FIFTH SECTION      CASE OF BURGAZLY v. UKRAINE (Application no. 41920/09)         JUDGMENT This version was rectified on 25 April 2019under Rule 81 of the Rules of Court    STRASBOURG 21 March 2019   This judgment is final but it may be subject to editorial revision.In the case of Burgazly 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:PROCEDURE1. The case originated in an application (no. 41920/09) 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 Oleg Ivanovich Burgazly (“the applicant”), on 10 July 2009.2. The applicant was represented by Ms L. Pankratova and Ms I. Boykova, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.3. On 21 November 2012 the applicant’s complaints were communicated to the Government. Under Article 3 of the Convention the applicant complained of the conditions of his post-conviction detention and the allegedly inadequate medical assistance for his tuberculosis that he had received while in detention. Under Articles 8 and 34 of the Convention he complained of alleged interception and monitoring of his correspondence in detention.4. The Government objected to the examination of the application by a Committee, but provided no reasons other than that they considered that the complaints were not the subject of well-established case-law. After having considered the Government’s objection, the Court rejects it (see, for similar approach, Nedilenko and others v. Ukraine [Committee], no. 43104/04, § 5, 18 January 2018; Lada v. Ukraine [Committee], no. 32392/07, § 4, 6 February 2018; and Geletey v. Ukraine [Committee], no. 23040/07, § 4, 24 April 2018).THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1964.6. On 29 May 2007 he arrived to serve a life sentence at correctional colony no. 39 in Ladyzhyn, Vinnytsia Region (“prison no. 39”), where (with an interruption between 13 June and 3 November 2010 related to medical treatment that he received in correctional colony no. 61 in Kherson (“prison no. 61”) he has since been detained.A. Physical conditions of the applicant’s detention7. The present application covers the period of the applicant’s detention from May 2007 until September 2013.1. Prison no. 398. In his initial submissions before the Court, the applicant complained of a poor diet (which usually consisted of water with cabbage, boiled maize, or porridge); a lack of cleaning products and utilities in the cells; and delays in the supply of goods to the prison store and in his being provided with cigarettes. He had unsuccessfully complained about those issues to the prison governor and to the public prosecution office.9. The Government submitted that from May 2007 until October 2008 the applicant had been held in cell no. 9 (which had measured 6.8 sq. m and had been designed to accommodate one prisoner), and that from October 2008 he had shared cell no. 10 (measuring 8.9 sq. m) with another prisoner. Certificates – issued on 14 February 2013 by the governor of prison no. 39 following inspections of the above-mentioned cells (which the Government submitted to the Court) – suggested that: both cells had been equipped with the necessary furniture and the applicant had been provided with his own sleeping place; the lavatory had been separated from the living area; the walls and floor in cell no. 9 had been repaired; the ventilation and heating systems had been operating properly; and the food and soap supply had been in compliance with domestic standards.10. In his reply of 3 July 2013 to the Government’s observations, the applicant contested the relevance and accuracy of the evidence provided by them. He submitted, inter alia, that he had also been held in cell no. 6 together with another prisoner. He provided no information as regards the period of his detention there and the conditions in which he had been detained. He also claimed that for a year he had shared cell no. 9 with another prisoner, and for a month (from January until February 2013) he had shared cell no. 10 with two prisoners. The wall plaster had been falling off in cell no. 10, the floor surface had needed to be repaired, and there had been rats everywhere. Lastly, the applicant noted that the Government had failed to provide detailed information on all aspects of the detention regime of life prisoners; however he did not give a personal account of how he had been affected by those aspects.11. On 17 September 2013 the Government submitted that, following a complaint lodged in May 2013 by the applicant about the poor conditions of his detention, a prosecutor from the Ladyzhyn public prosecution office had visited prison no. 39 and had found that the wall plaster and the floor surface in cell no. 10 were in a bad condition and that there had been a delay in conducting rodent-control measures in the facility. In accordance with the prosecutor’s instructions, the walls and the floor in cell no. 10 had been repaired and rodent-control measures had been carried out. The Government submitted in this respect a written statement, allegedly given by the applicant on 9 September 2013, in which he affirmed that until that date he had had no complaints as regards the provision of cigarettes or the quality of his food and that his cell (no. 10) had been recently repaired.2. Prison no. 6112. From 13 June until 3 November 2010 the applicant was detained in prison no. 61 in order for him to undergo anti-tuberculosis treatment at that prison’s hospital (see paragraph 19 below).13. On 20 October 2010 the applicant submitted to the Court a handwritten attestation, signed by him and his alleged cellmates, in which he stated that “[On] 19 October 2010 at 6 p.m., in cell no. 10 of prison no. 61, the ceiling plaster began to fall off. [All four of us were taken out of the cell], which measured 2.5 by 1.5 sq. m, for the period during which the hospital staff removed from the cell pieces of concrete and garbage. We were then returned to the cell ...” The applicant’s attestation furthermore alleged that he and his cellmates had had to keep watch all night long in order to avoid injury and that the general conditions in the facility were inappropriate: cells were dirty, damp and cold, and the heating system was not operating.14. The Government contested the applicant’s submissions. They provided the Court with a certificate issued by the governor of prison no. 61 according to which between 13 June and 3 November 2010 the applicant had been detained in cells nos. 6, 7 and 8, which measured 28, 20 and 21 sq. m respectively and had been shared by four prisoners. All the cells had been situated on the ground floor, had had a lavatory that had been separated from the living area, and had been equipped with the necessary furniture. The cells had had natural ventilation and it had been possible to open the window of each cell from the inside. During the period from 2008 until 2009 the prison cells had undergone major repairs and in 2010 repair works had been conducted in the corridors and utility rooms. The heating system had been operating properly, with the exception of a five-day period at the beginning of November 2010, when it had been cut off owing to repair works.15. In his reply to the Government’s observations, the applicant submitted written statements by two prisoners who had been held in prison no. 61 during the same period as the applicant. The statements provided a description of the general conditions of detention in the relevant section of the facility. According to the statements, some of the cells lacked access to fresh air and natural lights as the windows were always closed; ventilation and heating system did not work properly, so it was too cold in winter and too hot in summer; the artificial light was too weak; some cells were located in the basement and were humid and damp; the nutrition was inappropriate and did not comply with the relevant domestic norms; the facility was infested with rats; the prisoners were often subjected to ill-treatment by the prison staff and regularly transferred from one cell to another. The applicant furthermore contested the objectiveness of the information provided by the prison governor and stated that the Government’s submissions did not exclude the possibility that, before the repair works had been completed at the end of 2010, there had been smaller rooms in the facility in which he could have been held (and which following the reconstruction had been merged to create a bigger room).B. Medical assistance in respect of the applicant’s tuberculosis infection16. Upon his arrival at prison no. 39 in May 2007 the applicant underwent a medical examination and was found to be healthy.17. On 7 October 2008, following a routine check for tuberculosis (“TB”) infection, the applicant was diagnosed with infiltrative tuberculosis on the upper part of the left lung (category 3). On the same date he was placed in the medical unit of prison no. 39. According to the synopsis of the applicant’s treatment history provided to the Court by the Government, the applicant was seen by a TB-specialist (only once, according to the applicant) and prescribed standard treatment in the form of a combination of “first-line” anti-TB antibiotics (Streptomycin, Isoniazid, Rifampicin and Ethambutol), vitamins, hepatoprotectors, and an appropriate diet. Monitoring tests (sputum, urine and blood tests and X-rays) were performed on a number of occasions. According to the above-mentioned synopsis, an improvement (позитивна динаміка) was noted following the administration of the treatment in that there had been no destruction of the lung tissue and the infiltration and induration in the primary sites (ущільнення первинних вогнищ) had dispersed.18. On four occasions (on 9 October 2008, 24 April and 22 December 2009 and 14 April 2010) the administration of prison no. 39 lodged a request with the State Department for the Enforcement of Sentences, asking it to allow the applicant’s transfer to a specialised medical facility (as required by domestic law) in order for his TB to be cured. On an unspecified date in 2010 permission was given and on 16 May 2010 the applicant was sent to prison no. 61 for further treatment.19. From 13 June until 3 November[1] 2010 the applicant underwent anti‑TB treatment at the hospital in prison no. 61. After undergoing a medical examination upon his arrival he was diagnosed with focal tuberculosis of the upper part of the left lung (category 5.1), “with equivocal activity” (із сумнівною активністю), accompanied by toxic vestibulopathy. It was recommended that he continue treatment with Isoniazid, Rifampicin, Pyrazinamide, Ethambutolm and Streptomycin and vitamins В1, В6, В12 for three more months. During his treatment he was under the regular supervision of a TB-specialist and underwent various tests to monitor the status of his TB (blood, sputum and urine tests and X‑rays). After the applicant had lodged various complaints about different health issues that he had experienced during his anti TB-treatment (including vertigo, weakness and diarrhoea), he was examined by a general practitioner and a neuropathologist, who diagnosed him with intestinal indigestion and toxic vestibulopathy and prescribed the appropriate treatment (Loperamid and Laevomycetin for the indigestion problems; Piracetam, ascorbic acid and Cinnarizine for the vestibuloparthy). A dentist recommended that the applicant undergo a mouth debridement.20. On 27 September 2010 a medical panel examined the applicant, finding small post-TB residual changes in the upper part of the left lung and fibrosis (малі залишкові зміни туберкульоз верхньої частки лівої легені у вигляді щільних вогнищ та пневмофіброзу). The applicant was assigned the status of category 5.1 for three years. The applicant was discharged from the hospital with the relevant recommendations for further treatment and in early December 2010 was transferred back to prison no. 39. According to the applicant, his anti-TB treatment was “stopped” at prison no. 39. The medical records submitted by the Government suggest that every spring and autumn until 2012 the applicant was provided with preventive anti-TB treatment (in the form of Isoniazid, Pirazinamid and vitamins). His special diet, like that of other prisoners of the same category, was discontinued in March 2012 following a general order issued by the Department for the Execution of Sentences.21. On 11 February 2013 a general practitioner and a psychiatrist from Ladyzhyn Town Hospital examined the applicant and studied his medical file, in particular the part relating to his anti-TB treatment. The relevant record in the applicant’s medical file suggests that the doctors found that the applicant’s state of health was satisfactory following the treatment provided and that they recommended that he stop smoking and undergo an X-ray examination of his chest once a year by way of preventive measures.22. In his initial submissions to the Court the applicant complained of a delay in his transferral to a specialised medical institution. He alleged, without providing details, that the medical unit of prison no.39 could not offer the appropriate treatment for tuberculosis. He submitted the same complaints (with the same level of detail) to the domestic authorities. In his reply to the Government’s observations, he furthermore submitted that his treatment in prison no. 61 had caused him suffering because of its side-effects, such as weakness, dizziness and nausea, and that his treatment both at the prison no. 61 hospital and in general had been terminated too early.23. Referring to the medical evidence submitted by them, the Government maintained that the applicant had received adequate medical treatment for his TB infection.C. Correspondence and communication with the Court24. The applicant alleged that in the course of his imprisonment all of his correspondence, including that with the Court, had been systematically monitored by the prison authorities. He submitted in particular that (i) on 15 May 2008 a prison officer had requested him to submit a letter written by him to the public prosecution office in an unsealed envelope, as it had been necessary to insert a cover letter from the prison authorities, and (ii) on 8 December 2011 a prison officer had opened a letter from the Court in the applicant’s presence and handed it to him.25. The applicant furthermore suggested that the authorities had withheld some of the complaints that he had addressed to different bodies, as he had received no reply to them. He referred, by way of an example, to his letters of 26 March 2008 (to an NGO) and of 27 and 31 March and 2 and 8 July 2008 and 26 March 2010 (to the public prosecution office). He also stated that letters from him to the Court dated 29 May 2008, 14 December 2009 and 14 June 2011 had likewise not been dispatched by the prison authorities and that on several occasions the prison staff had warned him that his letters would not leave the prison if he continued to complain about the conditions of his detention and had threatened him for having lodged an application with the Court.26. The Government denied the applicant’s allegations and submitted that no monitoring had been conducted as regards letters addressed to the public prosecution office, the Parliamentary Commissioner for Human Rights (“the Ombudsperson”) and the Court, as such monitoring was prohibited by law. They furthermore submitted that the letters sent out and received via the prison postal service had been duly dispatched and delivered. They provided evidence that the letter to the public prosecution office of 26 March 2010 had reached the addressee and stated that other letters referred to by the applicant had not been registered in the register of outgoing correspondence (and had therefore not been sent by the applicant via the prison’s mail office).27. In his reply to the Government’s observations, the applicant submitted that the authorities had interfered with his communication with his representative before the Court (lawyer B.). In particular, he had sent a letter to B. containing, inter alia, his claim for just satisfaction. However, the latter document had been missing from the envelope received by his representative. Instead, it had contained blank sheets of paper of a different type to those on which the remaining parts of the applicant’s submission had been made. The envelope had had no postal stamp on it. He had also on one occasion been denied the possibility of speaking by telephone with his representative before the Court. On that occasion he had gone on hunger strike. The Government did not specifically comment on these allegations.28. The Court notes that extracts from the prison no. 39 registers of incoming and outgoing mail submitted by the Government show that in the period from June 2007 until March 2013 the applicant sent and received more than three hundred letters, including to and from various public entities – most notably the public prosecution office, the Ombudsperson and the Court. This correspondence was, under domestic law, exempt from monitoring (see paragraph 31 below). He also corresponded with other entities, notably the Department for the Execution of Sentences, the office of the President of Ukraine and human rights lawyers. Under domestic law this correspondence was subject to monitoring by the prison authorities. A copy of a page from the prison no. 39 register of incoming mail for January 2013, which was submitted to the Court by the applicant, summarises the content of letters from those entities with which correspondence was subject to monitoring under the law. By contrast, a letter from the Court is marked as “registered letter”.29. It appears from the Government’s submissions that on many occasions the public prosecution office, having conducted relevant enquiries, declared unsubstantiated the applicant’s complaints about alleged interferences with his correspondence. The one exception pertained to one instance of interference in August 2008 (of which the applicant did not complain to the Court), when it was established that the applicant’s letter to the Prosecutor General had not been sent out by a prison officer. Disciplinary proceedings against the officer in question were instituted by the prison administration and he was reprimanded. Nothing in the case file or the applicant’s submissions suggests that he took any steps following the acknowledgement of that violation of his rights. The case file also contains an exchange of correspondence between different bodies (including the Ombudsperson, human rights lawyers and prosecutors) in respect of complaints raised before them by the applicant.30. The application form dated 29 May 2008 sent by the applicant to the Court, together with letters of 14 December 2009 and 14 June 2011 that the applicant allegedly sent to the Court via the prison no. 39 postal service, never arrived at the Court. No letters from the applicant that have reached the Court have borne the stamp of the detention facility on their respective front pages, and nor were they accompanied by brief summaries by the prison authorities of their contents. Some letters were sent by the applicant via other prisoners whose cases were also pending before the Court. These letters have been received by the Court.II. RELEVANT DOMESTIC LAW31. Article 113 of the 2003 Code on the Enforcement of Sentences stipulates that prisoners are allowed to correspond with relatives, other persons and organisations. All such correspondence, unless it is specifically exempted, is subject to automatic monitoring and censorship by the prison authorities. Prior to amendments introduced in 1 December 2005 (see below), those exemptions were limited to correspondence with the Ombudsperson and prosecutors.32. The 1 December 2005 Law on Amendments to the Code of Enforcement of Sentences (which came into force on 21 December 2005) exempted from monitoring all correspondence by prisoners addressed to the Court and other international institutions of which Ukraine was a member.33. The Law of 21 January 2010 (which came into force on 9 February 2010) added the following to the list of exemptions: (i) correspondence addressed to prisoners by already exempt organisations and (ii) correspondence addressed to and received from prisoners’ lawyers during criminal proceedings.34. The Law of 8 April 2014 further added correspondence between prisoners and all courts to the list of exemptions.THE LAWI. SCOPE OF THE CASE35. In his reply to the Government’s observations, the applicant additionally complained of the inadequacy of the medical treatment that he had received for health problems (other than his TB infection) from which he had been suffering. In the Court’s view, this new complaint does not constitute an elaboration of the applicant’s original complaint, on which the parties have already been invited to comment. The Court considers, therefore, that it is not appropriate to take up this matter within the context of the present case (see, in particular, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION36. The applicant complained of the poor conditions of his detention in prisons nos. 39 and 61 and submitted that he had not been provided with appropriate medical assistance in those facilities for his TB. He relied on Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Physical conditions of detention37. The parties provided different accounts as regards the material conditions of the applicant’s detention in prison no. 39 and prison no. 61 (see paragraphs 8-15 above).38. Having examined all the material before it, the Court considers the complaint regarding poor conditions of detention to be inadmissible, for the following reasons.39. The Court has recently reiterated the general principles governing the application of Article 3 of the Convention to conditions of detention in Muršić v. Croatia ([GC], no. 7334/13, §§ 96-141, ECHR 2016). It recalls that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, either on its own or when taken together with other shortcomings.40. In the present case, the Court observes that no complaint about overcrowding was raised by the applicant in his initial submissions (see paragraphs 8 and 13 above). In his reply to the Government’s submissions, the applicant mainly challenged the accuracy of the information provided by the Government as regards the cells in which he had been detained in prison no. 39. He did not complain that he had been detained in overcrowded conditions, but rather concentrated on the issue of sanitary conditions in the cells. As regards his detention in prison no. 61[2], while challenging the objectivity of the information provided by the prison governor, the applicant did not deny the fact that he had been detained in the cells referred to in the certificate provided by the Government. However, he submitted that the possibility had not been excluded that apart from those cells there had been other premises in the prison hospital measuring 3.75 sq. m in which he could have been held with three other prisoners. He did not indicate the period during which such detention might have taken place. The Court finds that such submissions on the part of the applicant are too vague to constitute an arguable complaint of overcrowding. It also cannot but note that no overcrowding complaint can be found among the numerous grievances concerning the conditions of the applicant’s detention that he lodged with the domestic authorities and which are available to the Court.41. Thus, the Court finds that no arguable claim may be discerned from the parties’ submissions that the applicant was detained in overcrowded conditions.42. As regards other aspects of the physical conditions of the applicant’s detention in prisons nos. 39 and 61, his complaints for the most part are limited to brief and general statements – unlike, for example, the statements by other prisoners that he submitted in support of his complaint regarding the general conditions of detention in prison no. 61 (see paragraph 15 above). In any event, even assuming that the applicant was indeed detained under the conditions presented by him, the Court does not consider, taking into account the cumulative effect of those conditions, that they (although far from adequate) reached the threshold of severity required to bring the matter within the ambit of Article 3 of the Convention (see and compare Lutskevich v. Russia, nos. 6312/13 and 60902/14, §§ 54-60, 15 May 2018; Rodzevillo v. Ukraine, no. 38771/05, §§ 45‑47, 14 January 2016; and Yarovenko v. Ukraine, no. 24710/06, §§ 116-120, 6 October 2016).43. The Court therefore rejects this part of the application as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.B. Medical assistance in respect of the TB infection44. The relevant elements of the parties’ submissions are set out in paragraphs 22 and 23 above.45.

Article of the Convention at issue: Article 34
Outcome: violation