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Стр. 5
(see paragraphs 49 - 51 above). It cannot, on the other hand,
establish with sufficient certainty what the situation had been
prior to June 1999.
136. The applicant originally complained that he was allowed to
receive only one parcel with food and toiletries every two months
and that the parcels could not contain warm clothes, despite the
fact that he had only light clothes to wear in temperatures of -
20-C. In his written observations he added that since 24 April
1998 he had received parcels weighing up to two kilograms once
every six months. The Court notes that this generally corresponds
to the details from the prison records (see paragraph 59 above)
and the information given by the Government in their observations
(see paragraph 118 above). It observes that the latter practice
was carried out in accordance with the Instruction (see paragraph
75 above). The Court further notes that the applicant was provided
with three meals a day, and that even assuming the quality of food
provided by the prison kitchen was not satisfactory, the applicant
could and did regularly purchase goods in the prison shop (see
paragraphs 59 and 24 above). In addition, since 11 July 1999 when
the Temporary Provisions come into force, the applicant was
allowed to receive six parcels and three packages per year (see
paragraph 75 above), the rule which was followed by Zaporozhie
Prison No. 1 (see paragraph 40 above). According to the applicant,
he could receive one parcel of 8 kilograms and three packages
every two months (see paragraph 32 above).
137. The applicant originally complained that his relatives
were not allowed to send him packages with warm clothes. The Court
notes however, that from the applicant's written observations it
appears that in October 1998 he received a warm jacket and shoes
(see paragraph 119 above).
138. The Court next notes that the applicant did not complain
of the number of letters which he could send or receive. The
practice of Zaporozhie Prison No. 2 whereby he was allowed to send
one letter per month complied with the requirements of the
Instruction (see paragraph 74 above). Moreover, on the date of the
Court Delegates' visit he confirmed that he had the right to
receive an unlimited number of letters.
139. Concerning the visits from the applicant's relatives, the
Court notes that the parties did not dispute the number but only
the duration of the relatives' visits to the applicant (see
paragraphs 116 - 119 above). The Court accepts the evidence of the
applicant concerning the limitation on the duration of visits by
his relatives (see paragraph 29 above). That statement was
confirmed by the prison governor who confirmed that in July 1999
the applicant criticised the length of the visits by his
relatives, alleging that they should have lasted between one and
two hours, but that the prison administration had been unable to
grant him longer meetings, having regard to the large number of
prisoners held in the prison (see paragraph 45 above). In
addition, on 1 March 1999 the governor of Zaporozhie Prison No. 2
granted the applicant the right to visits of one hour (see
paragraph 120 above).
140. As far as the applicant's daily outdoor walks, the Court
notes that he had started to go for daily outdoor walks without
handcuffs on 18 May 1998; according to the applicant, the walks
usually lasted for between 20 and 30 minutes, exceptionally for 50
minutes (see paragraphs 29, 119 and 120 above). While the
Government did not dispute the date of introduction of the outdoor
walks, they argued that they lasted one hour (see paragraphs 117 -
118 above). The Court nevertheless finds reliable the applicant's
version of events, according to which the prison administration
did not inform him how long the walks had to last according to
national legislation, and when he learnt from the prison rules
brought by his wife that the walks should have lasted one hour,
the prison administration prevented him from having them,
organising meetings at the same time as the daily walks (see
paragraph 30 above). The Court accepts the applicant's testimony
that this practice stopped in August or September 1999. It notes
that the Government did not adduce any evidence proving that the
applicant's walks lasted for one hour as provided for in the
Instruction or in the Temporary Provisions.
In Zaporozhie Prison No. 1 inmates have been allowed to go for
a daily outdoor walk without handcuffs since March 1998 (see
paragraph 40 above).
141. The Court has examined as a whole the conditions to which
the applicant was subject during his detention in Zaporozhie
Prison No. 2. While it cannot establish with complete clarity the
conditions of detention to which the applicant was subjected prior
to the Court Delegates' visit, certain facts are beyond dispute
and clearly established. The Court views with particular concern
that, until at earliest May 1998, the applicant, in common with
other prisoners detained in the prison under a death sentence, was
locked up for 24 hours a day in cells which offered only a very
restricted living space, that the windows of the cells were
covered with the consequence that there was no access to natural
light, that there was no provision for any outdoor exercise and
that there was little or no opportunity for activities to occupy
himself or for human contact. In common with the observations of
the CPT concerning the subjection of death row prisoners in
Ukraine to similar conditions, the Court considers that the
detention of the applicant in deleterious conditions of this kind
amounted to degrading treatment in breach of Article 3 of the
Convention. The Court further finds that the applicant's situation
was aggravated by the fact that he was throughout this period
subject to a death sentence, although, as noted in paragraphs 16
and 126 above, a moratorium was already in effect at the time of
the applicant's conviction and sentence.
142. The Court considers that in the present case there is no
evidence that there was a positive intention of humiliating or
debasing the applicant. However, although the question whether the
purpose of the treatment was to humiliate or debase the victim is
a factor to be taken into account, the absence of any such purpose
cannot conclusively rule out a finding of a violation of Article 3
of the Convention (see V. v. the United Kingdom [GC], No.
24888/94, з 71, ECHR 1999-IX; and Kalashnikov, cited above, з
101). It considers that the conditions of detention, which the
applicant had to endure in particular until May 1998, must have
caused him considerable mental suffering, diminishing his human
dignity.
143. The Court acknowledges that, between May 1998 and the date
of the visit to Ukraine of the Court's Delegates in October 1999,
substantial and progressive improvements had taken place, both in
the general conditions of the applicant's detention and in the
regime applied within the prison. In particular, the coverings
over the windows of the cells were removed, daily outdoor walks
were introduced and the rights of prisoners to receive visits and
to correspond were enhanced. Nevertheless, the Court observes
that, by the date of introduction of these improvements, the
applicant had already been detained in these unacceptable
conditions for a period of over 12 months, including a period of 8
months after the Convention had come into force in respect of
Ukraine.
144. The Court has also borne in mind, when considering the
material conditions in which the applicant was detained and the
activities offered to him, that Ukraine encountered serious socio-
economic problems in the course of its systemic transition and
that prior to the summer of 1998 the prison authorities were both
struggling under difficult economic conditions and occupied with
the implementation of new national legislation and related
regulations. However, the Court observes that lack of resources
cannot in principle justify prison conditions which are so poor as
to reach the threshold of treatment contrary to Article 3 of the
Convention. Moreover, the economic problems faced by Ukraine
cannot in any event explain or excuse the particular conditions of
detention which it has found in paragraph 141 to be unacceptable.
145. There has, accordingly, been a breach of Article 3 of the
Convention.
IV. Alleged violation of Article 8 of the Convention
146. The applicant complained that he was allowed to receive
only one parcel with food and toiletries every two months.
147. The Court considers that the applicant's complaint falls
to be examined under Article 8 of the Convention, which provides:
"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."
148. The Court first reiterates that the Convention only
governs, for each Contracting Party, facts subsequent to its entry
into force in respect of that Party. The Court therefore has
jurisdiction to examine the applicant's complaints in so far as
they relate to the period after 11 September 1997, when the
Convention entered into force in respect of Ukraine.
149. From the prison records it appears that the applicant
received parcels from his wife and/or mother, generally containing
food and toiletries, on 26 August, 27 October, 26 December 1997
and on 27 February, 24 April and 27 October 1998 (see paragraph 58
above). He did not make use of his right in June 1998. The
applicant did not deny the contents of the prison records.
150. The Court considers that by limiting the number of parcels
and packages which the applicant was allowed to receive, the
public authority interfered with the applicant's right to respect
for his correspondence guaranteed by Article 8 з 1 of the
Convention and that such a restriction can only be justified if
the conditions in the second paragraph of this provision are met.
151. In particular, if it is not to contravene Article 8, such
interference must be "in accordance with the law", pursue a
legitimate aim and be necessary in a democratic society in order
to achieve that aim (see Silver and Others v. the United Kingdom,
judgment of 25 March 1993, Series A No. 61, p. 32, з 84; Petra v.
Romania, judgment of 23 September 1998, Reports 1998-VII, p. 2853,
з 36).
152. The Court must first consider whether the interference was
"in accordance with the law". This expression requires firstly
that the impugned measure should have some basis in domestic law;
it also refers to the quality of the law in question, requiring
that it should be accessible to the person concerned, who must
moreover be able to foresee its consequences for him, and be
compatible with the rule of law (see Kruslin v. France and Huvig
v. France, judgments of 24 April 1990, Series A No. 176-A, p. 20,
з 27, and Series A No. 176-B, p. 52, з 26, respectively).
153. The Government referred in their written observations to
the Act. In their further observations, they added a reference to
the Correctional Labour Code ("the Code"), the Instruction and the
Temporary Provisions (see paragraph 114 above).
1. Period between 11 September 1997 and 11 July 1999
154. The Court observes that the Act governs the conditions of
detention until a sentence becomes final. It appears from the
statements of the witnesses heard by the Court Delegates during
their fact-finding visit and the documents submitted by the
Government that after a sentence became final, the detention
conditions of persons sentenced to capital punishment were mainly
governed by the Instruction issued by the Ministry of Justice, the
Prosecutor General and the Supreme Court (see paragraphs 73 - 75
above). However, the Code provides a general legal basis for the
conditions of detention (see paragraphs 82 - 87 above).
(a) Correctional Labour Code
155. The Court notes that although the Code satisfies the
second requirement resulting from the phrase "in accordance with
the law", namely that the law be accessible, this is not true of
the third requirement, namely that the law be foreseeable as
regards the meaning and nature of the applicable measures.
156. It observes that the Government refer to Article 41 з 3 of
the Code according to which "irrespective of the type of regime
under which they are held, sentenced persons are not allowed to
receive more than two small packages per year" (see paragraph 85
above). However, this provision constitutes a part of Article 41,
which establishes the rules concerning receipt of parcels and
small packets by persons sentenced to imprisonment. The Court
considers that it is not clear that persons sentenced to death are
included among persons sentenced to imprisonment (позбавлення
волi) within the meaning of the Code, a death sentence being
imposed because the offender is deemed incapable of reform through
imprisonment. The Court observes that the legal position is made
more uncertain by the second paragraph of Article 41 of the Code
which provides that "sentenced persons serving their sentence in a
prison are not allowed to receive parcels". In the present case,
the applicant was consecutively detained in Zaporozhie Prison No.
2 and then in Zaporozhie Prison No. 1, and not in a corrective
labour colony, an educational labour colony or a corrective labour
colony-camp mentioned in the first and fourth paragraphs of the
same Article (see paragraph 85 above).
157. In the light of these circumstances, the Court finds that
the restrictions imposed by the Code referred to by the Government
in the present case were not sufficiently foreseeable to comply
with the requirements of the second paragraph of Article 8 of the
Convention in that the applicant could not know with sufficient
certainty whether the limits laid down in the Code as to the
number of parcels and packages which prisoners were allowed to
receive from his relatives applied to him.
(b) Instruction
158. The Court notes that the Instruction was an internal
document which was not accessible to the public: the Government
submitted only part of it to the Court.
159. The Court finds that in these circumstances it cannot be
said that the interference with the applicant's right to respect
for his correspondence was "in accordance with the law" as
required by Article 8 з 2 of the Convention. It is true that the
Instruction was replaced by the Temporary Provisions, approved by
the State Department on Execution of Sentences on 25 June 1999 as
Order No. 72, and registered by the Ministry of Justice on 1 July
1999 as No. 426/3719, which entered into force on 11 July 1999 and
which are accessible to the public. However, the Temporary
Provisions have no application to the facts occurring before 11
July 1999.
160. There has consequently been a violation of Article 8 of
the Convention as regards the period between 11 September 1997 and
11 July 1999.
2. Period after 11 July 1999
161. The Court observes that the applicant's original complaint
concerned the period prior to 11 July 1999 when he had the right
to receive two packages per year (see paragraph 74 above), and
that he has made no complaint that his correspondence was
controlled after this date.
162. However, it considers it appropriate to examine also the
restrictions imposed by the Temporary Provisions, whereby the
applicant was allowed to receive six parcels and three small
packages a year.
It is accepted that such a limitation constitutes an
interference with the right to respect for correspondence. Such an
interference is "in accordance with the law", namely the Temporary
Provisions, and can be regarded as pursuing the legitimate aim of
the "prevention of disorder or crime", bearing in mind the
interest of the prison authorities in ensuring that material
harmful to prison security is not smuggled into prisons.
163. As regards the necessity of the interference, the Court
must take into account the logistical problem involved in
processing an unrestricted quantity of parcels arriving in a large
penitentiary, in this case an establishment with 1,735 inmates
(see paragraph 44 above). Granting permission to inmates to
receive an unlimited number of parcels or packages would involve a
substantial amount of work on the part of prison staff in checking
each parcel with a view to safeguarding prison security. The
security regime inside the prison is aimed at protecting the
public at large from dangerous offenders and also at protecting
the prison inmates themselves. The prison authorities thus have a
legitimate interest in protecting security by means which seek to
reduce or limit security risks. At the same time a proper balance
must be struck between the interests of security and respect for
the right of inmates to maintain contact with the outside world.
164. In the present case the Court considers that the
possibility of receiving parcels or small packets every sixth week
can be regarded as respecting such a balance bearing in mind that
the prison authorities provide clothing, meals and medical care
for all prisoners during their detention. In addition, the Court
has heard evidence from the Government that there is no
restriction on relatives sending money to inmates to enable them
to purchase goods in the prison shop.
165. Against this background and bearing in mind the margin of
appreciation afforded to the Government in the regulation of
prison life, the Court considers that the measures are
proportionate to the aim of preventing disorder or crime.
166. There has accordingly been no violation of Article 8 of
the Convention as regards the period after 11 July 1999.
V. Alleged violation of Article 13 of the Convention
167. The applicant argued that he did not have any effective
remedy within the meaning of Article 13 of the Convention in
respect of the conditions in which he had been detained or the
interference with his correspondence.
Article 13 of the Convention reads:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
168. The Court recalls that this provision guarantees remedies
at the national level to enforce the substance of Convention
rights and freedoms in whatever form they might happen to be
secured in the domestic legal order. Its effect is thus to require
the provision of a domestic remedy to deal with the substance of
an "arguable complaint" under the Convention and to grant
appropriate relief, although Contracting States are afforded some
discretion as to the manner in which they conform to their
Convention obligations under this provision. The scope of the
obligation under Article 13 varies depending on the nature of the
applicant's complaint under the Convention. Nevertheless, the
remedy required by Article 13 must be "effective" in practice as
well as in law. In particular, its exercise must not be
unjustifiably hindered by the acts or omissions of the authorities
of the respondent State (see Ilhan v. Turkey [GC], No. 22277/93,
ECHR 2000-VII, з 97).
169. The Court considers that the applicant did have an
arguable complaint as regards his rights under Articles 3 and 8 of
the Convention.
170. Recalling its finding in respect of the preliminary
objection filed by the Government, the Court finds that the
applicant did not have effective remedies for his Convention
complaints.
171. There has, therefore, been a violation of Article 13 of
the Convention.
VI. Application of Article 41 of the Convention
172. 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."
173. The applicant did not submit any specific claim for
pecuniary damage or costs. He did claim, however, 50,000 US
dollars (USD) (50,778 euros (EUR)) by way of compensation for non-
pecuniary damage.
174. The Government did not comment on this claim.
175. The Court, bearing in mind its finding above regarding the
applicant's complaints under Articles 3, 8 and 13 of the
Convention, considers that he suffered some moral damage in
connection with the general conditions of detention and the
restrictions by the public authorities on his right to respect for
his correspondence. Making its assessment on an equitable basis,
the Court awards the applicant EUR 2,000 (two thousand euros) for
non-pecuniary damage, plus any tax that may be chargeable.
Default interest
176. The Court considers it appropriate that the default
interest should be based on an annual rate equal to the marginal
lending rate of the European Central Bank to which should be added
three percentage points (see Christine Goodwin v. the United
Kingdom, No. 28957/95, 3 July 2002, з 124, to be published in ECHR
2002).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has been a violation of Article 3 of the
Convention as regards the conditions of detention to which the
applicant was subjected on death row;
3. Holds that there has been a violation of Article 8 of the
Convention as far as the period between 11 September 1997 and 11
July 1999 is concerned;
4. Holds that there has been no violation of Article 8 of the
Convention as far as the period after 11 July 1999 is concerned;
5. Holds that there has been a violation of Article 13 of the
Convention in connection with Articles 3 and 8 of the Convention;
6. Holds
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final
according to Article 44 з 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, to be
converted into Ukrainian hryvnas at the rate applicable at the
date of settlement, plus any tax that may be chargeable;
(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;
7. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 29 April 2003,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Nicolas BRATZA
President
Michael O'BOYLE
Registrar
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