FIFTH SECTION
Application no. 41920/09
Oleg Ivanovich BURGAZLY against Ukraine
lodged on 10 July 2009
STATEMENT OF FACTS
The applicant, Mr Oleg Ivanovich Burgazly, is a Ukrainian national, who was born in 1964 and is currently serving his life sentence in prison.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 June 2005 the applicant was sentenced to life imprisonment.
According to the applicant, on 30 January, 29 and 31 May, 16 and 29 June 2007 the prison officers physically ill-treated him under various pretexts.
1. Physical conditions of detention
During the whole period of his detention the applicant was held in overcrowded, dirty, cold and wet cells. The heating system was not operating. The applicant was not provided with soap. He and other detainees had to clean their cell with their own clothes. The nutrition was inappropriate and usually consisted of water with cabbage, boiled maize or porridge.
As of 19 October 2010 the applicant was held together with three other detainees in a cell measuring 3,75 sq.m. During that day and night the ceiling plaster in the cell regularly flaked off and the applicant had to watch out all night long in order not to get injured.
The applicant’s complaints on this account were unsuccessful.
2. Medical care during detention
On 7 October 2008 the applicant was diagnosed with tuberculosis. The prison medical unit did not offer appropriate treatment for tuberculosis. On many occasions the applicant requested the authorities to transfer him to a specialised prison hospital. His requests were either refused or ignored.
Between 13 June and 27 September 2010 the applicant was held in Kherson Prison Hospital No. 61 and provided with treatment for tuberculosis. According to the applicant, the medical treatment was ineffective.
3. Domestic correspondence
During his detention the applicant regularly sent letters to the domestic authorities and legal practitioners via the prison postal service. Allegedly, all the letters were reviewed by the prison staff and some letters were not dispatched.
In particular, on 26 March 2008 the applicant sent a letter to an NGO via the prison postal service. On 27 and 31 March, 2 and 8 July 2008, 26 March 2010 the applicant sent letters to the prosecutor. Those letters were not registered in the book of outgoing correspondence and, allegedly, were not dispatched by the prison postal service. On several occasions the applicant was told that his letters would not go out if he continued to write about the conditions of his continuing detention.
On 12 May 2008 the applicant prepared two letters for the prosecutor. The applicant was requested to submit those letters in an unsealed envelope.
Statements of the applicant’s inmates confirming the applicant’s account of facts have been submitted to the Court.
4. Correspondence with the Court
On 23 March 2008 the applicant applied to the Court.
On 10 April 2008 the Court sent him an application form.
On 29 May 2008 the applicant sent a letter with the completed application form to the Court via the prison postal service. That letter did not reach the Court.
On 25 February 2009 the Court sent to the applicant another application form. No response followed from the applicant.
On 13 August 2009 the Court sent another application form to the applicant. On 2 November 2009 the applicant completed and returned it to the Court.
On 14 December 2009 the applicant sent additional material to the Court. That material did not arrive at the Court.
On 14 June 2011 the applicant sent a letter to the Court via the prison postal service. That letter did not arrive at the Court.
On 8 December 2011 the Court sent to the applicant a registered letter requesting the applicant to provide certain documents in support of his application. The letter was handed to the applicant unsealed.
Statements of the applicant’s inmates confirming the applicant’s account of facts have been submitted to the Court.
B. Relevant domestic law
1. Enforcement of Sentences Code of 11 July 2003 as worded at the relevant time
Article 113 of the Code 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.
2. Combating Tuberculosis Act of 5 July 2001
Section 17 of the Act provides that persons suffering from tuberculosis detained in prisons should be treated in specialised prison hospitals.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that on several occasions between January and June 2007 prison officers physically ill-treated him.
2. The applicant complains under Article 3 of the Convention that the physical conditions of his detention have been inappropriate.
3. The applicant complains under Article 3 of the Convention that he has not been provided with adequate medical treatment during his detention.
4. The applicant complains under Article 8 of the Convention that his correspondence was subject to monitoring by the prison officers and that part of it was not dispatched to the addressees.
5. The applicant complains under Article 34 of the Convention that the prison officers hindered him in communicating with the Court.
6. The applicant also complains of violation of Article 13, 14, 17 of the Convention.
QUESTIONS TO THE PARTIES
1. Has there been a breach of Article 3 of the Convention on account of the physical conditions of the applicant’s post-conviction detention?
2. Has there been a breach of Article 3 of the Convention on account of the allegedly insufficient medical treatment of the applicant during his post-conviction detention?
The Government are invited to provide medical material in support of their submissions.
3. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention in respect of his complaint under Article 8 of the Convention?
In support of their observations the Government are invited to provide examples of the relevant case-law in respect of such remedies.
4. Has there been an interference with the applicant’s right to respect for his correspondence, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
The Government are invited to provide a list of correspondence submitted and received by the applicant via the prison postal service during his post-conviction detention.
5. Has there been any hindrance by the State with the effective exercise of the applicant’s right of petition to the Court, guaranteed by Article 34 of the Convention?
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