FIFTH SECTION      CASE OF GLINOV v. UKRAINE (Application no. 13693/05)           JUDGMENT  STRASBOURG 19 November 2009 FINAL 19/02/2010  This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Glinov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Renate Jaeger, Karel Jungwiert, Mark Villiger, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, judges, Mykhaylo Buromenskiy, ad hoc judge,and Stephen Phillips, Deputy Section Registrar,Having deliberated in private on 20 October 2009,Delivers the following judgment, which was adopted on the last‑mentioned date:PROCEDURE1. The case originated in an application (no. 13693/05) 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 Kazakh national, Mr Nikolay Andreyevich Glinov (“the applicant”), on 4 April 2005.2. The applicant, who had been granted legal aid, was represented by Mr V.V. Shepetukha, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.3. The applicant alleged, in particular, that he had been detained unlawfully and ill-treated in police custody, and that the conditions of his detention were poor.4. On 16 May 2006 the Court decided, pursuant to Article 37 § 1 of the Convention, to strike the application out of the list of cases, given the applicant's failure to comply with its numerous requests for documentary substantiation of his complaints.5. On 26 May 2006 the Court received a letter from the applicant dated 15 May 2006, in which he requested withdrawal of his application, alleging a failure on the part of the administration of the detention centre (SIZO) to forward to the Court one of his letters and general pressure on him.6. On 25 September 2006 the Court decided to restore the application to its list of cases in accordance with Article 37 § 2 of the Convention, to give notice of the complaints about the alleged interference of the authorities with the applicant's correspondence to the Government and to adjourn the examination of his complaints under Articles 3 and 5 of the Convention, having requested the Government to submit copies of all documents concerning the applicant's pre-trial detention (reasons and length) and his treatment while in detention, in particular with regard to his allegation of ill-treatment and inadequate detention conditions. Under the provisions of Article 29 § 3 of the Convention, it was also decided to examine the merits of the application at the same time as its admissibility.THE FACTSI. THE CIRCUMSTANCES OF THE CASE7. The applicant was born in 1978 and is currently serving a sentence in Rivne Regional Penitentiary no. 76.A. The applicant's pre-trial detention1. From 19 to 21 October 20038. According to the applicant, he was detained and ill-treated in police custody from 19 to 21 October 2003. There are no further details or documents.2. From 31 October 2003 to 23 March 20069. In the evening of 31 October 2003 the applicant, together with another person, was arrested by the Fontanka police unit of the Kominternovo District Police Department in flagrante delicto on the scene of a robbery and car hijacking. As it would later be confirmed by at least two eye-witnesses (see paragraph 23 below), the applicant attempted escaping from and showed resistance to the police.10. According to the applicant, he pleaded guilty to several counts of robbery under torture. He alleged in particular that he had been heavily beaten with rubber truncheons, hanged with his arms twisted behind him and administered electric shocks.11. On 1 November 2003 the applicant signed the arrest report in confirmation that his procedural rights had been explained to him.12. On the same day the applicant was taken to the Kominternovo Temporary Detention Facility, where a doctor examined him and made a note that he had a bruise under his left eye.13. On 4 November 2003 the investigator submitted to the Kominternovo Town Court (Комінтернівський районний суд – “the Kominternovo Court”) a motion on the applicant's detention as a preventive measure pending trial. The investigator noted that the applicant was suspected of having committed serious crimes (three counts of robbery with violence on 22, 26 and 31 October 2003), had no permanent place of residence and had a criminal record, and thus could hinder the investigation or abscond if at liberty. According to the investigator, the applicant had fully admitted his guilt.14. On the same date the Kominternovo Court remanded the applicant in custody, having upheld the investigator's reasoning.15. On 26 December 2003 the Kominternovo Court extended the term of the applicant's detention to four months, having referred to the necessity to complete the investigation.16. On 15 June 2004 the applicant was committed for trial.17. No further documents concerning the applicant's detention are available in the case file.B. Conditions of the applicant's detention18. While having raised a general complaint about the conditions of his detention, the applicant did not describe them until in response to the information submitted by the Government.19. According to the information provided by the Government, from 7 November 2003 to 3 November 2006 the applicant had been held in fifteen different cells, the smallest of which had measured 7.17 square meters (the applicant had spent three and a half months there, sharing with another inmate), while the largest one had measured about 34.1 square meters (where he had stayed for fifteen days, sharing with eleven other inmates). Each of the cells had a toilet separated from the living area, sufficient natural and artificial light, operational heating, ventilation, water supply and sewage system.20. As it transpires from a note by the Odesa SIZO administration issued on an unspecified date, disinfection, disinsection and rat extermination were regularly carried out on the SIZO premises.21. The Government provided seven colour photos of the cells the applicant had been detained in. The photos showed that the cells were clean and looked as if they had been repaired not long before the photos had been taken. They had sufficient natural light; the lavatories were separated from the living area and appeared to be clean.22. The applicant contested the accuracy of the information submitted by the Government in so far as the number of inmates per cell was concerned and alleged that there had been more detainees in the cells than indicated by the Government. He also alleged that he had not been detained in the cells shown in the photos.C. The applicant's conviction23. On 23 March 2006 the Malynovskyy District Court of Odesa (Малинівський районний суд – “the Malynovskyy Court”), to which the case had been transferred from the Kominternovo Court on an unspecified date, found the applicant guilty of three counts of robbery with violence, committed on 22, 27 and 31 October 2003 by a group of persons acting in concert, and sentenced him to fourteen years' imprisonment with confiscation of all his personal property. The court based its findings, inter alia, on the testimonies of the victims of all three instances of robbery, medical reports concerning the injuries they sustained during those robberies, as well as material evidence (certain items seized from the applicant and recognised by the victims as the stolen ones; two knives, a hammer and a sack discovered in the car, which the co-defendants had left immediately before their arrest). The court also heard two eye-witnesses of the applicant's arrest on 31 October 2003, according to whom he had shown resistance to the police and had tried to escape from the scene. Furthermore, it was noted in the verdict that both co-defendants had fully confessed to the crimes they had been charged with on 4 November 2003 and had consistently pled guilty throughout the pre-trial investigation. The court examined their allegations of ill-treatment in police custody, voiced for the first time at the trial, and found them unsubstantiated. Namely, it noted that they had failed to raise any such complaints in the course of the pre-trial investigation and that the circumstances of the case indicated (as confirmed by the eye-witnesses of the arrest and by the police officers who had carried out the arrest and who were questioned by the court) that the bruise on the applicant's face noted on 1 November 2003 might have been sustained in the course of his fight with the police prior to his arrest.24. On 22 May 2007 the Odesa Regional Court of Appeal (Апеляційний суд Одеської області) upheld that verdict.25. The applicant appealed in cassation, alleging that his conviction was not based on solid evidence. The cassation appeal did not contain any allegation of ill-treatment in police custody.26. No information about the final outcome of the proceedings has been provided by the parties. However, it appears from the case file that the Supreme Court found against the applicant.D. The applicant's correspondence with the Court27. The applicant's letters to the Court dated 30 March, 10 May, 9 June, 12 July, 28 November, 8 and 15 December 2005, as well as 20 March, 16 May and 3 November 2006, were accompanied by cover letters, signed by the Governor of the Odesa SIZO, which contained a brief summary of their contents (for example: “Please find attached a complaint by the accused, Glinov, concerning his rights and the conduct of the investigation in his case”, “... concerning his case and actions of the police officers”, “...concerning the judge's actions”, “... concerning the defence of his rights”, “... concerning the withdrawal of his case”, etc.).28. The first page of each of the eighteen letters from the applicant to the Court bore the SIZO stamp with the dispatching date noted in handwriting (eight of those had been sent before 21 December 2005, the other ten on various dates after 21 December 2005 – see paragraph 38 below).29. From May 2005 to March 2006 the Registry of the Court requested the applicant eight times to submit documents in substantiation of his complaints under Articles 3 and 5 of the Convention.30. Each of the requests was followed by a letter from the applicant, in which he noted that: there were no copying facilities in the SIZO and that he would copy the documents by hand; the facts of his case were self-explanatory; the prospects of Ukraine's accession to the European Union were poor given the alleged violations in his case; and the witnesses allegedly required protection for unspecified reasons. The applicant made no explicit reference to the Court's requests.31. The applicant's letters reached the Court on average two weeks to two months following their dispatch.32. The case file contains copies of sixteen stamped certificates issued by Odesa-59 Post Office to the SIZO administration in confirmation that it had accepted correspondence from detainees (including the applicant) to be sent to the Strasbourg Court. It also contains copies of extracts from the SIZO logbooks of incoming and outgoing correspondence and “correspondence delivery acts” signed by the SIZO officials.33. Between the end of December 2005 and April 2006 (with the exact date not documented due to a technical mistake), the Court received a ten- page letter from the applicant dated 13 December 2005, in which he outlined his vision for the reform of penitentiaries in Ukraine with a view of improving the conditions of detention. It was accompanied by a cover letter from the SIZO administration dated 15 December 2005, according to which its registered number was 5-3-G-1087. The case file contains a copy of a post office receipt of 16 December 2005 for the dispatch, inter alia, of letter 5-3-G-1087 from Mr Glinov.34. By a letter of 15 May 2006, which reached the Court on 26 May 2006, the applicant sought the withdrawal of his application referring to “... the failure [of the SIZO administration] to forward [his] letter to the Court of 13 December 2005 in fifty-three pages; a partial change of the charges against [him] on 23 December 2005; a ruling of the court and ... the intense pressurising by the authorities ...”35. On 23 May 2006 the Court sent a letter to the applicant informing him that his application had been struck out of the list by decision of Committee on 16 May 2006.36. On 2 October 2006 the Court informed the applicant about the restoration of the application to the list of cases and its communication to the respondent Government on 25 September 2006.37. Following the communication of the application to the Government, the applicant's correspondence with the Court continued, with some of his letters bearing the SIZO stamp (see paragraph 28 above).II. RELEVANT DOMESTIC LAW38. Section 13 of the Pre-Trial Detention Act, before it was amended on 1 December 2005 (with the amendments having entered into force on 21 December 2005), had provided for monitoring by the administration of detention centres of applications, complaints and letters of detainees, with an exception of correspondence with the Ombudsman and with the prosecutor, which could not be monitored.39. By the amendments of 1 December 2005 to the above Act, the list of exceptions was extended to include correspondence with the Court.40. The Instruction on Review of Correspondence of Persons Held in Penitentiaries and Pre-trial Detention Facilities, approved by Order no. 13 of the State Department for Enforcement of Sentences of 25 January 2006, elaborates the above provision as follows:“1.5. ... Correspondence of prisoners and detainees with the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as with other relevant international organisations of which Ukraine is a member or participant, authorised persons of those international organisations or prosecution authorities, shall not be subject to censorship and shall be dispatched or handed to the prisoner or detainee within twenty-four hours. ...2.4. Prisoners or detainees shall personally and in the presence of the inspector seal the envelopes with correspondence addressed to the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as to other relevant international organisations of which Ukraine is a member or participant, to authorised persons of those international organisations or prosecution authorities. Prisoners or detainees shall personally and in the presence of the inspector open letters received from the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as from other relevant international organisations of which Ukraine is a member or participant, from authorised persons of those international organisations or from prosecution authorities. ...”III. RELEVANT INTERNATIONAL LAW41. Article 3 of the European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights, ratified by Ukraine on 4 November 2004 and in force for it since 1 January 2005, reads as follows:“1. The Contracting Parties shall respect the right of the persons referred to in paragraph 1 of Article 1 of this Agreement to correspond freely with the Commission and the Court.2. As regards persons under detention, the exercise of this right shall in particular imply that:a) if their correspondence is examined by the competent authori­ties, its despatch and delivery shall neverthe­less take place with­out undue delay and without alteration;b) such persons shall not be subject to disciplinary mea­sures in any form on account of any communication sent through the proper channels to the Commis­sion or the Court;c) such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Commis­sion, or any proceed­ings resulting therefrom.3. In application of the preceding paragraphs, there shall be no interfer­ence by a public authority except such as is in accor­dance with the law and is necessary in a democratic society in the inter­ests of national security, for the detection or prosecution of a criminal offence or for the protection of health.”THE LAWI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION42. Having regard to the fact that many letters from the applicant to the Court bore the SIZO stamp and were accompanied by brief summaries of their contents produced by the SIZO administration, the Court considered it appropriate to raise, of its own motion, the issue of Ukraine's compliance with Article 8 of the Convention on account of the monitoring of the applicant's correspondence with the Court. This Article, insofar as relevant, reads 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.”A. Admissibility43. The Government submitted that the applicant had not exhausted all available domestic remedies, having failed to raise the complaint about the alleged monitoring of his correspondence before the prosecutor or the domestic courts. In particular, they referred in this respect to Article 55 of the Constitution of Ukraine, according to which any decision, act or omission of the state authorities could be challenged before the domestic judiciary. They further referred to Article 13 of the Pre-Trial Detention Act, which provided for a three-day time-limit for dispatching detainees' complaints addressed to prosecution authorities, as well as Article 22 of this Act and Articles 44 and 45 of the Prosecutorial Service Act, which concerned the prosecutorial supervision over adherence to the legislation in the detention facilities. Lastly, the Government referred to Article 9 of the Constitution, pursuant to which ratified international treaties were a part of the national legislation, and submitted that the applicant could have complained to the domestic authorities about a breach of his right under the Convention.44. The applicant disagreed. He contended that until 1 December 2005 the legislation had provided for the obligatory monitoring of detainees' correspondence other than that with the Ombudsman or prosecutor, while even after the amendments entered into force prohibiting any censorship of detainees' correspondence with the Court, monitoring of correspondence remained in place and was broadly perceived as lawful. Furthermore, the applicant alleged that he had not been aware of the fact that the SIZO administration had been monitoring his letters to the Court and thus was not in a position to complain about that.45. The Court notes that before 21 December 2005 (the date of entry into force of the amendments to the Pre-Trial Detention Act of 1 December 2005) the applicant's letters had been monitored by officials at the detention centre pursuant to section 13 of that Act, which provided for the monitoring of all detainees' letters except for those addressed to the prosecutor and the Ombudsman. It follows that the applicant's complaint to the prosecutor or to the court in this connection would have had no prospect of success in so far as neither of those authorities was empowered to overrule the legal provision underpinning such a practice.46. In so far as the Government's plea of non-exhaustion concerns the period after 21 December 2005, the Court notes that the applicant alleged that he was completely ignorant of the monitoring of his correspondence, and the Government did not submit any information that would undermine that allegation. Accordingly, the Court considers that the applicant cannot be reproached for his failure to complain about what is not proven to have been within his knowledge. In any event, the Government have not shown how the remedies referred to by them could have redressed the applicant's situation.47. It follows that the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.48. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties' submissions49. The applicant argued that the circumstances of his case disclosed a breach of Article 8 of the Convention.50. The Government refrained from expressing their opinion on the merits of the complaint.2. The Court's assessment(a)  Existence of an interference51. The Court notes that a considerable number of the applicant's letters bore the SIZO stamp and were accompanied by summaries of their contents produced by the SIZO officials (see paragraphs 27 and 28 above).52. In these circumstances the Court considers that those letters have been opened and their contents read (see, for comparison, Kisielewski v. Poland, no. 26744/02, § 26, 7 July 2009).53. It follows that the applicant's letters to the Court were monitored by the SIZO officials, which amounted to an “interference” with his right to respect for his correspondence under Article 8 of the Convention.(b)  Whether the interference was justified under Article 8 § 2 of the Convention54. The Court reiterates that any “interference by a public authority” with the right to respect for correspondence will contravene Article 8 of the Convention unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article and is “necessary in a democratic society” in order to achieve them (see, among many other authorities, Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, p. 32, § 84; Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, § 34; and Niedbała v. Poland, no. 27915/95, § 78, 4 July 2000).55. The Court notes that the applicant initiated his correspondence with it on 4 April 2005 and maintained it during the subsequent examination of his case. The Court observes that the legal framework regulating control of detainees' correspondence with the outside world, in particular, with the Court, changed on 1 December 2005 (effectively on 21 December 2005), while the applicant's correspondence with the Court has been monitored by the SIZO administration both before and after that date. Accordingly, the Court will examine whether such monitoring was justified under Article 8 § 2 of the Convention during those two periods taken separately.i. Before 21 December 200556. Having regard to its finding in paragraph 45 above, the Court is satisfied that the applicant's correspondence with the Court before 21 December 2005 had been monitored in compliance with the domestic legislation.57. The Court has already held that the applicable legislation in force at the material time did not indicate with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities in respect of the monitoring of detainees' correspondence, which rendered such monitoring counter to the lawfulness requirement of Article 8 § 2 of the Convention (see Sergey Volosyuk v. Ukraine, no. 1291/03, § 86, 12 March 2009).58. The Court does not find any reasons to reach a different conclusion in the present case.59.

Outcome for Article 8: violation