FOURTH SECTION

CASE OF LAVRINYUK v. UKRAINE

( Application no. 1858/08 )

JUDGMENT

STRASBOURG

4 December 2018

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

In the case of Lavrinyuk v. Ukraine ,

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

Faris Vehabović , President, Carlo Ranzoni , Péter Paczolay , judges, and Andrea Tamietti , Deputy Section Registrar ,

Having deliberated in private on 13 November 2018 ,

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

PROCEDURE

1 . The case originated in an application (no. 1858/08) 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 Vladimir Andreyevich Lavrinyuk (“the applicant”), on 11 October 2007 .

2 . The applicant, who had been granted l egal aid, was represented by Mr M.O. Tarakhkalo , a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna .

3 . On 11 January 2011 notice of the application was given to the Government. At that stage of the proceedings the Government were not invited to submit observations on the case. On 9 October 2013 the Government were invited to comment on the complaints concerning the poor conditions of the applicant ’ s detention and transport ation , unfairness of the criminal proceedings against him , an alleged interference with his right s of individual petition and of respect for his correspondence and the alleged lack of an effective domestic remedy . T he remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court .

4 . The Government objected to the examination of the application by a Committee. H aving considered the Government ’ s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1949 and lives in Zmiyiv .

A. Criminal proceedings against the applicant

6 . On 7 April 2005 the Kyivskiy District Court of Kharkiv found the applicant guilty of theft and of two counts of deliberate ly causing bodily harm to his wife and G., and sentenced him to one year ’ s imprisonment for the theft, one year ’ s imprisonment for deliberately causing bodily harm to G. and seven years ’ imprisonment for deliberately causing bodily harm to his wife . Using the rule of absorption of more lenient punishment by a stricter one the applicant was given seven years ’ imprisonment as a final sentence.

7 . On 29 November 2005 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) partly amended the first-instance judgment . Having considered that the theft was no longer classified as an offence, the appellate court terminated the proceedings with relation to the theft. In addition, as the applicant had continued to plead his innocence in relation the episode with G. and had objected to closing the proceedings in relation to that matter, and in view of the fact that meanwhile the offence had become time-barred, the Court of Appeal absolved the applicant from having to serv e the sentence in respect of the episode with G. The remain der of the sentence , namely a term of seven years ’ imprisonment for deliberately causing harm to the applicant ’ s wife , w as upheld by the Court of Appeal .

8 . On 8 May 2007 the Supreme Court dismissed an appeal by the applicant on points of law as unsubstantiated and upheld the findings of the Court of Appeal.

9 . Between 4 April 200 6 and 1 6 July 2010 the applicant served his sentence at the Romenska Correctional Colony (“the prison”).

B . Conditions of the applicant ’ s detention in the prison

1. The applicant ’ s account

10 . According to the applicant, he was detained in overcrowded cell s with poor sanitary and hygiene conditions. The unit no. 8 in which he served his sentence consisted of three rooms with a total living area of 75 . 5 sq . m . , a dining room, a shower room and a toilet room. From April to December 2006 the applicant shared his room with fifty other prisoners. As from December 2006 onwards he was confined in another room of the same unit , measuring 48 sq. m and accommodating twenty-six prisoners. No adequate access to sanitary facilities had been ensured: e very ten inmates had to share a water tap and a lavatory. Once a week, p risoner s w ere allowed to take a b a th.

11 . On twelve occasions the applicant was transported for medical reasons from the prison to an inter-regional hospital and on four occasions to Temnivska Correctional Colony no. 100 in Kharkiv Region. The prison vans used for transport ation consisted of t wo compartments of about 2 to 3 sq . m each , had no windows , and accommodated twelve inmates in each compartment. Likewise, railway car riage s used for transporting prisoners consisted of several compartments of 2 to 3 sq . m each, had no ventilation , and accommodated twelve inmates in each compartment. Trips lasted for more than twelve hours in one direction. The applicant referred in this respect to the relevant report s of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (hereinafter, “the CPT”) in respect of their visit s to Ukraine.

2. T he Government ’ s account

12 . According to the Government, t he applicant was detained in unit no. 8 , in which inmates suffering from tuberculosis were to serve their sentence s . He was provided with an individual bunk and bedding. Having relied on certificate s issued by the prison authorities in March 2014, attesting to the conditions of detention in the unit on that date, the Government submitted that t he unit accommodated forty-two prisoners. The dormitory of the unit was of 75.5 sq. m. and consisted of three bed rooms measuring 10.1 sq. m, 34.8 sq. m, and 27.6 sq. m respectively , which were equipped with necessary furniture. The above-mentioned certificates further attested that apart from the sleeping rooms there w as also a shower room, a toilet and a room for reheating food. The Government submitted that the unit also disposed other premises, such as rooms for educational work, storage rooms for food and personal belongings of prisoners and a drying room , which the applicant was free to use between 6 a.m. and 10 p.m. each day in order to compensate the scare attribution of space in his bed room. The y relied in this respect on printed copies of various photographs , taken in 2014, allegedly showing some of the above-mentioned premises of the unit . According to them, a ll areas were in satisfactory condition, were equipped with furniture, stock and household goods. In the shower room there was one water tap per ten inmates and one toilet per twelve inmates . According to the prison ’ s schedule, the inmates of the applicant ’ s unit had a bath once per week , and bedding and underwear would also be changed. The Government thus concluded that the applicant was detained in appropriate conditions which afforded him in total no less than 3 sq. m of personal space which was in compliance with relevant minimum standard set in the domestic law.

13 . The Government acknowledged the fact that , on a number of occasions , the applicant had been transported from the prison to different medical institutions . He had been taken in a prison van to the Romny railway station and had then continued his journey in a railway car riage specially equipped for transporting prisoners. However, the y could not provide any details relating to the conditions of the applicant ’ s transportation because the time-limit for keeping the relevant documents had expired and the records had subsequently been destroyed. The Government therefore referred to domestic statutory provisions governing prisoners ’ transportation .

C . The application to the Court

1 . The applicant ’ s efforts to obtain certain documents for his application to the Court

14 . On 26 August 2008 the Court invited the applicant to submit copies of documents pertinent to his complaints, including his appeal and appeal on points of law .

15 . In his letter to the Court of 27 November 2008, the applicant stated that his request of 26 September 2008 for copies of the necessary documents had remained unanswered , even though there was evidence that the request had been received by the Kyivskiy District Court of Kharkiv .

16 . According to the Government, in 2004 and 2005, following the applicant ’ s requests , he had studied the case file in detail and had been served with copies of procedural documents in his case, save for a copy of his appeal on points of law , which was not available in the case file at the time . They provided no factual information as regards the applicant ’ s requests for documents submitted in 2008.

17 . On 16 July 2010 the applicant ’ s sentence came to an end and he was released from the prison (see paragraph 9 above) . According to domestic law , his access to the case file following his release was not limited. There is no evidence that , after his release , the applicant applied to the relevant authorities with a request to have access to his case file or to have copies of documents made.

2 . Alleged i nterference with the applicant ’ s correspondence with the Court.

18 . The applicant alleged that the prison administration had deliberately delayed sending certain of his letters to the Court , had monitored his correspondence and had withheld documents attached to some of the complaints , which he had asked them to send to the Court. According to the applicant , he had also been persecuted by the administration of the prison for communicating with the Court. In particular, on an unspecified date in 2009 he had been placed in disciplinary detention for fifteen days .

19 . The prosecutor ’ s office examined the applicant ’ s grievances and found them to be unsubstantiated.

20 . The Court received all the letters referred to by the applicant with all their enclosures.

II. RELEVANT INTERNATIONAL MATERIAL

21 . The relevant extracts from the reports of the CPT concerning conditions of transportation of detainees in Ukraine can be found in Yakovenko v. Ukraine (no. 15825/06, §§ 59 - 61 , 25 October 2007 ).

THE LAW

I. SCOPE OF THE CASE

22 . The Court notes that in his reply to the Government ’ s observations of 20 June 2014, the applicant made a further complaint under Article 3 of the Convention that he had not been provided with adequate medical care while in detention.

23 . In the Court ’ s view, th is further complaint is not an elaboration of his original complaints to the Court on which the parties have commented. The Court considers, therefore, that it is not appropriate to assess this complaint in the context of the present case (see Piryanik v. Ukraine , no. 75788/01, § 20, 19 April 2005).

I I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

24 . The applicant complained that at the prison he had been subjected to conditions of detention which were contrary to Article 3 of the Convention, on account primarily of overcrowding in addition to poor sanitary and hygiene arrangements . He further complained about the condition s of his transport ation to and from the prison.

Article 3 reads as follows :

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

A. Admissibility

25 . The Government argued that this part of the applicant ’ s complaint was inadmissible for non-exhaustion of domestic remedies. They contended that the applicant could have raised his complaint before the public prosecutor in charge of supervising the prison authorities ’ compliance with the law. Any decision taken by the prosecutor could have been further challenged before the domestic courts.

26 . The applicant alleged that the remedies referred to by the Government were ineffective and that he was therefore absolved from the obligation to exhaust them.

27 . The Court observes that it has rejected non-exhaustion arguments , similar to those raised by the Government in the present case , in a number of other cases where the complaints concerned problems of a structural nature in the domestic penitentiary system (see, for example, Kalashnikov v. Russia ( dec. ), no. 47095/99 , ECHR 2001 -XI ; Melnik v. Ukraine , no. 72286/01 , §§ 69-71, 28 March 2006; Yakovenko v. Ukraine , no. 15825/06 , §§ 75-76, 25 October 2007; Koktysh v. Ukraine , no. 43707/07 , § 86, 10 December 2009; and Logvinenko v. Ukraine , no. 13448/07 , § 57, 14 October 2010). It does not see any reason to depart from its previous approach in the present case and therefore dismisses the Government ’ s objection of non-exhaustion.

28 . The Court further notes that th is 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.

B. Merits

29 . The relevant elements of the parties ’ submissions are set out in paragraphs 10 to 13 above.

30 . The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, either on its own or when taken together with other shortcomings (see MurÅ¡ić v. Croatia [GC], no. 7334/13 , §§ 96 ‑ 101 and 136-41, ECHR 2016).

31 . In the instant case the Court notes that the Government provided no information as to the particular conditions in which the applicant had been detained in the prison , including how many inmates had been held with the applicant in the cells during the relevant period . The ir description of the general conditions of detention in the prison unit was based on information provided by the prison authorities in March 2014, a ttesting to the conditions of detention in the unit on that date ( see paragraph 12 above ) , while the applicant was serving his sentence in the prison from April 2006 to July 2010 (see paragraph 9 above) . At the same time, they did not deny the fact that the applicant was detained in overcrowded conditions , as alleged by him, but considered that possibility of using , at given times, additional premises of the unit would adequately compensate for the lack of space in the living area (see paragraph 12 above) .

32 . In these circumstances, the Court cannot but give weight to the applicant ’ s submissions and conclude that for the major part of his detention in the prison he was confined in a compartment which allowed him less than 2 sq . m of personal space (see paragraph 10 above) , which is significantly below the minimum standard of 3 sq . m in multi-occupancy accommodation (see Muršić , cited above, § 110).

33 . A strong presumption of a violatio n of Article 3 thus arises (see Muršić , cited above, § 137) . The Government ’ s statement to the effect that there had been adequate compensation for such a scar c e a llocation of space in the living area as a result of the possibility of us ing additional space, such as a shower room, a dining room and storage rooms, is to o va g u e to rebut that presumption , and it has not been shown by the Government that there were other factors capable of adequately compensating for the scarce allocation of personal space.

34 . There has accordingly been a violation of Article 3 of the Convention in this respect .

35 . The above finding makes it unnecessary for the Court to address separately the applicant ’ s remaining allegations relating to the poor conditions of his detention, including those concerning his transport from the prison to medical institutions (see, for example, Kiyashko v. Ukraine [Committee] , no. 37240/07, § 92 , 23 February 2017).

I I I . ALLEGED VIOLATION OF ARTICLE 13 IN CONNECTION WITH ARTICLE 3 OF THE CONVENTION

36 . The applicant complained under Article 13 of the Convention that there had been no effective remed ies for his complaint under Article 3 of the Convention regarding the conditions of his detention.

Article 13 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.”

37 . The Government contended that the applicant had had effective remedies at his disposal as required by Article 13 of the Convention and referred to their submissions as to the non-exhaustion of domestic remedies concerning the applicant ’ s complaints under Article 3 of the Convention (see paragraph 25 above) .

38 . The Court finds that this complaint is not manifestly ill-founded or inadmissible on any of the other ground s . It must therefore be declared admissible.

39 . With reference to its earlier case-law (see, among other authorities, Melnik , cited above, §§ 113-16 , and Iglin v. Ukraine , no. 39908/05, § 77, 12 January 2012 ) and having regard to its conclusions as to the exhaustion of domestic remedies (see paragraph 27 above), the Court finds that the Government have not proved that the applicant had at his disposal effective remedies for his complaints under Article 3 of the Convention – that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded him appropriate redress.

40 . The Court therefore concludes that there has been a violation of Article 13 of the Convention on account of the lack of effective remed ies under domestic law for the applicant ’ s complaint in respect of the conditions of his detention in the prison .

I V . ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

41 . The applicant complained that the authorities had not reacted to his request for copies of documents which the Court had asked him to provide. He further complained that the prison administration had reviewed his letters to and from the Court in his presence , had failed to send or delayed in sending some of his letters to the Court and had withheld documents contained therein , which had put him at real risk of being subjected to psychological pressure and ill-treatment by prison staff and which had hindered his communication with the Court . He relied on Article 34 of the Convention, which provides:

“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.”

42 . The Government submitted that the prison administration had not hindered the applicant ’ s communication with the Court in any way and h ad not monitored it, and that the applicant ’ s allegations had been carefully checked and dismissed by the prosecutor as unsubstantiated.

43 . The Government further argued that the applicant had had an opportunity to obtain copies of the documents he had needed after his release from the prison but had never made such a request to the relevant authority. They also claimed that he had previously obtained copies of a number of the principal decisions in his case ( except for his appeal on points of law , which was missing from the case file ) , and that he could have made copies of other necessary documents when familiarising himself with the file – that is to say prior to the completion of the criminal proceedings in respect of his case.

44 . In his observations in response to those of the Government, the applicant did not maintain his initial allegations about the delays in sending the correspondence and withholding documents from his letters to the Court. The Court will therefore not comment on them.

45 . The complaint about the monitoring of the correspondence with the Court, as initially presented by the applicant, stemmed from the complaint s referred to in the paragraph above , which appear to have be en abandoned by the applicant. In his observations in response to the Government, the applicant maintained a general allegation that at least a part of his correspondence with the Court had been monitored . H e neither specified the content of the letter s which had been monitored nor did he provide any details whatsoever as regards the circumstance in which the alleged monitoring t ook place. On its own, t he Court does not discern in the materials before it any evidence that the applicant ’ s correspondence with the Court had been monitored. Th e applicant ’ s letters to the Court were not stamped by the detention facility (see, a contrario , Trosin v. Ukraine , no. 39758/05 , § 55, 23 February 2012). Likewise, t he covering letters from the detention facility d id not refer to the substance of the correspondence dispatched (ibid.) . All letters from the applicant reached the Court with the enclosures in their entirety.

46 . It shall also not be overlooked that no pro of confirming the applicant ’ s allegations was found in the course of the prosecutor ’ s enquiry into the applicant ’ s allegations (see paragraph 19 above) . The Court finds no reason to doubt the prosecutor ’ s findings.

47 . In these circumstances, there is no evidence that the applicant ’ s fear of being persecuted for communicating with the Court had a reasonable basis. T he disciplinary sanction which was imposed on him in prison (see paragraph 18 above) appears to have had no connection with his application to the Court as such but, a s follows from the case file, was a result of him insulting a prison officer in a dispute about issues related to sending his correspondence to the Court.

48 . As regards the remainder of the applicant ’ s complaint, it is not disputed by the Government that the authorities ha d failed to comply with the applicant ’ s request of 26 September 2008 for cop ies of documents ( see paragraph 15 above) .

49 . The Court has already dealt with similar situations in a number of cases concerning Ukraine (see, among other authorities , Vasiliy Ivashchenko v. Ukraine , no. 760/03 , §§ 103-10, 26 July 2012, with further references; Savitskyy v. Ukraine , no. 38773/05 , §§ 157-59, 26 July 2012; Korostylyov v. Ukraine , no. 33643/03 , §§ 48 -50, 13 June 2013; and Andrey Zakharov v. Ukraine , no. 26581/06 , §§ 6 8 -70, 7 January 2016). In particular, in the case of Vasiliy Ivashchenko (cited above, § 123) the Court found that the Ukrainian legal system did not provide prisoners with a clear and specific procedure to enable them to obtain copies of case documents after the conclusion of criminal proceedings.

50 . In the present case, the Government did not provide any reason for the Court to depart from its findings under Article 34 of the Convention in the case of Vasiliy Ivashchenko or the other cases cited above in so far as the alleged hindrance of the effective exercise of the applicant ’ s right of individual petition in respect of the time during which he was serving his prison sentence was concerned . Accordingly, the Court concludes that the respondent State failed to comply with its obligation under Article 34 of the Convention to furnish all necessary facilities to the applicant in order not to hinder the proper and effective examination of his application by the Court during his imprisonment.

51 . It has not been suggested or shown by the applicant that he had no practical opportunity to obtain copies of the documents he needed following his release from the prison. Accordingly, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention as far as this period is concerned.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

52 . The applicant also submitted various othe r complaints under Article 6 §§ 1 and 3 ( b ), (c) and (d), as well as under Articles 8 and 13 of the Convention.

53 . The Court has examined the above complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

54 . It follows that th ese complaints must be rejected in accordance with Article 35 § 4 of the Convention.

V I . APPLICATION OF ARTICLE 41 OF THE CONVENTION

55 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

56 . The applicant claimed 70,000 euros (EUR) in respect of non ‑ pecuniary damage.

57 . The Government contested this claim.

58 . Ruling on an equitable basis, the Court awards the applicant EUR 1 1 , 500 in compensation for non-pecuniary damage .

B. Costs and expenses

59 . The applicant also claimed EUR 2 ,660 as legal costs incurred before the Court as well as EUR 212.8 0 and EUR 106.4 0 as administrative costs and postal expenses respectively.

60 . The Government contended that the amount of the legal fee claimed by the applicant was excessively high.

61 . 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, the Court considers it reasonable to award the sum of EUR 1,810 (which is equal to EUR 2,660 less EUR 850, the sum paid by way of legal aid – see paragraph 2 above ) for the proceedings before the Court. This award is to be paid into the bank account of the applicant ’ s lawyer, Mr Tarakhkalo , as indicated by the applicant (see, mutatis mutandis , Khlaifia and Others v. Italy [GC], no. 16483/12, § 288 and point 12 (a) of the operative part, ECHR 2016 (extracts)) . It rejects the remainder of the claim for costs and expenses.

C. Default interest

62 . 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,

1. Declares the complaint s under Article s 3 and 13 of the Convention concerning the conditions of the applicant ’ s detention in the prison admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 3 of the Convention;

3 . Holds that there has been a violation of Article 13 of the Convention in connection with Article 3 of the Convention ;

4 . Holds that the State has failed to comply with their obligations under Article 34 of the Convention during the time the applicant served his prison sentence;

5 . Holds that the State has not failed to comply with their obligations under Article 34 of the Convention after the applicant ’ s release fr o m the prison;

6 . Holds

(a) that the respondent State is to pay to the applicant , within three months , the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

( i ) EUR 11 , 500 ( eleven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,810 (one thousand eight hundred and ten euros), plus any tax that may be chargeable to the applicant , in respect of costs and expenses, to be paid into the bank account of his representative , Mr Mykhailo Tarakhkalo ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 4 December 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Faris Vehabović Deputy Registrar President