CASE OF FELDMAN v. UKRAINE (NO. 2)

1. 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)).
I. THE CIRCUMSTANCES OF THE CASE
5. 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.
13. 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:
“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.
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
16. 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). Accordingly, the applicant ’ s complaints fall to be examined under Article 8 of the Convention, which provides :
“1. Everyone has the right to respect for his ... family life ...
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.”
18. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
19. The applicant submitted no observations within the fixed time-limit.
20. The Government admitted that there had been an interference with the applicant ’ s family life. However, they considered that such interference was justified. They maintained that the issue of authorisation for family visits was foreseen by the domestic law, namely Article 162 of the Code of Criminal Procedure. The refusal to allow such family visits during the investigation stage was in the interests of public safety and was necessary in a democratic society.
a. Whether there has been an interference
21. The Court considers, and this was not disputed by the parties, that there was “an interference by a public authority” within the meaning of Article 8 § 2 of the Convention with the applicant ’ s right to respect for his family life, guaranteed by paragraph 1 of Article 8.
b. Whether the interference was justified
22. The cardinal issue that arises is whether the above interference is justifiable under paragraph 2 of Article 8. In particular, if it is not to contravene Article 8, the interference must be “in accordance with the law”, pursue a legitimate aim and be necessary in a democratic society in order to achieve that aim (see Silver and Others v. the United Kingdom, 25 March 1993, Series A no. 61, § 84, and Petra v. Romania, 23 September 1998, Reports 1998-VII, § 36).
23. The Court must first consider whether the interference was “in accordance with the law”. This expression requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and be compatible with the rule of law (see Kruslin v. France and Huvig v. France, 24 April 1990, Series A no. 176-A, § 27, and Series A no. 176-B, § 26, respectively).
24. In contending that these requirements were met, the Government referred in their written observations to the provisions of Article 162 of the Code of Criminal Procedure and section 12(1) of the Pre-Trial Detention Act 1993, which provide that a detainee may be allowed family visits during pre-trial detention. They further referred to the penitentiary instructions concerning the procedure for holding detainees in SIZOs, issued on 20 September 2000.
25. The Court first notes that the applicant ’ s complaint concerns events that took place in May - August 2000, that is, before the instructions of 20 September 2000 were issued. Thus, the Court fails to see the relevance of these instructions to the present application.
26. The Court further notes that Article 162 of the Code of Criminal Procedure and section 12(1) of the Pre-Trial Detention Act 1993 provide that an investigator or a judge can authorise family visits during pre-trial detention, but that these provisions do not indicate with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities in respect of restrictions on detainees ’ contacts with their families. Indeed, the above provisions do not require them to give any reasons for their discretionary decision or even to take any formal decision that could be appealed against, and therefore contain no safeguards against arbitrariness or abuse. In the applicant ’ s case the investigator simply mentioned that the requested visits might impair the establishment of truth in the case.
27. The Court finds that in these circumstances it cannot be said that the interference with the applicant ’ s right to respect for his family life was “in accordance with the law” as required by Article 8 § 2 of the Convention (see Shalimov v. Ukraine, cited above, §§ 88 and 89 ).
28. In view of the above finding, the Court considers it unnecessary to examine whether the interference in the present case was necessary in a democratic society for one of the legitimate aims within the meaning of Article 8 § 2 of the Convention.
29. There has therefore been a violation of Article 8 of the Convention in this respect.
2. Refusal to allow the applicant to attend the funeral of his father
30. The applicant submitted no observations within the fixed time-limit.
31. The Government submitted that the investigator refused the applicant ’ s request for a transfer to Dnipropetrovsk to attend his father ’ s funeral, since domestic law did not provide for escorting suspects for such purposes. They concluded that the domestic authorities had not been able, within their competence and in accordance with the domestic legislation, to provide the applicant with a possibility to attend his father ’ s funeral.
a. Whether there has been an interference
32. With respect to this complaint, the Government did not express their position on whether there had been “an interference by a public authority” within the meaning of Article 8 § 2 of the Convention with the applicant ’ s right to respect for his family life as guaranteed by paragraph 1 of Article 8. The Court has already found that the refusal to a detainee of leave to attend a relative ’ s funeral constituted an interference with the right to respect for family life (see Schemkamper v. France, no. 75833/01, § 31, 18 October 2005; Sannino ( dec .), cited above; and Płoski, cited above, § 32 ). The Court does see no reason to depart from this case-law in the present case. Accordingly, the refusal to transfer the applicant so that he could attend the funeral of his father interfered with the applicant ’ s rights under Article 8 of the Convention.
b. Whether the interference was justified
33. The Court reiterates that any interference with an individual ’ s right to respect for his private and family life will constitute a breach of Article 8, unless it was “in accordance with the law”, pursued a legitimate aim or aims under paragraph 2, and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought to be achieved (see, among other authorities, Elsholz v. Germany [GC], no. 25735/94, § 45, ECHR 2000-VIII).
34. In accordance with the Court ’ s case-law, Article 8 of the Convention does not guarantee a detained person an unconditional right to leave to attend a relative ’ s funeral. At the same time the Court emphasises that even if a detainee by the very nature of his situation must be subjected to various limitations of his rights and freedoms, every such limitation must be nevertheless justifiable as necessary in a democratic society (see Lind v. Russia, cited above, § 94). The State can refuse an individual the right to attend the funerals of his parents only if there are compelling reasons and if no alternative solution can be found (see Płoski, cited above, § 37).
35. In the instant case, the applicant ’ s individual situation was not assessed at all by the domestic authorities and he was denied the right to attend the funeral of his farther only on the ground that the domestic law did not provide for such a possibility. In the Court ’ s opinion such an unconditional denial to the applicant of compassionate leave or another solution to enable him to attending his father ’ s funeral is not compatible with the State ’ s duty to assess each individual request on its merits and to demonstrate that the restriction on the individual ’ s right to attend a relative ’ s funeral was “necessary in a democratic society”.
36. In the light of the above, the Court finds that there has been a violation of Article 8 of the Convention in this respect also.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
37. The applicant complained that while in pre-trial detention he had not been allowed to see a rabbi. He relied on Article 3 of the Convention, but the Court considers that this complaint falls within the ambit of Article 9 of the Convention, which provides :
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.