I correctly predicted that there was a violation of human rights in BAKCHIZHOV v. UKRAINE.

Judgment

FOURTH SECTION

CASE OF BAKCHIZHOV v. UKRAINE

(Application no. 24874/08)

JUDGMENT

STRASBOURG

30 October 2018

This judgment is final but it may be subject to editorial revision. In the case of Bakchizhov 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 9 October 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 24874/08) 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 Aleksandr Viktorovich Bakchizhov (“the applicant”), on 7 May 2008. 2. The applicant, who had been granted legal 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, of the Ministry of Justice. 3. On 11 January 2011 notice of the application was given to the Government. On 9 October 2013 the Government were invited to comment on the applicant’s complaints concerning his alleged ill-treatment in prison, the poor conditions of his detention, his lack of adequate medical assistance and the absence of an effective remedy in this respect, as well as his complaints of forced labour in prison, monitoring of his correspondence by the prison administration and hindrance of his right of individual application. The 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 applications by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1969 and lives in Kyiv. 6. On 22 January 2007 the first-instance court found the applicant guilty of inflicting bodily injuries on another individual and sentenced him to five years’ imprisonment. 7. On 28 March 2007 and 23 October 2007 the Kyiv Regional Court of Appeal and the Supreme Court respectively upheld the applicant’s conviction. 8. From 13 April 2007 to 17 June 2011 the applicant had been serving his sentence in Boryspil Correctional Colony (“the prison”). 9. On 17 June 2011 he was released on probation. A. Detention in the prison
1. The applicant’s account
10. In his initial submissions, the applicant stated that he had been detained in dirty cells with poor ventilation and insufficient heating in winter. Inmates suffering from HIV and tuberculosis were kept together with healthy prisoners. The food and water provided to him and other prisoners were unsatisfactory and hazardous to their health. 11. In his reply to the Government’s observations, the applicant also submitted that the cells had been overcrowded. Without specifying the periods of his detention in particular cells, he stated that he had been held in four cells, with the following characteristics:
- cell 1, measuring about 70 square metres and accommodating 50 prisoners;
- cell 2, measuring about 100-120 square metres and accommodating 85 prisoners;
- cell 3, measuring about 120-130 square metres and accommodating 110 prisoners;
- cell 4, measuring about 45 square metres and accommodating 35 prisoners. 12. Prisoners were often subjected to ill-treatment by guards, which included arbitrary solitary confinement in disciplinary cells, verbal and physical abuse and threats. On many occasions during the daytime, while the prisoners were absent, searches were carried out in the applicant’s cell, as a result of which the cell was left in a mess and some personal belongings and documents from the applicant’s case file went missing. Some searches had been carried out at night. As a result, the applicant experienced fear and stress. 13. No adequate medical assistance was provided to the applicant during his imprisonment. In particular, he did not undergo a thorough medical examination and no long-term strategy for his medical treatment was drawn up. He only received occasional and symptomatic treatment. 14. Under the threat of disciplinary punishment, the applicant was forced to work overtime, often for twelve to fourteen hours per day and seven days per week. He did not receive adequate remuneration for the work done. 15. The prison authorities screened all the applicant’s correspondence, including letters to and from the Court, and selectively failed to send letters, or delayed sending or delivering them. For example, his letter of 23 February 2009 to the Court (which the Court, in fact, received in due time) was not sent by the prison administration and the Court’s letter of 21 January 2011 was received by him a month after being dispatched by the Court. He therefore had to send some letters to the Court via friends who were at liberty. The applicant also submitted copies to the Court of letters he had received from it while in prison, one of which bore the prison stamp. 16. According to the applicant, he brought the aforementioned matters to the attention of different authorities, including the prosecutor’s office. However, those complaints were either not dispatched or were ignored. 2. The Government’s account
(a) Material conditions of detention
17. The Government challenged the trustworthiness of part of the applicant’s submissions concerning the conditions of his detention, specifically his allegations that he had been detained in cells with poor sanitary and hygiene conditions together with inmates suffering from tuberculosis. They contended in this respect that the applicant had failed to support the allegations with any evidence. 18. The Government submitted that in accordance with domestic legislation, inmates suffering from tuberculosis were detained separately from other prisoners. The relevant medical tests were performed once a year to reveal those affected by this disease. 19. The food and water were regularly checked and were of adequate quality. The heating functioned adequately and the temperature in the cell in winter was between 18oC and 20oC. The sanitary conditions were appropriate. In support of their account of the facts, the Government submitted: information notes concerning living conditions in the prison, issued by the prison governor in reply to a request from the Government; an extract from the applicant’s detention card concerning the provision of bedding; and records of completed disinfection operations carried out in the prison in July and October 2011. (b) Medical assistance
20. The Government submitted that throughout the period of his detention in the prison the applicant had been provided with adequate treatment for different medical issues he had complained of and his health had generally remained stable. 21. According to the summary of the applicant’s medical record submitted by the Government, upon arrival at the prison in April 2007 the applicant underwent a medical examination and was found to be healthy; he did not request medical assistance until March 2009. 22. On 2 March 2009 the applicant was diagnosed with acute exacerbation of chronic bronchitis and was provided with appropriate treatment. 23. On 5 March and 5 April 2009 the applicant was diagnosed with lumbar radiculoneuritis and prescribed appropriate treatment (diclofenac and menovazin). 24. On 23 September 2008 and 29 April 2009 the applicant was found to be suffering from dermatitis and prescribed appropriate treatment. 25. On 12 May 2010 the applicant was diagnosed with possible hypertension and prescribed treatment. (c) Other issues relating to the applicant’s detention
26. The Government could not provide any factual information about whether any force had been applied to the applicant by prison guards, or about the searches conducted in his cell, because the time-limit for keeping the relevant documents had expired and the records had been destroyed. They further stated that the applicant’s ill-treatment complaint was couched in very general terms and not supported by evidence. 27. The Government challenged the trustworthiness of the applicant’s submissions concerning his forced labour. They submitted that he had performed work that prisoners were normally required to perform under the relevant domestic legislation and had received remuneration accordingly. He had normally performed the tasks of a service worker (господарча обслуга). When he had refused job offers, he had assisted unpaid with different kinds of prison maintenance work, for no more than two hours a day. 28. The Government provided no information as regards the applicant’s allegation that his correspondence had been monitored by the prison administration. As regards the applicant’s communication with the Court, they denied that all the letters sent to him had been opened. According to a certificate issued by the prison governor, to which the Government referred, the applicant had sent only one letter to the Court, on 3 December 2008, and had received no reply. 29. Lastly, the Government contended that the applicant had made no complaints to the domestic authorities concerning the material conditions of his detention, his alleged ill-treatment and the poor medical assistance provided to him. B. Alleged lack of access to the case file
30. On 7 May 2008 the applicant lodged the present application with the Court. 31. On a number of occasions before and after his application to the Court the applicant, at his request, was provided with copies of different documents from his case file, including judgments of 22 January 2007 and 28 March 2007 in his criminal case, his indictment and appeals against his conviction. 32. By letters of 8 and 15 September 2008 the Brovary Town Court, at which his case file was kept, informed the applicant, inter alia, that the case file did not contain his cassation appeals or any replies from or judgments of the Supreme Court. The applicant’s request for a copy of his entire criminal case file was refused by the Brovary Town Court as having no basis in law. 33. By a letter dated 14 January 2009, the Court invited the applicant to submit a copy of the judgment of the Supreme Court of 23 October 2007. Further to this letter, on 7 February 2009 the applicant submitted requests to the Brovary Town Court and the Supreme Court, asking for a copy of their refusals to provide him with the judgment requested or a copy of his request with an acknowledgment of receipt. 34. On 17 February 2009 the Brovary Town Court informed the applicant that the case file did not contain any letters or judgments of the Supreme Court. 35. On 9 April 2009 the applicant was provided with a copy of the Supreme Court’s judgment in his criminal case and on 13 April 2009 he submitted it to the Court. 36. On 12 September 2009, at his request, the applicant was familiarised with records relating to his detention in the prison. 37. After his release from the prison on 17 June 2011, the applicant was given full access to his criminal case file. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
38. The applicant complained that he had been subjected to inhuman conditions of detention, had not been provided with adequate medical assistance and had been ill-treated by prison guards. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
1. Alleged ill-treatment in prison
39. At the outset, the Court considers that the applicant’s complaint that he was subjected to ill-treatment in prison is unclear and lacking in detail. To the extent that it refers to some occasional physical treatment by prison guards, no details whatsoever about the relevant events have been provided by the applicant and there is no evidence in the case file of any force being exerted on him. 40. In so far as the applicant may be understood to be complaining under this head about the stress he had suffered because of the searches conducted by prison guards (see paragraph 12 above), the Court is of the opinion that his suffering as a result of the searches did not reach the requisite level of severity to amount to inhuman or degrading treatment. 41. Furthermore, there is no evidence that some of the applicant’s documents went missing after the searches, as alleged by him, and it does not appear that the applicant has raised a complaint on that account before the domestic authorities. Finally, the applicant’s allegation of a general negative attitude on the part of the prison administration towards prisoners is of a general character and unsupported by evidence. 42. The Court therefore concludes that the applicant has not made out an arguable claim in the above respects. It dismisses this part of the application as manifestly ill‐founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 2. Medical assistance
43. The Court notes that the applicant’s complaint of inadequate medical assistance in prison is also limited to general statements that he did not undergo a thorough medical examination, that no long-term strategy for his medical treatment was drawn up and that he was provided only with occasional and symptomatic treatment (see paragraph 13 above). Neither allegation is sufficient per se for the Court to reach the conclusion that Article 3 of the Convention has been breached. In particular, no evidence has been provided and no statement has been made that the applicant required a particular kind of treatment and that the authorities refused to take the necessary action in this regard, or that his state of health considerably deteriorated in detention (see, by contrast, Logvinenko v. Ukraine, no. 13448/07, §§ 68-69, 14 October 2010, and Barilo v. Ukraine, no. 9607/06, §§ 69-71, 16 May 2013). 44. On the contrary, it appears from the documents submitted by the Government, which the applicant did not challenge, that no particular health problems were established during the applicant’s medical examination upon his arrival at the prison. It also appears that on several occasions the applicant applied to the medical unit with specific health problems, including back pain. Those complaints were dealt with by the authorities (see paragraphs 21 to 25 above). On the whole, nothing shows that they dealt with them inadequately. 45. Furthermore, there is no record whatever of any domestic complaints on the matter. 46. In the absence of any concrete facts and details in support of the applicant’s allegations, the Court finds that he has not sufficiently substantiated his complaints under Article 3 of the Convention as to the alleged inadequacy of the medical assistance provided in the prison (see, mutatis mutandis, Ustyantsev v. Ukraine, no. 3299/05, §§ 63-65, 12 January 2012). 47. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 3. Material conditions of detention
48. The Government argued that this part of the applicant’s complaint was inadmissible on the ground of 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 also be challenged before the domestic courts. 49. The Court notes that it has already dismissed objections by the Government of non-exhaustion of domestic remedies on a number of occasions, finding the remedy referred to by the Government ineffective, as it had not been shown that recourse to such a remedy could have brought about an improvement in the applicant’s detention conditions (see, for a recent authority, Zakshevskiy v. Ukraine, no. 7193/04, §§ 57 and 59, 17 March 2016). The Court sees no reason to depart from that finding in the present case, and therefore considers that this part of the applicant’s complaints cannot be rejected for failure to exhaust domestic remedies. 50. The Court further notes that the applicant’s complaint about the material conditions of his detention 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
51. The Government submitted that the physical conditions of the applicant’s detention in the prison had been in compliance with Article 3 of the Convention. 52. The applicant’s submissions regarding the conditions of his detention in the prison are set out in paragraphs 10 and 11 above. 53. The Court notes at the outset that the parties provided differing accounts of the conditions of the applicant’s detention. 54. It observes, however, that the Government did not dispute or comment in any way on the applicant’s allegation concerning overcrowding in the prison cells. 55. In that regard, the Court reiterates that an extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić v. Croatia [GC], no. 7334/13, § 104, 20 October 2016). 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. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (ibid., §§ 126-128 and 137). 56. In the absence of any comments by the Government on this issue, the Court is inclined to accord weight to the applicant’s factual submissions on the matter. It thus accepts that during the four years of his imprisonment he was held in cells that allowed him floor space well below the minimum standard of 3 square metres in multi-occupancy accommodation (see Muršić, cited above, § 110). Moreover, the Government have not presented materials or arguments capable of rebutting the strong presumption of violation of Article 3 arising in the present case. In particular, they did not show that there were factors capable of adequately compensating for such an extremely scarce allocation of personal space, if this was in any way possible. 57. Having regard to the above considerations, the Court finds that the applicant’s conditions of detention amounted to degrading treatment in breach of Article 3 of the Convention. 58. In view of those findings, the Court does not find it necessary to address the applicant’s allegation concerning aspects of the material conditions of his detention other than those linked to the overcrowding. II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
59. The applicant complained that he had not been able to obtain copies of documents for substantiation of his application. He also alleged that the authorities had hindered his communication with the Court. The applicant relied on Article 34 of the Convention, which reads as follows:
“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.”
A. The parties’ submissions
60. The Government contested the applicant’s allegations, arguing essentially that there had been no interference with his correspondence as he had sent only one letter to the Court, to which he had received no reply. 61. They further argued that the domestic regulations did not in principle require the authorities to provide prisoners with photocopies of documents from their case files free of charge. Nevertheless, the applicant had eventually received copies of the documents he had requested from the authorities. At his request he had also been granted access to his detention records. 62. Lastly, they submitted that the applicant’s access to such documents had never been limited, in so far as copies of all documents he had wished to obtain could have been made at his request by his relatives with whom he maintained contact. 63. In his initial submissions the applicant maintained that there had been delays in sending/receiving correspondence to and from the Court. In particular, he alleged that his letter of 23 February 2009 to the Court had not been sent by the prison administration and that the Court’s letter of 21 January 2011 had been received by him a month after being dispatched by the Court (see paragraph 15 above). 64. In reply to the Government’s observations, the applicant challenged the truthfulness of the Government’s statements concerning the absence of communication between him and the Court, providing copies of the letters he had received from the Court while in prison. He further submitted that he had reasonable grounds to fear persecution on account of his complaints to the Court as his correspondence had been monitored by the prison administration. For this reason he had had to send some letters through his friends who were at liberty. 65. He also alleged that his requests sent to the Supreme Court and the Brovary Town Court on 7 February 2009, in which he had asked for a copy of the Supreme Court’s decision in the criminal proceedings against him (see paragraph 33 above), had remained unanswered. B. The Court’s assessment
66. The Court points out that the general principles regarding the obligation on a Contracting State not to hinder the right of individual petition, as guaranteed by Article 34 of the Convention, have been stated in a number of its previous judgments (see, for instance, Chaykovskiy v. Ukraine, no. 2295/06, §§ 84-88, 15 October 2009). 67. In so far as the applicant’s complaint in the present case concerns his alleged inability to obtain copies of documents for his application, the Court notes at the outset that it is not clear from his submissions which documents he had unsuccessfully tried to obtain copies of, and whether he had informed the authorities that he needed those documents for the proceedings before the Court. At the same time, it appears from the case file that he was eventually provided with copies of procedural decisions in his criminal case, including the judgment of the Supreme Court of 23 October 2007, a copy of which was requested by the Court (see paragraph 35 above). The latter decision was subsequently sent by the applicant to the Court. The applicant was also allowed access to the prison records relating to his detention (see paragraph 36 above). After his release from prison in 2011 he was granted full access to his criminal case file (see paragraph 37 above). 68. As regards the applicant’s allegations of hindrance of his communication with the Court, the Court observes that it appears from the applicant’s own submissions that the Court’s letters reached him in the prison. Even assuming that there was a delay in forwarding the Court’s letter of 21 January 2011 to the applicant (see paragraph 63 above), the Court finds that this fact in itself constitutes an insufficient factual basis to conclude that the Ukrainian authorities deliberately hindered the applicant’s correspondence with the Convention organs. It further observes that the applicant’s letter dated 23 February 2009 did indeed reach the Court in good time (see paragraph 15 above). 69. The Court cannot but note, however, that it finds it striking that no proper records of the applicant’s correspondence appear to have been kept by the prison authorities. 70. As to the applicant’s allegations that his letters to the Court were opened and that this gave rise to a potential risk of his being persecuted by the prison authorities, the Court observes that he did not set out those allegations in a detailed and substantiated manner, having failed to provide any evidence that he had actually been persecuted in any way for communicating with the Court. 71. Accordingly, on the basis of the evidence before it, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention. III. ALLEGED VIOLATION OF ARTICLES 4, 8 AND 13 OF THE CONVENTION
72. The applicant also relied on Articles 4 (prohibition of slavery and forced labour), 8 (right to respect for family and private life) and 13 (right to an effective remedy). 73. Having regard to the facts of the case, the submissions of the parties and the above findings under Articles 3 and 34 of the Convention, the Court considers that the main legal questions in the present application have been determined. It holds, therefore, that there is no need to give a separate ruling on the admissibility and merits of the complaints mentioned in the paragraph above (see, for a similar approach, Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, §§ 210-11, ECHR 2009; Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references; and Mocanu and Others v. the Republic of Moldova, no. 8141/07, § 37, 26 June 2018). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
74. 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
75. The applicant claimed 40,000 euros (EUR) in respect of non‐pecuniary damage. 76. The Government contested this claim. 77. Ruling on an equitable basis, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage sustained as a result of the violation of Article 3 of the Convention which it has found. B. Costs and expenses
78. The applicant also claimed EUR 5,250 for legal costs incurred before the Court, as well as EUR 420 and EUR 210 for administrative costs and postal expenses respectively. 79. The Government contended that the amount of the legal fee claimed by the applicant was excessively high and that the remainder of the claim was not supported by evidence. 80. 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 4,400 (corresponding to EUR 5,250 less EUR 850, the sum paid by way of legal aid) for the proceedings before it. 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)). The Court rejects the remainder of the applicant’s claim for costs and expenses. C. Default interest
81. 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 under Article 3 of the Convention concerning the conditions of the applicant’s detention admissible and the remainder of the complaints under this Article inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention;

3. Holds that Ukraine has not failed to comply with its obligations under Article 34 of the Convention;

4. Holds that there is no need to examine the admissibility and merits of the complaints under Articles 4, 8 and 13 of the Convention;

5. Holds
(a) that the respondent State is to pay, 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 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be paid to the applicant;
(ii) EUR 4,400 (four thousand four hundred 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 the applicant’s 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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiFaris VehabovićDeputy RegistrarPresident