FIFTH SECTION

DECISION [1]

AS TO THE ADMISSIBILITY OF

Application s no s . 17674 /02 and 39081/02 by Gennadiy Yuryevich Druzenko a nd Others against Ukraine

The European Court of Human Rights ( Fifth Section), sitting on 15 January 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and M r s C. Westerdiek , Section Registrar ,

Having regard to the above applications lodged on 24 March 2002 and 27 June 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the decision to grant priority to the above application s under Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The first applicant , Mr Sergey Viktorovich Davydov, was born in 1963. The second applicant , Mr Vasiliy Vladimirovich Ilchenko , was born in 1975 . The third applicant , Mr Sergey Yakovlevich Gomenyuk , was born in 1967 . The fourth applicant , Mr Gennadiy Yuryevich Druzenko , was born in 1962 . The fifth applicant , Mr N.N. Martov , was born in 1949 . The sixth applicant, Mr Salov , was born in 1940 . The other seven applicants are Mr V.N. Kuzmenko , Mr O.A. Kiselev , Mr Oleg Didenko , Mr Leonid Shvets , Mr Litvinov , Mr A.I. Mironov and Mr V.V. Kulik . They were all detained in Penitentiaries Nos. 58 and 70 during the events described below. All of the appicants we re initially represented before the Court by Mr Gennadiy Zherdev, a human rights activist from Kyiv. By powers of attorney of 17 January 2006 Mr Gomenyuk , Mr Ilchenko and Mr Davydov authorized Mr Buschenko , a practicing lawyer , to represent them before the Court.

The facts of the case, as submitted by the parties , may be summarised as follows.

A. First special police forces ’ training

In the morning of 30 May 2001, at about 10.00, the cells of Penitentiary no. 58, where the inmates were detained, were attacked by the “ Berkut ” special police force, which were supervised by the Governor of the penitentiary, Mr M- ko and a certain Mr M-pa. Police training was aimed at suppressing possible prison riots, the taking of hostages, etc. The police attacked and beat inmates with stocks of Kalashnikov automatic guns and truncheons, demanding that the inmates lie on the floor and stay still. Afterwards they were ordered to undress, were searched while naked and beaten again. About 120 convicts were subjected to this humiliating procedure. At the end of this procedure the inmates were asked whether they had any particular complaints about the police trai ning, however, in the “ Berkut” ‘ s presence nobody was willing to complain about these actions to the Governor of the Penitentiary no. 58. At the end of the police training the penitentiary staff also announced that in the course of the Parliamentary elections the inmates had to vote for a particular candidate no. 14.

Throughout their detention the applicants were not allowed to receive food parcels from their relatives or medical treatment. Their places of detention had no heating due to shortage of coal that was not provided to the Penitentiary no. 58. The food provided to the applicants and sold in the shops was of the lowest quality and was no longer consumable as it was produced in the 80 ’ s and 90 ’ s. The officers of the penitentiary used their wide discretion in applying disciplinary sanctions to the detainees, in particular with regard to placing them in solitary confinement.

On 4 June 2001 the first and the second applicants complained to the Supreme Court and the General Prosecutor ’ s Office (the “GPO”) about the aforementioned actions of the special police force. Their claims were redirected to the Khmelnytsky Regional Prosecutor ’ s Office (the “KRPO”) on 7 July 2001. Some of the complaints were not sent from the penitentiary as its governor and staff refused to send them out. The first and second applicants were both threatened by the lieutenant B. and a certain unknown major, both from the penitentiary staff, who demanded that they stopped complaining about their ill-treatment.

As from 14 July 2001, following the sending of correspondence to the European Court through private means, the first applicant was subjected to disciplinary sanctions and punishment in the solitary confinement cell for a period of 15 days. He alleged that he could not complain to any governmental or international body within this period as his communications were censored and seized.

On 8 August 2001 the penitentiary officers asked the first applicant to abstain from his complaints and demands that a proper investigation into his case be conducted. The applicant decided to give up his complaints following the pressure that was exerted on him by other inmates and in particular by the lieutenant B.

On 17 August 2001 the KRPO informed the applicant that no infringements of the law had been found in the course of the investigation into the first applicant ’ s complaints.

In January 2002 the first applicant received an answer to his complaints about the events of May 2001 lodged with the GPO in December 2001. The GPO found his complaints about torture by special police forces to be wholly unsubstantiated.

B. Second special police forces ’ training

At 11.00 p.m. on 28 January 2002 fourteen cells of the Penitentiary no. 58 (cells 1-12, 19 and 29), with approximately 100 inmates, were attacked by the “ Berkut ” special police force, which fired at inmates and used rubber truncheons and the stocks of their automatic guns to beat them up. A number of inmates, including those who had lodged their complaints with the Court, had heavy bodily injuries inflicted on them. No medical assistance was provided to the approximately sixty persons who were injured as a result of this attack. As a result of this attack the fourth applicant ’ s tendons on both legs were torn apart and he had his ribs broken. He also suffered from concussion and severe spine trauma. Similar bodily injuries were inflicted on the applicants Mr Litvinov, Mr Mironov , Mr Salov and Mr Kuzmenko . Mr Martov had his collarbone fractured, two ribs broken, three broken fingers on his right hand and veins and arteries on both legs injured. No medical assistance was provided to the applicants. The attack was supervised by a local prosecutor Mr Volkov , his assistant Mr Stasiuk and some unknown person.

On 14 May 2002 the GPO informed the applicants ’ representative Mr Zherdev that the complaints about the conditions of detention and ill-treatment of the applicants (Mr Ilchenko , Mr Kulyk , Mr Druzenko , Mr Litvinov and Mr Mironov ) who were serving their se ntences in the Penitentiary no. 58 had been forwarded to the KRPO for further investigation.

On 15 April and 15 July 2002 the State Department for the Enforcement of Sentences (the “SDES”) dismissed Mr Zherdev ’ s complaints about the poor conditions of detention in the Penitentiary no. 58 and the ill-treatment by the special police forces. It found no evidence relating to the infringement of the norms of the applicable legislation with regard to the conditions of the applicants ’ detention and their nutrition whilst serving sentence. It also found no evidence of ill-treatment of the applicants Mr Ilchenko and Mr Litvinov. The GPO found that their allegations with regard to ill-treatment were wholly unsubstantiated.

On 20 April 2002 the first applicant was transferred to the Penitentiary no. 70 to serve the remainder of his sentence. Upon arrival to the penitentiary he found out that his medical file had not been transferred from the Penitentiary no. 58 and apparently was lost.

On 7 August 2002 the GPO informed the applicants ’ representative Mr Zherdev about the manoeuvres of the special police forces of the Ministry of the Interior and the forces belonging to the SDES on 29 January 2002 that were aimed at further police training and search for and seizure of prohibited items, such as weapons, drugs, finding escape routes, checking water, electricity and other engineering communications. The GPO mentioned that this operation had been agreed upon with the SDES and the prosecutor ’ s office as a previously planned police training exercise. The prosecution further mentioned that the medical files from penitentiaries contained no information with regard to injuries inflicted on the detainees. The prosecutor ’ s office informed Mr Zherdev that after interrogating the applicants who were serving their sentences in the Penitentiaries nos. 69, 58, 78 and 98 it found no evidence whatsoever of any bodily injuries inflicted on the inmates in the course of the police trainings. The prosecution maintained that Mr Kostenko and Mr Batanov , who initially complained to Mr Zherdev about their ill-treatment by “ Berkut ”, categorically denied that they had been ill-treated by the “ Berkut ” special police forces. The prosecution also refused to review the remainder of Mr Zherdev ’ s complaints lodged on behalf of the inmates from the Penitentiary no. 58 as he did not possess the relevant letter of attorney authorising him to represent them.

COMPLAINTS

The applicants complained under Articles 3 and 13 of the Convention about their ill-treatment by the “ Berkut ” special police force whilst serving their respective sentences.

The applicants further complained that throughout their detention they were not allowed to receive either food parcels from their relatives or necessary medical treatment and assistance. Their cells had no heating as coal was n ot supplied to Penitentiary no. 58. The food supplied to the applicants and sold in the prison shops was of the lowest quality and was not suitable for consumption as it was produced in the 1980s and 1990s. The officers of the penitentiary used their wide discretion in applying disciplinary sanctions on the inmates, in particular with regard to placing them to solitary confinement punishment cells.

They further complained that they were put in solitary punishment cells in order to prevent their complaining about their torture by the “ Berkut ” special police forces to various national and international bodies. They also alleged that they had no possibility of effective and accessible recourse against a decision to place them into solitary punishment cells.

The applicants complained about the interference with their correspondence and the unlawful infringement of their right of individual application. In this connection they referred to Articles 8 and 34 of the Convention, respectively.

The applicants further alleged that there was an infringement of Articles 9, 10 and 14 of the Conventio n and Article 3 of Protocol No. 1, without any particular substantiation.

THE LAW

The applicants complain ed under Articles 3, 8, 9, 10, 13, 14 and 34 of the Convention and Article 3 of Protocol No. 1 to it . They alleged that they were ill-treated by the “ Berkut ” special police forces and that the conditions of their detention, lack of adequate medical treatment and assistance amounted to inhuman and degrading. They also alleged that the Prison authorities interfered with their correspondence, disrespected their freedom to manifest their religion and freely express their religious beliefs. They stated that prison authorities discriminated them on the grounds of their religion. They further maintained that they had no effective remedies against these complaints. The applicants complained that prison administration pressured them to vote for particular candidates or political parties during the elections and persecuted them for not following their instructions on voting. The relevant parts of these provisions provide as follows:

Article 3

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

Article 8

“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.”

Article 9

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 13

“Everyone whose rights and freedoms as set forth in this 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.”

Article 14

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 34

“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.”

Article 3 of Protocol No. 1

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

A. The Government ’ s request to strike the applications out of the list of cases

The Government su bmitted that only three applicant s , the first, the second and the third applicants ha d standing before the Court . They further stated that the remainder of the applications should be struck out of the list of cases as the other ten applicants and/or their heirs lost their interest in pursuing their applications . In particular, they mentioned that the fourth and fifth applicants had been released from serving their sentences and their whereabouts we re not known. Also, Mr Kiselyov and Mr Kuzmenko were transferred to other penitentiaries and did not wish to maintain their applications. Furthermore, the sixth applicant died in 2004 due to illness and he had no successor to his claims submitted with the Court.

The applicants ’ representatives submitted that the fourth applicant ’ s complaints should not be struck out of the Court ’ s list of cases unless there was an unequivocal confirmation from him that he did not intend to pursue his application any longer. They alleged that no such information was available and therefore striking the fourth applicant ’ s complaints out of the list of cases would run contrary to “respect for human rights as defined in the Convention and the Protocols thereto” ( Article 37 § 1 of the Convention in fine ). As to the other nine applicants, they disagreed with the Government and requested the Court not to strike their applications out unless the Court received full factual and legal information on their complaints directly from the applicants or their relatives and/or heirs.

The Court considers that the Government ’ s objection is closely linked to the merits of the applicants ’ complaints and cannot therefore be examined at this stage of the proceedings. It follows that this issue should be joined to the merits of the case.

B. The complaints about ill-treatment, prison conditions and interference with mail, correspondence and the lack of effective remedies

1. The Government ’ s objections as to the exhaustion of domestic remedies

(a). Parties ’ submissions

( i ). Ill-treatment in the course of the police trainings

The Government contended that the first, second and third applicants failed to exhaust all the domestic remedies available to them under the Ukrainian law. In particular, they mentioned that the first applicant sent two complaints to the General Prosecutor ’ s Office – on 11 July and 25 December 2001. In these letters he complained that the Penitentiary failed to dispatch his correspondence. He also complained about the use of force against him by special police forces, his allegedly unlawful detention in the isolation cell and the lack of effective investigation upon his previous complaints. The Government submitted that the prosecutor ’ s office investigated both complaints thoroughly, but eventually found them unsubstantiated. As to the second applicant, the Government mentioned that on 10 July and 14 October 2001 he sent two unsuccessful complaints to the General Prosecutor ’ s Office about his ill-treatment by special police forces and about the lack of possibility to exercise his religious needs, including the ban on receiving religious literature. As to the complaints lodged by the third applicant, the Government noted that he did not apply to the General Prosecutor ’ s Office at all; however he unsuccessfully complained to the local prosecutor ’ s office raising similar allegations as the first and second applicants.

The applicants submitted that they have exhausted all the domestic remedies available to them under the Ukrainian law. They further alleged that they have lodged complaints with the prosecutor ’ s office about their ill-treatment by special police forces, but it failed to organise and conduct effective investigation upon their complaints. They also mentioned that the prosecutor ’ s office failed to adopt a procedural decision upon their complaints, thus making a possibility of successful appeal against it rather theoretical.

(ii). Inhuman conditions of their detention

The Government noted, referring to the relevant domestic case-law, that the acts or omissions of the State bodies and their officials could be appealed directly to courts under Article 55 of the Constitution and the relevant provisions of the Codes of Civil and Criminal Procedure.

The applicants submitted that there were no effective and accessible remedies to complain about the conditions of their detention.

( iii ) . Impediments to the communication between the applicants and their representative

As regards the complaints about the problems encountered by the applicants in corresponding with their representative, the Government noted that these allegedly unlawful acts of the penitentiaries ’ administration were not challenged before any domestic cour t.

The applicants alleged that their correspondence and complaints did not reach the domestic authorities they complained to, as they were intercepted by the prison administration, referred to prosecutor ’ s office and destroyed. No effective investigation of these allegations had ever been conducted by the General Prosecutor ’ s Office and the local prosecutor ’ s office.

(b). The Court ’ s assessment

In so far as the Government argue that the applicants did not exhaust the domestic remedies available to them, the Court considers that these objections are inextricably linked to the substance of the applicants ’ complaints. It follows that they should be joined to the merits of the case.

2. The alleged violations of Articles 3, 8, 13 and 34 of the Convention

(a). Complaints under Article 3 of the Convention

( i ). The applicants ’ complaints as to their ill-treatment by special police forces

The Government admitted that special tactical trainings were held in the Penitentiary no. 58 on 30 May 2001 and 28 January 2002. These trainings, involving search of prison premises, were aimed at suppression of possible riots and kidnapping of staff. The Government further pointed out that those trainings did not involve the detainees and that the applicants had not been subjected to any ill-treatment. The Government further noted that the third applicant was absent from the Pen itentiary no. 58 on 30 May 2001, as he arrived there on 3 November 2001 only . They concluded that the applicants failed to substantiate their complaints and did not provide any corroborating evidence (e.g. medical certificates, testimonies of independent eye-witnesses , etc.) in support of their allegations under Article 3 of the Convention .

The applicants disagreed. They maintained that the very fact of the police forces ’ training on them and the lack of a legal basis for such trainings showed that they were aimed at intimidating the applicants. Moreover, the organisation of the trainings and the manner in which they were conducted proved that their purpose was to ill-treat and humiliate the applicants.

(ii). The alleged failure of the domestic authorities to conduct an effective investigation

The Government stressed that the y complied with the positive obligation to investigate under Article 3 of the Convention and maintained that the investigation in the present case by the domestic authorities complied with the requirements of this provision .

The applicants disagreed and stated that no effective investigation had been conducted. They further mentioned that the review conducted by the domestic authorities had no real result and therefore was useless.

(iii). The applicants ’ complaints as to the lack of medical treatment and assistance provided to them in view of their injuries sustained by the applicants and general lack of adequate medical treatment and assistance measures

The Government submitted that there were no records in the Penitentiary ’ s Medical Registers of requests for medical assistance from the applicants. The Government maintained that the applicants received necessary medical treatment and were also provided with required prescription drugs whilst serving their sentences and concluded therefore that Article 3 of the Convention was not breached. They further stated that the applicant ’ s were provided with necessary medical treatment and assistance on general grounds.

The applicants did not agree with the submissions of the Government and claimed that they were not provided with the necessary medical treatment for the injuries inflicted on them as a result of police training exercises and that the prison authorities refused to record these injuries. They further alleged that they were not provided with adequate medical assistance while being detained.

(iv). The applicants ’ complaints as to their placement into solitary confinement as a disciplinary sanction for their attempt to complain about ill-treatment by the special police force (“ Berkut ”)

The Government stated that the applicants were not disciplined for their attempts to complain about ill-treatment by the special police forces or prison administration. In particular, they stated that in accordance with the r egisters of detainees kept in isolation units nos. 2688 (records for the period from 8 June 2000 to 16 July 2002) and 3914 (records for the period from 17 January 2002 to 30 December 2003) only the third applicant had been subjected to disciplinary sanctions. In particular, on 14 July 2001 he was disciplined by 15 days ’ solitary confinement for his refusal to be detained with other detainees. The Government further argued that these disciplinary measures applied on the third applicant pursued the legitimate aims to maintain order and security in prison and to avoid the commission of other offences in prison . Also, they stated that the length of his detention was reasonable.

The applicants disagreed with the Government and stated that disciplinary measures against the applicants were applied arbitrarily and as a punishment for their complaints about prison authorities ’ acts or omissions. They stated that, for instance, the second applicant had been subjected to disciplinary measures on twenty-seven occasions.

(v). The applicants ’ complaints as to the conditions of their detention in Prison and in isolation units of Penitentiary no. 58

The Government stated that the applicants provided no evidence in support of their complaints about the conditions of detention. On the contrary, the Government argued that the conditions of detention in the Penitentiary no. 58 and in its isolation unit, where Mr Davydov was detained, as described by its administration were satisfactory and compatible with Article 3 of the Convention.

The applicants stated that the conditions of their detention ran contrary to the standards established by the Committee on Prevention of Torture of the Council of Europe. In particular, they maintained that the cells were overcrowded and the conditions of detention in them were unsatisfactory. They particularly complained about the size of their cells, low temperature in them, the bedding and hygienic conditions, lack of proper ventilation, etc.

(b). Article s 8 and 34 of the Convention

The Government noted that the Ukrainian law in force at the material time allowed the authorities to review letters addressed to the European Court of Human Rights. Following changes introduced to Article 113 of the Code on Enforcement of Sentences and the order no. 275 adopted the State Department for Enforcement of Sentences of 25 December 2003, correspondence sent to the European Court of Human Rights, can no longer be reviewed. Nevertheless, the Government stated that although the procedure was not in conformity with the Convention and its case-law, there was no evidence of the authorities ’ interference with the applicants ’ correspondence.

The Government further asserted , in relation to complaints under Article 34, that none of the State bodies or officials restricted the applicants ’ right to communicate freely with the Court; moreover the applicants were never punished or disciplined in any way for their communication with the Court . T he Government concluded that there were no grounds to believe that the administration of penitentiaries , where the applicants served their prison sentences , put pressure on the applican ts or in other way hindered their right of individual application to the Court.

The applicants did not agree with the Government and maintained that the prison authorities interfered with their correspondence sent to the Court and tried to put pressure on them to discourage them from pursuing their applications.

(c). Article 13 of the Convention

T he Government restate d their arguments mentioned above in their objection as to the exhaustion of domestic remedies and concluded that the applicants had effective domestic remedies , which they did not pursue. They thus concluded that there was no violation of Article 13 of the Convention in this respect .

The applicants disagreed.

3. The Court ’ s assessment

The Court finds, in the light of the parties ’ submissions, that the applicants ’ complaints under Articles 3, 8, 13 and 34 of the Convention raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the complaints. The Court considers, therefore, that the applicants ’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It therefore concludes that the applicants ’ complaints under Articles 3, 8, 13 and 34 of the Convention must be declared admissible.

C. The applicants ’ complaints under Articles 9, 10, 14 and Article 3 of Protocol No. 1 to the Convention

After communication of the case to the respondent Government the applicants filed complaints that the penitentiaries in the Khmelnitsky region were not permitting meetings of evangelist believers and their free religious expression and that they were not allowing free criticism of prison authorities by the detainees. Also, the detainees were only allowed to attend Christian Orthodox Church ’ s premises as churches of other religious denominations were not constructed on penitentiaries ’ territory. They further stated that the prison authorities exerted pressure on the detainees to vote for particular parties or candidates in the course of the elections and the detainees, who did not follow instructions on voting, were persecuted by the prison administration. The applicants complained that the domestic regulations and practice of their application infringed the applicants ’ rights under Articles 9, 10 and 14 of the Convention and Article 1 of Protocol No. 1 to it.

The Court recalls that Article 34 of the Convention requires that an individual applicant or group of individuals should claim to have been actually affected by the violation they allege (see Ireland v. the United Kingdom , judgment of 18 January 1978, Series A, no. 25, §§ 239-240; Klass and Others v. Germany , judgment of 6 September 1976, Series A, no. 28, § 33). It does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law or a situation in abstracto simply because they feel that they contravene the Convention (see Norris v. Ireland , judgment of 26 October 1988, Series A, No. 142, § 31; Sanles Sanles v. Spain ( dec .), no. 48335/99, 26 October 2000). In the present case the applicants did not provide the Court with any substantiated arguments as to how the above-mentioned domestic situation had been applied to their detriment . T he Court considers that by means of their complaints the applicant s seek a n abstract review of the practice s or legal regulations that are allegedly in breach of the Convention. Accordingly, the Court finds that the applicants cannot claim to be victims of a violation of Articles 9, 10 , 1 4 and Article 3 of Protocol No. 1 to the Convention .

I t follows that the part of the application must be rejected under Article 35 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to join to the merits the Government ’ s request to strike the complaints lodged by ten applicants out of the Court ’ s list of cases and their objection as to the exhaustion of domestic remedies;

Declares the applicants ’ complaints under Articles 3, 8, 13 and 34 admissible, without prejudging the merits of the case ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . O n 9 July 2007 , under Rule 81 of the Rules of Court , the words “Partial Decision” in the heading were replaced by the word “Decision” .