VISLOGUZOV v. UKRAINE

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32362/02
by Sergey Nikolayevich VISLOGUZOV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 6 March 2007 as a Chamber composed of:

MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mr J.S. Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 31 July 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Nikolayevich Visloguzov, is a Ukrainian national who was born in 1965 and lives in the village of Frunze, the Kherson region.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Criminal proceedings against the applicant

On 7 June 2000 the Genichensk District Court of the Kherson Region (hereafter “the Genichensk Court”) convicted the applicant of possession of prohibited drugs and sentenced him to two years’ imprisonment.

On 6 October 2000 the same court found the applicant guilty of theft and destruction of property, and sentenced him to five years’ imprisonment. In this judgment the Genichensk Court set aside the applicant’s prior sentence of 7 June 2000 and imposed a consolidated five and a half years’ prison sentence.

Although the applicant did not challenge the judgments above under the ordinary appeal procedure, on 5 January 2002 he filed with the Supreme Court a request for their extraordinary review, stating that he was convicted in breach of criminal law. On 4 December 2002 the Supreme Court informed the applicant that his request was not being dealt with because of his failure to provide the copies of the impugned judgments of the Genichensk Court. The further progress of these proceedings, if any, is unknown.

2. The applicant’s detention

a. Detention in the Simferopol SIZO

On 7 June 2000, having convicted the applicant of the possession of prohibited drugs, the Genichensk Court also decided to detain him in the Simferopol Pre-trial Detention Centre (the Simferopol SIZO) until he started to serve his sentence.

During his detention in the Simferopol SIZO the applicant was given medical treatment for pneumonia, in the context of which he was X‑rayed on several occasions.

According to a letter of 26 July 2001 of the Genichensk Tuberculosis Healthcare Centre, the applicant also received treatment for tuberculosis during his detention in the Simferopol SIZO.

b. Medical and living conditions in the Penitentiary no. 90

On 13 February 2001 the applicant was transferred to the Penitentiary no. 90 for the purpose of serving his consolidated five and a half years’ prison sentence. His detention there lasted, with a brief interruption in May-June 2002 (see below), until an unknown date in 2005, when he was released having served his sentence.

In February 2001, following his complaints, the applicant was examined by prison doctors, who diagnosed him as suffering from weight loss and prescribed a diet. The applicant also underwent laboratory and X-ray examinations. Prison doctors prescribed him a further X‑ray but the applicant refused to submit to this examination. However, on the basis of his medical case-file, the assessment of his general health condition and the results of the X-ray tests, the applicant was found to suffer from tuberculosis. There is no information on whether he received any treatment for this disease in the Penitentiary no. 90.

From 11 May to 11 June 2002 the applicant was treated for hepatitis and tuberculosis in the Penitentiary no. 10, a prison hospital. The applicant states that he did not receive any treatment for tuberculosis and weight loss after his return to the Penitentiary no. 90, although he continued to suffer from these health problems. He also contends that he was administered several doses of drugs for a psychiatric condition which he never suffered from. He also claims that the food supplied in the Penitentiary no. 90 was meagre and of poor quality and that the planks in the cells were covered only with blankets, which were usually damp and not washed regularly. No other items of linen were issued to the prisoners and those received from relatives were seized during regular searches.

c. Alleged ill-treatment

On 18 November 2001 the applicant was allegedly subjected to ill‑treatment by prison officers. On 19 December 2002 the prosecutor supervising penitentiary establishments informed the applicant’s wife that the preliminary criminal inquiry, instituted upon her complaint, had not revealed any wrongdoing on the part of the officers concerned. Neither the applicant nor his wife appealed against this decision to any domestic court.

d. The applicant’s correspondence

i. Complaints to different domestic authorities

During his detention on remand the applicant filed numerous complaints about his conditions of detention with a public prosecutor supervising penitentiary establishments and with the higher prison authorities (the head office of the State Prison Department in Kyiv and this Department’s regional office in Kherson). Some of these letters were not sent through the prison administration, as required under the prescribed procedure (see Relevant domestic law), but through the applicant’s wife, allegedly in order to avoid them being opened by the prison administration. On 25 February 2003 the applicant was punished by fifteen days’ confinement in a disciplinary cell for having sent correspondence, i.e. his complaints about his conditions of detention, through channels other than the prison administration in breach of Article 44 of the Correctional Labour Code.

ii. Correspondence with the Court

In response to the applicant’s first letter to the European Court of Human Rights of 4 September 2002, the Registry of the Court provided him with a copy of the Convention, an application form and other documents necessary for lodging a formal application. In accordance with the applicant’s request, the Registry sent those documents to his wife’s address. During a visit in October 2002 she handed them over to the applicant, who informed the relevant prison officer about the receipt of these documents. He was granted permission to retain them.

For the purpose of substantiating his application to the Court, the applicant requested the officer dealing with prisoners’ correspondence and case‑files to be provided with copies of the letters of the authorities in reply to his complaints during his stay in the Penitentiary no. 90. This request was rejected on the ground that his case-file contained classified documents.

On 8 November 2002 the Governor of the Penitentiary no. 90 ordered the applicant to hand over the documents he had received from the Court. On the same date the applicant was admonished for keeping unlawfully obtained documents.

In a letter of 3 February 2003 the Deputy Head of the Prison Department of the Kherson region informed the applicant’s wife that the application form and other documents received from the Court had been seized by the prison authorities as unlawfully obtained, but that they had been subsequently returned to the applicant. The applicant, however, states that these documents were never given back to him. In his letters of 22 November 2002 and 13 June 2003, sent from his wife’s address, he requested the Court to be provided with a new set of documents necessary for filing an application. After having been provided – via his wife – with a fresh set of documents, the applicant submitted a completed application form on 15 October 2003.

B. Relevant domestic law

Article 44 of the Correctional Labour Code 1970, as in force at the material time, stipulated that sentenced persons were allowed to send written proposals, applications and complaints to the State authorities, public organisations and officials. The prison administration was required to send this correspondence to the addressees in accordance to the applicable internal regulations.

Article 44 of the Code also provided that convicted prisoners’ correspondence with the prosecutor and Ombudsman could not be opened.

COMPLAINTS

The applicant complained under Article 3 of the Convention of having been ill-treated by prison officials in the Penitentiary no. 90. He also complained of inadequate conditions of detention and lack of medical care and assistance in the Penitentiary no. 90. The applicant further stated that he had not had an effective remedy within the meaning of Article 13 of the Convention to complain about the ill-treatment suffered and his conditions of detention.

Invoking Article 10 of the Convention the applicant complained of the monitoring of his correspondence by the administration of the Penitentiary no. 90 and his punishment for having sent an unauthorised letter.

The applicant next contended that his rights guaranteed by Articles 2 and 5 of the Convention and Article 2 of Protocol No. 7 had been infringed.

The applicant finally complained of the seizure by the prison authorities of the documents necessary for lodging a formal application with the Court and of the pressure and intimidation he had been allegedly subjected to on account of this application.

THE LAW

A. Alleged inadequateness of conditions of detention

The applicant submitted that the conditions of his detention had been inadequate. The applicant relied on Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The applicant further complained that, in respect of his complaint under Article 3 concerning the authorities’ alleged failure to provide him with adequate conditions of detention he had not had an effective remedy within the meaning of Article 13 of the Convention. This provision reads:

“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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Monitoring of the applicant’s correspondence during his detention on remand

Invoking Article 10 of the Convention, the applicant complained of the monitoring of his correspondence by the administration of the Penitentiary no. 90 and his punishment for having sent an unauthorised letter to the public prosecutor in which he complained of the conditions of his detention.

The Court, noting that the punishment was imposed on the applicant for having circumvented the prescribed procedure for monitoring detainees’ correspondence and that it has not been alleged that this sanction was connected to the contents of the letter concerned, considers that this complaint falls to be examined under Article 8 of the Convention, which provides as follows:

“1. Everyone has the right to respect for 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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

C. Alleged violation of the right to file an individual application

The applicant alleged a violation of his right to submit an application to the Court. He invoked 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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

D. The remainder of the applicant’s complaints

The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Accordingly, it rejects this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the conditions of the applicant’s detention (Article 3), the monitoring of the applicant’s correspondence (Article 8), the lack of effective remedies to complain about the conditions of detention (Article 13) and the hindrance with the effective exercise of the applicant’s right of application (Article 34 of the Convention);

Declares the remainder of the application inadmissible.

Stephen PhillipsPeer Lorenzen
              Deputy RegistrarPresident

 

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