FIFTH SECTION
CASE OF BIGUN v. UKRAINE
(Application no. 30315/10)
JUDGMENT
STRASBOURG
21 March 2019
This judgment is final but it may be subject to editorial revision.
In the case of Bigun 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 26 February 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 30315/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Vyacheslav Vasilyevich Bigun (“the first applicant”) and Ms Lesya Nikolayevna Bigun (“the second applicant”), on 12 May 2010.
2. The applicants were represented by Mr P.F. Bukalov, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna.
3. On 5 January 2016 notice of the application was given to the Government.
4. The Government did not object to the examination of the application by a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1979 and 1983 respectively. The first applicant is serving a life sentence in Dnipropetrovsk Prison no. 89. The second applicant lives in Obukhiv.
6. On 24 March 2000 the applicants got married.
7. On 16 February 2001 the first applicant was found guilty of a number of criminal offences and was sentenced to life imprisonment.
8. The applicants requested that the prison administration allow them a long-term family visit on many occasions, in particular, in 2006. Their requests were rejected on the grounds that Article 151 of the Code of Execution of Sentences did not provide for long-term visits to life prisoners.
9. In April 2007 the applicants lodged an administrative claim against the State Department for Enforcement of Sentences seeking an entitlement to a long-term conjugal visit every three months. They submitted that they were willing to have a common child and that a denial of that right to them was unlawful and arbitrary. The courts, on three levels of jurisdiction, rejected that claim as not based on law. The final decision of the Higher Administrative Court was delivered on 8 December 2009.
10. According to the information provided by the Government, the first applicant was disciplined on three occasions during the period of his detention from 2001 to 2016: once in 2001 following the discovery of an unreported written message on him; once in 2003 on account of his attempt to get in touch with an inmate in an adjacent cell; and once in 2013 on account of unauthorised possession of a mobile telephone.
11. The applicants got divorced on an unspecified date. According to the Government, it happened “shortly after the introduction of the application”. According to the applicants, the divorce took place on an unspecified date in 2014.
12. As indicated in the information note issued on 24 June 2016 by the administration of Dnipropetrovsk Prison no. 89, during his detention in that prison starting from 2003, the first applicant had had forty short-term visits and nine long-term family visits. More specifically, on 10 December 2003 and 10 June 2004 he had short-term visits from the second applicant, as well as his mother and sister. The second applicant did not pay him visits thereafter. During the period from 2004 to 2012 the first applicant had regular short-term visits from his mother, sister and some other persons. On 13 September 2012 he had a visit from his sister and a certain Ms L. who was registered in the prison’s logbook as his fiancée. Since then he had regular short-term visits from Ms L. On 11 July 2014 the first applicant was allowed for the first time a long-term family visit, which was from his sister. On 5 December 2014 the first applicant got married with Ms L. and they were allowed a long-term family visit on that occasion. Subsequently, they enjoyed long-term conjugal visits about every three months.
II. RELEVANT DOMESTIC LAW
A. Criminal Codes (1960 and 2001)
13. The penalty of life imprisonment was introduced in the Criminal Code 1960 by the legislative amendments adopted by the Verkhovna Rada of Ukraine (the Parliament) on 22 February 2000 as a follow-up to the decision of the Constitutional Court of 29 December 1999, by which the death penalty existing until then had been declared to be contrary to the Constitution of Ukraine. The above-mentioned amendments entered into force on 29 March 2000.
14. On 5 April 2001 the Parliament adopted a new Criminal Code which entered into force on 1 September 2001. Its relevant provision reads as follows:
Article 64. Life imprisonment
“Life imprisonment is envisaged [as punishment] for particularly serious crimes and shall be applied only in cases explicitly provided for by this Code and where a court does not consider it possible to apply fixed-term imprisonment. ...”
B. Code of Execution of Criminal Sentences (2003)
15. Pursuant to Article 110 of the Code of Execution of Criminal Sentences (“the Code”), a short-term visit in a prison lasts up to four hours and a long-term visit – up to three days. Short-term visits may be allowed with relatives or other persons and take place in the presence of a prison official. Long-term visits may be allowed only with close relatives and entails living in the same room.
16. Under Articles 138-140 of the Code, prisoners serving a fixed-term sentence were entitled to one short-term visit monthly and one long-term family visit every three months. Following the amendments of 7 September 2016, the above-mentioned became the minimum visiting entitlement of fixed-term prisoners detained in the “enhanced control sector”. Those detained in the “resocialisation sector” are entitled to short-term visit monthly and one long-term family visit every two months. Lastly, fixed-term prisoners detained in the “social rehabilitation sector” have the right to as many short-term visits as they wish and to a long-term family visit monthly.
17. Under Article 151 of the Code, convicted prisoners sentenced to life imprisonment were entitled to one short-term visit every six months. Following the amendments of 16 February 2010, they became entitled to one short-term visit every three months.
18. Subsequently, Article 151 of the Code was further amended, with those changes coming into effect on 7 May 2014, after which prisoners serving a life sentence became entitled to one short-term visit per month and to one long-term family visit every three months.
19. Following another round of amendments, which were enacted on 7 September 2016, life prisoners are now entitled to one long-term family visit every two months.
C. Internal Rules for Establishments Enforcing Sentences approved by the Order of the State Department for the Enforcement of Sentences of 25 December 2003 (“the Prison Rules”) (repealed on 29 December 2014)
20. The relevant provisions are summarised in Trosin v. Ukraine (no. 39758/05, § 29, 23 February 2012).
III. Relevant Council of Europe documents
21. The Council of Europe material pertaining to family visits to prisoners was quoted in Khoroshenko v. Russia ([GC], no. 41418/04, §§ 58‑67, ECHR 2015).
22. The relevant excerpts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 September 2009 (CPT/Inf (2011) 29) read as follows (footnotes omitted, original emphasis):
“92. As regards possibilities for contact with the outside world, the CPT considers that special efforts should be made to prevent the breakdown of family ties of prisoners serving life sentences. Ukrainian legislation continues to impose severe restrictions on the visiting entitlement of life-sentenced prisoners. This approach runs counter to the generally accepted principle that offenders, whatever the crimes for which they have been sentenced, are sent to prison as a punishment, not to receive punishment.
Lifers’ visits took place in secure booths with a glass partition, which allowed no physical contact between inmates and their visitors. In addition, some lifers at Colony No. 89 indicated that they remained handcuffed during visits. As the CPT has indicated in the past, to be handcuffed when receiving a visit could certainly be considered as degrading for both the prisoner concerned and his visitors. Further, life-sentenced prisoners had no access to a telephone.
The CPT calls upon the Ukrainian authorities to increase substantially the visit entitlement of life-sentenced prisoners. As a general rule, visits should take place in open conditions (e.g. around a table), visits through a partition being the exception. Further, life-sentenced prisoners should only be prohibited from receiving long-term visits on the basis of an individual risk assessment. In addition, staff must receive clear instructions that life-sentenced prisoners should not be kept in handcuffs during visits. Steps should also be taken to ensure that life-sentenced prisoners have access to a telephone.
...
93. More generally, during the 2009 visit, the delegation was informed of proposals to amend the legislation with a view to improving the situation of life-sentenced prisoners (e.g. increasing their visit entitlement, [...]). However, there was reportedly political resistance to these proposals. The CPT urges the Ukrainian authorities to pursue these legislative proposals without further delay.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
23. The applicants complained that the absolute ban on long-term family visits, which had existed for prisoners sentenced to life imprisonment in Ukraine until May 2014, had infringed their rights under Article 8 of the Convention, which reads as follows:
“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.”
A. Admissibility
24. The Government did not dispute the applicability of Article 8 of the Convention to the circumstances of the present case. They submitted, however, that the applicants could hardly be considered as having been adversely affected by the absence of the possibility to have long-term family visits, given that they had not even been using their right to short-term visits. The Government observed in that connection that the second applicant had visited the first applicant only on two occasions in 2003 and 2004 and never thereafter.
25. The Government contended that by 2007 the genuine family relations between the applicants had ceased to exist and that their marriage had become nothing more than a mere formality.
26. The Government therefore invited the Court to dismiss this complaint as being manifestly ill-founded.
27. The applicants contested those arguments. They submitted that the short-term visits were rare, did not allow for any physical contact or privacy, and that the number of adult visitors was limited. Accordingly, having regard to all the restrictions, the applicants maintained, they could not be reproached for not manifesting their genuine family relations.
28. The applicants further submitted that, even though their marriage had eventually broken down, that circumstance should not be interpreted as undermining the well-foundedness of their complaint, but rather as an indication of the seriousness of the negative consequences of the absolute ban on long-term family visits on their lives.
29. First of all, the Court has to examine whether Article 8 of the Convention is applicable to the present case (see Denisov v. Ukraine [GC], no. 76639/11, §§ 93-94, 25 September 2018).
30. It is clear from the parties’ submissions that the applicants got divorced at a certain point after the introduction of the application before the Court (see paragraph 11 above). The Court accepts that they cannot be said to have had any family life after their divorce (see and compare with Khoroshenko v. Russia [GC], no. 41418/04, § 89, ECHR 2015). The date of the divorce is, however, unknown to the Court. While the Government submitted that it had been “shortly after the introduction of their application”, the applicants made a general statement that their marriage had been dissolved in 2014, without providing any details or documents. The Court takes note that, starting from September 2012 onwards another woman visited the first applicant in prison on a regular basis as his fiancée and that they eventually got married in December 2014 (see paragraph 12 above). The Court therefore presumes that by September 2012, regardless of the applicants’ formal marital status, they no longer shared the close personal ties inherent in the notion of “family life” in the meaning of Article 8 of the Convention (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 140, 24 January 2017, with further references).
31. As to whether such close personal ties had existed between the applicants before that, the Court observes the applicants’ continuous efforts, until December 2009, to receive the possibility of long-term visits allowing for physical contact and intimacy with a view to conceiving a child (see paragraphs 9 above). Against that background, their decision not to see each other at all instead of having short meetings without any physical contact, through a glass partition and in the presence of a prison officer (see paragraph 35 below, as well as Trosin v. Ukraine, no. 39758/05, § 46, 23 February 2012) cannot be interpreted as negating the existence of their family life, contrary to the Government’s arguments.
32. Even if, as suggested by the Government, the applicants dissolved their marriage immediately after the introduction of the application, in May 2010, the Court notes that they had not been able to have long-term conjugal visits for over nine years by then.
33. Regard being had to its case-law and the above-mentioned circumstances of the case, the Court finds that the measures in question constituted an interference with the applicants’ “private life” and “family life” within the meaning of Article 8 of the Convention.
34. Furthermore, contrary to the Government’s submissions, the above complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. Nor does the Court find reasons for declaring this part of the application inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
35. The applicants submitted that for over thirteen years after the first applicant’s conviction they could only see each other during rare short-term meetings, without any physical contact or slightest privacy, through a glass partition and in the presence of a prison officer. While prisoners serving a fixed-term sentence were entitled to long-term (up to three days) family visits allowing for physical contact and intimacy, life prisoners were deprived of such a possibility until May 2014. The applicants maintained that such a severe restriction on life prisoners’ family visits had destroyed their family life. They observed, in particular, that they had lost any hope of having a common child and that their marriage had not survived.
36. The applicants submitted that the impugned restriction was devoid of any legitimate aim. While officially it was justified on security grounds, in practice there had been no official studies or statistics showing how such an excessively restrictive arrangement could enhance security and safety in prisons. In the applicants’ opinion, the factual developments, namely the legislative amendments enacted in May 2014 and later on, proved the contrary.
37. The applicants further noted that the fact that the ban in question was inflexible and set out directly in the legislation had made it impossible to use an individualised approach suited to the unique circumstances of each prisoner’s case. They observed in that connection that the first applicant had never manifested any violence or other security-related risks in prison. Thus, for almost fourteen years of imprisonment he had been reprimanded on three occasions on account of minor irregularities. However, long-term family visits were denied to him in the same vein as to the most dangerous and ruthless of the prison population.
(b) The Government
38. The Government submitted that the impugned interference with the applicants’ rights under Article 8 of the Convention was lawful given that it was based on Article 151 of the Code of Execution of Criminal Sentences as worded at the material time.
39. Referring to the State’s obligation to provide security and safety in prisons both by preventing disorder and conflicts among prisoners and by ensuring security of prison staff and visitors, the Government argued that the ban on long-term family visits for life prisoners served the legitimate purpose of preventing disorder and crimes, as well as protection of health and rights of other people. The Government referred in that connection to the Court’s judgment in the case of Trosin, in which the Court considered various restrictions on visits for life prisoners to pursue “a legitimate aim” within the meaning of paragraph 2 of Article 8 of the Convention (cited above, § 40).
40. The Government further observed that the life imprisonment, to which the first applicant had been sentenced, was the most severe penalty applied in case of the most serious crimes. Accordingly, the regime of that prison sentence inherently implied considerable restrictions.
41. The Government next referred to the disciplinary measures applied to the first applicant by the prison administration (see paragraph 10 above) as an indication of “his inclination to deviant behaviour”.
2. The Court’s assessment
42. The Court has held in its case-law that detention, like any other measure depriving a person of his liberty, entails inherent limitations on a prisoner’s private and family life. However, it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see Khoroshenko, cited above, § 106).
43. The starting point in the regulation of visiting rights of prisoners, including life-sentence prisoners, at the European level is that national authorities are under an obligation to prevent the breakdown of family ties and provide life-sentence prisoners with a reasonably good level of contact with their families, with visits organised as often as possible and in as normal manner as possible (see Khoroshenko, cited above, § 134, with further references to the relevant Council of Europe’s documents).
44. The Court notes that in the present case the contested restriction was imposed on the applicants in accordance with Article 151 of the Code of Execution of Criminal Sentences, which at the material time provided only for short-term visits for life prisoners whereas other categories of prisoners were entitled also to long-term visits (see paragraphs 16-19 above). Accordingly, the impugned interference had a legal basis in Ukrainian law and the law itself was clear, accessible and sufficiently precise.
45. Even assuming that that interference served a legitimate aim within the meaning of Article 8 § 2, it remains to be examined whether it was proportionate and struck a fair balance between the competing private and public interests (see Trosin, cited above, § 40, and Khoroshenko, cited above, § 139).
46. The Court is aware that a sentence of life imprisonment in Ukraine can only be handed down for a limited group of extremely reprehensible and dangerous actions and that in the case at hand the authorities had had, among other things, to strike a delicate balance between a number of private and public interests (see paragraphs 13 and 14 above, and compare with Khoroshenko, cited above, § 131).
47. However, the impugned restriction was imposed directly by law and concerned the first applicant solely on account of his life sentence and irrespective of any other factors (see paragraphs 17-19 above). The Court has held that the State does not have a free hand in introducing restrictions in a general manner without affording any degree of flexibility for determining whether limitations in specific cases are appropriate or indeed necessary, especially regarding post-conviction prisoners (see Khoroshenko, cited above, § 126).
48. It is noteworthy that the legislation in question was eventually amended and the impugned ban was lifted. However, at the material time the applicants had had no reasons to hope that this would happen one day. It is also worth noting that the CPT recommended that life-sentence prisoners should only be prohibited from receiving long-term visits on the basis of an individual risk assessment (see paragraph 22 above).
49. The Court therefore concludes that the interference with the applicants’ family life resulting from the absolute ban on long-term family visits for life prisoners solely on account of the gravity of a prisoner’s sentence without any individual risk assessment was, as such, disproportionate to the aims invoked by the Government. That situation was further aggravated by various rules on the modalities of prison visits, such as the ban on direct physical contact, separation by a glass wall or metal bars, the continuous presence of prison guards during visits, and the limit on a maximum number of adult visitors (see Trosin, cited above, §§ 43-46).
50. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8
51. The applicants further complained that they had not had an effective domestic remedy in respect of their above complaint under Article 8 of the Convention. They relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Admissibility
52. The Court notes that the applicants’ complaint under Article 13, being linked to their complaints, regarding which the Court has found a violation Article 8 of the Convention (see paragraph 50 above), 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
53. The Court reiterates that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 113, ECHR 2002‑VI, and Titarenko v. Ukraine, no. 31720/02, § 110, 20 September 2012, with further references). In these circumstances, the Court finds no breach of Article 13 of the Convention in the present case.
III. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION
54. The applicants additionally complained that the ban on long-term family visits for life prisoners had been in breach of their rights under Article 12 of the Convention which reads as follows:
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
55. Having regard to the facts of the case, the submissions of the parties, and its findings under Articles 8 and 13 of the Convention (see paragraphs 50 and 53 above), the Court considers that it has examined the main legal question raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the above-mentioned complaint (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
56. 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
57. The applicants claimed 100,000 euros (EUR) in respect of non‑pecuniary damage.
58. The Government contested the above claim as excessive.
59. The Court considers it appropriate to award EUR 3,000 to each of the applicants in respect of non-pecuniary damage.
B. Costs and expenses
60. The applicants also claimed EUR 655 for the costs and expenses incurred before the Court. They submitted the report by Mr Bukalov of 17 October 2016 on the work performed, according to which that was the amount of his remuneration. It indicated an hourly rate of EUR 17.2 and specified that he had worked a total of thirty-eight hours on the case. As confirmed by the bank transfer receipts of 10 and 15 October 2016, the above amount was paid to Mr Bukalov in full.
61. The Government observed that, although the applicants had provided the relevant receipts in support the above claim, they had failed to submit any legal services agreement concluded with Mr Bukalov. The Government therefore invited the Court to reject the applicants’ claim under this head.
62. 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 allow the applicants’ claim for costs and expenses in full and to award them the sum of EUR 655.
C. Default interest
63. 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 applicants’ complaints under Articles 8 and 13 of the Convention admissible;
2. Holds that it is not necessary to examine the admissibility and merits of their complaint under Article 12 of the Convention;
3. Holds that there has been a violation of Article 8 of the Convention;
4. Holds that there has been no violation of Article 13 of the Convention in conjunction with Article 8;
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 3,000 (three thousand euros) to each applicant in respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 655 (six hundred and fifty-five euros) jointly, plus any tax that may be chargeable to the applicants, in respect of legal costs before the Court;
(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 applicants’ claim for just satisfaction.
Done in English, and notified in writing on 21 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan BlaškoSíofra O’Leary
Deputy RegistrarPresident
Full & Egal Universal Law Academy