (which the Government submitted to the Court) – suggested that: both cells had been equipped with the necessary furniture and the applicant had been provided with his own sleeping place; the lavatory had been separated from the living area; the walls and floor in cell no. 9 had been repaired; the ventilation and heating systems had been operating properly; and the food and soap supply had been in compliance with domestic standards.
10. In his reply of 3 July 2013 to the Government’s observations, the applicant contested the relevance and accuracy of the evidence provided by them. He submitted, inter alia, that he had also been held in cell no. 6 together with another prisoner. He provided no information as regards the period of his detention there and the conditions in which he had been detained. He also claimed that for a year he had shared cell no. 9 with another prisoner, and for a month (from January until February 2013) he had shared cell no. 10 with two prisoners. The wall plaster had been falling off in cell no. 10, the floor surface had needed to be repaired, and there had been rats everywhere. Lastly, the applicant noted that the Government had failed to provide detailed information on all aspects of the detention regime of life prisoners; however he did not give a personal account of how he had been affected by those aspects.
11. On 17 September 2013 the Government submitted that, following a complaint lodged in May 2013 by the applicant about the poor conditions of his detention, a prosecutor from the Ladyzhyn public prosecution office had visited prison no. 39 and had found that the wall plaster and the floor surface in cell no. 10 were in a bad condition and that there had been a delay in conducting rodent-control measures in the facility. In accordance with the prosecutor’s instructions, the walls and the floor in cell no. 10 had been repaired and rodent-control measures had been carried out. The Government submitted in this respect a written statement, allegedly given by the applicant on 9 September 2013, in which he affirmed that until that date he had had no complaints as regards the provision of cigarettes or the quality of his food and that his cell (no. 10) had been recently repaired.
2. Prison no. 61
12. From 13 June until 3 November 2010 the applicant was detained in prison no. 61 in order for him to undergo anti-tuberculosis treatment at that prison’s hospital (see paragraph 19 below).
13. On 20 October 2010 the applicant submitted to the Court a handwritten attestation, signed by him and his alleged cellmates, in which he stated that “[On] 19 October 2010 at 6 p.m., in cell no. 10 of prison no. 61, the ceiling plaster began to fall off. [All four of us were taken out of the cell], which measured 2.5 by 1.5 sq. m, for the period during which the hospital staff removed from the cell pieces of concrete and garbage. We were then returned to the cell ...” The applicant’s attestation furthermore alleged that he and his cellmates had had to keep watch all night long in order to avoid injury and that the general conditions in the facility were inappropriate: cells were dirty, damp and cold, and the heating system was not operating.
14. The Government contested the applicant’s submissions. They provided the Court with a certificate issued by the governor of prison no. 61 according to which between 13 June and 3 November 2010 the applicant had been detained in cells nos. 6, 7 and 8, which measured 28, 20 and 21 sq. m respectively and had been shared by four prisoners. All the cells had been situated on the ground floor, had had a lavatory that had been separated from the living area, and had been equipped with the necessary furniture. The cells had had natural ventilation and it had been possible to open the window of each cell from the inside. During the period from 2008 until 2009 the prison cells had undergone major repairs and in 2010 repair works had been conducted in the corridors and utility rooms. The heating system had been operating properly, with the exception of a five-day period at the beginning of November 2010, when it had been cut off owing to repair works.
15. In his reply to the Government’s observations, the applicant submitted written statements by two prisoners who had been held in prison no. 61 during the same period as the applicant. The statements provided a description of the general conditions of detention in the relevant section of the facility. According to the statements, some of the cells lacked access to fresh air and natural lights as the windows were always closed; ventilation and heating system did not work properly, so it was too cold in winter and too hot in summer; the artificial light was too weak; some cells were located in the basement and were humid and damp; the nutrition was inappropriate and did not comply with the relevant domestic norms; the facility was infested with rats; the prisoners were often subjected to ill-treatment by the prison staff and regularly transferred from one cell to another. The applicant furthermore contested the objectiveness of the information provided by the prison governor and stated that the Government’s submissions did not exclude the possibility that, before the repair works had been completed at the end of 2010, there had been smaller rooms in the facility in which he could have been held (and which following the reconstruction had been merged to create a bigger room).
B. Medical assistance in respect of the applicant’s tuberculosis infection
16. Upon his arrival at prison no. 39 in May 2007 the applicant underwent a medical examination and was found to be healthy.
17. On 7 October 2008, following a routine check for tuberculosis (“TB”) infection, the applicant was diagnosed with infiltrative tuberculosis on the upper part of the left lung (category 3). On the same date he was placed in the medical unit of prison no. 39. According to the synopsis of the applicant’s treatment history provided to the Court by the Government, the applicant was seen by a TB-specialist (only once, according to the applicant) and prescribed standard treatment in the form of a combination of “first-line” anti-TB antibiotics (Streptomycin, Isoniazid, Rifampicin and Ethambutol), vitamins, hepatoprotectors, and an appropriate diet. Monitoring tests (sputum, urine and blood tests and X-rays) were performed on a number of occasions. According to the above-mentioned synopsis, an improvement (позитивна динаміка) was noted following the administration of the treatment in that there had been no destruction of the lung tissue and the infiltration and induration in the primary sites (ущільнення первинних вогнищ) had dispersed.
18. On four occasions (on 9 October 2008, 24 April and 22 December 2009 and 14 April 2010) the administration of prison no. 39 lodged a request with the State Department for the Enforcement of Sentences, asking it to allow the applicant’s transfer to a specialised medical facility (as required by domestic law) in order for his TB to be cured. On an unspecified date in 2010 permission was given and on 16 May 2010 the applicant was sent to prison no. 61 for further treatment.
19. From 13 June until 3 September 2010 the applicant underwent anti‑TB treatment at the hospital in prison no. 61. After undergoing a medical examination upon his arrival he was diagnosed with focal tuberculosis of the upper part of the left lung (category 5.1), “with equivocal activity” (із сумнівною активністю), accompanied by toxic vestibulopathy. It was recommended that he continue treatment with Isoniazid, Rifampicin, Pyrazinamide, Ethambutolm and Streptomycin and vitamins В1, В6, В12 for three more months. During his treatment he was under the regular supervision of a TB-specialist and underwent various tests to monitor the status of his TB (blood, sputum and urine tests and X‑rays). After the applicant had lodged various complaints about different health issues that he had experienced during his anti TB-treatment (including vertigo, weakness and diarrhoea), he was examined by a general practitioner and a neuropathologist, who diagnosed him with intestinal indigestion and toxic vestibulopathy and prescribed the appropriate treatment (Loperamid and Laevomycetin for the indigestion problems; Piracetam, ascorbic acid and Cinnarizine for the vestibuloparthy). A dentist recommended that the applicant undergo a mouth debridement.
20. On 27 September 2010 a medical panel examined the applicant, finding small post-TB residual changes in the upper part of the left lung and fibrosis (малі залишкові зміни туберкульоз верхньої частки лівої легені у вигляді щільних вогнищ та пневмофіброзу). The applicant was assigned the status of category 5.1 for three years. The applicant was discharged from the hospital with the relevant recommendations for further treatment and in early December 2010 was transferred back to prison no. 39. According to the applicant, his anti-TB treatment was “stopped” at prison no. 39. The medical records submitted by the Government suggest that every spring and autumn until 2012 the applicant was provided with preventive anti-TB treatment (in the form of Isoniazid, Pirazinamid and vitamins). His special diet, like that of other prisoners of the same category, was discontinued in March 2012 following a general order issued by the Department for the Execution of Sentences.
21. On 11 February 2013 a general practitioner and a psychiatrist from Ladyzhyn Town Hospital examined the applicant and studied his medical file, in particular the part relating to his anti-TB treatment. The relevant record in the applicant’s medical file suggests that the doctors found that the applicant’s state of health was satisfactory following the treatment provided and that they recommended that he stop smoking and undergo an X-ray examination of his chest once a year by way of preventive measures.
22. In his initial submissions to the Court the applicant complained of a delay in his transferral to a specialised medical institution. He alleged, without providing details, that the medical unit of prison no.39 could not offer the appropriate treatment for tuberculosis. He submitted the same complaints (with the same level of detail) to the domestic authorities. In his reply to the Government’s observations, he furthermore submitted that his treatment in prison no. 61 had caused him suffering because of its side-effects, such as weakness, dizziness and nausea, and that his treatment both at the prison no. 61 hospital and in general had been terminated too early.
23. Referring to the medical evidence submitted by them, the Government maintained that the applicant had received adequate medical treatment for his TB infection.
C. Correspondence and communication with the Court
24. The applicant alleged that in the course of his imprisonment all of his correspondence, including that with the Court, had been systematically monitored by the prison authorities. He submitted in particular that (i) on 15 May 2008 a prison officer had requested him to submit a letter written by him to the public prosecution office in an unsealed envelope, as it had been necessary to insert a cover letter from the prison authorities, and (ii) on 8 December 2011 a prison officer had opened a letter from the Court in the applicant’s presence and handed it to him.
25. The applicant furthermore suggested that the authorities had withheld some of the complaints that he had addressed to different bodies, as he had received no reply to them. He referred, by way of an example, to his letters of 26 March 2008 (to an NGO) and of 27 and 31 March and 2 and 8 July 2008 and 26 March 2010 (to the public prosecution office). He also stated that letters from him to the Court dated 29 May 2008, 14 December 2009 and 14 June 2011 had likewise not been dispatched by the prison authorities and that on several occasions the prison staff had warned him that his letters would not leave the prison if he continued to complain about the conditions of his detention and had threatened him for having lodged an application with the Court.
26. The Government denied the applicant’s allegations and submitted that no monitoring had been conducted as regards letters addressed to the public prosecution office, the Parliamentary Commissioner for Human Rights (“the Ombudsperson”) and the Court, as such monitoring was prohibited by law. They furthermore submitted that the letters sent out and received via the prison postal service had been duly dispatched and delivered. They provided evidence that the letter to the public prosecution office of 26 March 2010 had reached the addressee and stated that other letters referred to by the applicant had not been registered in the register of outgoing correspondence (and had therefore not been sent by the applicant via the prison’s mail office).
27. In his reply to the Government’s observations, the applicant submitted that the authorities had interfered with his communication with his representative before the Court (lawyer B.). In particular, he had sent a letter to B. containing, inter alia, his claim for just satisfaction. However, the latter document had been missing from the envelope received by his representative. Instead, it had contained blank sheets of paper of a different type to those on which the remaining parts of the applicant’s submission had been made. The envelope had had no postal stamp on it. He had also on one occasion been denied the possibility of speaking by telephone with his representative before the Court. On that occasion he had gone on hunger strike. The Government did not specifically comment on these allegations.
28. The Court notes that extracts from the prison no. 39 registers of incoming and outgoing mail submitted by the Government show that in the period from June 2007 until March 2013 the applicant sent and received more than three hundred letters, including to and from various public entities – most notably the public prosecution office, the Ombudsperson and the Court. This correspondence was, under domestic law, exempt from monitoring (see paragraph 31 below). He also corresponded with other entities, notably the Department for the Execution of Sentences, the office of the President of Ukraine and human rights lawyers. Under domestic law this correspondence was subject to monitoring by the prison authorities. A copy of a page from the prison no. 39 register of incoming mail for January 2013, which was submitted to the Court by the applicant, summarises the content of letters from those entities with which correspondence was subject to monitoring under the law. By contrast, a letter from the Court is marked as “registered letter”.
29. It appears from the Government’s submissions that on many occasions the public prosecution office, having conducted relevant enquiries, declared unsubstantiated the applicant’s complaints about alleged interferences with his correspondence. The one exception pertained to one instance of interference in August 2008 (of which the applicant did not complain to the Court), when it was established that the applicant’s letter to the Prosecutor General had not been sent out by a prison officer. Disciplinary proceedings against the officer in question were instituted by the prison administration and he was reprimanded. Nothing in the case file or the applicant’s submissions suggests that he took any steps following the acknowledgement of that violation of his rights. The case file also contains an exchange of correspondence between different bodies (including the Ombudsperson, human rights lawyers and prosecutors) in respect of complaints raised before them by the applicant.
30. The application form dated 29 May 2008 sent by the applicant to the Court, together with letters of 14 December 2009 and 14 June 2011 that the applicant allegedly sent to the Court via the prison no. 39 postal service, never arrived at the Court. No letters from the applicant that have reached the Court have borne the stamp of the detention facility on their respective front pages, and nor were they accompanied by brief summaries by the prison authorities of their contents. Some letters were sent by the applicant via other prisoners whose cases were also pending before the Court. These letters have been received by the Court.
II. RELEVANT DOMESTIC LAW
31. Article 113 of the 2003 Code on the Enforcement of Sentences stipulates 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 prison authorities. Prior to amendments introduced in 1 December 2005 (see below), those exemptions were limited to correspondence with the Ombudsperson and prosecutors.
32. The 1 December 2005 Law on Amendments to the Code of Enforcement of Sentences (which came into force on 21 December 2005) exempted from monitoring all correspondence by prisoners addressed to the Court and other international institutions of which Ukraine was a member.
33. The Law of 21 January 2010 (which came into force on 9 February 2010) added the following to the list of exemptions: (i) correspondence addressed to prisoners by already exempt organisations and (ii) correspondence addressed to and received from prisoners’ lawyers during criminal proceedings.
34. The Law of 8 April 2014 further added correspondence between prisoners and all courts to the list of exemptions.
I. SCOPE OF THE CASE
35. In his reply to the Government’s observations, the applicant additionally complained of the inadequacy of the medical treatment that he had received for health problems (other than his TB infection) from which he had been suffering. In the Court’s view, this new complaint does not constitute an elaboration of the applicant’s original complaint, on which the parties have already been invited to comment. The Court considers, therefore, that it is not appropriate to take up this matter within the context of the present case (see, in particular, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
36. The applicant complained of the poor conditions of his detention in prisons nos. 39 and 61 and submitted that he had not been provided with appropriate medical assistance in those facilities for his TB. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Physical conditions of detention
37. The parties provided different accounts as regards the material conditions of the applicant’s detention in prison no. 39 and prison no. 61 (see paragraphs 8-15 above).
38. Having examined all the material before it, the Court considers the complaint regarding poor conditions of detention to be inadmissible, for the following reasons.
39. The Court has recently reiterated the general principles governing the application of Article 3 of the Convention to conditions of detention in Muršić v. Croatia ([GC], no. 7334/13, §§ 96-141, ECHR 2016). It recalls that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, either on its own or when taken together with other shortcomings.
40. In the present case, the Court observes that no complaint about overcrowding was raised by the applicant in his initial submissions (see paragraphs 8 and 13 above). In his reply to the Government’s submissions, the applicant mainly challenged the accuracy of the information provided by the Government as regards the cells in which he had been detained in prison no. 39. He did not complain that he had been detained in overcrowded conditions, but rather concentrated on the issue of sanitary conditions in the cells. As regards his detention in prison no. 63, while challenging the objectivity of the information provided by the prison governor, the applicant did not deny the fact that he had been detained in the cells referred to in the certificate provided by the Government. However, he submitted that the possibility had not been excluded that apart from those cells there had been other premises in the prison hospital measuring 3.75 sq. m in which he could have been held with three other prisoners. He did not indicate the period during which such detention might have taken place. The Court finds that such submissions on the part of the applicant are too vague to constitute an arguable complaint of overcrowding. It also cannot but note that no overcrowding complaint can be found among the numerous grievances concerning the conditions of the applicant’s detention that he lodged with the domestic authorities and which are available to the Court.
41. Thus, the Court finds that no arguable claim may be discerned from the parties’ submissions that the applicant was detained in overcrowded conditions.
42. As regards other aspects of the physical conditions of the applicant’s detention in prisons nos. 39 and 61, his complaints for the most part are limited to brief and general statements – unlike, for example, the statements by other prisoners that he submitted in support of his complaint regarding the general conditions of detention in prison no. 61 (see paragraph 15 above). In any event, even assuming that the applicant was indeed detained under the conditions presented by him, the Court does not consider, taking into account the cumulative effect of those conditions, that they (although far from adequate) reached the threshold of severity required to bring the matter within the ambit of Article 3 of the Convention (see and compare Lutskevich v. Russia, nos. 6312/13 and 60902/14, §§ 54-60, 15 May 2018; Rodzevillo v. Ukraine, no. 38771/05, §§ 45‑47, 14 January 2016; and Yarovenko v. Ukraine, no. 24710/06, §§ 116-120, 6 October 2016).
43. The Court therefore rejects this part of the application as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.
B. Medical assistance in respect of the TB infection
44. The relevant elements of the parties’ submissions are set out in paragraphs 22 and 23 above.
45. The Court notes at the outset that the applicant’s complaint is very brief and general, with no details provided as regards the inadequacy of the treatment provided to him, apart from a reference to the fact that his transfer to the specialised hospital was delayed.
46. It is true that it took the authorities about two years to arrange the applicant’s transfer to prison no. 61. However, as can be seen from the medical records provided by the Government (the accuracy of which was not disputed by the applicant), while awaiting the transfer the applicant’s health problem was not left untreated. He was placed in the medical unit of the prison and prescribed the necessary treatment. The applicant does not assert that the prescribed medications were not administered to him. Moreover, nothing suggests that his state of health deteriorated following the provision of the above-mentioned treatment. On the contrary, according to the available medical evidence, positive “dynamics” were observed (see paragraph 17 above). It took a three-month stay in prison no. 61 to complete the treatment.
47. Given those circumstances, in the absence of a precise and detailed complaint from the applicant as to how exactly his anti-TB treatment in prison no. 39 had been inadequate, the Court finds that the mere fact that there was a delay in arranging the applicant’s transfer to a specialised institution for anti-TB treatment cannot be regarded as proof of an overall deficiency in the medical assistance available to the applicant. It has not been shown that the delay, despite being regrettable, was so grave in respect of its consequences that the applicant’s state of health was adversely affected (see, mutatis mutandis, Moroz v. Ukraine, no. 5187/07, § 55, 2 March 2017).
48. As regards the applicant’s complaint that he had suffered certain side effects during his anti-TB treatment, the Court considers that the appearance of side effects does not provide a basis for it to rule that the treatment was ineffective or inadequate. Furthermore, it has not been disputed by the applicant that the authorities took measures to eliminate the side effects by prescribing appropriate treatment.
49. Lastly, the Court cannot but note that on 11 February 2013 the applicant was examined by doctors, including a TB specialist, from a civilian medical institution and was found to be in a satisfactory state of health following the anti-TB treatment provided to him; according to those doctors, his post-treatment state of health did not require any other measures apart from stopping smoking and submitting to regular X-ray examinations (see paragraph 21 above). The applicant did not challenge or comment in any way on those conclusions. Likewise, he provided no evidence that his TB condition worsened because of an allegedly premature discontinuance of the treatment.
50. In view of the foregoing, having examined all the material in its possession, the Court finds that the applicant has failed to duly substantiate his complaint regarding the alleged inadequacy of his anti-TB treatment. It therefore rejects this part of the application as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
51. The applicant complained of a violation of his right to respect for his correspondence on account of the prison authorities’ monitoring of and interception of his correspondence. He relied on Article 8 of the Convention, which reads:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
52. The applicant submitted that all of his correspondence had been systematically monitored in the prisons and that a number of his letters to the domestic authorities and the Court had been withheld.
53. The Government submitted that no monitoring had been conducted in respect of letters sent by the applicant to addresses exempt under domestic law. They furthermore contested the applicant’s submissions that some of his letters had not been sent on to such addressees.
B. The Court’s assessment
(a) Alleged withholding of letters by the authorities
54. There is no evidence before the Court showing that the prison authorities withheld the applicant’s correspondence during his detention, with the exception of one instance that occurred in August 2008, which has been acknowledged by the authorities and in respect of which no complaint appears to have been made by the applicant in his application to the Court (see paragraph 29 above).
55. As regards the applicant’s reference to the fact that some of his letters had not reached the Court, the Court observes on the basis of the material before it that the applicant sent numerous letters to the Court and that most of those letters were received by the Court. It may not be excluded that the missing letters were lost owing to a technical error at some stage of dispatch or delivery. In any event, given also the Court’s findings as regards the alleged monitoring of the applicant’s correspondence with the Court (see paragraphs 57-60 below), the Court finds that there is an insufficient factual basis for concluding that the Ukrainian authorities deliberately held back the applicant’s letters or failed to ensure that they were duly dispatched (see Sadkov v. Ukraine, no. 21987/05, § 147, 6 July 2017).
56. It follows that these complaints are manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
(b) Monitoring of the applicant’s correspondence by the prison authorities
(i) Exempt entities
57. To the extent that the applicant complained that his correspondence with the exempted entities – notably the public prosecution office and the Court – had been monitored, in contravention of the domestic law prohibiting such monitoring, there is no material before the Court that would corroborate the applicant’s allegations.
58. As regards the episodes referred to by the applicant – namely when he was allegedly asked to submit a letter from himself to a prosecutor in an unsealed envelope and when a letter from the Court was allegedly opened by a prison officer in the applicant’s presence (see paragraph 24 above) – the behaviour of the prison officers, as described by the applicant, does not automatically imply that his correspondence was monitored (see, mutatis mutandis, Gerashchenko v. Ukraine, no. 20602/05, §§ 144 to 146, 7 November 2013). In fact, the applicant did not refer to any factual details suggesting that the administration had in fact read his correspondence. It also appears that the applicant did not initiate any proceedings in that regard before the domestic courts, as was his right (see Chaykovskiy v. Ukraine, no.2295/06, §§ 72 and 73, 15 October 2009).
59. In addition, as regards the correspondence with the Court, unlike in the case of Glinov v. Ukraine (no. 13693/05, 19 November 2009) – where the authorities in charge of the detention facilities supplemented the applicant’s letters to the Court with brief summaries of their contents (§§ 27, 28 and 55) – no such summaries were attached to the applicant’s letters in the present case. Likewise, no prison stamp can be found on the first page of the letters (compare Gerashchenko, cited above, § 144).
60. The Court finds, therefore, that this part of the application should be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(ii) Non-exempt entities
61. The Court has already found in Belyaev and Digtyar v. Ukraine (nos. 16984/04 and 9947/05, § 53, 16 February 2012) that, under the law in force prior to 21 December 2005, prison officers were entitled to monitor all letters sent by prisoners, with the exception of letters to the Ombudsperson or prosecutors. The relevant legislation did not draw any further distinctions between the different categories of persons with whom detainees could correspond (such as, for example, law‑enforcement and other domestic authorities, Convention and other international bodies, relatives, and legal counsel). It did not elaborate on the manner in which the screening measures would be exercised. In particular, it did not provide for any participation by or involvement of prisoners at any stage of the monitoring process. Nor did it specify whether a detainee was entitled to be informed of any alterations to the contents of his or her outgoing correspondence. Moreover, monitoring was automatic and without any time-limits and did not require any reasoned decision giving grounds for the screening measures and/or setting a timeframe for it. Lastly, there was no specific remedy enabling the detainee to contest the measure and obtain adequate redress. In the light of those characteristics of the applicable domestic legal regime the Court concluded that the applicable domestic law had not offered an appropriate degree of protection against arbitrary interference with a prisoner’s right to respect for his correspondence and that interference with rights under Article 8 of the applicant in that case on account of that monitoring had not been “in accordance with the law” (ibid., § 54).
62. The Law on Amendments to the Code of Enforcement of Sentences (see paragraph 32 above) introduced an amendment to the legal regime found to be in violation of Article 8 in Belyaev and Digtyar by exempting correspondence addressed to the Court and other international institutions from monitoring. That was the regime which applied to the applicant’s correspondence during his detention. Further exemptions were later added, which became effective on 9 February 2010. Subsequent amendments introduced in 2014 are of no relevance to the instant case.
63. Accordingly, to the extent that the applicant may be understood as complaining also of the monitoring of his correspondence with various entities not exempt from monitoring under the relevant provisions of the domestic law, that part of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.
64. The Court notes that, although the parties disagreed as to whether some of the applicant’s letters had been withheld by the prison authorities and whether correspondence with exempt entities had been monitored, the Government did not specifically contest the applicant’s submission that his correspondence with non-exempt entities had been routinely monitored by the prison administration, pursuant to the applicable domestic law (see Vintman v. Ukraine, no. 28403/05, § 126, 23 October 2014). Indeed, entries in the prison no. 39 register of incoming mail (a copy of which was provided to the Court by the applicant), which contains a summary of the content of letters addressed to prisoners, illustrate that the authorities did in fact monitor, as provided by domestic law, letters sent to the applicant by non-exempt entities (see paragraph 28 above; compare Glinov, cited above, §§ 27, 28 and 55, and Trosin v. Ukraine, no. 39758/05, § 55, 23 February 2012).
65. That monitoring constituted an interference with the exercise of the applicant’s right to respect for his correspondence under Article 8 § 1. Such interference will contravene Article 8 § 1 unless, among other conditions, it is “in accordance with the law” (see Enea v. Italy [GC], no. 74912/01, § 140, ECHR 2009).
66. As far as non-exempt addresses were concerned, the Court in the case of Vintman (cited above, §§ 129-33), for the same reasons as in the case of Belyaev and Digtyar, found the rules governing the monitoring regime, as amended by the laws of 2005 and 2010, to be defective in the same way as the pre-2005 legislation.
67. As far as correspondence with non-exempt addressees is concerned, the Court sees no reason to reach a different conclusion in the present case.
68. It follows that the interference complained of was not “in accordance with the law”. 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.
69. There has, accordingly, been a violation of Article 8 of the Convention on account of the monitoring of the applicant’s correspondence with various entities that were not exempt from monitoring under domestic law, as in force at the relevant time.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
70. The applicant complained that the prison authorities had hindered him in communicating with the Court, contrary to Article 34 of the Convention, which provides as follows:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
A. The parties’ submissions
71. The applicant complained that the interference with his right to correspondence, as discussed above, had also impaired his right to communication with the Court and that the authorities had persecuted him for having applied to the Court. He furthermore complained that the authorities had also interfered with his efforts to communicate with his representative before the Court.
72. The Government contended that the applicant had not been hindered in any way in his communication with the Court.
B. The Court’s assessment
73. The Court has already found that the applicant’s allegations that the authorities interfered with his correspondence with the Court were unsubstantiated (see paragraph 60 above).
74. In so far as the applicant alleged that he had been persecuted by the prison authorities on account of his application to the Court, those allegations are unspecific and wholly unsubstantiated (see Glinov, cited above, §§ 73 and 74).
75. To the extent that the applicant complained that the interference with his communications with his representative before the Court had been contrary to Article 34, the Court firstly observes that the Government have failed to comment on the applicant’s specific allegations and, in particular, on the incident involving the alleged retention of documents from the envelope containing the applicant’s letter to his representative (see paragraph 27 above).
76. The Court furthermore observes that the legislation in force suggests that the applicant’s correspondence with his representative before the Court was subject to routine monitoring by the officials of prison no. 39, as only communication with “a lawyer in criminal proceedings” was exempted from such monitoring (see paragraph 33 above).
77. The Court has already found a violation of Article 8 of the Convention on account of the shortcomings in the relevant legislation governing the monitoring of prisoners’ correspondence with non-exempt entities (see paragraph 69 above). In addition to those findings, it considers that the monitoring of the applicant’s correspondence with his representative before the Court was incompatible with Article 34 of the Convention, as it implied the absence of any confidentiality of such communication and the risk of various forms of direct or indirect influence on the prisoner, impairing his opportunities to communicate with the Court via his representative before the Court (see, mutatis mutandis, Belyaev and Digtyar, cited above, § 62).
78. In these circumstances, and on the basis of the information available to it, the Court concludes that Ukraine has failed to comply with its obligations under Article 34 of the Convention as regards the monitoring by the authorities of the applicant’s correspondence with his representative before the Court. In view of those findings, there is no need to give a separate ruling on the remainder of the applicant’s allegations concerning the alleged impediments to his communication with his representative before the Court.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
79. Lastly, the applicant complained under Article 3 of the Convention that the physical conditions of his detention between July 2005 and May 2007 had been inappropriate and that on several occasions between January and June 2007 he had been physically ill-treated by prison officers. He also referred to Articles 13, 14 and 17 of the Convention.
80. The Court has examined the above complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, those complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
81. It follows that those complaints must be rejected, in accordance with Article 35 § 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
82. 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.”
83. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.
84. The Government maintained that there had been no violation of the applicant’s rights in the present case.
85. The Court, ruling on an equitable basis, awards the applicant EUR 1,100 in respect of non-pecuniary damage.
B. Costs and expenses
86. The applicant also did not submit any claim under this head. The Court therefore makes no award.
C. Default interest
87. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 8 of the Convention concerning the monitoring of the applicant’s correspondence with persons not exempted from monitoring under domestic law admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention on account of the monitoring of the applicant’s correspondence with various entities that were not exempt from monitoring under domestic law, as in force at the relevant time;
3. Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention on account of an interference with the applicant’s communication with his representative before the Court;
(a) that the respondent State is to pay the applicant, within three months, EUR 1,100 (one thousand one hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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