FIFTH SECTION

CASE OF RODZEVILLO v. UKRAINE

( Application no. 6128/12 )

JUDGMENT

STRASBOURG

17 December 2019

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

In the case of Rodzevillo v. Ukraine ,

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

Síofra O ’ Leary, President, Ganna Yudkivska, Lado Chanturia, judges, and Milan Blaško , Deputy Section Registrar ,

Having deliberated in private on 26 November 2019 ,

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

PROCEDURE

1 . The case originated in an application (no. 6128/12) 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 Leonidovich Rodzevillo (“the applicant”), on 9 November 2011.

2 . The applicant, who had been granted legal aid, was represented by Mr A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.

3 . The applicant complained under Article 3 of the Convention , in particular, that the conditions of his detention in the Khmelnytskyy Pre-Trial Detention Centre and Ladyzhynska Prison no. 39 had been poor, and under Article 8 that the prison administration had “stolen” his correspondence. He also complained that he had had no effective domestic remedies in respect of those complaints.

4 . On 24 August 2015 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

5 . The applicant was born in 1967. He is serving a life sentence in Ladyzhynska Prison no. 39 (“Ladyzhynska Prison”).

6 . Between 24 December 2011 and 14 January 2012 the applicant was temporarily detained in the Khmelnytskyy Pre-Trial Detention Centre (“the Khmelnytskyy SIZO”) while he was being transferred to a different prison for a medical examination.

7 . According to the applicant, the lighting in his cell in the Khmelnytskyy SIZO was very poor, as the windows had iron shutters and the electric lamp was protected by a thick glass lampshade behind iron bars. The cell lacked basic items, such as a clothes rail, a broom, a scoop, a rubbish bin, a bucket and a mop or a rag for cleaning the floor. The shower compartment was very narrow (1 sq. m). There was a video surveillance camera over the toilet area.

8 . With regard to the period under examination, according to the Government, the applicant was detained in cell no. 13 in the maximum ‑ security sector, with 4 sq. m of living space. The cell complied with all sanitary requirements and was equipped with everything needed for cleaning (a broom, a scoop, a rubbish bin, a bucket and a mop or a rag for cleaning the floor). There was sufficient natural and artificial lighting. The applicant received three good-quality hot meals per day. Laundry and linen disinfection took place once per week and was free of charge. Prisoners serving life sentences took their showers individually, for security reasons. The video camera in the cell, which was indeed placed above the toilet area, did not have a view of the toilet itself.

9 . The applicant has been serving his sentence in Ladyzhynska Prison since May 2007. The present application covers his detention there from April 2012 onwards.

10 . Except when allowed to take a daily walk in the prison yard, the applicant was confined to a cell of approximately 6 sq. m. At times he was held alone, and at other times he shared the cell with one or two inmates.

11 . After the Government were given notice of the application, the applicant supplemented the above submissions by giving further details. According to him, at certain times during the relevant period he was detained in cells other than cell no. 15 (referred to by the Government, see paragraph 20 below), and he shared those cells with other inmates. Namely, he was detained:

- from 9 to 27 August 2012, and from 24 October to 11 December 2012 in cells nos. 19 and 22 respectively, which he shared with another inmate (2.67 sq. m per person);

- from 24 January to 1 February 2013 in cell no. 5; and from 28 April to 6 May 2014, and from 18 June to 17 July 2014 in cell no. 23 – both cells had two beds, but accommodated three inmates (3.1 sq. m per person).

12 . From 13 October to 6 November 2014 he shared cell no. 15 with another inmate, who was suffering from tuberculosis (2.67 sq. m per person).

13 . As a granite quarry was situated some two hundred metres from the prison, the air in the cell had an elevated level of radioactive granite dust, and a two-millimetre layer of dust covered all furniture and fittings on a daily basis, in spite of the applicant ’ s persistent efforts to clean it up.

14 . Tap water used for drinking and hygiene purposes was drawn directly from the local river. Barely treated, it was rusty and smelt bad. Prison employees did not use that water for their needs, and brought bottled water to work instead.

15 . The cell had no ventilation and was very damp. As a result of the damp, the paint on the walls had deteriorated and was peeling off. The lighting was poor and the heating was inadequate. There was no radio.

16 . The food was not nutritious. It mostly consisted of cereal and bread. The prisoners received scarcely any sugar, fresh vegetables, tea or cigarettes, items which were often appropriated by corrupt prison employees. The employees also stole bedding and other items received by the prison for prisoners ’ needs.

17 . The prison shop was so poorly supplied that it was impossible to supplement one ’ s meagre prison meals with any purchases from there. It also lacked basic necessities such as toilet paper, writing paper, postal stamps and envelopes. In order to stay healthy and communicate with the outside world, the applicant depended heavily on parcels from his parents, which contained food, vitamins, stationery and medicines.

18 . Poor nutrition, coupled with poor ventilation and poor air quality, facilitated the proliferation of infectious diseases such as tuberculosis. Disinfection and UV sterilisation of the air in the cells, required by the applicable domestic law, was almost never carried out.

19 . Significant time and effort on the applicant ’ s part were required to arrange appointments with the prison governor and the competent prosecutorial authorities in order to bring his concerns to their attention. Although on several occasions he succeeded in obtaining such appointments, they brought no relief, as his complaints were not acted upon.

20 . The applicant was detained in cell no. 15, measuring 6.5 sq. m and designed to accommodate one prisoner. The cell was equipped with all the necessary furniture and household equipment. There was a metal bed, a table fixed to the floor, a bench, a bedside cabinet, a shelf for toiletries, a shelf for foodstuffs, a clothes rail, a container for drinking water with a jar and a bowl, a speaker for a public address system, a tap and a rubbish bin. The toilet was separated from the living area.

21 . There was daily wet cleaning with a disinfectant solution.

22 . The maximum-security sector had a combined supply-and-exhaust ventilation system. Natural ventilation was also available. The temperature in cell no. 15 during inspections by the prison administration was 22ËšC.

23 . The food provided to inmates was in compliance with the relevant norms and standards. Inmates were provided with three meals per day. There was no shortage of foodstuffs at the prison.

24 . The applicant was provided with all necessary bedding, clothing and shoes. Prisoners were allowed to take a shower once a week and were provided with all their toiletries. Their bedding was changed once a week too.

25 . The prison shop was well stocked and offered a choice of fifty-five to ninety different items.

26 . The prison governor had regular appointments with prisoners. Between 2012 and 2015 he met with fifty-eight of them.

27 . The prison had isolation wards for detainees with contagious diseases. Not a single case of a contagious disease outbreak was registered in 2012.

28 . In providing all the information summarised above, the Government relied on a number of information notes issued by the administration of Ladyzhynska Prison, many of which did not indicate the date when they had been issued.

29 . According to the applicant, the following letters which he sent were stolen, given that he never received any reply to them – letters : of 10 January and 10 March 2011 addressed to the Pres ident of Ukraine; of 10 January 2011 addressed to the Prime Min ister of Ukraine; of 11 January 2011 addressed to a member of parliament; of 17 January, 9 February, 8 September and 4 October 2011 and 21 February 2012 addressed to the Vinnytsia regional prosecutor ’ s office; of 17 January 2011 addressed to the Prosecutor General and the Government ’ s Agent before the Court in the Vinnytsia Region; of 20 January and 7 February 2011 addressed to the Prosecutor General; of 24 January 2011 addressed to the Control and Revision Department of Ukraine; of 26 January and 14 February 2011 addressed to the Security Ser vice of Ukraine; of 17 February 2012 addressed to the Ladyzhyn prosecutor; and of 5 and 19 January 2011 and 20 February 2012 addressed to the Prison Service of Ukraine.

30 . Between November 2011 and January 2012 the applicant successfully sent twenty-six complaints concerning the conditions of his detention to various authorities.

31 . On many occasions at domestic level the applicant complained of the “theft” of his correspondence. He considered the authorities ’ replies formalistic, and was of the opinion that no fully fledged investigation into the matter had been carried out.

32 . The Government contested the applicant ’ s allegation that some of his letters had been stolen. Relying on documentary evidence and citing the relevant numbers relating to outgoing correspondence, the Government stated that the following letters from the applicant had been sent out: on 12 January 2011 to the President of Ukraine and the Prime Minister; on 13 January 2011 to a member of parliament; on 17 January 2011 to the Vinnytsia regional prosecutor ’ s office; on 14 December 2011 to the Security Service; and on 19 January 2011 to the Prison Service of Ukraine.

33 . As regards the other letters which the applicant alleged had been stolen, the Government observed that, in the absence of any records indicating the contrary, it appeared that the applicant had not sought that they be dispatched.

34 . While in Ladyzhynska Prison, overall, the applicant sent 102 applications and 349 letters and received 240 letters. The Government based this information on relevant extracts from the incoming and outgoing correspondence logbooks.

35 . The applicant ’ s related complaints were duly investigated at domestic level and dismissed as unfounded. In particular, the Vinnytsia Regional Department of the State Prison Service carried out numerous internal investigations in that regard.

36 . The 2003 Code on Enforcement of Sentences provides that male detainees sentenced to life imprisonment are to serve their sentences in prisons with the highest level of security (Article 18). They are detained in cells usually accommodating two inmates and are allowed to have a one ‑ hour daily walk (Article 151).

THE LAW

37 . The applicant complained that the conditions of his detention in the Khmelnytskyy SIZO and Ladyzhynska Priso n had been in breach of Article 3 of the Convention, which reads as follows:

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

38 . The Government submitted that the applicant had not exhausted domestic remedies, as he had failed to raise this complaint before the prosecution authorities.

39 . The applicant contested that argument and referred to the Court ’ s case-law, stating that there had been no effective domestic remedies in Ukraine in respect of such complaints (see, among other references cited by the applicant, Melnik v. Ukraine , no. 72286/01, §§ 69-71, 28 March 2006).

40 . The Court does not consider it necessary to examine the exhaustion issue here, as this complaint should in any event be declared inadmissible for the following reasons.

41 . The Court reiterates that, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as of specific allegations made by the applicant. The length of the period during which a person is detained in the particular conditions has also to be considered (see Muršić v. Croatia , [GC], no. 7334/13, § 101, 20 October 2016, with further references).

42 . The Court notes at the outset that the applicant ’ s criticism of the conditions of his detention in the Khmelnytskyy SIZO did not include the argument about overcrowding as such (see paragraph 7 above).

43 . As regards his allegations about the lack of any cleaning items in the cell and the small size of the shower compartment, the Court considers that even if the situation was as described by the applicant, it discloses conditions of detention which do not reach the threshold of severity required to raise an issue under Article 3 of the Convention .

44 . The Court next takes note of the applicant ’ s argument about a video surveillance camera in the cell (ibid.).

45 . The Court has held in its case-law that monitoring a prisoner ’ s behaviour, although certainly intrusive, is not per se incompatible with Article 3. This measure serves the purposes of both ensuring prison security and protecting the prisoner from the risk of pressure or even physical attack (see, mutatis mutandis , Klibisz v. Poland , no. 2235/02, § 320, 4 October 2016).

46 . It is undisputed in the present case that the camera was situated above the toilet area (see paragraphs 7 and 8 above). The Court has held that the expectation of privacy is very high in places which are private by nature, such as toilets (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, § 125, 17 October 2019). The applicant has not however provided evidence that use of the toilet was the subject of surveillance despite the fact he could have requested video camera recordings to prove this (compare Petukhov v. Ukraine (no. 2) , no. 41216/13, § 122, 12 March 2019). Although the Court will examine carefully the monitoring and surveillance of prisoners in areas where a high level of privacy can be expected by them, on the basis of the information available to it in this case it cannot conclude that the complaint is well-founded.

47 . The remaining argument raised by the applicant concerned the allegedly poor lighting (see paragraph 7 above). Even assuming that the lighting was indeed insufficient, there is no indication that it caused the applicant suffering reaching the threshold of severity required for Article 3 to come into play. This is even more so, given the relatively short duration of the applicant ’ s detention in the conditions complained of: twenty-one days (see paragraph 6 above).

48 . It follows that that this complaint is manifestly ill-founded and must be rejected in compliance with Article s 35 §§ 3 (a) and 4 of the Convention.

49 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

50 . Referring to his description of the conditions of his detention in Ladyzhynska Prison (see paragraphs 10 - 19 above), the applicant argued that they had been incompatible with the Convention standards.

51 . The Government submitted that the conditions of the applicant ’ s detention had been in compliance with the legal requirements.

(a) General principles

52 . The Court notes that the relevant principles of its case-law in relation to overcrowding were recently set out in Muršić , (cited above, §§ 137-41). In particular, when the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises (§ 137). In cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue, the space factor remains a weighty factor in the Court ’ s assessment of the adequacy of conditions of detention. In such instances, a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention (§ 139). Where a detainee had more than 4 sq. m of personal space at his or her disposal in multi-occupancy accommodation in prison, and therefore where no issue arises with regard to the question of personal space, other aspects of physical conditions of detention remain relevant for the Court ’ s assessment of the adequacy of an applicant ’ s conditions of detention under Article 3 of the Convention (§ 140).

(b) Application of the above principles to the present case

53 . The parties provided different accounts as regards the material conditions of the applicant ’ s detention in Ladyzhynska Prison (see paragraphs 10 - 28 above).

54 . The Court notes that the Government referred to only one cell (no. 15), without specifying the duration of the applicant ’ s detention in that cell. Furthermore, while the Government indicated that the cell in question had been designed for one inmate only, they did not specify whether it had in fact accommodated one inmate or more (see paragraph 20 above). Nor did the Government provide any information about the other cells in which the applicant had been detained.

55 . The Court observes that the applicant provided detailed information showing that on three occasions in 2012 and 2014, for a total of eighty-nine days, he had been afforded less than 3 sq. m of personal space while sharing his cell with another inmate (see paragraph 11 above).

56 . The Government did not contest those submissions. In these circumstances, the Court cannot but give weight to the applicant ’ s account and conclude that during the above-mentioned period he was detained in conditions comprising a severe lack of personal space giving grounds for a strong presumption of a violation of Article 3 (see paragraph 52 above). The Government did not demonstrate that there had been factors capable of adequately compensating for the scarce allocation of personal space to the applicant, in order to rebut that presumption. Furthermore, the Court notes that, being assigned to the maximum security unit, the applicant was confined to his cell most of the time (see paragraph 36 above).

57 . The Court has already examined applicants ’ complaints of overcrowding similar to those in the present case, albeit complaints relating to other prisons in Ukraine, and has found violations of Article 3 on that account (see, among many other authorities, Melnik , cited above, §§ 102, 103 and 112; Aleksandr Vladimirovich Smirnov v. Ukraine , no. 69250/11, §§ 58-60, 13 March 2014; Lavrinyuk v. Ukraine [Committee], no. 1858/08, §§ 31-34, 4 December 2018; and Dolgikh v. Ukraine [Committee], no. 34697/04 , §§ 46-50, 11 July 2019).

58 . The Court sees no reason, based on the information made available to it, to depart from those findings in the present case, and therefore considers that there has been a violation of Article 3 of the Convention.

59 . The above finding makes it unnecessary for the Court to address separately the applicant ’ s remaining allegations concerning the material conditions of his detention, including those relating to sanitary and hygiene conditions and nutrition (for a similar approach, see Dolgikh , cited above, § 51, with further references).

60 . The applicant complained of a violation of his right to respect for his correspondence, on account of the alleged “theft” of his correspondence by the prison authorities. He relied on Article 8 of the Convention, which reads:

“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.”

61 . Referring to the lack of a reply to any of his twenty letters sent to different authorities on various dates between January 2011 and February 2012 (see paragraph 29 above), the applicant alleged that the prison administration had “stolen all prisoners ’ correspondence with [various authorities] containing complaints concerning crimes committed by prison officials”.

62 . He submitted that the internal investigation reports referred to by the Government (see paragraph 35 above) contained many inconsistencies as regards the statistics relating to incoming and outgoing correspondence. Furthermore, the applicant contended that in any event, those reports were of no relevance, given that they did not concern the disappearance of his specific letters.

63 . More broadly, the applicant argued that the correspondence registration procedure within the prison system in Ukraine was unclear and lacked safeguards against abuse.

64 . The Government argued that the applicant ’ s allegations were wholly unsubstantiated and that the prison administration had in no way hindered his incoming and outgoing correspondence, which was illustrated by the considerable number of letters sent and received by him.

65 . The Court notes at the outset that the applicant ’ s grievance under this head does not concern the issue of prison authorities monitoring prisoners ’ correspondence, but is confined to a specific allegation of the “theft” of his letters by the prison administration (compare Burgazly v. Ukraine [Committee], no. 41920/09, §§ 52-69, 21 March 2019). In the applicant ’ s opinion, such theft was possible owing to various flaws in the correspondence registration procedure.

66 . More specifically, the applicant alleged that his twenty letters had been “stolen” (see paragraphs 29 and 61 above). The Government provided documentary evidence showing that six of the letters in question had been registered in the outgoing correspondence logbook (see paragraph 32 above). There is no indication that those six letters were not dispatched, let alone that they were “stolen” by the prison administration.

67 . As regards the remaining fourteen letters referred to by the applicant, the Government maintained that, in the absence of any evidence to the contrary, they had probably never existed (see paragraph 33 above). The Court has no evidential basis in support of either the applicant ’ s or the Government ’ s argument, and will not speculate on this issue.

68 . However, on the basis of the material before it, the Court does observe that the applicant exchanged hundreds of letters with various authorities (see paragraph 34 above) . As admitted by the applicant himself, in the period between November 2011 and January 2012 alone he successfully sent out twenty-six complaints concerning the conditions of his detention (see paragraph 30 above).

69 . Even assuming that some of the applicant ’ s large amount of correspondence was lost, this might have been the result of a technical error at some stage of dispatch or delivery. In any event, the Court finds that there is an insufficient factual basis for concluding that the Ukrainian authorities deliberately held back the applicant ’ s letters or failed to ensure that they were duly dispatched (see Sadkov v. Ukraine , no. 21987/05, § 147, 6 July 2017).

70 . It follows that this complaint is manifestly ill-founded and must be rejected, pursuant to Article s 35 §§ 3 (a) and 4 of the Convention.

71 . The applicant further complained under Article 13 of the Convention that he had had no effective remedies for his complaints under Articles 3 and 8 of the Convention. The relevant provision 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.”

72 . The Court, having declared inadmissible the applicant ’ s complaint under Article 3 concerning the conditions of detention in the Khmelnytskyy SIZO (see paragraph 48 above), as well as his complaint under Article 8 concerning the alleged “theft” of his correspondence by the prison administration (see paragraph 70 above), concludes that there is no arguable claim in respect of those complaints for the purposes of Article 13 (see, for example, Burlya and Others v. Ukraine , no. 3289/10 , § 183, 6 November 2018). Therefore, that part of the complaint under Article 13 must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article s 35 §§ 3 (a) and 4.

73 . The remainder of the complaint under Article 13 – concerning the absence of effective domestic remedies in respect of the applicant ’ s complaint under Article 3 of the Convention of the conditions of his detention in Ladyzhynska Prison – is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds and must therefore be declared admissible.

74 . The Government submitted that it had been open to the applicant to raise his complaints before a prosecutor.

75 . The applicant insisted that there had been no effective domestic remedy available to him.

76 . The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. With reference to its earlier case-law (see, among other authorities, Melnik , cited above, §§ 113-16) and the circumstances of the present case, the Court finds that the Government have not proved that, in practice, the applicant had an opportunity to obtain effective remedies for his complaints, that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded him any other appropriate redress.

77 . The Court therefore concludes that there has been a violation of Article 13 in conjunction with Article 3 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant ’ s complaint in respect of the conditions of his detention in Ladyzhynska Prison.

78 . 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.”

79 . The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage.

80 . The Government contested that claim as exorbitant and unsubstantiated.

81 . Ruling on an equitable basis, the Court finds it appropriate to award the applicant 3,000 euros (EUR) in respect of non-pecuniary damage.

82 . The applicant also claimed 144,643 Ukrainian hryvnias (UAH) for the legal fees incurred before the Court.

83 . The Government maintained that, given the nature of the applicant ’ s complaints, the claim for legal fees was exaggerated.

84 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and bearing in mind that the applicant ’ s representative has already been paid EUR 850 under the Court ’ s legal aid scheme (see paragraph 2 above), the Court rejects the applicant ’ s claim.

85 . 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) in respect of non ‑ pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State;

(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 17 December 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Síofra O ’ Leary Deputy Registrar President