FIFTH SECTION

Application no. 28403/05 by Yevgeniy Moiseyevich VINTMAN against Ukraine lodged on 29 June 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Yevgeniy Moiseyevich Vintman, is a Ukrainian national who was born in 1968 and has his permanent address in Zaporizhzhya . He is currently serving a prison sentence in Sokal. He is represented before the Court by Mrs V.P. Kapiton , his mother .

A. The circumstances of the case

1. Criminal proceedings against the applicant and his detention

In February 2000 the applicant was arrested and detained in a pre-trial detention facility on suspicion of having committed robberies and a murder. According to the applicant, he was severely beaten and ill-treated in order to extract self-incriminating statements.

On 13 September 2000 the Zaporizhzhya Regional Court found the applicant guilty as charged. It sentenced him to life imprisonment for murder and considered that the prison terms for the other crimes were absorbed by the life sentence. The court dismissed the applicant ’ s allegations of ill-treatment by the investigative authorities as unsubstantiated.

On 21 December 2000 the Supreme Court of Ukraine upheld the Regional Court ’ s judgment.

In 2001 the applicant was transferred to Vinnytsya no. 1 Prison (some seven hundred kilometres from Zaporizhzh y a) to serve his sentence.

On numerous occasions the applicant and his mother, Mrs Kapiton, who acted on his behalf as his representative under the power of attorney, asked the State Department of Ukraine for the Enforcement of Sentences (“the Prison Department”) to transfer the applicant to a detention facility closer to his home to make it easier for Mrs Kapiton to visit him. They noted, in particular, that the travel time from Zaporizhzh y a to Vinnytsya by public transportation was eighteen hours. Such a journey was very burdensome for Mrs Kapiton, who was officially assigned a ‘ second-degree ’ (medium) invalidity.

On 10 June and 15 September 2004 the Prison Department informed Mrs Kapiton that the applicant ’ s transfer was not possible. In particular, the Code of Ukraine on the Enforcement of Sentences ( Кримінально-виконавчий кодекс України ) envisaged that, as a general rule, prisoners serve the entire term of their sentence in one establishment and that there was no legal basis for transferring the applicant to a different one.

On 29 October 2004 Mrs Kapiton arrived at Vinnytsya Prison to visit the applicant. During the visit she fell unconscious and was provided with medical assistance on account of low blood pressure. After she recovered, the meeting with the applicant was not resumed. It is not clear whether Mrs Kapiton refused to resume the meeting of her own will or whether it was cancelled at the recommendation of a medical professional. It appears that since this incident Mrs Kapiton never visited the applicant in Vinnytsya Prison again. They kept in regular contact by correspondence and telephone.

Subsequently, on many occasions Mrs Kapiton continued to contact various authorities on her own and the applicant ’ s behalf requesting his transfer closer to his home to enable her to visit him. She presented medical certificates concerning her invalidity and a certificate from a medical commission stating that she had been recommended not to travel outside the Zaporizhzh y a Region.

All of her requests were rejected by the Prison Department. On numerous occasions (12 and 18 November 2004, and 17 February, 21 and 24 March 2005) the Prison Department repeated its previous reasoning, referring to the legal requirement that prisoners serve their entire prison terms in one establishment. On 7 August 2006 the Prison Department further notified the applicant that according to unspecified regulations, persons convicted of aggravated murder were usually detained in facilities located outside the region in which they had committed their crimes.

On 30 October 2009 the Supreme Court of Ukraine reviewed the applicant ’ s sentence under an extraordinary procedure and reduced his prison term to fifteen years, having noted that life imprisonment had not been listed as a possible penalty in the Criminal Code on the date when the murder for which the applicant had been sentenced was committed.

On 10 November 2009 Mrs Kapiton requested the applicant ’ s transfer to Odessa no. 14 Prison or another prison closer to Zaporizhzh y a on the ground that his sentence had been modified.

In December 2009 the applicant was transferred to Sokal no. 47 Prison (around one thousand kilometres from Zaporizhzh y a).

On an unspecified date Mrs Kapiton complained to the Prison Department that this transfer was unfair, as this prison was even further away from the applicant ’ s home address.

On 17 February 2010 the Prison Department informed Mrs Kapiton in response to her complaint that the applicant ’ s transfer to Sokal Prison had been lawful and based on the availability of places in prisons for prisoners convicted of serious offences.

On 26 April 2010 the Prison Department further informed Mrs Kapiton that its Appeal Board had rejected the applicant ’ s request for a transfer to the Zaporizhzh y a Region and that a further review of this decision would be possible only in the event that his conduct improved.

2. Conditions of detention in Vinnytsya no. 1 Prison

On numerous occasions the applicant and Mrs Kapiton on his behalf complained to the prosecutor ’ s office, the Prison Department and other authorities about the conditions in Vinnytsya no. 1 Prison and the conduct of the prison officers. They alleged, in particular, that the cells needed renovating; the courtyards were not suitable for taking walks; the applicant ’ s cellmates were suspicious individuals potentially prone to unexpected violence and sometimes sick with tuberculosis; the prison shop lacked fruit and vegetables; sometimes the applicant had no work at all, while at other times he was forced to work for fourteen hours a day; the prison officers extorted money from him for the renovation of the prison cells only to move him to new cells after the renovation had been carried out; the applicant was groundlessly subjected to disciplinary punishments; during the searches of the cells food and cigarettes were thrown on the floor; prisoners were not allowed to wear civilian clothes in the cells; the applicant ’ s correspondence was routinely monitored, the letters containing complaints about the prison authorities being secretly withheld; objects sent to him (including books, pens, postcards, medicines) were also seized; no adequate medical assistance was provided to the applicant to treat the ingrown eyelashes in his left eye, etc.

On various dates they received responses stating that their complaints were unsubstantiated. In particular, the authorities alleged that the applicant was held in cells designated for two people measuring 15.25 square metres and that the cells were equipped with furniture and sanitary facilities. The prison was equipped with courtyards where prisoners could take outside exercise for one hour per day. When there was work available, the applicant ’ s working day did not exceed eight hours. In particular, at times he was employed to sew men ’ s working suits. He had also been offered the task of producing sacs, but he refused. The applicant bought apples, mandarins, lemons, onions and other products from the prison shop. Under Article 113 of the Code on the Enforcement of Sentences the applicant ’ s correspondence was subject to review; however, there had been no instances of withholding letters or seizing objects which the prisoners were allowed to keep. The applicant systematically received medical treatment for the ingrown eyelashes in his left eye. In particular, these eyelashes were surgically removed by a qualified ophthalmologist on a regular basis. No other health ‑ related complaints had been recorded.

On an unspecified date either the applicant or his mother complained to the prosecutor ’ s office stating that the applicant ’ s eye problem was connected to his beating by the prison guards upon his arrival in prison in 2001.

On 5 and 25 April 2005 the Vinnytsya Prosecutor ’ s Office responded saying that there was no basis upon which to institute a criminal investigation into this complaint. In particular, there was no prior record of the applicant ’ s request for medical assistance on account of any physical injuries inflicted on him and according to the testimony of other prisoners, who arrived at the prison together with the applicant, they experienced and witnessed no beatings.

B. Relevant domestic law

The relevant provisions of the domestic law concerning the monitoring of prisoners ’ correspondence can be found in the Court ’ s judgment in the case of Chaykovskiy v. Ukraine ( no. 2295/06 , § § 37-40 , 15 October 2009 ).

The relevant provisions of the Code of Ukraine on the Enforcement of Sentences ( Кримінально-виконавчий кодекс У країни ) of 2003 pertaining to the selection of the prison in which a sentence is to be served, as worded at the material time, are as follows:

Article 93. Service of the entire prison sentence in one correctional or educational colony

“1. A [person] sentenced to deprivation of liberty shall serve the entire term of the sentence in one correctional or educational colony, as a rule, within the boundaries of an administrative territorial unit corresponding to the place of his [her] permanent residence before conviction.

2. The transfer of a sentenced [person] from one correctional or educational colony to another for further service of the sentence shall be permitted under exceptional circumstances that prevent the continued stay of the sentenced [person] in that correctional or educational colony. The procedure for transferring the sentenced person shall be determined by the normative legal acts of the State Department of Ukraine for the Enforcement of Sentences.”

COMPLAINTS

The applicant complains that the Prison Department ’ s refusal to consider his arguments about his mother being unfit for long-distance travel in refusing his requests for transfer to a prison closer to his home was unlawful and unfair in breach of the Convention and that there was no way for him to challenge such refusals.

He next complains of the monitoring and withholding of his correspondence and lack of medical assistance for his ingrown eyelashes.

The applicant further complains of having been beaten by the investigative authorities in order to extract self-incriminating statements which served as a basis for his conviction and by the prison officers upon his arrival at Vinnytsya Prison in December 2001. He also complains of the conditions of his detention in this facility and the general manner in which the prison authorities treated him. He refers to Article 3 of the Convention in this respect.

He also complains that Article 5 of the Convention was breached in his respect without providing any specific information.

The applicant complains under Article 6 of the Convention that the criminal proceedings against him were unfair and that he was convicted of crimes he did not commit.

Lastly, the applicant complains under Article 7 of the Convention that his sentence to life imprisonment was not lawful, as on the date on which the murder imputed to him was committed, the maximum punishment for murder was fifteen years ’ imprisonment.

QUESTIONS TO THE PARTIES

1. Were the S tate Department ’ s for the Enforcement of Sentences refusals to transfer the applicant to a penitentiary establishment closer to his home lawful within the meaning of Article 8 of the Convention? If so, regard being had to the States ’ obligation to assist prisoners in maintaining contact with their close family (see, for example, Bogusław Krawczak v. Poland , no. 24205/06 , § 107 , 31 May 2011 ), were they also necessary in a democratic society?

2. Did the applicant have at his disposal an effective domestic remedy within the meaning of Article 13 of the Convention for challenging refusals of the State Department for the Enforcement of Sentences to transfer him to a penitentiary establishment closer to his home ?

If so, your Government are invited to provide relevant case-law or practice (if any) on the matter.

3. Was the monitoring of the applicant ’ s correspondence in Vinnytsya no. 1 Prison lawful and necessary in a democratic society?

Your Government are requested to submit the relevant prison records on the applicant ’ s correspondence and to inform the Court whether the prison authorities have ever refused to transmit any letters written by him or addressed to him.

4. Have the applicant ’ s rights under Articles 3 and 8 of the Convention been observed, regard being had to the quality of medical assistance provided to him for his complaints of ingrown eyelashes in his left eye?