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TROSIN v. UKRAINE - 39758/05 [2012] ECHR 331 (23 February 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/331.html
Cite as:
[2012] ECHR 331
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FIFTH
SECTION
CASE OF TROSIN v. UKRAINE
(Application
no. 39758/05)
JUDGMENT
STRASBOURG
23
February 2012
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 Trosin v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Ann Power-Forde,
Ganna
Yudkivska,
André Potocki, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 17 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 39758/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Oleg Anatolyevich
Trosin (“the applicant”), on 25 October 2005.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
The
applicant alleged, in particular, that restrictions on family visits
during his post-conviction detention had been disproportionate and
that the prison authorities had monitored his correspondence with the
Court.
On
16 November 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1968 and is currently serving a life sentence
in prison.
A. Criminal proceedings against the applicant and
related issues
On
26 August 2004 the applicant was arrested on suspicion of murder.
On
28 August 2004 the Prymorskyy District Court of Odessa (“the
District Court”) ordered the applicant to be placed in
pre-trial detention for two months. The applicant was placed in the
Odessa no. 21 Pre-Trial Detention Centre (“the Odessa SIZO”).
On
20 October and 17 November 2004 the District Court extended the
applicant’s pre-trial detention to three and four months
respectively.
On
24 December 2004 and 26 January 2005 the Odessa Regional Court of
Appeal (“the Court of Appeal”) extended the applicant’s
pre-trial detention to five and six months respectively.
The
applicant was not present at those hearings and he was allegedly not
given the investigator’s submissions so that he could prepare
his objections.
According
to the applicant, in the course of investigation he was ill treated,
with the purpose of making him confess to the murder.
On
24 February 2005 the case was referred to the Court of Appeal for
trial.
On
29 April 2005 the Court of Appeal, acting as a court of first
instance, found, inter alia, that
the applicant and two co-defendants had committed murder with
particular cruelty and for financial gain. The court sentenced the
applicant to life imprisonment. The judgment was based on various
pieces of evidence including an acknowledgment of guilt by the
applicant and other defendants during the trial.
After
the hearing the applicant was handcuffed and escorted to the high
security wing of the Odessa SIZO.
On
4 October 2005 the Supreme Court upheld the judgment of 29 April
2005, following which it was made final. For the period of
consideration of the case by the Supreme Court the applicant was
detained in Kyiv no. 13 Pre-Trial Detention Centre, where he was
allegedly not provided with sufficient facilities, such as a table
and chair, to prepare his defence.
B. Post-conviction applications by the applicant
Following
the Supreme Court’s decision of 4 October 2005 the applicant
repeatedly submitted applications to have his case reviewed on
grounds of exceptional circumstances. He also asked the authorities
to provide him with a lawyer to assist him with the preparation of
these applications. All his applications were rejected as
unsubstantiated; a lawyer was not provided because the criminal
proceedings were already finished.
On
several occasions the applicant requested copies of certain material
from his criminal case file. The requests were granted, but with
delays.
In
2008 the applicant instituted three separate sets of court
proceedings against, respectively, the judge who had presided over
his criminal case before the first-instance court, the Supreme Court
chamber on criminal cases, and the General Prosecutor, claiming that
he had been unfairly convicted and that his applications for review
of his case on grounds of exceptional circumstances had been
arbitrarily rejected. All these proceedings are pending.
C. Family visits and correspondence during detention
According
to the applicant, he was not allowed family visits during his
pre-trial detention.
During
his post-conviction detention until 16 February 2010 the applicant
was allowed to see his relatives no more than once every six months.
Subsequently, he was granted family visits once every three months.
The
visits lasted no longer than four hours. No more than three adult
visitors could be present at once. The applicant maintains relations
with his wife, mother, adult brother, and his son born in 1992.
In
February 2010, upon arrival for the visit, one of his four relatives
was not admitted to see the applicant because of the limitation on
the maximum number of adults per visit. Since then, one person out of
the four has had to be excluded when planning a visit to the
applicant.
During
the meetings the applicant communicated with the visitors via glass
partition. The applicant’s conversations with the visitors were
listened to by a prison officer.
On
1 February 2006 the applicant sent a letter to the Court, the first
page of which had been stamped by the detention facility.
Up
to October 2006 the applicant’s letters to the Court were
accompanied by covering letters from the detention facility briefly
stating the nature of the applicant’s submissions.
II. RELEVANT DOMESTIC LAW
A. Enforcement of Sentences Code of 11 July 2003 as
worded at the relevant time
In
accordance with Articles 110 and 151 of the Code, short visits from
relatives and other persons may last no longer than four hours. Such
meetings must be held in the presence of a
prison officer. Until the amendment of 21 January 2010 (which
came into effect on 16 February 2010), life prisoners were entitled
to short visits from their relatives and other persons once every six
months. Since that amendment, life prisoners have been entitled to
such visits once every three months.
Article
113 of the Code, following amendments made to it on 1 December
2005, stipulated that prisoners’ correspondence was to be
subject to automatic monitoring by the prison staff except for
proposals, applications and complaints addressed to the National
Ombudsman, the European Court of Human Rights, other relevant
international organisations of which Ukraine is a member or
participant, authorised persons of those international organisations,
or prosecution authorities.
B. Code of Administrative Justice of 6 July 2005 (in
force from 1 September 2005)
The relevant provisions of the Code read as follows:
Article 2. Role of the administrative
justice system
“1. The role of the administrative
justice system shall be the protection of the rights, freedoms and
interests of physical persons, and the rights and interests of legal
entities in the field of public-law relations, from violations by
public authorities ...
2. Any decisions, actions or inaction on the
part of public authorities may be appealed against to administrative
courts, except for cases in which the Constitution and laws of
Ukraine provide for a different procedure of judicial appeal against
such decisions, actions or inactivity ...
3. In cases where the decisions, acts or
inactivity of a public authority are being challenged, the courts
shall review whether [the impugned decisions and acts] have been
adopted or taken:
...
6) reasonably;
...
8) proportionately, in particular, by
ensuring a necessary balance between any possible unfavourable
outcome for an individual’s rights, freedoms and interests and
the aims the impugned decision or action seeks to achieve;
...”
Article 8. The rule of law
“1. When considering a case, a court
shall be governed by the principle of the rule of law, which
provides, in particular, that a human being and his or her rights and
freedoms shall be the highest social value and shall determine the
essence and orientation of the activity of the State.
2. A court shall apply the principle of the
rule of law by taking into account the case law of the European
Court of Human Rights. ...”
Article 17. Jurisdiction of administrative
courts in deciding administrative cases
“1. The jurisdiction of the
administrative courts shall cover legal relationships arising in the
course of the exercise of public administrative powers by ... public
authorities and [legal relationships arising] in the course of the
public formation of a ... public authority by way of an election or
referendum.
2. The jurisdiction of the administrative
courts shall cover public-law disputes, in particular:
1) disputes between physical persons or legal
entities and ... public authorities concerning the decisions of the
latter (normative legal acts or legal acts of individual effect), or
their actions or inactivity; ...”
C. Internal Rules for Establishments Enforcing
Sentences approved by the Order of the State Department for the
Enforcement of Sentences of 25 December 2003 (“the Prison
Rules”)
In
accordance with paragraph 47 of the above-mentioned rules, prisoners
are entitled to visits from no more than three adults at once, who
may also be accompanied by the prisoner’s under-age children.
Annex
17 of the Prison Rules provides for two options of equipping a room
for short meetings between prisoners and visitors. According to the
first option the meeting room is to be equipped with tables along the
room separated by free space of 120 centimetres in width. The chairs
for visitors are not to exceed ten items; stools for the prisoners
are to be fixed to the floor.
According
to the second option, a meeting room is to be equipped with booths 80
centimetres in width and 100 centimetres in length. One or two booths
are to be of 140 centimetres to accommodate two visitors or visitors
with children coming to see the same prisoner. The visitors’
booths and the prisoners’ booths are to be separated by glass
partitions. The booths are to be equipped with a loudspeaker and a
telephone handset. The table of the supervising officer is to be
equipped with a device for listening to the conversations in the
booths.
On 31
December 2003 the Ministry of Justice, having reviewed the lawfulness
of the Prison Rules, included them in the unified register of
normative legal acts.
III. RELEVANT INTERNATIONAL MATERIAL
A. Recommendation Rec(2006)2 of the Committee of
Ministers to member states on the European Prison Rules, adopted on
11 January 2006
The
relevant extract from the Recommendation read as follows:
“Part II Conditions of imprisonment
Contact with the outside world
24.1. Prisoners shall be allowed to
communicate as often as possible by letter, telephone or other forms
of communication with their families, other persons and
representatives of outside organisations and to receive visits from
these persons.
24.2. Communication and visits may be subject
to restrictions and monitoring necessary for the requirements of
continuing criminal investigations, maintenance of good order, safety
and security, prevention of criminal offences and protection of
victims of crime, but such restrictions, including specific
restrictions ordered by a judicial authority, shall nevertheless
allow an acceptable minimum level of contact.
24.3. National law shall specify national and
international bodies and officials with whom communication by
prisoners shall not be restricted.
24.4. The arrangements for visits shall be
such as to allow prisoners to maintain and develop family
relationships in as normal a manner as possible.
24.5. Prison authorities shall assist
prisoners in maintaining adequate contact with the outside world and
provide them with the appropriate welfare support to do so. ”
B. 11th General Report of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) of 3 September 2001 [CPT/Inf
(2001) 16]
The
relevant extract from the Report read as follows:
“33. In many European countries the
number of life-sentenced and other long-term prisoners is on the
increase. During some of its visits, the CPT has found that the
situation of such prisoners left much to be desired in terms of
material conditions, activities and possibilities for human contact.
Further, many such prisoners were subject to special restrictions
likely to exacerbate the deleterious effects inherent in long-term
imprisonment; examples of such restrictions are permanent separation
from the rest of the prison population, handcuffing whenever the
prisoner is taken out of his cell, prohibition of communication with
other prisoners, and limited visit entitlements. The CPT can see no
justification for indiscriminately applying restrictions to all
prisoners subject to a specific type of sentence, without giving due
consideration to the individual risk they may (or may not) present.
Long-term imprisonment can have a number of
desocialising effects upon inmates. In addition to becoming
institutionalised, long-term prisoners may experience a range of
psychological problems (including loss of self-esteem and impairment
of social skills) and have a tendency to become increasingly detached
from society; to which almost all of them will eventually return. In
the view of the CPT, the regimes which are offered to prisoners
serving long sentences should seek to compensate for these effects in
a positive and proactive way.
The prisoners concerned should have access to a wide
range of purposeful activities of a varied nature (work, preferably
with vocational value; education; sport; recreation/association).
Moreover, they should be able to exercise a degree of choice over the
manner in which their time is spent, thus fostering a sense of
autonomy and personal responsibility. Additional steps should be
taken to lend meaning to their period of imprisonment; in particular,
the provision of individualised custody plans and appropriate
psycho-social support are important elements in assisting such
prisoners to come to terms with their period of incarceration and,
when the time comes, to prepare for release. Further, the negative
effects of institutionalisation upon prisoners serving long sentences
will be less pronounced, and they will be better equipped for
release, if they are able effectively to maintain contact with the
outside world.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that during his post-conviction detention he had
been allowed family visits only once every six months lasting a
maximum of four hours, with no more than three adult visitors at
once. He relied on Article 8 of the Convention which reads as
follows:
“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. Admissibility
The
Government submitted that the applicant had not exhausted domestic
remedies as he had not challenged before the administrative courts
the lawfulness of the Prison Rules imposing restrictions on family
visits for prisoners.
The
applicant claimed that this remedy was not effective as it would have
taken too much time.
The
Court notes that the applicant’s complaint concerns several
types of restriction on his contacts with his family. Inasmuch as the
restrictions were imposed by the Enforcement of Sentences Code
(frequency and length of the visits), a challenge against the Prison
Rules would not address the measures in question. As regards the
specific restrictions imposed by the Prison Rules which were not
expressly mentioned in the Enforcement of Sentences Code (the number
of persons allowed to be present simultaneously during prison visits
and the manner of permitted communication), those were further
restrictions aimed at organising the family visits from the practical
point of view. The Prison Rules were adopted by the State Department
for the Enforcement of Sentences, which was acting within its
discretionary powers, and their lawfulness was reviewed by the
Ministry of Justice (see paragraph 29). Having reviewed the Prison
Rules, the Ministry of Justice concluded that the restrictions
introduced thereby were not in conflict with any superior provisions
of domestic law. It is true that the administrative courts are
generally empowered to review the proportionality of an act
complained of (Articles 2 and 17 of the Code of Administrative
Justice) and they are governed by the principle of the rule of law as
interpreted by the Court (Article 8 of the Code of Administrative
Justice). Still, these powers have not been sufficiently tested in
cases where the administrative courts are expected to assess the
proportionality (and not the legality) of a normative act which has
been adopted within the discretionary powers of a regulatory body.
The Government have not supplied any comparable examples from the
domestic jurisprudence suggesting that a prisoner would have any
prospect of success in challenging the proportionality of secondary
legislation adopted within a regulatory body’s discretionary
power which did not conflict with any superior law (as earlier
established by the Ministry of Justice), and that such a judicial
action would offer appropriate individual redress.
The
Court therefore dismisses the Government’s objection as to
non-exhaustion of domestic remedies. It notes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that the complaint is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties’ submissions
The
applicant submitted that the restrictions on family visits as to
their frequency, length and the number of persons allowed at a time
had been excessive. The amendments of 16 January 2010 to the
Enforcement of Sentences Code, changing the frequency of family
visits from six months to three months, did not resolve the issue.
Moreover, there had been no privacy as the visits had been observed
by a prison officer, and communication had been possible only by
telephone and through a glass partition.
The
Government admitted that there had been an interference with the
applicant’s right to respect for his family life. However, that
interference had been lawful and pursued the legitimate aim of
ensuring security and safety in prison and preventing crimes. After
the amendments of 16 January 2010 to the Enforcement of Sentences
Code, the applicant was entitled to one family visit per three
months. Given that the applicant had been sentenced to life
imprisonment, the restrictions were justified. Moreover, the limited
number of persons allowed to visit a detainee at one time had been
further justified by the limited capacity of the meeting rooms and
booths.
2. The Court’s assessment
The Court reiterates that detention or any other
measure depriving a person of his liberty entails inherent
limitations on his private and family life. However, it is an
essential part of a detainee’s right to respect for family life
that the authorities enable him or, if need be, assist him, in
maintaining contact with his close family. Such restrictions as
limitations imposed on the number of family visits, supervision over
those visits and, if so justified by the nature of the offence,
subjection of a detainee to a special prison regime or special visit
arrangements constitute an interference with his rights under Article
8 but are not, by themselves, in breach of that provision.
Nevertheless, any restriction of that kind must be applied “in
accordance with the law”, must pursue one or more of the
legitimate aims listed in paragraph 2 and, in addition, must be
justified as being “necessary in a democratic society”
(see Moiseyev v. Russia, no. 62936/00, § 246, 9 October
2008).
In the present case the applicant complained of the
following restrictions on family visits as established by domestic
law: (a) the frequency and length of the visits; (b) the
number of persons allowed to be present at one visit; (c) the
manner of conducting the visits. The Court notes that those
restrictions constituted an interference with the applicant’s
right to respect for family life. It further accepts that the
interference was lawful as it was based on the relevant provisions of
the Enforcement of Sentences Code and the Prison Rules (see
paragraphs 26 and 29 above). The interference also pursued “a
legitimate aim” within the meaning of paragraph 2 of Article 8
of the Convention, that of preventing disorder or crime. It remains
to be determined whether it was “necessary in a democratic
society”.
In
this regard the Court notes that until 16 February 2010 the applicant
was entitled under the domestic law to one meeting with his family
every six months. After that date he was allowed one visit per three
months. The visits could last no longer than four hours.
The Court notes that no issue arose under the
Convention where a detainee was restricted to not more than two
family visits per month by the provisional application of a special
regime. However, in that case the domestic authorities and the Court
paid regard to particular and specific considerations underpinning
such restrictions (see Messina v. Italy (no. 2), no.
25498/94, §§ 62-74, ECHR 2000 X). Meanwhile, in the
present case the relevant provisions of domestic law introduced
automatic restrictions on frequency and length of visits for all life
prisoners and did not offer any degree of flexibility for determining
whether such severe limitations were appropriate or indeed necessary
in each individual case even though they were applied to prisoners
sentenced to the highest penalty under the criminal law. The Court
considers that regulation of such issues may not amount to inflexible
restrictions and the States are expected to develop their
proportionality assessment technique enabling the authorities to
balance the competing individual and public interests and to take
into account peculiarities of each individual case (see, mutatis
mutandis, Dickson v. the United Kingdom [GC],
no. 44362/04, §§ 82-85, ECHR 2007 V).
Making
its own assessment of the individual situation at hand, the Court
does not discern any particular and specific circumstances which
would point to a necessity to limit the applicant’s meetings
with his family to once every six months for a period of more than
four years. In the context of quantitative assessment, the Court also
notes that those rare visits were further limited by their short
duration.
The
Court further notes that the amendment to the legislation of
21 January 2010 (see paragraph 26 above) has improved the
situation with the frequency of family visits to life prisoners.
However, the new frequency of the family visits is still
automatically applied to all life prisoners without involving the
assessment of the necessity of such restriction in the light of
particular circumstances of each prisoner.
Furthermore,
under the applicable domestic rules, the applicant could see only
three adults per visit, even though he was maintaining contact with
four members of the family: his mother, wife, brother and son born in
1992. The restriction meant that after the applicant’s son
reached the full age (in 2010) one member of the family had to be
excluded from the meeting given the maximum number of adult visitors
allowed to see the applicant at one time. Justifying this unalterable
limitation, the Government made reference to practical issues, such
as space in the meeting rooms and booths. This reasoning, however,
may suggest that the authorities, relying on the inflexible
restrictions, did not wish to make any attempts to resolve the issue
of limited space.
Lastly,
the Court notes that the visits were held in the presence of a prison
officer who listened to the conversations. The applicant was
separated from the visitors by a glass partition. Accordingly, the
manner of conducting the family visits, which was also rigidly
regulated by law without any individualisation procedures, did not
allow any privacy and excluded any physical contact between the
applicant and his visitors. The manner in which the meetings were
held affected different aspects of the applicant’s family life
in so far as different types of relations between the applicant and
each visitor were involved. Moreover, the presence of the prison
officer affected the intimacy of the applicant’s communication
with the family members. The Court does not find any evidence to show
that such far-reaching restrictions were necessary in the applicant’s
case.
The
Court therefore considers that the State did not take the necessary
measures to ensure that the applicant’s private interest in
meeting with his family was properly balanced against the relevant
public interest in restricting prisoners’ contact with the
outside world. It further holds that the restrictions complained of
were not justified as regards the frequency and length of the family
visits, the number of persons admitted per visit, and the manner of
conducting these visits. For the above reasons there has been a
violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
The
applicant complained that the prison authorities reviewed his letters
to the Court and this put him at real risk of being subjected to
psychological pressure and ill-treatment by prison staff with the aim
of making him retract his application.
The
Court decided to examine the matter under Article 34 of the
Convention, which provides as follows:
Article 34 (individual applications)
“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.”
The
Government contended that the applicant’s correspondence had
not been monitored by the officers of the detention facility. The
applicant’s submissions had been received from the applicant in
closed envelopes and sent on to the Court.
The
applicant contested the Government’s submissions and insisted
that his letters to the Court were reviewed by the prison officers.
The Court reiterates that a complaint under Article 34
of the Convention is of a procedural nature and 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, 28 July 1998, Reports of Judgments and Decisions
1998-IV, § 105).
The
Court further reiterates 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. 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 Visloguzov v. Ukraine, no. 32362/02, §
105, 20 May 2010).
The
Court has paid specific attention to the issue of the effective
exercise of the right of application by detainees. It has held that
detainees are in a particularly vulnerable position, as they are
dependent in their communication with the Court and the rest of the
outside world on the prison administration (see, for example, Cotleţ
v. Romania, no. 38565/97, § 71, 3 June 2003). It
has emphasised the importance of respecting the confidentiality of
the Court’s correspondence with the applicants since it may
concern allegations against prison authorities or prison officials.
The opening of letters from the Court or addressed to it undoubtedly
gives rise to the possibility that they will be read, and may
conceivably, on occasion, also create the risk of reprisals by prison
staff against the prisoner concerned (see Klyakhin v. Russia,
no. 46082/99, § 118, 30 November 2004; Mechenkov v. Russia,
no. 35421/05, § 123, 7 February 2008; and Ponushkov v.
Russia, no. 30209/04, § 80, 6 November 2008).
In
the present case the parties disagreed as to whether the prison
officers reviewed the applicant’s letters addressed to the
Court. In this regard the Court notes that the first page of one of
the applicant’s letters to the Court had been stamped by the
detention facility. Moreover, up to October 2006 the applicant’s
submissions to the Court were accompanied by covering letters from
the detention facility briefly summarising the nature of the
correspondence dispatched. These facts suggest that at least part of
the applicant’s communication with the Court was subject to
monitoring by the officers of the detention facility. Given that in
his letters to the Court the applicant raised issues concerning his
ongoing imprisonment in that facility, his fears as to possible
negative repercussions on account of the application to the Court do
not appear to be devoid of any foundation. In sum, the circumstances
of the case do not suggest that the applicant’s right to free
and confidential communication with the Court was ensured by the
authorities.
For
these reasons the Court concludes that Ukraine has failed to comply
with its obligations under Article 34 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant further complained of other violations, referring to
Articles 3, 5, 6, 7, 8, 10, 13, 14, 17 and 34 of the Convention.
The
Court has examined those 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, they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. Accordingly, the Court rejects them as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
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.”
A. Damage
The
applicant claimed 10,000 euros (EUR) in respect of pecuniary damage.
He also claimed compensation for non-pecuniary damage, leaving the
matter of the exact amount to the discretion of the Court.
The
Government submitted that the claims were unsubstantiated.
The Court notes that the pecuniary damage alleged is
unsubstantiated; it therefore rejects this claim. On the other hand,
it considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards the applicant EUR
5,000 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant did not submit any claim under this head. The Court
therefore makes no award.
C. Default interest
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
Declares the complaints concerning the
restrictions on family visits during the applicant’s
post-conviction detention and the monitoring of the applicant’s
letters to the Court by the authorities admissible and the remainder
of the application inadmissible;
2. Holds that there has been a violation of Article 8 of the
Convention as regards the restrictions on family visits during the
applicant’s post-conviction detention;
Holds that Ukraine has failed to comply with its
obligations under Article 34 of the Convention as regards the
monitoring of the applicant’s correspondence with the Court by
the domestic authorities;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent State at the rate applicable on 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.
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 23 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
