CASE OF BELYAYEV AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF BELYAYEV AND OTHERS v. UKRAINE

(Applications nos. 34345/10 and 2 others)

JUDGMENT

STRASBOURG

6 June 2019

This judgment is final but it may be subject to editorial revision.

In the case of Belyayev and others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 14 May 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in three applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals: Mr Mikhail Igorevich Belyayev (“the first applicant”‑ application no. 34345/10, lodged on 3 March 2010), Mr Ivan Ivanovych Karpenko (“the second applicant” – application no. 50687/10, lodged on 16 August 2010) and Mr Rustam Zakirovich Farziyev (“the third applicant” – application no. 70492/13, lodged on 28 October 2013).

2.  The first applicant was represented by Mr T. Kalmykov, a lawyer practising in Kharkiv. The second applicant, who was granted legal aid, was represented by Ms H. Ovdiienko, a lawyer practising in Kharkiv, and the third applicant, who was also granted legal aid, was represented by Ms N. Okhotnikova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

3.  The applicants complained under Article 14 of the Convention, read in conjunction with Article 8 of the Convention, of discrimination due to differing visiting rights which had been laid down by the domestic legislation in respect of male and female life prisoners.

4.  On 16 May 2018 notice of the above complaints was given to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5.  The Government objected to the examination of the applications by a Committee, but provided no reasons. After having considered the Government’s objection, the Court rejects it.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

6.  The first, second and third applicants were born in 1981, 1973 and 1984 respectively. Since 2004 they have been serving life sentences in correctional colonies in Ukraine.

7.  On 11 July 2003 the Ukrainian Parliament adopted the Code on the Execution of Sentences of Ukraine (“the Code”). Article 150 of the Code (“Place of serving life imprisonment”) provided that life prisoners were to serve their sentences in maximum-security correctional colonies. Article 151 (“Procedure for, and conditions of, the execution and serving of life sentences”) further provided, inter alia, that life prisoners were entitled to one short visit every six months. No reference to prisoners’ gender was made in those Articles. At the same time, Article 18 (“Correctional colonies”) provided that female life prisoners were to serve their sentences in medium-security colonies. In turn, Article 139 (“Medium-security correctional colonies”) provided that prisoners serving their sentences in such colonies were entitled, inter alia, to have one short visit every month and one long visit every three months. Article 110 specified that a short visit from relatives or other persons could last for up to four hours and a long visit from close relatives could last for up to three days.

8.  By a letter of 27 June 2007 the State Department of Ukraine for the Execution of Sentences informed the second applicant, in reply to a letter sent by him on an earlier date, that female life prisoners were entitled to have one long visit every three months, as provided by Article 139 of the Code, given that they served their sentences in medium-security colonies, as provided by Article 18 of the Code. Referring, in particular, to Article 151 of the Code, the Department further stated that male life prisoners were entitled to have one short visit every six months and that they were not entitled to have long visits.

9.  On 21 January 2010 the Code was amended (“the 2010 amendments”). Article 150, as amended, stated that persons sentenced to life imprisonment were to serve their sentences as follows: male prisoners ‑ either in maximum-security sectors of medium-security correctional colonies or in maximum-security correctional colonies; and female prisoners – either in medium-security sectors of minimum-security correctional colonies with general conditions of detention or in medium-security correctional colonies. Article 151, as amended, stated that life prisoners were entitled to one short visit every three months. A newly introduced Article 151² (“Specifics regarding the serving of sentences by female life prisoners”) provided that female life prisoners were to be placed, as a rule, in medium-security sectors of minimum-security colonies with general conditions of detention. It also provided that female life prisoners were to be subject to the regime laid down for prisoners held in medium‑security colonies (that is, the regime provided for in Article 139 of the Code).

10.  By the Law of 8 April 2014 on the introduction of amendments to the Code relating to the adaptation of status of convicted persons to European standards the Code was amended again (“the 2014 amendments”). Article 151 was amended to entitle all life prisoners to one short visit every month and one long visit every three months regardless of the type of correctional colony in which they were detained or the security regime to which they were subject.

11.  Further amendments to Article 151 of the Code, which were passed by Parliament on 7 September 2016, entitled all life prisoners to one long visit every two months.

12.  The first applicant stated that he and his family had wished to maintain their relationships, but as the result of the absence of the right to long visits until 2014 he had had to divorce his wife. His father, grandfather and grandmother had died in 2008, 2009 and 2014 respectively and he had not been able to see them while serving his sentence. The Government submitted that while serving his sentence the first applicant had received twenty-eight short visits on unspecified dates and fifteen long visits (between 17 March 2015 and 6 July 2018) from his new wife, mother and his other grandmother.

13.  The second applicant stated that, because of the lack of the opportunity to have long visits until 2014, he had lost contact with his family. His relatives had died – in particular he referred to his father having died in 2012 – and when the 2014 amendments entitled him to long visits, there had no longer been anyone to visit him. The Government submitted that while serving his sentence the second applicant had had one short visit in 2005 (from his sister) and had not requested any long visits.

14.  The third applicant stated that, in the absence of the right to long visits until 2014, his right to found a family had been more declaratory than effective as, in particular, he had not been able to have any physical contact in order to conceive children. The Government submitted that while serving his sentence the third applicant had had twelve short visits (between 25 July 2012 and 26 December 2017) and fourteen long visits (between 5 August 2014 and 6 February 2018) from his wife, mother, father and friends.

THE LAW

I.  JOINDER OF THE APPLICATIONS

15.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUCTION WITH ARTICLE 8 OF THE CONVENTION

16.  The applicants complained under Article 14 of the Convention, read in conjunction with Article 8 of the Convention, of discrimination due to differing visiting rights set out in the Code until 2014 in respect of male and female life prisoners. The first applicant also referred to Article 1 of Protocol No. 12 to the Convention. The Court considers that the above complaint should be examined solely under Article 14 of the Convention, read in conjunction with Article 8 of the Convention, which read as follows:

Article 8

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A.  The parties’ submissions

1.  The Government

17.  The Government referred to a letter of 27 August 2018 prepared upon their request by the Administration of the State Prisons Service of Ukraine. According to that letter, Article 151 of the Code, as worded in 2003, had stipulated that life prisoners, both male and female, had only been entitled to have one short visit every six months. From 21 January 2010 the Code had provided for one short visit every three months both for male and female life prisoners. From 8 April 2014 the Code had provided, both for male and female life prisoners, for one short visit every month and one long visit every three months. The Government thus concluded that from 2003 until 2014 all life prisoners, irrespective of their gender, had had equal visiting rights. They further stated that even though Article 151² of the Code specified that female prisoners were subject to a regime prescribed for prisoners held in medium-security colonies, both male and female life prisoners were entitled to have visits on an equal basis, as life prisoners did not have the rights provided for other categories of convicts. The Government concluded that there had been no difference in the treatment of life prisoners’ visiting rights and that the applicants’ complaints were manifestly ill-founded.

2.  The applicants

18.  The applicants submitted that under Article 151 of the Code, as worded in 2003, male and female life prisoners had indeed been equally entitled to have one short visit every six months. However, given that female life prisoners had served their sentences in medium-security colonies, they had additionally had, inter alia, the right to one long visit every three months. Even though Article 151 of the Code had set equal rights for male and female life prisoners, Articles 18 and 139 of the Code had given female life prisoners additional benefits. The resulting discrimination in visiting rights had emanated from a conflict between those legal provisions. The Government had only referred to Article 151 of the Code and had not mentioned Articles 18 and 139 of the Code. They had not proved that the difference in the security regimes for male and female life prisoners as set out in the Code had not led to a difference in their visiting rights. Furthermore, in its letter of 27 June 2007 (see paragraph 8 above) the State Department for the Execution of Sentences had confirmed that female life prisoners had been entitled to have one long visit every three months and that male life prisoners had not been entitled to have such visits.

19.  The applicants further submitted that although male and female life prisoners had been in a similar situation (namely serving a sentence in a correctional colony for a particularly serious crime), they had been treated differently as regards their entitlement to long visits from family members. Such a difference in treatment, which had existed until 2014, had not pursued any legitimate aim and had not had any reasonable justification, in breach of Article 14, read in conjunction with Article 8 of the Convention.

B.  The Court’s assessment

1.  Admissibility

(a)  Whether the facts of the case fall “within the ambit” of Article 8

20.  The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. For Article 14 to become applicable, it suffices that the facts of the case fall “within the ambit” of another substantive provision of the Convention or its Protocols (see, for instance, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 53, 24 January 2017).

21.  The Court also recalls that such blanket restrictions as limitations imposed on the number of family visits, supervision over those visits and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special visit arrangements without any individual risk assessment constitute an interference with his or her rights under Article 8 of the Convention (see, for instance, Trosin v. Ukraine, no. 39758/05, § 39, 23 February 2012; Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015; and Bigun v. Ukraine [CTE], no. 30315/10, §§ 33, 44 and 49, 21 March 2019).

22.  Accordingly, the Court finds that the applicants’ complaints of alleged discrimination due to the different visiting rights fall within the ambit of Article 8 of the Convention. Article 14 of the Convention taken in conjunction with Article 8 is therefore applicable in the present case.

(b)  Whether the alleged difference in treatment related to any of the grounds in Article 14

23.  Article 14 does not prohibit all differences in treatment, but only those differences based on an identif1iable, objective or personal characteristic, or “status”, by which individuals or groups are distinguishable from one another. It lists specific grounds which constitute “status”; however, the list is illustrative and not exhaustive (see Khamtokhu and Aksenchik, cited above, § 61).

24.  The applicants contended that they had been discriminated against on the grounds of sex, as until 2014 male life prisoners had not been entitled to the same rights regarding long visits as female life prisoners. The Court notes that “sex” is explicitly mentioned in Article 14 as a prohibited ground of discrimination.

(c)  Conclusion

25.  The Court concludes that Article 14 of the Convention taken in conjunction with Article 8 is applicable in the present case.

26.  It further considers, in the light of the parties’ arguments, that the applications raise serious questions of fact and of law which require an examination of the merits. It follows that, contrary to the Government’s contention, they cannot be declared manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention. The Court next considers that the applications are not inadmissible on any other grounds. They must therefore be declared admissible.

2.  Merits

(a)  Whether the applicants were in an analogous or relevantly similar position to female prisoners

27.  The Court reiterates that in order for an issue to arise under Article 14 of the Convention there must be a difference in the treatment of persons in analogous or relevantly similar situations (see, for instance, ibid., § 64).

28.  In the present case the Court considers that the applicants, as male life prisoners, were in an analogous situation with female life prisoners: both men and women could be sentenced to life imprisonment for the same or comparable offences of a particularly serious nature (see, mutatis mutandis, ibid., §§ 66-68, and Ēcis v. Latvia, no. 12879/09, §§ 80-81, 10 January 2019).

(b)  Whether the difference in treatment was objectively justified

29.  Not every difference in treatment will amount to a violation of Article 14. A difference in treatment is discriminatory if it has no objective and reasonable justification – in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, for instance, Khamtokhu and Aksenchik, cited above, § 64).

30.  In the present case the Court observes that the Code, as worded until 2014, did indeed contain provisions which were in apparent conflict with each other. Thus, although Article 150, as worded in 2003, provided that all life prisoners were to serve their sentences in maximum-security colonies, Article 18 provided that female life prisoners were to serve their sentences in medium-security colonies. Although Article 151 provided that all life prisoners were entitled to one short visit every six months, Article 139 provided that prisoners serving their sentences in medium-security colonies were entitled, inter alia, to have one long visit every three months. Article 151², as introduced by the 2010 amendments, also provided that female life prisoners were to be subject to the regime prescribed for prisoners held in medium-security colonies (that is, the regime provided for in Article 139). It was only the 2014 amendments which entitled all life prisoners to have, inter alia, one long visit every three months. It thus appears from the above provisions that, until 2014, female life prisoners, unlike male life prisoners, were entitled to have one long visit every three months.

31.  The difference in the entitlement to long visits for male and female life prisoners was further confirmed by the State Department of Ukraine on the Execution of Sentences, which in its letter of 27 June 2007 (see paragraph 8 above) expressly stated that female life prisoners were entitled to have one long visit every three months given that they served their sentences in medium-security colonies. The Department further stated that male life prisoners were not entitled to have such visits.

32.  Although the Government contended that even prior to 2014 male and female life prisoners had been entitled to the same visiting rights under Article 151 of the Code, the Court notes that the Government did not make any mention or provide any analysis of Article 139 of the Code, the effect of which was to provide female life prisoners with the right to long visits, and that the letter from the Administration of the State Prisons Service of 27 August 2018 that they produced (see paragraph 17 above) did not mention that point either.

33.  Consequently, the Court finds that until 2014 the applicants, as male life prisoners, had no right to long visits, unlike female life prisoners.

34.  As to the justification of the above difference in treatment, the Court notes that the Government did not provide any argument in justification of the differential treatment. In the absence of such arguments the Court fails to see any justification for affording male life prisoners different rights from those afforded to female life prisoners in respect of long visits. It notes that the 2014 amendments to the Code put male and female life prisoners on an equal footing in respect of the right to long visits.

35.  The foregoing considerations are sufficient to enable the Court to conclude that the difference in treatment complained of by the applicants was in breach of Article 14 of the Convention, read in conjunction with Article 8 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

36.  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

37.  The first and second applicants claimed 15,000 euros (EUR) each and the third applicant EUR 10,000 in compensation for non-pecuniary damage suffered owing to the discrimination that they had suffered in respect of having different rights to female life prisoners in relation to long visits until 2014.

38.  The Government contended that there was no causal link between the alleged violation and the claims in respect of non-pecuniary damage and invited the Court to reject those claims.

39.  Given the special circumstances of three applicants’ cases, the Court awards EUR 3,000 to the first applicant and EUR 1,500 each to the second and the third applicants in respect of non-pecuniary damage.

B.  Costs and expenses

40.  The first applicant’s representative, Mr T. Kalmykov, claimed EUR 1,010 for legal costs incurred before the Court, to be paid directly to him. He noted that this amount corresponded to legal fees of EUR 1,000 (20 hours at EUR 50 per hour) and EUR 10 for administrative expenses (telephone calls, postal expenses, photocopying and other expenses). He presented a contract for legal services dated 8 September 2018, under which the applicant had authorised him to claim legal fees from the respondent State upon the completion of the proceedings before the Court. The above contract did not refer to any amounts and provided for the final amount of the legal fees to be stated in a receipt to be annexed to the contract. The remaining applicants did not make a claim under this head.

41.  The Government submitted that the first applicant had not actually borne any legal costs as, under the contract for legal services, such costs were to be paid by the respondent State. As to the claim for administrative fees, the Government argued that it was too general and not supported by documents.

42.  Regard being had to the documents in its possession and to its case-law, the Court rejects the first applicant’s claim for administrative expenses as it is not supported by any documentary evidence. However, it considers it reasonable to grant his claim for legal fees in part and to award him EUR 850 under this head, to be paid directly to Mr T. Kalmykov (see, for instance, Krivolapov v. Ukraine, no. 5406/07, § 139, 2 October 2018).

C.  Default interest

43.  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.  Decides to join the applications;

2.  Declares the applications admissible;

3.  Holds that there has been a violation of Article 14 of the Convention, read in conjunction with Article 8 of the Convention;

4.  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 3,000 (three thousand euros) to the first applicant and EUR 1,500 (one thousand five hundred euros) each to the second and third applicants, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(ii)  EUR 850 (eight hundred and fifty euros) to the first applicant, plus any tax that may be chargeable to him, in respect of his costs and expenses, to be paid directly to the account of Mr T. Kalmykov;

(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;

5.  Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 6 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Síofra O’Leary
Deputy RegistrarPresident

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