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CHAYKOVSKIY v. UKRAINE - 2295/06 [2009] ECHR 1569 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1569.html
Cite as:
[2009] ECHR 1569
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FIFTH
SECTION
CASE OF
CHAYKOVSKIY v. UKRAINE
(Application
no. 2295/06)
JUDGMENT
STRASBOURG
15
October 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Chaykovskiy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 2295/06) 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 Vladimir Andreyevich
Chaykovskiy (“the applicant”), on 29 December 2005.
The
applicant was represented by Ms Oksana Stanislavska, a lawyer
practising in Kharkiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Yuriy Zaytsev.
The
applicant alleged, in particular, that the authorities had interfered
with his correspondence with the Court and had failed to assist him
in obtaining documents necessary for lodging his application with the
Court.
On 7 September 2006 the Court decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3) and to give priority to the case
under Rule 41 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1943 and lives in Solone Ozero.
A. The applicant's citizenship
In
April 1993 the administration of Penitentiary no. 314/60, where the
applicant was serving a prison sentence at the time, submitted to the
Slovyanoserbsk Department of the Ministry of the Interior a list of
prisoners, with their former Soviet passports, who, following the
collapse of the Soviet Union in 1991, had expressed a wish to become
Ukrainian citizens. The applicant's name was among them.
A
stamp reading “Annulled” was put in the applicant's old
Soviet passport.
According
to a letter written on an unspecified date by the administration of
Penitentiary no. 60 to the applicant, the latter acquired Ukrainian
citizenship in 1993.
B. The most recent criminal proceedings against the
applicant
On
an unspecified date in 1999 the applicant was detained on suspicion
of attempted murder and robbery. According to him, he was beaten in
police custody. On 10 November 1999 the Kherson Regional Court
sentenced the applicant to fifteen years' imprisonment and ordered
the confiscation of all of his personal property following his
conviction for these offences.
On
21 December 1999 the Supreme Court rejected the applicant's cassation
appeal against this conviction. However, it reduced the sentence to
thirteen years' imprisonment.
Shortly
after the ruling of the Supreme Court, the applicant was transferred
to Penitentiary no. 45 in the Dnipropetrovsk region to serve his
sentence.
In
2007 the applicant complained to the prosecution authorities about
his alleged ill-treatment during the pre-trial investigation in 1999.
In reply, he was informed that his complaint had been lodged too late
and could not be investigated given the considerable lapse of time
and that all the relevant documents had been destroyed.
During
2007 and 2008 the applicant unsuccessfully sought the overturning of
his conviction through an extraordinary review procedure.
In
September 2008 the applicant was released on parole.
C. The applicant's medical condition while in detention
On
15 June 1999 a forensic psychiatric examination was held to establish
whether the applicant could be held criminally liable for the charges
brought against him. Along with finding the applicant sane, it noted
that he had complained of pain in his legs, weakened eyesight and
dizziness, had painless concussion caused by a past head injury, had
a diminished ankle reflex, and suffered from encephalopathy, a
degenerative disease of the brain, caused by a trauma and
atherosclerosis.
On 17 February 2005 the applicant was examined by a
group of disability experts in Penitentiary no. 45 and recognised as
falling into the “second category” of invalidity for a
one-year period on account of stable moderate hypertension,
hypertensive retinal angiopathy of both eyes, ischaemic heart
disease, stable stenocardia, diffuse cardiosclerosis, Leriche's
syndrome, cerebral atherosclerosis, phaco-sclerosis (cataracts), and
chronic hepato-cholecystitis (inflammation of the gall bladder and
liver).
From
6 to 18 February 2006 the applicant underwent inpatient treatment in
the Dnipropetrovsk Hospital at SIZO-3 for obliterating
atherosclerosis of the lower limbs, femoropopliteal occlusive disease
(obstruction of the arteries), lower limb ischaemia, stable
stenocardia and diffuse cardiosclerosis, after which he returned to
Penitentiary no. 45 “in a satisfactory condition” and
continued his treatment in the penitentiary hospital.
In
2006 the applicant complained to the prosecution authorities that
although, according to him, he suffered from certain illnesses which
he believed made him eligible for early release, on 17 February 2005
the medical experts had wrongly established his diagnoses because
they were biased against him. He requested another medical
examination to be held in any other region. The prosecution found the
applicant's complaint unsubstantiated. The Dnipropetrovsk Regional
Department of the State Department for Enforcement of Sentences
(hereinafter “the SDES”) offered him the opportunity to
undergo another medical examination by independent doctors in the
Dnipropetrovsk region, which he refused.
On
18 August 2006 the SDES informed the applicant, following his
request, that there were no medical reasons to seek his early release
before the court and that he was being “provided medical
treatment in accordance with the established diagnoses”. The
applicant commented that it was not the medical treatment that he was
complaining about, but the alleged inaccuracy of his medical
diagnoses, due to which he had not been qualified for early release
on health grounds.
According
to the information provided by the applicant, in 2008 the prison
doctors treated him for atherosclerosis of the lower limbs with
nicotinic acid injections, which he found to be of little help. The
applicant alleged that the treatment was insufficient and therefore,
following his release in September 2008, he was in need of
surgery.
On
1 October 2008 a Doppler sonography of the applicant's lower limbs
was performed in the Chernigiv Hospital no. 2, which diagnosed him
with blockage of the left and right iliac arteries.
D. The proceedings before the Court
On 29 December 2005 the applicant wrote to the Court
expressing his intention to lodge an application under Article 34 of
the Convention.
On 18 January 2006 the Registry of the Court provided
him with a blank application form and copies of the explanatory
documents necessary for lodging his application with the Court.
On
13 March 2006 the Registry received from the applicant the
application form dated 3 March 2006, in which he maintained that
he was unable to send copies of all the documents he needed to
substantiate his complaints as the penitentiary authorities had
allegedly refused to provide him with those copies.
In
a letter of 24 March 2006 the Registry of the Court informed the
applicant that under Article 34 of the Convention, State bodies are
under an obligation not to create obstacles to the effective exercise
of the right of individual petition. The letter also stated that the
refusal of the prison administration to provide copies of the
relevant documents could be examined by the Court from the point of
view of compliance of its acts with the obligations of the State
under Article 34 of the Convention. The letter also contained a copy
of Order no. 13 of the SDES of 25 January 2006 “On
Approval of the Instruction on Review of Correspondence of Persons
Held in Penitentiaries and Pre-trial Detention Facilities”.
On
28 April and 24 May 2006 the applicant informed the Court that the
penitentiary authorities had refused to hand the attachment sent by
the Registry of the Court with the letter of 24 March 2006 over to
him. He further stated that he still did not have access to copies of
all the documents he needed.
The
applicant complained about the above to the prosecution authorities.
On
28 September 2006, following the communication by the Court of the
application to the Government, the applicant, at the request of the
prison administration, wrote “an explanatory note”, in
which he noted, inter alia: that starting from “mid
2006” he had been provided with the possibility to copy
documents from his case file by hand; that the attachment sent by the
Registry of the Court on 24 March 2006 had never been served on him;
and that he had no complaints regarding the dispatching of his
correspondence to the Court by the prison authorities.
According
to the applicant, he was able to copy documents from his case file by
hand twice a week for twenty to thirty minutes.
From
15 December 2006 to 24 May 2007 the applicant was represented before
the Court by a lawyer.
On
31 July 2007 the Prosecutor of the Dnipropetrovsk Region found
unsubstantiated the applicant's complaint concerning the seizure by
the prison administration of the attachment sent to him by the Court.
The prosecutor referred to the Prisons' Internal Regulations of
25 December 2003 (see paragraph 41 below), according to
which convicts were entitled to keep copies of verdicts and judicial
rulings. Thus, since the document at issue had been outside that
category, its seizure did not amount to a violation on the part of
the prison administration.
On
12 March 2008 the applicant received the attachment at issue from the
prison administration.
On
the same day the Dnipropetrovsk Regional Prosecutor's Office
reaffirmed its earlier finding that by having seized the above
document, the prison administration had not committed any violation.
E. Alleged ill-treatment of the applicant on
27 October 2006
The
applicant alleged that on 27 October 2006 the prison duty officer had
beaten him with a rubber truncheon, which had resulted in his
hospitalisation in the penitentiary hospital on 2 November 2006.
According to him, the prison doctor had refused to document his
injuries.
F. Alleged malnutrition in Penitentiary no. 60
between 1999 and 2005
In
May 2007 the applicant complained to the SDES that between 1999 and
2005 over 700 prisoners had allegedly died of starvation in
Penitentiary no. 60.
The
Lugansk Regional Department of the SDES replied to the applicant that
his allegation had been investigated and found unsubstantiated.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Privacy of correspondence and exceptions in cases of
prisoners and detainees
The
relevant provisions of the Constitution read as follows:
Article 31
“Everyone is guaranteed privacy of mail, telephone
conversations, telegraph and other correspondence. Exceptions shall
be established only by a court in cases envisaged by law, with the
purpose of preventing crime or ascertaining the truth in the course
of the investigation of a criminal case, if it is not possible to
obtain information by other means.”
Article 113 of the Code on Enforcement of Sentences
(2003), following the amendments introduced to it on 1 December 2005,
stipulates that prisoners are allowed to correspond with relatives,
other persons and organisations. All such correspondence is subject
to automatic monitoring and censorship by the prison administration,
with the following exceptions, provided for in paragraph 4:
“Proposals, applications and complaints addressed
to the Ombudsman of the Verkhovna Rada of Ukraine, to the European
Court of Human Rights, as well as to other relevant international
organisations of which Ukraine is a member or participant, to
authorised persons of those international organisations or to
prosecution authorities, shall not be subject to censorship and shall
be dispatched within twenty four hours.”
The
Instruction on Review of Correspondence of Persons Held in
Penitentiaries and Pre-trial Detention Facilities, approved by
Order no. 13 of the State Department for Enforcement of
Sentences of 25 January 2006, elaborates the above provision as
follows:
“1.5. ... Correspondence of prisoners
and detainees with the Ombudsman of the Verkhovna Rada of Ukraine,
the European Court of Human Rights, as well as with other relevant
international organisations of which Ukraine is a member or
participant, authorised persons of those international organisations
or prosecution authorities, shall not be subject to censorship and
shall be dispatched or handed to the prisoner or detainee within
twenty-four hours. ...
2.4. Prisoners or detainees shall personally
and in the presence of the inspector seal the envelopes with
correspondence addressed to the Ombudsman of the Verkhovna Rada of
Ukraine, the European Court of Human Rights, as well as to other
relevant international organisations of which Ukraine is a member or
participant, to authorised persons of those international
organisations or prosecution authorities. Prisoners or detainees
shall personally and in the presence of the inspector open letters
received from the Ombudsman of the Verkhovna Rada of Ukraine, the
European Court of Human Rights, as well as from other relevant
international organisations of which Ukraine is a member or
participant, from authorised persons of those international
organisations or from prosecution authorities. ...”
The
relevant provisions of the Internal Regulations of Penitentiaries,
approved by Order no. 275 of the State Department for Enforcement of
Sentences dated 25 December 2003, read as follows:
“18. ... Prisoners are entitled ... to
receive and send letters in unlimited numbers. ...
43. The procedure for dispatching
correspondence from prisoners
Prisoners may only dispatch letters and applications via
the penitentiary's administration. There are mail boxes on the
premises of the penitentiary for that purpose, which are checked by
the responsible prison officers on a daily basis. Prisoners in
confinement hand letters for dispatching to the administration.
Letters shall be posted in mail boxes or handed to
representatives of the administration unsealed. ...
Correspondence received or dispatched by prisoners shall
be reviewed.
Proposals, applications and complaints addressed to the
Ombudsman of the Verkhovna Rada of Ukraine, to a prosecutor or to the
European Court of Human Rights shall not be subject to review and
shall be dispatched within twenty-four hours.”
The
Regulations also allow prisoners to keep with them copies of verdicts
and rulings of the courts concerning their case.
B. Prosecutorial supervision of enforcement of
sentences
According
to Article 22 of the Code on Enforcement of Sentences (2003),
prosecutors supervise the enforcement of sentences with a view to
ensuring compliance with the existing legislation.
The
relevant provisions of the Law on the Prosecution Service (1991, as
amended) are summarised in Naumenko v. Ukraine, no. 42023/98,
§ 93, 10 February 2004.
C. Competence and powers of the administrative courts
Pursuant
to paragraph 1 of Article 17 of the Code of Administrative Justice of
6 July 2005 (which entered into force on 1 September 2005),
administrative courts are competent to examine inter alia
claims by individuals against authorities concerning the latter's
decisions, actions or omissions. Its paragraph 2 excludes from the
competence of the administrative courts public-law cases dealt with
by the Constitutional Court of Ukraine, disputes adjudicated under
the criminal procedure, cases concerning administrative offences, and
those concerning the internal activity of corporate entities.
According
to Article 162 of the Code of Administrative Justice,
the administrative court, should it find an administrative claim
substantiated, may inter alia declare the impugned action,
omission or decision unlawful, invalidate the decision in question
and/or oblige the defendant to undertake, or abstain from taking,
certain actions. It may also order the defendant to pay compensation
for the damage caused by the unlawful action, omission or decision.
D. Other relevant legislation
The
relevant extracts from Article 55 of the Constitution of Ukraine read
as follows:
“Human and citizens' rights and freedoms are
protected by the courts.
Everyone is guaranteed the right to challenge in court
the decisions, actions or omissions of bodies exercising State power,
local self-government bodies, officials and officers...
... After exhausting all domestic legal remedies,
everyone has the right of appeal for the protection of his or her
rights and freedoms to the relevant international judicial
institutions or to the relevant bodies of international organisations
of which Ukraine is a member or participant ...”
III. RELEVANT INTERNATIONAL MATERIALS
Article
3 of the European Agreement Relating to Persons Participating in
Proceedings of the European Court of Human Rights reads as follows:
1. The Contracting Parties shall respect the
right of the persons referred to in paragraph 1 of Article 1
of this Agreement to correspond freely with the Commission and the
Court.
2. As regards persons under detention, the
exercise of this right shall in particular imply that:
a) if their correspondence is examined by the
competent authorities, its despatch and delivery shall
nevertheless take place without undue delay and without
alteration;
b) such persons shall not be subject to
disciplinary measures in any form on account of any
communication sent through the proper channels to the Commission
or the Court;
c) such persons shall have the right to
correspond, and consult out of hearing of other persons, with a
lawyer qualified to appear before the courts of the country where
they are detained in regard to an application to the Commission,
or any proceedings resulting therefrom.
3. In application of the preceding
paragraphs, there shall be no interference by a public authority
except such as is in accordance with the law and is necessary in
a democratic society in the interests of national security, for
the detection or prosecution of a criminal offence or for the
protection of health.
THE LAW
I. SCOPE OF THE CASE
The
Court notes that after the case had been communicated to the
respondent Government, the applicant additionally complained about
the alleged unfairness of pension coverage of former prisoners.
In the Court's view, the new complaint does not
constitute an elaboration of the applicant's original complaints to
the Court which were communicated to the respondent Government. The
Court considers that it is not appropriate to deal with this matter
in the context of the present application (see Piryanik
v. Ukraine, no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATIONS OF ARTICLES 1, 3, 6 AND 8 OF
THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 7
A. The complaints under Article 3 of the Convention
The applicant complained under Article 3 of the
Convention that he had been tortured in police custody during the
investigation in 1999. He next complained under the same provision
that he had suffered from diseases incompatible with imprisonment,
while the doctors examining him had established incorrect diagnoses
to make him ineligible for early release on health grounds. He
further complained in this respect about the allegedly insufficient
medical treatment that he was receiving in prison for atherosclerosis
of the lower limbs. Relying on Article 3 of the Convention, the
applicant further alleged that between 1999 and 2005 many prisoners
had died of starvation in Penitentiary no. 60. Finally, he
alleged under this provision that he had been beaten by the prison
duty officer on 27 October 2006.
The Court recalls that Article 3 of the Convention
enshrines one of the most fundamental values of democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim's behaviour (see Labita v. Italy, judgment of 6 April
2000, Reports 2000-IV, § 119).
1. The alleged ill-treatment in police custody in 1999
The Court notes that, according to the information
provided by the applicant, he raised this complaint before the
domestic authorities only in 2007 (see paragraph 12 above), that is
after he had first raised it before the Court. He was informed by the
prosecutor that his complaint had been lodged too late for an
investigation to be set up. The Court finds that, if no domestic
remedies lay in respect of the complaint, the applicant has failed to
comply with the six-month time limit set out in Article 35 § 1
of the Convention. Alternatively, if remedies existed, the applicant
failed to pursue them within a reasonable time, thereby depriving the
State of the possibility to address and remedy them.
It follows that this part of the application must be
rejected pursuant to Article 35 §§ 1 and 4
of the Convention.
2. The applicant's diagnoses and medical treatment
The Court notes that Article 3 of the Convention
cannot be construed as laying down a general obligation to release
detainees on health grounds. It rather imposes an obligation on the
State to protect the physical well-being of persons deprived of their
liberty (see Khudobin v. Russia, no. 59696/00, § 93,
ECHR 2006 XII (extracts)). It accepts that the medical
assistance available in prison hospitals may not always be of the
same standard as in the best medical institutions for the general
public. Nevertheless, the State must ensure that the health and
well-being of detainees are adequately secured by, among other
things, providing them with the requisite medical assistance (see
Kudła v. Poland [GC], no. 30210/96, § 94,
ECHR 2000 XI; see also Hurtado v. Switzerland, judgment
of 28 January 1994, Series A no. 280-A, opinion of the Commission, §
79; and Kalashnikov v. Russia, no. 47095/99, §§
95 and 100, ECHR 2002 VI).
Article 3 may require the release of a detainee only
in exceptional cases and under certain conditions, where his or her
health is absolutely incompatible with detention (see Papon v.
France (no. 1) (dec.), no. 64666/01, ECHR 2001-VI, and
Priebke v. Italy (dec.), no. 48799/99, 5 April
2001). There are three particular elements to be considered in
relation to the compatibility of an applicant's health with his stay
in detention: (a) the medical condition of the prisoner, (b) the
adequacy of the medical assistance and care provided in detention;
and (c) the advisability of maintaining the detention measure in view
of the state of health of the applicant (see Mouisel v. France,
no. 67263/01, §§ 40-42, ECHR 2002 IX).
Turning to the present case, the Court notes that the
evidence from various medical sources confirmed that the applicant
had several serious medical conditions which required regular medical
care. However, nothing suggests that his illnesses were in principle
incompatible with detention. The penitentiary had a medical
unit, where the applicant was placed when required, and his
conditions could to a certain extent be treated in that unit. When
the need arose, he was transferred to another hospital in
Dnipropetrovsk, where he received supplementary treatment (see
paragraph 17 above). The Court notes that the applicant did not
dispute or criticise the comment of the prison administration of
August 2006, according to which he was being provided with medical
treatment in accordance with the established diagnoses (see paragraph
19 above). His disagreement with the diagnoses issued by the
prison doctors stems not from an allegation of inadequacy of the
medical treatment, but rather from his frustration over the fact that
they did not make him eligible for potential early release.
In so far as the applicant alleged that the treatment
for atherosclerosis of the lower limbs provided to him in prison had
been insufficient, the Court notes that he had apparently suffered
from this condition in 1999, namely, before he had been imprisoned
(see paragraph 15 above). The Court finds it difficult to
establish whether and to what extent the applicant's health
deteriorated in prison and to what extent that deterioration was due
to the standard of health care provided as opposed to the applicant's
aging and the natural course of his illness. It notes, however, that
the applicant did receive some specific treatment for the condition
at issue and that he objected to being examined by independent
doctors within the Dnipropetrovsk region. Neither did the applicant
mention in his submissions before the Court that he had ever
complained to the prison authorities about the medical treatment
provided to him or that he had sought any modification to it.
The Court is not in a position to decide whether the
choice of treatment appropriately reflected the applicant's needs and
whether he could have obtained better treatment in civil hospitals.
However, in the light of the foregoing and having regard to all the
materials of the case before it, the Court sees no indication that
the applicant's treatment for atherosclerosis of the lower limbs
provided to him in prison was deficient enough to be considered in
breach of the safeguards of Article 3 of the Convention.
It follows that the applicant's complaints about the
alleged incompatibility of his state of health with imprisonment and
inadequacy of the medical treatment for one of his illnesses are
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
3. Alleged malnutrition in Penitentiary no. 60
in 1999-2005
The
Court notes that the applicant neither complained about his own
alleged malnutrition while held in Penitentiary no. 60 nor provided
any evidence or referred to any specific facts in substantiation of
his allegation.
Therefore,
the Court rejects this complaint as manifestly ill-founded pursuant
to Article 35 §§ 3 and 4 of the Convention.
4. Alleged ill-treatment of the applicant on 27 October
2006
According
to the Court's well-established case-law, firstly, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3, that being assessed on the basis of all the
circumstances of the case, such as the nature and context of the
treatment or punishment, the manner and method of its execution, its
duration and its physical or mental effects; and, secondly,
allegations of ill-treatment must be supported by appropriate
evidence (see Mamatkulov and Askarov v. Turkey [GC],
nos. 46827/99 and 46951/99, § 70, ECHR 2005 I)
In
the present case, however, the applicant neither referred to any
specific facts surrounding the alleged incident nor corroborated his
complaint with any evidence.
That
being so, the Court finds this complaint manifestly ill-founded and
rejects it in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. The complaint under Article 8 of the Convention
The
applicant complained that the authorities of Penitentiary no. 45 had
interfered with the letter from the Court's Registry of 24 March 2006
addressed to him, having opened it and having withheld its
attachment.
The Court finds that this complaint, in addition to
raising an issue under Article 34 (see paragraphs 90-93 below),
also falls to be examined under Article 8 of the Convention,
which reads, in so far as relevant, as follows:
“1. Everyone has the right to respect for
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.”
In the Government's submission, the applicant had not
exhausted domestic remedies. They submitted that, following the
introduction of the amendments to the Ukrainian legislation in
December 2005 and January 2006, by which any censorship of
prisoners' correspondence with the Court had been prohibited, the
applicant had had effective domestic remedies in respect of his
allegation about the interference with the Court's letter to him, but
had failed to make use of any of them.
In
their submissions, made before the prosecutor dealt with the
applicant's complaints in July 2007 and March 2008 (see paragraphs
31-33 above), the Government noted that the applicant could have
raised his complaint before the prosecution authorities under Article
22 of the Code on Enforcement of Sentences (see paragraph 42 above)
They considered that the applicant could also have brought an action
directly before the administrative court under Article 55 of the
Constitution and Article 17 of the Code of Administrative
Justice (see paragraphs 46 and 44 above).
The
applicant disagreed, having noted that the remedies the Government
had referred to were neither effective nor available in practice.
The
Court reiterates that the purpose of Article 35 of the
Convention is to afford the Contracting States the opportunity of
preventing or putting right the violations alleged against them
before those allegations are submitted to the Convention institutions
(see, for example, Hentrich v. France, judgment of 22
September 1994, Series A no. 296-A, p. 18, § 33). Thus the
complaint intended to be made subsequently to the Court must first
have been made - at least in substance - to the appropriate domestic
body in compliance with the formal requirements and time-limits laid
down in domestic law (see Cardot v. France, judgment of
19 March 1991, Series A no. 200, p. 18,
§ 34). However, only effective remedies are required to be
exhausted. The remedy must be “effective” in practice as
well as in law (see, for example, İlhan v. Turkey [GC],
no. 22277/93, § 97, ECHR 2000-VII). The term
“effective” is also considered to mean that the remedy
must be adequate and accessible (see Vidas v. Croatia,
no. 40383/04, § 34, 3 July 2008, and Paulino
Tomás v. Portugal (dec.), no. 58698/00,
ECHR 2003-VIII). Moreover, to be effective, a remedy must be
independent of any discretionary action by the authorities and must
be directly available to those concerned (see Gurepka v. Ukraine,
no. 61406/00, § 59, 6 September 2005).
In the area of the exhaustion of domestic remedies,
there is a distribution of the burden of proof. It is incumbent on
the Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success (see Menteş
and Others v. Turkey, 28 November 1997, § 57, Reports
1997 VIII). Once this burden of proof has been satisfied, it
falls to the applicant to establish that the remedy advanced by the
Government was in fact exhausted, or was for some reason inadequate
and ineffective in the particular circumstances of the case, or that
there existed special circumstances absolving him or her from this
requirement (see e.g. Dankevich v. Ukraine, no. 40679/98,
§ 107, 29 April 2003). A mere doubt as to the
prospect of success is not sufficient to exempt an applicant from
submitting a complaint to the competent court (see, for example,
Plyatsevyy v. Ukraine (dec.), no. 8783/04, 25 November
2008).
Turning
to the present case, the Court notes that in order to exhaust either
of the two remedies advanced by the Government, the applicant should
have raised his complaint before the domestic courts – either
by first complaining to the prosecutor, which he did, and then
challenging his response, if necessary, to the domestic courts (see
paragraphs 43 and 44 above), which he failed to do; or by applying
directly to the administrative court with a complaint against the
prison administration (see paragraph 44 above), which he also failed
to do. Under both scenarios it would ultimately be the courts' task
to decide whether the administration's action was in compliance with
the law.
The
Court accepts that there are no detailed procedures envisaged for
raising this particular type of complaints before the domestic courts
and that the Government failed to cite any examples of their handling
in practice. However, the question fell within the scope of paragraph
1 of Article 17 of the Code of Administrative Justice of 6 July
2005 (see paragraph 44 above), which defines the jurisdiction of
administrative courts, and there is no suggestion that the dispute in
the present case was excluded by paragraph 2 of that provision.
Therefore, the Court considers that in the circumstances of this case
there are no prima facie doubts as to the accessibility of
this remedy in practice, which might be the case should the
jurisdiction delimitation lack clarity. The Court further notes that
the administrative courts had sufficient powers to recognise the
impugned interference with the applicant's correspondence unlawful,
to oblige the prison administration to abstain from such
interferences in the future and to charge compensation for the damage
should any be found. It follows that this remedy was capable of
providing redress in respect of the applicant's complaint and offered
reasonable prospects of success.
In
the light of the foregoing considerations, the Court concludes that
there is no evidence to show that in this particular case, had the
applicant raised his complaint before the administrative courts,
either following his complaint to the prosecutor or directly, this
domestic remedy would have been ineffective.
Accordingly,
the applicant's complaint under Article 8 of the Convention must
be rejected for non-exhaustion of domestic remedies, in accordance
with Article 35 §§ 1 and 4 of the
Convention.
C. The complaints under Articles 1 and 6 § 1 of
the Convention and Article 2 of Protocol No. 7
The
applicant complained under Article 1 of the Convention that the
Ukrainian authorities had allegedly deprived him of Ukrainian
citizenship. He next complained under Article 6 § 1 of the
Convention that his conviction had been unfair. Finally, the
applicant complained under Article 2 of Protocol No. 7 that
he had had no possibility to challenge the verdict against him,
referring to the lack of an extraordinary review of his case.
However,
in the light of all the material before it, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 34 OF THE CONVENTION
The applicant complained that the prison authorities
had hindered him in bringing his case before the Court by withholding
a document sent to him by the Court. He further alleged in this
connection that the authorities had failed to assist him in obtaining
copies of the documents necessary for lodging his application.
The above complaints fall to be examined under Article
34 of the Convention, which reads 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. Submissions before the Court
In the Government's submissions, confined to the
last-mentioned complaint of the applicant under this heading, the
refusal of the prison authorities to provide him with copies of the
documents which he had deemed necessary for lodging his application
did not hinder the effective exercise of his right of petition under
Article 34 of the Convention. They contended that the authorities had
provided the applicant with access to the case file and enabled him
to copy documents by hand, being under no obligation to bear the
expenses of photocopying those documents for him.
The applicant maintained that the prison authorities
had violated the confidentiality of his correspondence with the Court
and had seized a document sent to him by the Court, which had
contained information he considered important. He further submitted
that his access to the case file had been delayed, unreasonably
limited and fully dependant on the discretional power of the prison
administration. Finally, the applicant contested the Government's
argument as regards the State's refusal to shoulder the burden of
expenses for photocopying documents, having noted that he had not
been provided with the possibility to make photocopies even at his
own expense.
B. The Court's assessment
1. General principles
According to the Court's case-law, a complaint under
Article 34 of the Convention is of a procedural nature and therefore
does not give rise to any issue of admissibility under the Convention
(see Cooke v. Austria, no. 25878/94, § 46, 8
February 2000, and Ergi v. Turkey, judgment of 28 July
1998, Reports 1998-IV, § 105).
The Court reiterates that Article 34 of the
Convention imposes an obligation on a Contracting State not to hinder
the right of individual petition. While the obligation imposed is of
a procedural nature, distinguishable from the substantive rights set
out in the Convention and Protocols, it flows from the very essence
of this procedural right that it is open to individuals to complain
of its alleged infringements in Convention proceedings (see Manoussos
v. the Czech Republic and Germany (dec.), no. 46468/99,
9 July 2002). The Court also underlines that the undertaking not
to hinder the effective exercise of the right of individual
application precludes any interference with the individual's right to
present and pursue his complaint before the Court effectively (see,
among other authorities and mutatis mutandis, Akdivar and
Others v. Turkey, 16 September 1996, Reports 1996-IV,
§ 105; Kurt v. Turkey, 25 May 1998, Reports
1998-III, § 159; Tanrikulu v. Turkey [GC], no.
23763/94, ECHR 1999-IV; Şarlı v. Turkey, no.
24490/94, §§ 85-86, 22 May 2001; and Orhan v.
Turkey, no. 25656/94, 18 June 2002).
The Court further recalls that it is of the utmost
importance for the effective operation of the system of individual
petition, guaranteed by Article 34 of the Convention, that applicants
or potential applicants should be able to communicate freely with the
Court without being subjected to any form of pressure from the
authorities to withdraw or modify their complaints (see the cited
above paragraphs of the judgments of Akdivar and Others and
Kurt cases). In this context, “pressure” includes
not only direct coercion and flagrant acts of intimidation, but also
other improper indirect acts or contacts designed to dissuade or
discourage applicants from pursuing a Convention complaint (see the
above-mentioned Kurt and Şarlı cases, §§ 160
and 164, and §§ 85-86 respectively).
The Court emphasises the importance of respecting the
confidentiality of the Court's correspondence with applicants since
it may concern allegations against prison authorities or prison
officials. The opening of letters from the Court or addressed to it,
with or without reading their contents, undoubtedly gives rise to the
possibility that it may conceivably, on occasion, also create the
risk of reprisals by prison staff against the prisoner concerned. The
opening of letters by prison authorities can have an intimidating
effect on applicants and therefore hinder them in bringing their
cases to the Court (see Klyakhin v. Russia, no. 46082/99,
§§ 118-119, 30 November 2004).
The Court further notes that withholding certain
enclosures from correspondence addressed to applicants from the Court
may deprive them of obtaining information essential for the effective
pursuance of their applications (see, mutatis mutandis,
Ponushkov v. Russia, no. 30209/04, 6 November 2008).
The Court also considers that applicants who are
detained or serving their sentences are in a particularly vulnerable
position, as they are dependent in their correspondence with the
Court - and with the rest of the outside world – on the prison
administration (see, for example, Cotleţ v. Romania,
no. 38565/97, § 71, 3 June 2003).
2. Application of those principles to the present case
The Court observes that the applicant's complaints
concern two issues: the withholding by the prison authorities of a
document sent to him by the Court, and their alleged failure to
provide him with copies of certain documents in support of his
application. The Court will consider them separately.
(a) The withholding by the prison
authorities of the enclosure to the Court's letter to the applicant
It is undisputed that the prison administration opened
the Court's letter to the applicant dated 24 March 2006, withheld the
enclosure thereto and handed it over to the applicant on
12 March 2008, that is, with a delay of two years (see
paragraphs 26 and 32 above). The Court notes that the aforementioned
interference ran counter to the express wording of Article 113
of the Code on Enforcement of Sentences further elaborated in Order
no. 13 of the SDES of 25 January 2006, according to
which the correspondence of detainees with the Court had a privileged
status (see paragraphs 38 and 39 above).
The Court further notes that the withheld enclosure,
which formed part of the “correspondence” from the Court
to the applicant, contained a copy of a public, domestic legal text
which dealt with the status of prisoners' correspondence with the
Court. It was intended to provide the applicant, who was not legally
represented at the time, with a basic knowledge of the domestic law
in that domain.
The Court considers retention of an enclosure to a
letter from the Court as such incompatible with the safeguards
of Article 34 of the Convention, regardless of the contents of
the withheld document or its practical implications for the
applicant's communication with the Court.
It follows that Ukraine has failed to comply with its
obligations under Article 34 of the Convention with respect
of the withholding by the prison authorities of the enclosure to the
Court's letter to the applicant.
(b) The refusal of the prison authorities
to provide the applicant with copies of documents relevant to his
application before the Court
The Court notes that the applicant did not refer to
any specific documents which he had intended to submit in support of
his application before the Court but to which he was denied access or
the possibility to copy. The Court also observes that it never
requested the applicant to submit any particular documents which
would be required for the examination of his case (see, mutatis
mutandis, Metelitsa v. Russia (dec.), no. 33132/02,
28 April 2005).
While the Court is not in a position to develop an
informed opinion about the applicant's access to the case file and to
copying facilities, if any existed, before April 2006, it finds
it to be of no consequence for his application before the Court.
In so far as the applicant complained about the
refusal of the prison authorities to provide him with photocopies of
documents from his case file and the fact that he had had to copy
them by hand, the Court notes that the obligation of the State not to
hinder the right of individual petition does not automatically mean
that it has a duty to provide applicants with copies of all or any
desired documents or to furnish them with the technical facilities of
their choice to make their own copies (see Kornakovs
v. Latvia, no. 61005/00, §§ 171-174,
15 June 2006). The Court does not exclude that a
situation could arise where such a refusal, in conjunction with other
specific circumstances, such as, for example, confinement of an
applicant in the absence of a representative, would render the
substantiation of their applications before the Court deficient and
thus impair the effectiveness of the exercise of their right of
individual petition (see Iambor
v. Romania (no. 1), no. 64536/01,
§§ 216-217, 24 June 2008, and Gagiu
v. Romania, no. 63258/00,
§§ 93-99, 24 February 2009).
This has not been the case with this application, where the applicant
was provided access, albeit with some delay, to the case file and was
eventually able to submit to the Court all the documents he deemed to
be of relevance, while the Registry of the Court, in turn, never
indicated a need for any such documents for the examination of the
application.
In the light of the foregoing, the Court finds that
the refusal of the prison administration to provide the applicant
with photocopies of documents from his case file did not amount to a
hindrance of the exercise of his right of individual petition.
Accordingly, Ukraine has not failed to comply with its obligations
under Article 34 of the Convention with respect to this
complaint.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
The applicant did not specify any claims for just
satisfaction. The Court makes no award in this respect.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Articles 1, 3, 6
and 8 of the Convention and Article 2 of Protocol No. 7 inadmissible;
2. Holds that Ukraine has failed to comply with its
obligations under Article 34 of the Convention with respect to
the withholding by the prison authorities of the enclosure of the
Court's letter to the applicant;
3. Holds that Ukraine has not failed to
comply with its obligations under Article 34 of the Convention
with respect to the refusal of the prison authorities to provide the
applicant with copies of documents for his application before the
Court.
Done in English, and notified in writing on 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
