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Bosyy v. Ukraine

Closed Expands Expression

Key Details

  • Mode of Expression
    Written speech
  • Date of Decision
    November 22, 2018
  • Outcome
    Article 8 Violation
  • Case Number
    13124/08
  • Region & Country
    Ukraine, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    International/Regional Human Rights Law
  • Themes
    Privacy, Data Protection and Retention

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Case Analysis

Case Summary and Outcome

The European Court of Human Rights found that a Ukrainian law allowing the automatic monitoring and censorship by the prison authorities of a prisoner’s correspondence was a violation of the prisoner’s right to privacy. Bosyy spent seven years in prison during which time he alleged his correspondence was regularly “intercepted, reviewed, blocked or delayed,” which negatively impacted his communications with the Court and other bodies regarding his case. Citing its previous case law, the Court conclude that the amended national laws did not provide appropriate protections against arbitrary interference, that they were “defective” and therefore, the existing monitoring regime was not in “accordance with the law.” As a result, there was a violation of privacy rights protected under article 8 of the European Convention on Human Rights.


Facts

Mr Vasyl Ivanovych Bosyy (“the applicant”) is a Ukrainian national who was sentenced to seven years imprisonment for aggravated robbery. Bosyy served his time in a pre-trial detention center and two correctional colonies between 27 May 2005 and 25 May 2012.

During the time of his incarceration, Bossy submitted numerous complaints to the authorities alleging ill-treatment. Among others, he claimed the food was of a substandard quality, the sanitary conditions were inadequate, the living conditions violated regulations, and the lighting was so poor that he could not read, write or sew. He further claimed he had been “beaten, humiliated, tortured [and] placed in a disciplinary cell,” all of which the government denied. [para. 9]

In particular, he claimed that his correspondence was regularly “intercepted, reviewed, blocked or delayed.” [para. 12] The Government submitted registries from the period of his incarceration between 17 June 2008 and 1 December 2011 which showed he sent or received more than sixty letters. According to Article 113 of the Code on the Enforcement of Sentences (2003), correspondence is “subject to automatic monitoring and censorship by the prison authorities.”  [para.21] However, his extensive correspondence with prosecutors and the Parliamentary Commissioner for Human Rights was exempt from monitoring. Amendments to the law in December 2005 expanded the monitoring exemptions to include correspondence addressed to the Court and other international institutions for which Ukraine was a member, correspondence addressed to prisoners from previously exempted organizations, correspondence addressed to and received from the prisoners’ lawyers and correspondence between prisoners and all courts. [para. 21] He further alleged that he was denied access to his criminal case file, which the Government denied and provided evidence to the contrary.

Bosyy appealed his case to the European Court on Human Rights claiming violations of his rights under article 3 (Prohibition against torture) based on ill-treatment by prison guards, article 13 (Right to effective remedy) in relation to his article 3 complaint and finally article 8 (Right to respect for private and family life) for unlawful monitoring of his correspondence.


Decision Overview

The Fifth Section of the European Court delivered the judgment.

The Court first determined that Bosyy’s article 3 complaint was inadmissible and manifestly unfounded. Accordingly, the Court further rejected Bossy’s claim that he was denied effective remedy guaranteed under article 13 in relation to his article 3 complaint.

Therefore, the main issue before the Court was whether Ukraine violated Bosyy’s article 8 right to correspondence with exempt and non-exempt entities based on the monitoring regime established under national legislation.

With respect to his article 8 claims, the Court limited the scope of his claim to the time he was at the correctional facilities and during the period for which there were registries of his correspondence available.

The Court referred to Belyaev and Digtayar v. Ukraine to demonstrate that prior domestic laws did not provide appropriate protections against arbitrary interference with the right to correspondence as there were no rules to govern a monitoring regime. Prior to 21 December 2005, for instance, monitoring was done automatically without justification, without consultation with or notification to the recipient and without any remedy for the prisoner. The only protected communications were those addressed to  exempted entities, which at that time were limited to the Parliamentary Commissioner for Human Rights and prosecutors. In practice that meant that correspondence to other international bodies or legal counsel regarding personal legal matters were subject to screening. Pursuant to Belyaev, amendments were passed to purportedly provide necessary protections for privacy. Despite the above infractions and subsequent reforms, the Court found that Bosyy failed to provide sufficient evidence to support his claim that his correspondence to the exempted Courts was unlawfully monitored.

However, the Court found that material submitted by the Government clearly showed that Bosyy’s correspondence with non-exempt entities had been monitored. The Court recalled its case law in Vitman v. Ukraine to conclude that amended national laws did not provide appropriate protections against arbitrary interference, and as such were as “defective” as the prior legislation. Therefore, the existing monitoring regime was not in “accordance with the law” and there had been a violation of Bosyy’s article 8 right to privacy.

Lastly, the Court dismissed Bosyy’s claim that he had been denied access to documents from his legal files. The Court stated it had not asked for any additional documents from him, he did not clearly identify the documents at issue and therefore his complaint was not properly formulated. Therefore, the State could not have hindered Bosyy’s communication with the Court. The alleged violation of article 34 was dismissed.

In conclusion, the Court held there had been a violation of article 8 of the Convention in relation to unlawful monitoring of Bosyy’s correspondence with non-exempt entities and thus awarded Bosyy EUR 1,000 in non-pecuniary damage and EUR 600 in costs.


Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This important judgment expands expression by finding that the applicant’s right to privacy of correspondence was unjustifiably interfered.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • ECtHR, Enea v. Italy, App. No. 74912/01(2009)
  • ECtHR, Glinov v. Ukraine (2009), No. 13693/05
  • ECtHR, Trosin v. Ukraine (2012), No. 39758/05
  • ECtHR, Vintman v. Ukraine (2014), No. 28403/05
  • ECtHR, Chaykovskiy v. Ukraine (2009), No. 2295/06
  • ECtHR, Belyaev and Digtyar v. Ukraine (2012), No. 16984/04 and 9947/05
  • ECtHR, Valeriy Fuklev v. Ukraine (2014), No. 6318/03
  • ECTHR, Orlovskiy v. Ukraine (2015), No. 12222/09
  • ECtHR, Sergey Savenko v. Ukraine (2013), No. 59731/09
  • ECtHR, Danilov v. Ukraine (2014), No. 2585/06
  • ECtHR, Balogh v. Hungary (2004), No. 47940/99
  • ECtHR, Sarac v. Turkey (1999), No.35841/97
  • ECtHR, Karabet and Others v. Ukraine (2013), No. 38906/07 and 532025/07
  • ECtHR, Dolenec v. Croatia (2009), No. 25282/06
  • ECtHR, Diri v. Turkey (2007), No. 68351/01
  • ECtHR, D.G. v. Poland (2013), No. 45705/07
  • ECtHR, Naydyon v. Ukraine (2010), No. 16474/03
  • ECtHR, Mursic v. Croatia [GC] (2016), No. 7334/13
  • European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14, art. 9

National standards, law or jurisprudence

  • Ukr., Code on the Enforcement of Sentences 2003, art. 113

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

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