CASE OF TROSIN v. UKRAINE
Remainder inadmissible (Article 35-1 - Effective domestic remedy);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1968 and is currently serving a life sentence in prison. 6. On 26 August 2004 the applicant was arrested on suspicion of murder. 7. On 28 August 2004 the Prymorskyy District Court of Odessa (“the District Court”) ordered the applicant to be placed in pre-trial detention for two months. The applicant was placed in the Odessa no. 21 Pre-Trial Detention Centre (“the Odessa SIZO”). 8. On 20 October and 17 November 2004 the District Court extended the applicant’s pre-trial detention to three and four months respectively. 9. On 24 December 2004 and 26 January 2005 the Odessa Regional Court of Appeal (“the Court of Appeal”) extended the applicant’s pre-trial detention to five and six months respectively. 10. The applicant was not present at those hearings and he was allegedly not given the investigator’s submissions so that he could prepare his objections. 11. According to the applicant, in the course of investigation he was illtreated, with the purpose of making him confess to the murder. 12. On 24 February 2005 the case was referred to the Court of Appeal for trial. 13. On 29 April 2005 the Court of Appeal, acting as a court of first instance, found, inter alia, that the applicant and two co-defendants had committed murder with particular cruelty and for financial gain. The court sentenced the applicant to life imprisonment. The judgment was based on various pieces of evidence including an acknowledgment of guilt by the applicant and other defendants during the trial. 14. After the hearing the applicant was handcuffed and escorted to the high security wing of the Odessa SIZO. 15. On 4 October 2005 the Supreme Court upheld the judgment of 29 April 2005, following which it was made final. For the period of consideration of the case by the Supreme Court the applicant was detained in Kyiv no. 13 Pre-Trial Detention Centre, where he was allegedly not provided with sufficient facilities, such as a table and chair, to prepare his defence. 16. Following the Supreme Court’s decision of 4 October 2005 the applicant repeatedly submitted applications to have his case reviewed on grounds of exceptional circumstances. He also asked the authorities to provide him with a lawyer to assist him with the preparation of these applications. All his applications were rejected as unsubstantiated; a lawyer was not provided because the criminal proceedings were already finished. 17. On several occasions the applicant requested copies of certain material from his criminal case file. The requests were granted, but with delays. 18. In 2008 the applicant instituted three separate sets of court proceedings against, respectively, the judge who had presided over his criminal case before the first-instance court, the Supreme Court chamber on criminal cases, and the General Prosecutor, claiming that he had been unfairly convicted and that his applications for review of his case on grounds of exceptional circumstances had been arbitrarily rejected. All these proceedings are pending. 19. According to the applicant, he was not allowed family visits during his pre-trial detention. 20. During his post-conviction detention until 16 February 2010 the applicant was allowed to see his relatives no more than once every six months. Subsequently, he was granted family visits once every three months. 21. The visits lasted no longer than four hours. No more than three adult visitors could be present at once. The applicant maintains relations with his wife, mother, adult brother, and his son born in 1992. 22. In February 2010, upon arrival for the visit, one of his four relatives was not admitted to see the applicant because of the limitation on the maximum number of adults per visit. Since then, one person out of the four has had to be excluded when planning a visit to the applicant. 23. During the meetings the applicant communicated with the visitors via glass partition. The applicant’s conversations with the visitors were listened to by a prison officer. 24. On 1 February 2006 the applicant sent a letter to the Court, the first page of which had been stamped by the detention facility. 25. Up to October 2006 the applicant’s letters to the Court were accompanied by covering letters from the detention facility briefly stating the nature of the applicant’s submissions. 26. In accordance with Articles 110 and 151 of the Code, short visits from relatives and other persons may last no longer than four hours. Such meetings must be held in the presence of a prison officer. Until the amendment of 21 January 2010 (which came into effect on 16 February 2010), life prisoners were entitled to short visits from their relatives and other persons once every six months. Since that amendment, life prisoners have been entitled to such visits once every three months. 27. Article 113 of the Code, following amendments made to it on 1 December 2005, stipulated that prisoners’ correspondence was to be subject to automatic monitoring by the prison staff except for proposals, applications and complaints addressed to the National Ombudsman, the European Court of Human Rights, other relevant international organisations of which Ukraine is a member or participant, authorised persons of those international organisations, or prosecution authorities. 28. The relevant provisions of the Code read as follows: “1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public-law relations, from violations by public authorities ... 2. Any decisions, actions or inaction on the part of public authorities may be appealed against to administrative courts, except for cases in which the Constitution and laws of Ukraine provide for a different procedure of judicial appeal against such decisions, actions or inactivity ... 3. In cases where the decisions, acts or inactivity of a public authority are being challenged, the courts shall review whether [the impugned decisions and acts] have been adopted or taken: ... 6) reasonably; ... 8) proportionately, in particular, by ensuring a necessary balance between any possible unfavourable outcome for an individual’s rights, freedoms and interests and the aims the impugned decision or action seeks to achieve; ...” “1. When considering a case, a court shall be governed by the principle of the rule of law, which provides, in particular, that a human being and his or her rights and freedoms shall be the highest social value and shall determine the essence and orientation of the activity of the State. 2. A court shall apply the principle of the rule of law by taking into account the caselaw of the European Court of Human Rights. ...” “1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by ... public authorities and [legal relationships arising] in the course of the public formation of a ... public authority by way of an election or referendum. 2. The jurisdiction of the administrative courts shall cover public-law disputes, in particular: 1) disputes between physical persons or legal entities and ... public authorities concerning the decisions of the latter (normative legal acts or legal acts of individual effect), or their actions or inactivity; ...” 29. In accordance with paragraph 47 of the above-mentioned rules, prisoners are entitled to visits from no more than three adults at once, who may also be accompanied by the prisoner’s under-age children. Annex 17 of the Prison Rules provides for two options of equipping a room for short meetings between prisoners and visitors. According to the first option the meeting room is to be equipped with tables along the room separated by free space of 120 centimetres in width. The chairs for visitors are not to exceed ten items; stools for the prisoners are to be fixed to the floor. According to the second option, a meeting room is to be equipped with booths 80 centimetres in width and 100 centimetres in length. One or two booths are to be of 140 centimetres to accommodate two visitors or visitors with children coming to see the same prisoner. The visitors’ booths and the prisoners’ booths are to be separated by glass partitions. The booths are to be equipped with a loudspeaker and a telephone handset. The table of the supervising officer is to be equipped with a device for listening to the conversations in the booths. On 31 December 2003 the Ministry of Justice, having reviewed the lawfulness of the Prison Rules, included them in the unified register of normative legal acts. 30. The relevant extract from the Recommendation read as follows: “Part II Conditions of imprisonment Contact with the outside world 24.1. Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 24.2. Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact. 24.3. National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted. 24.4. The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible. 24.5. Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. ” 31. The relevant extract from the Report read as follows: “33. In many European countries the number of life-sentenced and other long-term prisoners is on the increase. During some of its visits, the CPT has found that the situation of such prisoners left much to be desired in terms of material conditions, activities and possibilities for human contact. Further, many such prisoners were subject to special restrictions likely to exacerbate the deleterious effects inherent in long-term imprisonment; examples of such restrictions are permanent separation from the rest of the prison population, handcuffing whenever the prisoner is taken out of his cell, prohibition of communication with other prisoners, and limited visit entitlements. The CPT can see no justification for indiscriminately applying restrictions to all prisoners subject to a specific type of sentence, without giving due consideration to the individual risk they may (or may not) present. Long-term imprisonment can have a number of desocialising effects upon inmates. In addition to becoming institutionalised, long-term prisoners may experience a range of psychological problems (including loss of self-esteem and impairment of social skills) and have a tendency to become increasingly detached from society; to which almost all of them will eventually return. In the view of the CPT, the regimes which are offered to prisoners serving long sentences should seek to compensate for these effects in a positive and proactive way. The prisoners concerned should have access to a wide range of purposeful activities of a varied nature (work, preferably with vocational value; education; sport; recreation/association). Moreover, they should be able to exercise a degree of choice over the manner in which their time is spent, thus fostering a sense of autonomy and personal responsibility. Additional steps should be taken to lend meaning to their period of imprisonment; in particular, the provision of individualised custody plans and appropriate psycho-social support are important elements in assisting such prisoners to come to terms with their period of incarceration and, when the time comes, to prepare for release. Further, the negative effects of institutionalisation upon prisoners serving long sentences will be less pronounced, and they will be better equipped for release, if they are able effectively to maintain contact with the outside world.”