By Violating the Convention on Human Rights, Ukraine Has Destroyed a Family

By a judgment of the European Court of Human Rights in the case of Bihun v. Ukraine, Ukraine was found to have violated the European Convention on Human Rights. This is yet another decision by the esteemed court which clearly demonstrates how Ukrainian officials – first and foremost prison authorities – openly violate the law under the guise of complying with it.
The facts of the case are straightforward. Following their marriage in 2000, Lesya and Viacheslav’s family life lasted less than a year. In 2001, he was sentenced to life imprisonment.
But deprivation of liberty does not strip him of his other rights. Under Article 49 § 1 of the Family Code of Ukraine, a wife has the right to motherhood, and the next article of the Code recognises the same right for a husband. Both articles of the Code contain a provision according to which ‘depriving a person of the opportunity to exercise their reproductive function... as a result of unlawful conduct against him (her) shall be grounds for compensation for non-pecuniary damage caused to him (her).’
Lesya and Viacheslav wanted to have a child. To their appeals to the administration of the correctional institution requesting a visit, the officials always responded with a refusal. They acted ostensibly within the law: Article 151 of the Criminal Executive Code of Ukraine (CEC) at that time did not permit long-term conjugal visits for life-sentenced prisoners. In a situation where two mutually exclusive legal provisions exist in the legislation, the responsibility of the state lies in finding a certain balance between these provisions. In a democratic state governed by the rule of law, the interests of the citizen must be of paramount importance – in this case, those of convict Viacheslav and his wife Lesya, who is completely innocent before the law.
The courts to which Lesya and Viacheslav appealed consistently took the side of the officials, refusing to accept any arguments other than those presented by the prison authorities with reference to Article 151 of the CEC of Ukraine. In doing so, the courts violated the requirements of the Family Code cited above, as well as the provisions of the European Convention on Human Rights, which is part of national legislation.
Based on the provisions of the European Convention on Human Rights, which is part of national legislation and must therefore be observed, the representatives of the Ukrainian authorities were obliged to grant the applicants a long-term visit, despite the prohibition established by Article 151 of the CEC of Ukraine.
However, the situation was not actually hopeless; there was another option that did not violate the requirements of Article 151 of the CEC. Given that life-sentenced prisoners were entitled to short-term visits of up to four hours, the Government could, as a compromise, have offered the applicants a short-term visit under the conditions of a long-term one – that is, without a glass partition and with physical contact, and certainly without a guard present.
A visit under such conditions would not have violated the provisions of the Criminal Executive Code, since the conditions for short-term visits are established by secondary legislation rather than by law. This would also have allowed compliance with the provisions of the Family Code, which guarantee the right to motherhood and fatherhood.
Yet the Ukrainian Government acted contrary to the fundamental principles on which the execution of laws is built in Europe. The prison authorities and the courts did not even attempt to strike a balance between compliance with the provisions of the Criminal Executive Code and the Family Code – that is, a balance between the applicants' interests and public goals. In not a single decision of state structures, nor in any of their responses, was there even a hint of an attempt to find a compromise, let alone any humane treatment of citizens, to say nothing of respect for their dignity.

In 2010, with the support of a lawyer from ‘Donetsk Memorial’, the Bihun couple appealed to the European Court of Human Rights. The Government of Ukraine contested the applicants’ claims, insisting in its observations that the Bihuns' complaint should be rejected on the grounds that Lesya had not participated in short-term visits for a long time (and indeed, there were no other visits before 2014), which supposedly confirmed that the claims of Lesya and Viacheslav were not genuine. The cynicism of the Ukrainian officials is striking (and unfortunately, this state of affairs continues to this day).
Firstly, it is not their business to judge the quality of a couple's relationship. Secondly, for a woman who had less than a year of shared family life, coming to a prison several times a year to look at her loved one through glass, without even being able to touch them, could easily be considered a form of torture.
The Court cited the applicants' claims that, for thirteen years after Viacheslav’s conviction, they could only see each other during rare short-term visits, without any physical contact or even minimal privacy, through a glass partition and in the presence of a prison guard. Yet Ukrainian officials reproached her for refusing such visits.
The European Court, on the contrary, demonstrated a balanced and humane approach, noting that:
‘Regarding whether close personal ties existed between the applicants, the Court takes note of the applicants’ persistent efforts prior to December 2009 to obtain the right to long-term visits which would allow physical contact and intimacy with a view to conceiving a child. Against this background, their decision not to see each other at all, rather than to have short meetings without any physical contact, through a glass partition and in the presence of a prison guard, cannot be interpreted as a denial of the existence of their family life, contrary to the Government’s arguments.’
Even if, as the Government maintained, the applicants dissolved their marriage immediately after submitting their complaint to the European Court in May 2010, the Court notes that by that time they had been deprived of the opportunity to have long-term conjugal visits for more than nine years. The applicants insist that the state failed to take the necessary measures to ensure a balance between the applicants' personal interests – which are, moreover, based on the provisions of the Family Code and the Constitution of Ukraine – and the state's interest in restricting contact between the applicants.
The Government’s justification for restricting long-term visits for life-sentenced prisoners is highly important and revealing.
Referring to the state's duty to ensure safety and security in prisons, both by preventing disorder and conflicts between convicts and by ensuring the safety of prison staff and visitors, the Government argued that the ban on long-term family visits for life-sentenced prisoners served the legitimate aim of preventing disorder and crime, as well as protecting the health and rights of others.
The Court, however, noted that in reality there were no official studies or statistical data indicating that such an excessively restrictive rule improved safety and security in prisons. The Government's concerns were significantly exaggerated, artificial, and supported neither by any research nor even by the practice of executing life sentences. Indeed, the actual changes in legislation enacted in May 2014 and later proved the opposite – namely, that the Government’s arguments were based on an artificial logical construct that had no basis in reality but served only to justify fabricated threats.
These phantom threats had no relevance whatsoever to the Bihuns' situation. The Court noted ‘that the first applicant had never shown any violence or other conduct posing a security risk in prison. Over nearly fourteen years of imprisonment, he had been disciplined three times for minor infractions. Nevertheless, he was denied long-term family visits in the same manner as the most hardened and ruthless individuals held in prison.’
The applicants contended that the restrictions on visits they challenged were neither justified nor sufficiently reasoned as regards the manner in which the visits were conducted; the ban was inflexible, although the Court noted that the contested interference had a legal basis in Ukrainian law, and the law itself was clear, accessible, and sufficiently precise. Yet the applicants argued that the contested restriction lacked any legitimate aim, even though it was officially justified by security considerations.
The Court noted that even assuming that this interference served a legitimate aim within the meaning of Article 8 § 2, it remained to be determined whether it was proportionate and struck a fair balance between competing private and public interests.
The applicants did not consider the restrictions proportionate to the threats and argued that such a severe restriction on family visits for life-sentenced prisoners had destroyed their family life. In particular, they noted that they had lost all hope of having a child together and that their marriage had broken down.
The Court considered the restriction of the right to visits, which would have allowed the applicants to maintain family ties and have a child, as an unjustified interference with family life.
The Court held that the state is not free to introduce restrictions across the board without any degree of flexibility in determining whether restrictions are appropriate or genuinely necessary in specific cases, particularly regarding prisoners who are already post-conviction.
Notably, amendments were subsequently made to this legislation, and the contested ban was lifted. However, during the period under consideration, the applicants had no reason to hope that this would ever happen.
Thus, the Court concluded that the interference with the applicants’ family life, resulting from the absolute ban on long-term family visits for life-sentenced prisoners solely due to the severity of the sentence and without any individualised risk assessment, was disproportionate to the aims cited by the Government. This situation was further compounded by various rules regarding the conditions of prison visits, such as the prohibition of direct physical contact, separation by a glass partition or metal bars, the constant presence of prison guards during visits, and restrictions on the number of adult visitors.
The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.
Having regard to the Court’s case law and the aforementioned circumstances of the case, the Court considers that the measures under consideration constituted an interference with the applicants’ ‘private life’ and ‘family life’ within the meaning of Article 8 of the Convention.
Unfortunately, the leadership of Ukraine’s prison system still justifies its refusal to ease certain norms of criminal executive legislation regulating the conditions of serving sentences by pointing to such artificial, phantom threats that have no basis in practice.
It is precisely this approach to interpreting legislative norms that constitutes a violation of the provisions of the European Convention on Human Rights – a violation, first and foremost, of the spirit of the Convention, and often of its letter. And impunity for such violations only fuels them.