Information Note on the Court’s case-law 52

April 2003

Khokhlich v. Ukraine - 41707/98

Judgment 29.4.2003 [Section IV]

Article 3

Degrading treatment

Inhuman treatment

Conditions of detention of prisoner sentenced to death: violation

Article 8

Article 8-1

Respect for family life

Restrictions on family visits to prisoner sentenced to death: violation

Respect for correspondence

Restrictions on correspondence (inc luding receipt of parcels) of prisoners sentenced to death: violation

Facts : The applicant was sentenced to death in 1996. However, a moratorium on capital punishment was declared in 1997 and all death sentences were commuted to life imprisonment by virtue of a law adopted in 2000. The applicant complained about the conditions of his detention. A delegation from the Court visited the prison in October 1999 and took evidence from several witnesses, including the applicant. The applicant stated that he had been informed of his rights in September 1999. He complained that he was give n insufficient food, that his cell was very cold in winter and that the shower room was in an unacceptable state. He claimed that the cell light was on constantly, although he added that this did not disturb him too much. He stated that the cell window had remained shuttered until just before the delegates' visit and that he had only been allowed to take a daily walk since May 1998. The applicant had been diagnosed in September 1997 as having tuberculosis and he submitted that this was as a result of having shared a cell with another inmate with the disease (diagnosed in July 1997). He further complained about restrictions on receiving parcels and on his visiting rights and added that although the Regional Court had given permission in December 1997 for a no tary to visit him, the visit had only taken place in February 1998. The delegates found that the applicant's cell, measuring 9m 2 , was in order and clean, with an open toilet, a basin with cold water, two beds, central heating and a window with bars, and ap peared to be sufficiently heated and ventilated.

Law : Government's preliminary objections – The question of the applicant's victim status had not been raised at the admissibility stage and the Government were therefore estopped. As to the exhaustion of dom estic remedies, the evidence of the applicant and his mother that they had lodged several complaints with the prison authorities was reliable, and the authorities were therefore sufficiently aware of his situation and had an opportunity to examine the cond itions of detention and, if appropriate, offer redress. In so far as the applicant had not lodged a formal written complaint, he had not been properly informed of his rights until September 1999 and thus did not have sufficient knowledge of those rights be fore then. Finally, the Government had not shown how recourse to a civil action could have brought about an improvement in the conditions and had not produced any domestic case-law to show that such an action would have had any prospects of success. The ob jections were therefore dismissed.

Article 3 (conditions of detention) – The Court had jurisdiction to examine the applicant's complaints in so far as they related to the period after 11 September 1997, when the Convention came into force in respect of Ukr aine. However, in assessing the effect of the conditions, it could also have regard to the overall period of his detention and to the conditions during that period. The Court accepted that the applicant must initially have been in a state of uncertainty, f ear and anxiety as to his future but it considered that the risk of execution and the accompanying fear and anxiety must have diminished as time went on. It largely accepted the applicant's evidence as to the conditions of his detention and, while it could not establish with complete clarity the conditions prior to the delegates' visit, certain factswere beyond dispute. The Court viewed with particular concern the fact that, until May 1998, the applicant had been locked up for 24 hours a day in a cell which offered only a very restricted living space, with no access to natural light, no opportunity for outdoor exercise and little or no opportunity for other activities or for human contact. Detention in unacceptable conditions of that kind amounted to degradi ng treatment, and the situation was aggravated by the fact that throughout the period in question the applicant was subject to a death sentence. While there was no evidence of a positive intention to humiliate or debase him, the conditions which he had had to endure, in particular until May 1998, must nevertheless have caused him considerable mental suffering, diminishing his human dignity. Although significant improvements had taken place thereafter, the applicant had by then already been in detention for 24 months. Furthermore, the serious economic difficulties encountered by Ukraine could not explain or excuse the unacceptable conditions of the applicant's detention.

Conclusion : violation (unanimously).

Article 3 (infection with tuberculosis) – To the extent that the oral evidence and the prison records conflicted, the Court preferred to rely on the latter as likely to be more accurate and found on that basis that the applicant had been detained in a sepa rate cell from 23 April 1997. It did not consider reliable the applicant's evidence that, during the period that he shared a cell, his cell-mate was already ill.The latter had been diagnosed with tuberculosis more than two months after they had been detain ed together and while it was theoretically possible for him to have been suffering from tuberculosis while they shared a cell, an independent medical commission had concluded that they actually had different types of tuberculosis and that the other inmate' s was not active. It was not therefore plausible that the applicant had been infected by his cell-mate. Moreover, both had received appropriate and adequate treatment, so that when they subsequently shared a cell again there was little risk of repeat infec tion. Finally, the health of both was satisfactory and they were under continuous medical supervision. In these circumstances, the applicant had not been subjected to ill-treatment on account of being infected with tuberculosis.

Conclusion : no violation (u nanimously).

Article 8 – By limiting the number of parcels which the applicant was allowed to receive and by preventing him from receiving two-hour visits from his relatives, the public authorities had interfered with his right to respect for private and f amily life and correspondence.

(i) During the period from September 1997 to July 1999, the general legal basis for conditions of detention was the Correctional Labour Code. However, the relevant provision referred to persons sentenced to imprisonment, whic h did not clearly include the applicant, who had been sentenced to death. Moreover, although the provision also stated that convicted persons serving their sentence in a prison were not allowed to receive parcels, the applicant was not held in any of the t ypes of institution mentioned in the same provision. Consequently, the restrictions imposed by theCode were not sufficiently foreseeable in the present case. In addition, the instruction referred to by the Government was an internal and unpublished documen t not accessible to the public.

Conclusion : violation (unanimously).

(ii) Although the applicant had not complained about the period after July 1999, the Court considered it appropriate, taking into account the importance of contacts between prisoners sent enced to death and their families, to examine the restrictions imposed bythe Temporary Provisions which came into force at that time and which allowed six parcels and three small packages a year. These restrictions were in accordance with the law and could be regarded as pursuing the legitimate aim of theprevention of disorder or crime. As to their necessity, taking into account the logistical problems involved in processing an unrestricted quantity of parcels arriving at a large penitentiary, the limitatio ns could be regarded as respecting a fair balance, bearing in mind that the prison authorities wereable to provide clothing, meals and medical care and that there were no restrictions on relatives sending money to inmates to purchase goods in the prison sh op.

Conclusion : no violation (unanimously).

Artocle 13 – It was the applicant's mother who had requested that a notary visit him in prison; the applicant had not personally applied for the visit in writing. Moreover, while he had complained to the delegate s about the delay, he had confirmed that this had not caused him any damage.

Conclusion : no violation (unanimously).

Article 41 – The Court awarded the applicant 2,000 € in respect of non-pecuniary damage. It also made an award in respect of costs and expe nses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes