FIFTH SECTION      CASE OF FELDMAN v. UKRAINE (no. 2) (Application no. 42921/09)      JUDGMENT   STRASBOURG 12 January 2012 FINAL 12/04/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Feldman v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President, Elisabet Fura, Karel Jungwiert, Boštjan M. Zupančič, Mark Villiger, Angelika Nußberger, judges, Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 6 December 2011,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 76556/01) 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 Boris Mordukhovich Feldman (“the applicant”), on 14 November 2000.2. The applicant was represented by Mr V. N. Ageyev, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska, from the Ministry of Justice.3. On 11 August 2009 it was decided to sever the applicant’s complaints concerning the refusals to authorise visits by his relatives and a rabbi and the refusal to allow him to attend his father’s funeral during his pre-trial detention, and to register them as a separate application.4. On 8 February 2010 the President of the Fifth Section decided to give notice of application no. 42921/09 to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr Mykhaylo Buromenskiy to sit as an ad hoc judge (Rule 29 § 1(b)).THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1958 and lives in Dnipropetrovsk.6. The applicant was the Vice-President, founder and majority shareholder of the Bank Slavyansky (hereinafter – the Bank). On 2 February 2000 the State Tax Police instituted criminal proceedings into tax evasion by the management of the Bank and on 10 March 2000 the State Tax Administration instituted another set of criminal proceedings for abuse of office by the management of the Bank (for more details see Feldman v. Ukraine, nos. 76556/01 and 38779/04, 8 April 2010).7. On 13 March 2000 the applicant was arrested and from that date he was detained as a criminal suspect until his conviction by the Artemivskiy Court on 19 April 2002.8. On 4 May 2000 the applicant asked the investigator to arrange a visit by the Rabbi of the Dnipropetrovsk Region. On the same date the rabbi also made a request to see the applicant for religious conversations.9. On 6 May 2000 the investigator refused the requests on the ground that a meeting between the applicant and the rabbi might impair the establishment of truth in the case.10. On 19 May 2000 the applicant asked the investigator to allow him visits by his wife and sister. The request was refused on same day on the ground that such a visit might impair the establishment of truth in the case.11. On 7 and 11 August 2000 the applicant’s sister requested leave to visit the applicant. By letters of 15 August 2000 these requests were refused, on the ground that the investigation was pending and the visit might impair the establishment of truth in the case.12. On 9 August 2000 the applicant’s lawyer asked the investigator to transfer the applicant to Dnipropetrovsk to attend his father’s funeral. On 11 August 2000 the investigator refused this request on the ground that domestic law did not provide for escorting suspects for such purposes.II. RELEVANT DOMESTIC LAW13. Under section 12(1) of the Pre-Trial Detention Act 1993, permission for relatives or other persons to visit a detainee (in principle, once a month for one to two hours) can be given by the authorities of the place of detention, but only with the written approval of an investigator or a court dealing with the case, depending on whether it is at the investigation or the trial stage.14. The relevant provisions of the Code of Criminal Procedure 1960 read:Section 162Visiting a detainee“Visits of relatives or other persons to a detainee may be allowed by the person or institution that deals with the case. The duration of the visits shall be fixed from one to two hours. Visits may be allowed, as a rule, not more than once a month.”15. In their observations the Government further referred to the penitentiary instructions concerning the procedure for holding detainees in SIZOs, issued on 20 September 2000.THE LAWI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION16. The applicant complained about the refusal by the domestic authorities to grant him family visits during his pre-trial detention, and also that he was not allowed to attend his father’s funeral. He relied on Article 3 of the Convention.17. The Court has previously found that restrictions of this kind do not attain a minimum level of severity to fall within the scope of Article 3 (see, mutatis mutandis, Sannino v. Italy (dec.), no. 72639/01, 3 May 2005; and Lind v. Russia, no. 25664/05, § 88, 6 December 2007). In a number of cases it considered complaints about the rejection of a detainee’s request for permission to be visited by a relative or attend a relative’s funeral under Article 8 of the Convention (see, respectively, Shalimov v. Ukraine, no. 20808/02, § 83, 4 March 2010; and Płoski v. Poland, no. 26761/95, §§ 26-39, 12 November 2002).

Article of the Convention at issue: Article 8
Outcome: violation