FIFTH SECTION
CASE OF STARISHKO v. UKRAINE
(Application no. 61839/12)
JUDGMENT
STRASBOURG
15 October 2020
This judgment is final but it may be subject to editorial revision.
In the case of Starishko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Ganna Yudkivska,
Anja Seibert-Fohr, judges,
and, Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to:
the application (no. 61839/12) 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 Anatoliy Petrovych Starishko (“the applicant”), on 18 July 2012;
the decision to give notice to the Ukrainian Government (“the Government”) of the applicant’s complaints on the irreducibility of his life sentence and the restrictions on his visiting entitlement during his post‑conviction detention, and the decision to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 22 September 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicant complained about the lack of any genuine prospect of his release and about the restrictions on his right to receive visits in prison from 2000 to 2014.
THE FACTS
2. The applicant was born in 1980 and is serving a life sentence in Vinnytsya Prison no. 1. He had been granted legal aid and was represented by Ms Ganna Ovdiyenko, a lawyer practising in Kharkiv.
3. The Government were represented by their Agent, Mr Ivan Lishchyna.
4. The facts of the case, as submitted by the parties, may be summarised as follows.Life sentence
5. On 14 December 1999 the Dnipropetrovsk Regional Court found the applicant guilty of several counts of aggravated murder and theft and sentenced him to the death penalty.
6. On 30 May 2000 the Supreme Court replaced the death penalty with life imprisonment and upheld the verdict in the remaining part.Visits in prison (2000-14)
7. During the period from 2000 to 2014, the applicant had ten short-term visits (lasting from one to four hours) from his mother, his sister and, on three occasions, a friend. During the meetings the applicant communicated with the visitors via a glass partition. Their conversations were listened to by a prison officer.
RELEVANT LEGAL FRAMEWORK
8. Legal provisions pertaining to life imprisonment and presidential clemency can be found in Petukhov v. Ukraine (no. 2) (no. 41216/13, §§ 75‑90, 12 March 2019).
9. Under the Correctional Labour Code of 1970 (repealed with effect from 1 January 2004), life prisoners had the right to one short-term visit every six months, conducted in the presence of a staff member of the prison (Article 39).
10. The Code of Execution of Criminal Sentences of 11 July 2003, which entered into force on 1 January 2004 and replaced the above‑mentioned Correctional Labour Code, kept that rule unchanged until 16 February 2010, when convicted prisoners sentenced to life imprisonment became entitled to one short-term visit every three months (Article 151).
11. A further summary of the legal provisions on visiting entitlement in prison applicable in Ukraine starting from 2003, and their evolution, can be found in Trosin v. Ukraine (no. 39758/05, §§ 26 and 29, 23 February 2012), and Bigun v. Ukraine ([Committee], no. 30315/10, §§ 15-19, 21 March 2019).
RELEVANT COUNCIL OF EUROPE DOCUMENTS
12. References to relevant texts of the Council of Europe and other international legal texts, as well as relevant excerpts from reports on life imprisonment by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), can be found in Petukhov (cited above, §§ 105-07).
13. The Council of Europe material pertaining to family visits to prisoners is quoted in Khoroshenko v. Russia ([GC], no. 41418/04, §§ 58‑67, ECHR 2015), while excerpts from relevant CPT reports are quoted in Bigun (cited above, § 22).
THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
14. The applicant complained that his life sentence was incompatible with Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Admissibility
15. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits
16. The applicant argued that the circumstances of his case were similar to those in Petukhov (cited above), in which the Court had found a violation of Article 3 of the Convention on account of the irreducible nature of the sentence of life imprisonment in Ukraine.
17. The Government submitted that there existed the possibility for the applicant to seek release through the presidential clemency mechanism, which they considered to be clear and foreseeable.
18. The Court notes that in Petukhov (cited above), it found that the presidential clemency procedure – the only possibility for mitigating life sentences in Ukraine (apart from commutation of a life sentence on account of a terminal illness, which was not considered to constitute a “prospect of release”) – lacked sufficient clarity, certainty and transparency (ibid., §§ 174-79). The Court considered that in Ukraine the presidential power of clemency was a modern-day equivalent of the royal prerogative of mercy, based on the principle of humanity, rather than a mechanism, based on penological grounds and with adequate procedural safeguards, for review of a prisoner’s situation so that the adjustment of his or her life sentence could be obtained (ibid., § 180). The Court also held that the existing regime for life prisoners in Ukraine was incompatible with the aim of rehabilitation (ibid., § 184).
19. Furthermore, in the same judgment the Court indicated under Article 46 of the Convention that the case in question, in so far as it concerned the irreducibility of a life sentence, disclosed a systemic problem calling for the implementation of measures of a general character (ibid., § 194). The nature of the violation found under Article 3 suggested that for the proper execution of the judgment, the respondent State would be required to put in place a reform of the system of review of whole-life sentences. The mechanism of such a review should guarantee the examination in every particular case of whether continued detention was justified on legitimate penological grounds and should enable whole-life prisoners to foresee, with some degree of precision, what they had to do to be considered for release and under what conditions, in accordance with the standards developed in the Court’s case-law (ibid.).
20. The circumstances of the present case disclose the same problems as those criticised by the Court in Petukhov (cited above). Like Mr Petukhov, the applicant in the present case is a life prisoner who is, for the time being, deprived of any genuine prospect of release.
21. There has accordingly been a violation of Article 3 of the Convention.ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
22. The applicant complained that various restrictions on his visiting rights while in prison from 2000 to 2014 had been contrary to Article 8 of the Convention, which reads in its relevant parts as follows:
“1. Everyone has the right to respect for his private and family life ...
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.”Admissibility
23. This complaint being neither manifestly ill-founded nor inadmissible on any other grounds under Article 35 of the Convention, the Court declares it admissible.Merits
24. The applicant complained that, during his post-conviction detention from 2000 to 2014, his right to respect for his private and family life had been infringed on account of the absolute ban on long-term family visits and the low frequency of authorised short-term visits, as well as various rules on the practical conditions of prison visits, such as the ban on direct physical contact, separation by a glass wall or metal bars, and the continuous presence of prison guards during visits.
25. The Government admitted that the impugned restrictions had amounted to an interference with the applicant’s rights under Article 8 of the Convention. They argued, however, that that interference was in compliance with law, pursued a legitimate aim of preventing disorder and crime, and was proportionate to the aim pursued.
26. The Court notes that for fourteen years the applicant was entitled under the domestic law only to infrequent short-term meetings from his family members or a friend (every six months for the initial ten years and every three months for the remaining four years), without any physical contact or privacy.
27. Those restrictions were imposed on him in accordance with the Correctional Labour Code and, after 1 January 2004, the Code of Execution of Criminal Sentences. Accordingly, they had a legal basis in Ukrainian law and the law itself was clear, accessible and sufficiently precise.
28. 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).
29. 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 Bigun, cited above, § 46).
30. The State does not, however, 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).
31. In the present case the severe limitations on the applicant’s contact with his family and the outside world in general, which he suffered for fourteen years, were imposed on him directly by law, solely on account of the gravity of his sentence and without any individual risk assessment. They were disproportionate to the aims invoked by the Government.
32. There has therefore been a violation of Article 8 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. 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.”
34. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.
35. The Government contested that claim.
36. The Court considers it appropriate in the circumstances of the case to award EUR 3,000 to the applicant in respect of non-pecuniary damage.
37. 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,Declares the applicant’s complaints under Articles 3 and 8 of the Convention admissible;Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s irreducible life sentence;Holds that there has been a violation of Article 8 of the Convention on account of the restrictions on the applicant’s visiting rights in prison from 2000 to 2014;Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non‑pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{Anne-Marie DouginMārtiņš Mits
Deputy Section RegistrarPresident
Full & Egal Universal Law Academy