(Non-)Enforcement of ECHR Judgments in the penitentiary sphere
Vadim Chovhan has carried out an analysis of the issues arising over enforcement – or more accurately, non-enforcement - of European Court of Human Rights judgments in the penitentiary sphere.
In January 2013 a judgment was issued on Karabet and others v. Ukraine. For violations carried out by a special force unit in the Izyaslav Prison No. 31 in 2007, the Court ordered Ukraine to pay almost a million EUR in compensation.
Yet the unit is continuing to function despite the fact that the normative act which regulates the unit’s work had its registration cancelled.
This, he points out, is one of the most flagrant examples of a situation where Ukraine’s implementation of ECHR judgments is largely confined to paying compensation while nothing is done to remove the violations which led to the judgment..
The situation is similar with other ECHR judgments concerning the State Penitentiary Service
The author attempted to learn from, among others, the Government’s Authorized Representative at the European Court of Human Rights, Nazar Kulchytsky, what measures are taken. The response was less than communicative.
The Case of Trosin v. Ukraine from 23 February 2012, involved the right of life prisoners to family visits and a complaint regarding monitoring of his correspondence.
Following his conviction in April 2005 until February 2010, Mr Trosin was allowed to see his relatives no more than once every six months. Later this was changed to once every three months. The visits lasted no longer than four hours and no more than three adult visitors could be present at once. As Mr Trosin maintained relations with his wife, mother, adult brother and his son, one of his four relatives had to be excluded from each visit from the moment his son attained full age in 2010. Mr Trosin was allowed to communicate with his visitors exclusively via glass partition and a prison officer listened to his conversations with them. One of the letters sent by Mr Trosin to the European Court of Human Rights, in February 2006, was stamped on its first page by the detention facility. Up to October 2006, his letters to the Court were accompanied by covering letters from the facility briefly stating the nature of his submissions.
The Court found that the manner of conducting family visits had not allowed any privacy and had excluded any physical contact between Mr Trosin and his visitors. The presence of a prison officer had affected the intimacy of his communication with his family. The Court did not find any evidence that such far-reaching restrictions had been necessary.
The State had therefore not taken the necessary measures to ensure that Mr Trosin’s interest in meeting with his family was properly balanced against the public interest in restricting prisoners’ contact with the outside world. There had accordingly been a violation of Article 8.
As regards the limitation on the number of adults allowed per visit, the Ukrainian Government had referred to practical issues, such as limited space in meeting rooms and booths. That reasoning suggested, however, that the authorities, relying on the inflexible restrictions, did not wish to make any attempts to resolve the issue of limited space. Furthermore
The parties disagreed as to whether the prison officers had reviewed Mr Trosin’s letters addressed to the Court. However, the fact that the first page of one of his letters to the Court had been stamped by the detention facility, and that for some time his submissions to the Court had been accompanied by letters from the facility summarising the nature of his correspondence, suggested that at least part of his communication with the Court had been subject to monitoring by officers of the detention facility. His right to free and confidential communication with the Court had thus not been ensured. Ukraine had accordingly failed to comply with its obligations under Article 34.
The measures taken by the State Penitentiary Service were either of a totally general nature (information about the ruling) or included drawing up a draft Order on prisoners’ correspondence which is now at the Justice Minister but far from being passed.
At present therefore there has been no real enforcement of the judgment and the rules for visits, their frequency and duration remain in breach of the Convention and infringe the rights of more than 100 thousand prisoners throughout Ukraine.
The situation was similar regarding the case of Ustyantsev v. Ukraine from 12 January 2012.
State Penitentiary Service staff were informed of the case and given general information about ensuring proper conditions.
The judgment was included in training and professional development programmes for State Penitentiary Service staff.
An instruction was also issued to territorial bodies basically ordering them to inform staff of the judgment; provide information about measures taken to bring legislation on conditions into compliance; to make a detailed analysis of overcrowding of remand units [SIZO]; and other similar analyses.
No attention was given to the fact that the violation found of Article 3 had not only concerned overcrowding, but also the fact that the lighting was on 24 hours.
This part of the judgment has thus remained totally unenforced.
In the case of Kaversin v. Ukraine, the Court was unanimous in finding violation of Article 3 over the use of handcuffs in the Dnipropetrovsk Corrective Colony No. 89, including handcuffs behind his back, although Kaversin is blind and needs assistance in meeting everyday needs.
The systematic use of handcuffs with life prisoners has also been commented on by the Committee for the Prevention of Torture.
Chovhan notes that the Government’s Representative did not clearly explain the issue which may be the reason for an unsuccessful instruction which has meant handcuffs can continue to be used just with consideration of physical handicaps etc. They needed to ban them altogether in such cases.
The State Penitentiary Service’s mechanism for reviewing complaints despite the numerous times the issue has been pointed to in ECHR judgments.
The author concludes that there are clearly significant failings in the mechanisms for enforcement of ECHR judgments both by the State Penitentiary Service and by the Government Representative on the European Court of Human Rights.