CASE OF UDOVENKO v. UKRAINE

FIFTH SECTION

CASE OF UDOVENKO v. UKRAINE

(Application no. 33040/08)

JUDGMENT
 

STRASBOURG

11 March 2021

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

In the case of Udovenko v. Ukraine,

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

Mārtiņš Mits, President,
Lətif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application 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 Pavel Pavlovich Udovenko (“the applicant”), on 24 June 2008;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaint concerning the hindrance of the applicant’s right of application under Article 34 of the Convention and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 11 February 2021,

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

INTRODUCTION

1.  The application concerns the issues, raised under Article 34 of the Convention, of confidential lawyer-client meetings in prison and a prohibition on documents being passed between the applicant and his advocate during those meetings, as well as a prison administration’s refusal to provide the applicant’s mother, who was also his representative, with copies of documents from the applicant’s personal file which he wished to send to the Court.

THE FACTS

2.  The applicant was born in 1966 and lives in Yalta.

3.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.

4.  On 19 September 2017 the applicant informed the Court that on 29 April 2016 he had changed his name from Udovenko to Gordeyev. The Court decided to continue processing the application under the case name Udovenko v Ukraine (see Schatschaschwili v. Germany [GC], no. 9154/10, § 2, ECHR 2015). On 6 November 2017 the applicant was granted leave to present his own case.

5.  The facts of the case, as submitted by the parties, may be summarised as follows.  Criminal proceedings against the applicant

6.  On 21 March 2006 the applicant was arrested on suspicion of a number of violent crimes committed against two of his former girlfriends.

7.  On 2 March 2007 the Yalta Court convicted the applicant of torture, extortion, robbery, witness intimidation and the unlawful seizure of official documents, and sentenced him to ten years’ imprisonment.

8.  On 15 May 2007 the Crimea Court of Appeal (“the Court of Appeal”) upheld the applicant’s conviction.

9.  On 20 January 2009 the Supreme Court quashed the Court of Appeal’s ruling and remitted the applicant’s case for a new hearing on appeal.

10.  On 4 June 2009 the Court of Appeal upheld the applicant’s conviction.

11.  On 16 September 2010 the Supreme Court discontinued the proceedings against the applicant for witness intimidation and the unlawful seizure of documents as time-barred, and upheld the rest of his conviction and sentence.

12.  On 1 February 2016, having served his sentence, the applicant was released.  Events at Berdychiv Correctional Colony

13.  On 3 February 2008 the applicant arrived at Berdychiv Correctional Colony no. 70 in the Zhytomyr Region (“the prison”), where he was to serve his sentence. He had with him about a thousand pages of documents related to various sets of legal proceedings. A domestic investigation subsequently conducted by the regional prosecutor’s office (see below) established that prison guards seized the documents and filed them under the applicant’s personal file, since the applicant had had more individual items of reading material than the maximum number – ten – which prisoners were allowed to keep with them. The applicant was informed that he would be given access to the documents on request if he needed them for preparing an application to the European Court of Human Rights.

14.  On 12 February 2008 forty documents were returned to the applicant by the prison administration. He did not make another request for documents as, according to him, that was the maximum number of documents which he could have received.

15.  On 3 July 2008 the head of the prison approved an authority form, signed by the applicant and authorising the applicant’s mother to be his representative before various State bodies and the Court.

16.  On 18 and 22 August 2008 the head of the prison wrote to the applicant’s mother in response to her written requests for documents from the applicant’s personal file which were to be sent to the Court. He refused to provide those documents because, according to him, the procedure for copying documents provided for in Regulation 92 of the Internal Regulations of Penal Institutions (see paragraph 30 below) was not clear. In particular, those regulations did not set out how to deduct money for photocopying services, nor did they specify which documents convicted persons were entitled to have photocopied: documents from their personal files, or documents which they were allowed to keep with them. In his second letter, the head of the prison gave another two reasons. Firstly, he stated that at that time the prison had no technical means of copying documents. Furthermore, he explained that the existing regulations did not provide for the possibility to photocopy documents contained in the personal file of the applicant, and that only prison officials, authorised State bodies and the applicant were allowed to have access to those documents.

17.  On 22 November 2008 the applicant wrote to the head of the prison, asking for permission to have a confidential meeting with his advocate, S. He asked that the reply be sent to his mother. On 12 December 2008 the head of the prison replied, informing her that the applicable rules allowed lawyer‑client meetings in prison and confidential communication in a room for short-term visits, where the relevant individuals’ security was assured. He stated that the applicant could meet with his advocate any time, except on Sundays and on the first and second Wednesday of every month.

18.  Separately, on 1 December 2008 the Zhytomyr regional prosecutor’s office, following a number of applications from the applicant and his mother of November 2008, refused to institute criminal proceedings for abuse of power against the prison officials who had been involved in seizing the applicant’s documents or were involved in making arrangements for his access to them. The prosecutor found that the seizure of the documents and the arrangements for access were in accordance with applicable regulations.

19.  In early January 2009 the applicant’s mother paid a visit to the applicant during which he signed the authority form provided by the Court, authorising her to be his representative in the proceedings before the Court.

20.  On 9 January 2009, in her capacity as the applicant’s representative, the applicant’s mother wrote to the prison administration, asking for permission to obtain documents from the applicant in support of his application before the Court. She declared that she would allow the prison representatives to examine all the documents she obtained from him in order to ensure that she received no forbidden objects. The prison administration refused the request.

21.  On 13 January 2009 S., the applicant’s advocate, wrote to the head of the prison, complaining that on the same day he had attempted to visit the applicant and have confidential communication with him, but had only been allowed to visit him in a room for short-term visits, where they could communicate through an intercom device. The advocate refused to “perform his work in those conditions”, and demanded that a room with “a table and chairs” be provided.

22.  On 14 January 2009 S. wrote again to the head of the prison, complaining that on the same day he had unsuccessfully attempted to visit the applicant and obtain documents from him. The advocate asked the prison administration to inform him about when he could visit the applicant in private and obtain documents from him. According to the applicant, and as confirmed in a document issued by the Zhytomyr Union of Advocates, the aim of the meeting had been to draft an application to the Court and hand over relevant documents for the purpose of sending them to the Court. Having apparently received a negative reply, the advocate ceased to represent the applicant before the Court and abandoned the preparation of his application. The applicant clarified that this was the result of the fact that the visiting arrangements provided by the prison administration did not permit confidential communication.

23.  On 15 January 2009 the applicant’s mother wrote to the prosecutor of the Zhytomyr Region, complaining that on 11 January 2009 the prison administration had not allowed the applicant to pass her documents in support of his application before the Court. She also complained that the prison administration had failed to provide arrangements to ensure the confidentiality of communication between the applicant and S., and had not allowed the applicant to pass any document to his advocate. In addition, she complained that those arrangements were the reason why S. had stopped assisting the applicant with filling in the application form. She attached copies of the two above-mentioned written complaints drafted by S. on 13 and 14 January 2009.

24.  On 16 January 2009 the head of the prison replied to a complaint which the applicant’s mother had sent on an unspecified date, explaining that during visits, prisoners were not allowed to transfer or receive any document, note, drawing, and so on.

25.  On 9 February 2009 the State Department for Execution of Sentences wrote to the applicant’s mother in reply to her letter addressed to the Ombudsperson for Ukraine, stating, among other things, that she was required to submit a written application to the head of the prison in order to solve the issue of obtaining copies of the documents necessary for lodging a complaint with the Court.

26.  On 11 February 2009 the Zhytomyr prosecutor’s office wrote to the applicant’s mother in reply to her complaint of 15 January 2009, explaining that the prison regulations did not allow for documents to be passed to or received from prisoners during short-term or long-term visits. It mentioned that the applicant’s advocate had been given the opportunity to visit the applicant in the room for short-term visits on 13 and 14 January 2009, but the advocate had refused. The prosecutor’s office reiterated that the relevant regulations provided that prisoners wishing to send a letter to the Court should give it to the prison administration in a sealed envelope, and the administration must send it to the Court without reviewing its content, because opening such an envelope was prohibited by law. The prosecutor’s office concluded by saying that the actions of the prison administration had been lawful, and there were no grounds for the prosecutor’s office to intervene.

27.  The applicant alleged that because of his conflict with the prison administration over his application to the Court, a number of disciplinary sanctions had been imposed on him, including his placement in punishment cells. He alleged in particular that between 5 February 2008 and 7 April 2009 the prison administration had imposed twenty-seven disciplinary sanctions on him for various reasons, including for: failing to clean an area of the detention facility reserved for newly admitted prisoners (відділення карантину, діагностики та розподілу); keeping a razor blade; verbally abusing a prison official; setting up an inter-cell communication system; taking a nap during the day; refusing to make his bed and wear special clothing; and smoking in a prohibited area.

28.  On 22 July 2009 a deputy prosecutor of the Zhytomyr Region wrote to the applicant’s mother in reply to her submissions to the President of Ukraine and the Minister of Justice concerning the alleged infringement of the applicant’s rights by the prison employees, the unlawful seizure of his documents and his placement in a punishment cell. The deputy prosecutor stated that it had been established that a copy of the Crimea Court of Appeal’s decision of 15 May 2007 (see paragraph 8 above) had been unlawfully seized from the applicant and that this incident had been flagged up to the head of the prison. The applicant had received back the document in question on 12 December 2008. In relation to the applicant’s solitary confinement, the deputy prosecutor stated that the applicant had breached the prison regime fifteen times in 2008 and nine times in 2009. The deputy prosecutor further explained that the allegations of threats and bias on the part of the prison authorities had proved to be without foundation.

29.  On 10 April 2009, in response to her complaint of 6 March 2009, the Zhytomyr regional prosecutor’s office wrote to the applicant’s mother, stating that the relevant domestic regulations had not been violated.

RELEVANT LEGAL FRAMEWORK

30.  The Internal Regulations of Penal Institutions (“the Internal Regulations”), approved by the Ukrainian State Department for the Execution of Sentences on 25 December 2003 (Order no. 275), allowed short-term visits by relatives and other persons, under the surveillance of a representative of the prison administration. During the visits (either short‑term or long-term), prisoners were not allowed to transfer or receive any document, note, drawing, and so on (section 47). At the request of a prisoner or an advocate, confidential meetings could be arranged (section 49). Annex 17 set out two types of visiting arrangements for short‑term visits. The first arrangement provided for there being a long table with a dividing partition on it which was 20 cm high. The area beneath the table was to be divided with a partition. The second arrangement provided for there being small booths containing glass partitions and an intercom device. Neither visiting arrangement allowed confidential communication, as both types were subject to surveillance by a prison official, whose table (including an intercom device, for the second type of arrangement) had to be installed in the visiting room (or in a separate room with a window facing the room for short-term visits, for the second type of arrangement). Further to amendments made to the Internal Regulations on 14 March 2007, a prison administration is required to assist prisoners who wish to obtain from State bodies copies of documents concerning their applications. In accordance with Regulation 92 as amended, prisoners are to be provided with photocopying services in exchange for payment of a fee.

31.  On 28 August 2018 a new version of the Internal Regulations of Penal Institutions was adopted, which made provision for a detainee to meet with an advocate in private, in a room for short-term visits without a glass partition (section XIV), and allowed documents to be passed between them during that visit (section XV).

THE LAWALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

32.  The applicant complained that in 2008 and 2009 the prison administration had hindered his right of individual application: by failing to provide an arrangement which would ensure the confidentiality of his communication with his advocate; by not allowing documents to be passed between him and his advocate, or between him and his mother; by seizing documents from him upon his arrival at the prison on 3 February 2008 and restricting access to them; and by imposing disciplinary sanctions on him. He relied on Article 34 of the Convention, which reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”Submissions of the parties

33.  The Government agreed that the applicant’s advocate had withdrawn without having a meeting with the applicant, and confirmed that the prison administration had refused to allow documents to be passed to the applicant’s mother and advocate. They maintained that the prison administration had acted in accordance with the law, and argued that if the applicant’s advocate had wished to obtain documents, he could have obtained them from the applicant’s criminal case file. In their opinion, communication between the applicant and S. in a room with a glass partition would have been confidential, and would not have been listened to. They maintained that a glass partition was needed for security reasons. The Government further maintained that the applicant’s mother had paid him a visit between April and November 2008, yet no exact date could be provided, as the relevant records of the meetings had been damaged. The Government further argued that on 12 February 2008 the applicant had received the documents he had requested, and he had not asked for more documents. Referring to an administrative note from the Head of the State Criminal Executive Service of Ukraine to the Head of the Secretariat of the Ukrainian Ombudsperson of 11 May 2017, which contained, inter alia, a list of the sanctions imposed on the applicant between February 2008 and June 2015, repeating essentially the same reasons for the sanctions (see paragraph 27 above), they denied any connection between the disciplinary sanctions in question and the applicant’s application to the Court. They asked the Court to dismiss the complaints as manifestly ill-founded.

34.  The applicant replied that once he had made clear his intention to apply to the Court, the prison authorities ceased to allow meetings with his advocate S. in private, in a room without a glass partition. He repeated his grievances and asked the Court to hold that the State had failed to abide by its obligations under Article 34 of the Convention.The Court’s assessment

35.  The Court reiterates that a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see, among other authorities, Rasul Jafarov v. Azerbaijan, no. 69981/14, § 176, 17 March 2016, with further references).

36.  This being so, the Court notes that the applicant raised three issues under Article 34. It will consider them separately below.Conditions in which the applicant had to communicate with his representatives

37.  The Court reiterates that one of the key elements in a lawyer’s effective representation of a client’s interests is the principle that the confidentiality of information exchanged between them must be protected; this privilege encourages open and honest communication between clients and lawyers (see, for instance, Oferta Plus SRL v Moldova, no. 14385/04, §§ 145-146, 19 December 2006, and the cases cited therein).

38.  The Court further reiterates that an interference with lawyer-client privilege in the context of proceedings before it amounts to an interference with the right of petition guaranteed by Article 34 of the Convention, and that such an interference does not necessarily require an actual interception or eavesdropping to have taken place. A genuine belief held on reasonable grounds that a discussion was being listened to might be sufficient, in the Court’s view, to limit the effectiveness of the assistance which the lawyer could provide. Such a belief would inevitably inhibit a free discussion between lawyer and client and hamper the client’s right to be effectively defended or represented (ibid., § 147).

39.  In the case of Oferta Plus SRL (cited above), the applicant company’s representative before the Court had tried to visit the Chief Executive Officer of the company (an individual named C.T.) at the detention centre where he was being detained, in order to prepare observations to be sent to the Court. The lawyer had asked to meet C.T. in a meeting room without a glass partition, as he had believed that conversations through the glass partition were intercepted. Nevertheless, he had only been allowed to see C.T. in a meeting room separated by a glass partition, which had impeded their conversation in such a way that they had refused to discuss the issue of pecuniary damage. The Court accepted that the applicant company’s suspicion about interception devices had been sufficiently founded. It also noted that there had been no possibility of documents being passed between them, because of the glass partition, which had rendered the lawyer’s task even more difficult (ibid., § 152). It further noted that the effectiveness of the representation had been seriously hampered to such an extent that the applicant company had been unable to present its observations under Article 41 of the Convention. The Court concluded that there had been a violation of Article 34 of the Convention.

40.  Similarly, in the case of Cebotari v. Moldova (no. 35615/06, §§ 58‑68, 13 November 2007), a detainee had only been allowed to see his lawyer in a meeting room, where he had been separated from him by a glass partition. During the meeting the applicant and the lawyer had had to shout to hear each other, and could not pass documents without involving the criminal investigator or the prosecutor. The Court concluded that in such circumstances, the applicant and his lawyer could reasonably have had grounds to fear that their conversation was not confidential (ibid., § 63).

41.  In both cases, the Court concluded that the applicants’ inability to discuss issues concerning their applications before the Court with their lawyers without being separated by a glass partition had affected their right of petition, and that accordingly there had been a violation of Article 34 of the Convention (see Oferta Plus SRL, § 156, and Cebotari, § 68).

42.  In the present case, the applicant’s advocate, S., applied to the prison administration for permission to visit the applicant in order to fill in the relevant application form and collect documents to be sent to the Court. For that purpose, he asked the prison administration to provide a room with “a table and chairs”. The prison administration proposed that S. meet the applicant in a room for short-term visits, where they could communicate through an intercom device. The administration explained that those arrangements would ensure S.’s security.

43.  The Court observes that the prison administration’s reply apparently had a chilling effect on the applicant’s advocate, as he had to stop representing the applicant before the Court and refused to prepare the application. According to the applicant, he and S. believed that the proposed arrangements excluded any possibility of confidential communication.

44.  The Court must therefore establish whether the applicant’s and his advocate’s belief that their communication would be listened to was based on reasonable grounds.

45.  The Court notes that the relevant regulations did not provide for clear instructions as to how confidential lawyer-client meetings should be held or how the prison authorities would ensure the security of those meetings. As can be seen from the case file, the prison administration interpreted the latter provision on security as excluding the possibility of having a lawyer-client meeting in a room without a glass partition. The Court further observes that the same regulations provided for mandatory surveillance of all short-term meetings without exception. In these circumstances, the Court concludes that the applicant and his advocate had reasonable grounds to believe that their conversation in a room with glass partition, where they could communicate only through an intercom device, would be listened to.

46.  The Court further notes that the same regulations prohibited documents being passed to and from prisoners during either short-term or long-term visits; documents could not even be passed to advocates. That situation would inevitably have rendered the work of the applicant’s advocate more difficult, as, according to the Government, he would have had to apply to the national courts in order to obtain the necessary documentation.

47.  According to the applicant, it was only after his transfer to another detention facility in March 2011 that he was able to pass on the relevant documents to his mother. She then sent them to the Court on 16 September 2011.

48.  In the light of the above, the Court considers that the applicant’s inability to discuss the issues concerning the present application with his advocate in conditions allowing confidentiality without being separated by a glass partition negatively affected his right of petition, as did the prohibition on transferring documentation (see Cebotari, § 68, and Oferta Plus SRL, cited above, § 156). The Court, however, will have to examine the other allegations about hindrance of application before reaching a conclusion.Seizure of the applicant’s documents and restrictions on access to them

49.  The applicant complained that the prison authorities had seized his documents upon his arrival at the prison on 3 February 2008 (see paragraph 13 above). He further complained that the prison administration had refused his mother’s written requests for photocopies of the documents in his personal file, and alleged that he had not been able to obtain his documents owing to the restrictions imposed on him.

50.  Although the object of Article 34 is essentially that of protecting an individual against any arbitrary interference by the authorities, it does not merely compel States to abstain from such interference. In addition to this primarily negative undertaking, there are positive obligations inherent in Article 34 requiring authorities to furnish all necessary facilities to make possible a proper and effective examination of applications (see Savitskyy v. Ukraine, no. 38773/05, § 156, 26 July 2012).

51.  The Court observes that in the present case the applicant’s mother, who was also his representative before the Court, made several unsuccessful attempts to obtain the documents from the prison administration. The purpose of sending those documents to the Court was clearly articulated to the prison administration, which still refused to grant the requests, referring firstly to a lack of clarity in the Internal Regulations as regards payment for photocopying services, and later to the limited access to the applicant’s personal file as provided for by the legislation in force (see paragraph 16 above). Consequently, she did not have any access to the documents and could not even copy them by hand.

52.  Furthermore, the applicant’s advocate also sought to obtain documents from the applicant (see paragraph 22 above) during the visit, which he had asked to be confidential. The prosecutor’s office, in reply to the applicant’s mother’s complaint of a refusal to allow documents to be transferred between her and the applicant and between the advocate and the applicant, explained that the rules did not provide for the possibility of passing on documents from prisoners during either short-term or long-term visits (see paragraphs 26 and 29 above).Conclusion under Article 34 as regards the effects of the contact restrictions and the seizures of documents

53.  In view of the foregoing, the Court considers that the prison administration placed several serious and unjustified obstacles on the applicant’s ability to prepare his application to the Court which, taken together, made it extremely difficult, if not impossible, for the applicant to file submissions with the Court, and thus hindered the exercise of his right under Article 34 of the Convention.Imposition of disciplinary sanctions

54.  The applicant alleged that the prison authorities had imposed disciplinary sanctions on him in order to intimidate or dissuade him from applying to the Court and pursuing his application.

55.  The Court notes that the sanctions in question were for concrete and clearly described infringements of prison discipline (see paragraphs 27 and 33 above). As such, they do not reveal any arbitrariness which could in itself have amounted to a form of pressure contrary to Article 34 of the Convention (see, for instance, Melnikov v. Russia, no. 23610/03, § 101, 14 January 2010). The applicant did not provide any factual information capable of leading the Court to an inference that there might have been any connection between the application to the Court and the imposition of the disciplinary sanctions at issue.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.”Damage

57.  The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage. He argued that his inability to meet with his advocate in private and pass on the relevant documentation had caused him severe stress and anxiety.

58.  The Government contested the amount claimed, arguing that the sum was exorbitant and unsubstantiated. They asked the Court to dismiss the applicant’s claim.

59.  The Court considers that the applicant must have experienced a certain amount of stress and anxiety as a consequence of the serious breaches found above. It awards him EUR 1,200 in respect of non‑pecuniary damage.Costs and expenses

60.  The applicant made no claim in respect of costs and expenses. There is therefore no call to make an award under this head.Default interest

61.  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,Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention as regards the cumulative effect of the authorities’ refusal to provide the applicant and his advocate with an arrangement ensuring the confidentiality of their communication and as regards the failure to provide the applicant’s mother, his representative, access to documents which the applicant wished to submit to the Court;Dismisses the remainder of the applicant’s complaints under Article 34 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Mārtiņš Mits
Deputy RegistrarPresident

 

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