FIFTH SECTION

CASE OF POLTORATSKYY v. UKRAINE

( Application no. 11551/13 )

JUDGMENT

STRASBOURG

22 April 2021

This judgment is final but it may be subject to editorial revision.

In the case of Poltoratskyy v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Mārtiņš Mits, President, Jovan Ilievski , Ivana Jelić , judges, and Martina Keller , Deputy Section Registrar ,

Having regard to:

the application (no. 11551/13) 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 Boryslav Yevgenovych Poltoratskyy (“the applicant”), on 21 August 2012;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Articles 3, 8 and 13 of the Convention and to declare the remainder of the application inadmissible;

the Government ’ s statement that they were not in a position to provide observations on the admissibility and merits of the application;

the applicant ’ s observations;

Having deliberated in private on 25 March 2021 ,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1 . The case concerns the alleged lack of any genuine prospect of the applicant ’ s release in view of his life-imprisonment sentence (Article 3); the restrictions on his right to family visits during his sentence (Article 8); and the lack of effective domestic remedies in respect of those grievances (Article 13).

THE FACTS

2 . The applicant was born in 1976 and is serving a life sentence in Vinnytsya Prison no. 1. He had been granted legal aid and was represented by Mr Gennadiy Tokarev , a lawyer practising in Kharkiv .

3 . The Government were represented by their Agent, Mr Ivan Lishchyna .

4 . The facts of the case, as submitted by the applicant and not contested by the Government, may be summarised as follows.

5 . On 12 December 1995 the Ivano-Frankivsk Regional Court (“the Ivano-Frankivsk Court”) found the applicant guilty of several counts of aggravated murder and robbery and sentenced him to the death penalty.

6 . On 22 February 1996 the Supreme Court upheld that verdict.

7 . On 2 June 2000 the Ivano-Frankivsk Court commuted the applicant ’ s death sentence to life imprisonment in compliance with the legislative amendments to that effect.

8 . The applicant ’ s parents have been visiting him in prison in accordance with the applicable legal rules.

RELEVANT LEGAL FRAMEWORK

9 . Legal provisions pertaining to life imprisonment can be found in Petukhov v. Ukraine (no. 2) (no. 41216/13, §§ 75 ‑ 90, 12 March 2019).

10 . Legal provisions on visiting entitlement in prison can be found in Trosin v. Ukraine (no. 39758/05, §§ 26 and 29, 23 February 2012), Bigun v. Ukraine ([Committee], no. 30315/10, §§ 15-19, 21 March 2019), and Starishko v. Ukraine ([Committee], no. 61839/12, §§ 9 and 10, 15 October 2020).

THE LAW

11 . The applicant complained that his life sentence was incompatible with Article 3 of the Convention, which reads as follows:

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

12 . The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

13 . The applicant argued that the circumstances of his case were similar to those in Petukhov v. Ukraine (no. 2) (no. 41216/13, 12 March 2019), in which the Court had found a violation of Article 3 of the Convention on account of the irreducible nature of the sentence of life imprisonment in Ukraine.

14 . Referring to the ongoing legislative process in relation to life sentence in Ukraine, the Government submitted that they were not in a position to provide observations on this case.

15 . The Court notes that, as rightly pointed out by the applicant, the circumstances of the present case disclose the same problem as that criticised by the Court in Petukhov (cited above, §§ 169-87). Like Mr Petukhov , the applicant in the present case is a life prisoner who is, for the time being, deprived of any genuine prospect of release.

16 . There has accordingly been a violation of Article 3 of the Convention.

17 . The applicant complained that the restrictions on his right to family visits during his sentence, which had been in effect until the legislative amendments of 2014, had been contrary to Article 8 of the Convention, which reads in its relevant parts as follows:

“1. Everyone has the right to respect for his private and family life ...

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.”

18 . The Court notes at the outset that it is competent ratione temporis to examine the applicant ’ s complaint only in so far as it concerns the period after 11 September 1997, the date of the entry into force of the Convention for Ukraine.

19 . This complaint being neither manifestly ill-founded nor inadmissible on any other grounds under Article 35 of the Convention, the Court declares it admissible.

20 . The applicant complained that until 2014 his right to respect for his family life had been infringed on account of the absolute ban on long-term family visits and the limited frequency of authorised short-term visits, and also as a result of various rules on the practical conditions of prison visits, such as a ban on direct physical contact, separation by a glass wall or metal bars and the continuous presence of prison guards during visits.

21 . The Government did not submit any observations.

22 . The Court notes that for about seventeen years (calculated from 1997 – see paragraph 18 above), the applicant was entitled under the domestic law only to infrequent, short-term visits from his family members (every six months until 2010 and every three months until 2014) without any physical contact or privacy (see the references in paragraph 10 above).

23 . The Court has already found that severe limitations on applicants ’ contact with their families and the outside world in general, which were imposed directly by law solely on account of the gravity of the sentence and without any individual risk assessment, were disproportionate and therefore in breach of Article 8 of the Convention (see Bigun v. Ukraine [Committee], no. 30315/10, §§ 49-50, 21 March 2019, and Starishko v. Ukraine [Committee], no. 61839/12, §§ 31-32, 15 October 2020).

24 . There are no grounds for the Court to depart from that finding in the present case.

25 . There has therefore been a violation of Article 8 of the Convention.

26 . The applicant also complained that he did not have effective domestic remedies in respect of the above complaints. He relied on Article 13 of the Convention, which reads as follows:

“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.”

27 . The Court notes that this complaint is linked to the ones examined above and must therefore likewise be declared admissible.

28 . The Court reiterates that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 113, ECHR 2002 ‑ VI). In other words, that provision does not compel States to allow individuals to challenge domestic laws before a national authority on the ground of being contrary to the Convention (see De Tommaso v. Italy [GC], no. 43395/09, § 180, 23 February 2017).

29 . In the present case the lack of appropriate mechanisms for review of life sentence and the restrictions on family visits in prison complained of by the applicant were imposed on him directly by law (see paragraphs 9 , 10 , 15 and 23 above). His complaints were therefore targeted against the applicable legal provisions (compare Roche v. the United Kingdom [GC], no. 32555/96, §§ 127 and 137, ECHR 2005 ‑ X, Titarenko v. Ukraine , no. 31720/02, § 110, 20 September 2012, and Bigun , cited above, § 53).

30 . In these circumstances, the Court finds no breach of Article 13 of the Convention.

31 . 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.”

32 . The applicant claimed 200,000 euros (EUR) in respect of non ‑ pecuniary damage.

33 . The Government contested the above claim as exorbitant.

34 . The Court considers it appropriate in the circumstances of the case to award EUR 3,000 to the applicant in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

35 . The applicant did not claim the reimbursement of any costs and expenses in addition to the sum of EUR 850 already granted to him in legal aid (see paragraph 2 above).

36 . The Court therefore makes no award under this head.

37 . 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,

(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non ‑ pecuniary damage;

(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;

Done in English, and notified in writing on 22 April 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Mārtiņš Mits Deputy Registrar President