FIFTH SECTIONCASE OF IVAN KARPENKO v. UKRAINE(Application no. 45397/13)  JUDGMENT Art 3 (substantive) • Inhuman and degrading treatment • Life prisoner ban on communication with other prisoners during out-of-cell activities, further exacerbated by other factors, amounting to inhuman and degrading treatment • Ban applied solely on ground of life sentence without procedural safeguards or review • Applicant’s situation amounting to systemic segregation • Failure to respect European Prison Rules requiring an adequate level of out-of-cell human and social interaction • Failure to duly examine applicant’s complaints about resulting deterioration of his mental and physical health and his assistance requests in that regard STRASBOURG16 December 2021 FINAL 16/03/2022 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Ivan Karpenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Síofra O’Leary, President, Mārtiņš Mits, Ganna Yudkivska, Stéphanie Mourou-Vikström, Jovan Ilievski, Lado Chanturia, Ivana Jelić, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 45397/13) 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 Ivan Ivanovych Karpenko (“the applicant”), on 3 August 2013;the decision to give notice to the Ukrainian Government (“the Government”) of the application;the observations submitted by the respondent Government and the observations in reply submitted by the applicant;the comments submitted by the European Prison Litigation Network, which had been granted leave to intervene by the President of the Section;Having deliberated in private on 23 November 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The case concerns the prohibition of life prisoners having any contact with inmates from other cells (Article 3 of the Convention) and the lack of an effective domestic remedy in that regard (Article 13 of the Convention).THE FACTS2. The applicant was born in 1973. He has been serving a life sentence since 2004. From May 2005 he has been imprisoned in Romny Prison no. 56.3. Having been granted legal aid, the applicant was represented by Mr M. Tarakhkalo, Mr O. Levytskyy and Ms A. Kozmenko, lawyers practising in Kyiv, as well as Mr H. de Suremain, a lawyer practising in Paris.4. The Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.5. The facts of the case, as submitted by the parties, may be summarised as follows.Incident on 13 June 20096. On 13 June 2009 the applicant greeted a fellow prisoner during a walk in the prison courtyard. The guard made a remark to them that that was prohibited and made a report to the prison administration. It was noted that the applicant “had tried to enter into verbal contact” with another prisoner in breach of section 23 of the Internal Regulations of Penal Institutions (see paragraph 30 below).7. On the same day the applicant wrote an explanation to the prison administration. He admitted having talked to a fellow prisoner, whom he did not know.8. Based on the guard’s report, on 16 June 2009 the prison administration disciplined the applicant. The sanction applied to him on that occasion was “a warning” (see paragraph 23 below).Administrative claim brought by the applicant9. On 26 May 2010 the applicant lodged an administrative claim against the prison administration seeking that the disciplinary sanction in question be declared unlawful and that the relevant entry be removed from his records.10. On 9 June 2010 the Sumy Circuit Administrative Court rejected his claim on account of its lack of jurisdiction to examine issues relating to the execution of sentences.11. On 13 October 2010 the Kharkiv Administrative Court of Appeal upheld that ruling.12. On 13 October 2011 the Higher Administrative Court dismissed the applicant’s appeal on points of law as having been lodged out of time, even though the applicant had claimed having received the appellate court’s ruling with a delay.13. The Government submitted that they were unable to provide the Court with a copy of the above-mentioned case file because it had been destroyed on the expiry of the statutory storage period.Civil claim brought by the applicant14. On 13 June 2012 the applicant brought civil proceedings against the prison administration seeking that the disciplinary measure in question be declared unlawful, and claiming compensation in respect of non-pecuniary damage.15. On 20 June 2012 the Romny Town Court rejected the applicant’s claim on the grounds that it fell to be examined by the administrative courts.16. The applicant appealed, with reference to the administrative courts’ decisions declining jurisdiction over the matter.17. On 31 July 2012 the Sumy Regional Court of Appeal rejected that appeal, reiterating the first-instance court’s reasoning.18. On 5 February 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s request for leave to appeal on points of law.Other relevant facts19. As indicated in an information note issued by the governor of Romny Prison no. 56 on 15 February 2017, since 13 June 2009 the applicant had applied to the prison administration for medical and psychological assistance on thirteen occasions. He had consistently submitted that the permanent prohibition of any contact with other prisoners “in the same areas” amounted to torture. It was mentioned in the information note that “there was no information concerning the examination of those applications”. As further noted therein, on 3 February 2011 the applicant had been diagnosed with “neurocirculatory asthenia of hypertonic type”, for which he had received no medical treatment, but the following recommendation had been made: “to lead a healthy lifestyle and to avoid psychological and emotional strain”. Lastly, it was observed that the applicant had periodically complained of a deterioration in his health on account of the prohibition of contact with other prisoners, and that he had been taking some items of medication supplied by his relatives and friends.20. In April 2013 the applicant applied to the regional prison authorities for possible enrolment in vocational training. He was informed that, although there was indeed a vocational training programme for inmates in Romny Prison no. 56, life prisoners were not eligible for it.21. On 23 October 2020 the governor of Romny Prison no. 56 issued a further information note stating as follows:“During the period from 4 May 2005 to 27 August 2019 [the applicant] was held in a cell for life-sentenced prisoners together with another inmate, while during the period from 28 August 2019 to 23 October 2020 he shared his cell with two other inmates, spending twenty-two to twenty-four hours per day in his cell without any activities (work or training)...”RELEVANT LEGAL FRAMEWORK AND PRACTICEDOMESTIC LAW AND PRACTICECode of Enforcement of Criminal Sentences of 2003 (with further amendments)22. Article 107 provides for the general rights and obligations of prisoners. It prohibits, in particular, “communication with fellow prisoners or other persons in breach of the isolation rules or asking them to carry out unlawful actions” (§ 4).23. Article 132 contains a list of disciplinary sanctions applicable to prisoners, with a warning being one of those sanctions. Its definition ‑ “a written warning about applying a specific disciplinary sanction to [a prisoner] in case of a repeated violation” – was added to the Code in September 2016[1].24. Article 135, as worded before the above-mentioned amendments, listed the prison officials empowered to apply sanctions and incentives in respect of prisoners. The amended version, in force since April 2017, provides that, in the case of breaches of prison rules by a prisoner, a permanent disciplinary commission, consisting of the prison governor, his deputies, and heads of the prison services whose staff are in direct contact with prisoners, must institute disciplinary proceedings in respect of that prisoner and deliver its decision after a hearing. The prisoner concerned must be notified of that hearing at least twenty-four hours in advance. He or she has the right to be represented by a lawyer of his or her choice or, if unable to hire a lawyer, to apply for legal aid with the prison administration’s assistance. The prisoner and/or his or her lawyer has the right: to receive access to all related information and documents at least twenty-four hours before the hearing; to attend that hearing; to study the case file and to make copies thereof; to give explanations, and lodge objections and applications both orally and in writing; to submit evidence; and to request, at least twenty‑four hours before the hearing, the attendance of persons whose presence is deemed necessary to establish the factual circumstances or the correct disciplinary measures. The disciplinary commission’s decisions are taken by majority and must be duly reasoned.25. Article 151 concerns imprisonment conditions for those serving a life sentence. They are usually accommodated in cells for two inmates (§ 1). The general provisions on prisoners’ rights and obligations under Article 107 are also applicable to this category of prisoners (§ 2). Life prisoners are entitled to a one-hour outdoor walk (§ 5). Subject to “diligent behaviour and attitude to work”, they may be entitled to group educational, cultural and sporting activities after serving five years in prison (§ 6). Before October 2016, they had to serve at least fifteen years to be eligible for the above-mentioned group activities[2].26. Article 151-1, which was added to the Code in January 2010, concerns changes to the conditions of detention of life prisoners. It provides that male life prisoners may be transferred from cell-type premises shared by two inmates to multi-occupancy cell-type premises of a maximum-security prison, with permission to participate in group educational, cultural and sporting activities, after having de facto served at least five years of their sentence in the premises of the first-mentioned type. Before the amendments of 8 April 2014 that period had been at least fifteen years[3]. In addition, life prisoners may be transferred from multi-occupancy cell-type premises to ordinary residential premises in a maximum-security prison after having de facto served at least five years of their sentence in the premises of the first‑mentioned type.Code of Administrative Justice of 200527. Article 17 § 2, in the wording of the Code prior to the amendments of 3 October 2017, provided that administrative courts had jurisdiction over claims by individuals or legal entities against public authorities regarding the authorities’ decisions, actions or omissions. The amended version, which is presently in force (Article 19 § 1[4]), reproduces the above provision with the following supplemental wording: “unless a different judicial forum is legally prescribed for such disputes”.Code of Criminal Procedure of 1960 (repealed with effect from 20 November 2012)28. Under Article 409 § 1, it was for the court that delivered a judgment to “resolve any issues concerning doubts or contradictions in respect of the enforcement of that judgment”.Code of Criminal Procedure of 2012 (in force since 20 November 2012)29. Article 537 lists issues to be resolved by the courts during the enforcement of sentences, whereas Article 539 provides for procedures to be followed and specifies which courts have jurisdiction to deal with which issues.

Outcome for Article 41: violation