Khokhlich v. Ukraine

Application No. 41707/98
Download Judgment: English

Applicant Mykola Khokhlich, a death row inmate at Khmelnitskuy Prison, alleged that conditions at the prison amounted to inhuman and degrading treatment. The applicant had been convicted of murder in February of 1996 and sentenced to execution; his sentence was later commuted to be life imprisonment. The applicant was diagnosed with tuberculosis in September 1997, and alleged that he had contracted the illness from a visibly sick cell-mate. The applicant also stated that he was almost always hungry, that his cell was very cold in winter, that the bathroom was in an unacceptable state, that his cell window was shuttered until October 1999, and that he experienced a delay of several months in receiving a visit from a notary at the prison as well as being denied visits and deliveries of medicine and other goods from his mother.

The applicant never made any formal complaints nor sought domestic judicial redress regarding his detention conditions or medical care, although the applicant and his mother lodged several informal complaints with prison authorities. The applicant additionally made several written statements that he had been given medical treatment and did not have any complaints against the prison administration.

Evidence from the applicant and other witnesses was taken by a Court delegation in Khmelnitskiy Prison in October of 1999. Following that, the Court Delegates visited the prison and applicant’s cell, and an independent medical commission released a statement concerning the applicant’s health.

The Court dismissed the government’s preliminary objections regarding the applicant’s non-exhaustion of domestic remedies, noting that the applicant did not have access to effective domestic remedy.

The Court held that Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”) (guaranteeing freedom from torture and inhuman or degrading treatment), regarding the conditions provided to death row inmates, had been violated. The Court reasoned that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention,” and the assessment of such severity was relative and dependent on the circumstances of the case. The Court further noted that in cases where the death penalty was involved the personal circumstances of the condemned and the detention conditions and length were additional factors that, cumulatively, could lead to a breach of Article 3. The Court was particularly concerned about the fact that until May 1998 applicant was locked up for 24 hours a day in small cells, that the windows of these cells were covered, and that there was no provision for outdoor exercise or human contact. The Court held that this amounted to degrading treatment.

The Court held that there was no violation of Article 3 of the Convention regarding ill-treatment based on applicant’s infection with tuberculosis as the Court found the applicant’s argument that he was infected by his cellmate implausible. The Court found that applicant received appropriate medical treatment and did not contract tuberculosis from a cell-mate.

The Court held that Article 8 of the Convention (guaranteeing a person’s right to respect for his right to private and family life, his home and his correspondence) had been violated during the time period of September 11, 1997 to July 11, 1999. The Court determined that limiting the number of parcels the applicant could receive and preventing the applicant from receiving two-hour family visits during this period interfered with the applicant’s Article 8 rights, unless such interference was “in accordance with law.” Considering that the restrictions imposed on receipt of parcels by the relevant domestic regulations were insufficiently foreseeable and accessible, the Court found that the interference was not “in accordance with law”.

The Court held that there was no violation of Article 8 of the Convention regarding the applicant’s right to respect for his right to private and family life after July 11, 1999, once he began receiving correspondence. The Court determined that the applicant’s ability to receive parcel every six weeks was an appropriate balance between the applicant’s Article 8 rights and the prison’s security interests.

The Court held that there was no violation of Article 13 of the Convention (guaranteeing the right to effective remedy), as a delay in receiving a visit from a notary did not cause any damage to the applicant and could not be regarded as a breach of his right to effective remedies.

“163. According to the Court’s case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Even the absence of such a purpose cannot conclusively rule out a finding of a violation of this provision.” Para. 163 “165....Where the death penalty is imposed, the personal circumstances of the condemned person, the conditions of detention awaiting execution and the length of detention prior to execution are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 (ibid.). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant.” Para. 165 “200. The Court considers that by limiting the number of parcels and small packets which the applicant was allowed to receive and by preventing him from receiving two-hour visits from his relatives, the public authorities interfered with the applicant’s right to respect for his private and family life and his correspondence guaranteed by Article 8 § 1 of the Convention and that such a restriction can only be justified if the conditions in the second paragraph of that provision are met. 201. 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.” Paras 200-201.