FIFTH SECTIONCASE OF PANCHENKO AND OTHERS v. UKRAINE(Applications nos. 66179/14 and 3 others – see appended table)     JUDGMENT  This version was rectified on 25 October 2021 under Rule 81 of the Rules of Court. STRASBOURG14 October 2021This judgment is final but it may be subject to editorial revision.In the case of Panchenko and Others v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Lətif Hüseynov, President, Lado Chanturia, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the applications (nos. 66179/14, 58700/16, 58829/16 and 38002/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals, Mr Andrey Alekseyevich Panchenko, Mr Nikolay Yevdokimovich Sili, Mr Oleg Grygorovych Baylo and Mr Pavlo Mykolayovych Kus (“the applicants”), on the various dates indicated in the appended table;the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Articles 8 and 13 of the Convention in all the applications and under Article 6 § 1 of the Convention in respect of all the applications except no. 58700/16, and to declare the remainder of the applications inadmissible;the parties’ observations;Having deliberated in private on 23 September 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. All the cases concern the applicants’ placement in prisons far from their families and the repeated rejections of their requests for a transfer to a closer prison (Articles 8 and 13 of the Convention). Three applications (all except no. 58700/16) also concern the alleged denial of the applicants’ access to a court (Article 6 § 1 of the Convention).THE FACTS2. All the applicants are serving a life sentence. Their details and the relevant facts are set out in the appended tables.3. The Government were represented by their Agent, Mr I. Lishchyna.RELEVANT LEGAL FRAMEWORK AND PRACTICECode on the Enforcement of Sentences (2003)4. Article 93, which is relevant for the cases, is quoted in Vintman v. Ukraine (no. 28403/05, § 42, 23 October 2014) in the wording prior to the amendments effective since 7 May 2014. Before those amendments, that provision provided that a prisoner was to serve the entire term of the sentence in the same prison, as a rule, within the boundaries of an administrative territorial unit corresponding to the place of his/her residence before conviction. The 2014 amendments added “the permanent place of residence of a prisoner’s relatives” as an option. Both before and after the amendments, changing prisons was and remains permissible under exceptional circumstances preventing the prisoner’s continued stay in the same prison.Relevant regulations5. The relevant regulations of the Prison Department and later of the Ministry of Justice, which were in force until 10 March 2017, are summarised in Vintman (cited above, § 43).6. On 27 February 2017 the Ministry of Justice[1] issued Order no. 680/5[2] putting in place new procedures and creating special authorities (the central commission, central commissions for the central and southern regions, and inter-regional commissions) to deal with prisoners’ transfer requests.7. As stipulated in the new regulations, a prisoner may apply for a transfer to a prison near his place of residence prior to his conviction or his close relatives’ place of residence. He (or his close relative in the latter case, with the prisoner’s written consent) must submit an application to that effect through the prison administration, with the authenticity of the prisoner’s signature being certified by the prison governor. Such an application must enclose an information note from the prisoner’s personal file and a copy of his passport or other identification document. If an application concerns a transfer to a prison near close relatives’ place of residence, it must also enclose a copy of the relative’s passport or other identification document, a certificate on his/her registered domicile or actual residence address, and documentary evidence of the kinship. In so far as an application for a transfer near the prisoner’s pre-conviction place of residence is concerned, it must enclose a document proving his registered domicile or actual residence address prior to the conviction.8. Applications for transfers shall be submitted to the prison administration which then forwards them to the inter-regional or central commission. Those commissions’ decisions may be challenged before the head of the inter-regional prison division, the central commission or the head of the Prison Department. The decisions of the latter may be further challenged before the courts “in accordance with the legally established procedure”.Domestic case-law9. The Government referred to three administrative courts’ decisions of 2018 overturning the central commission’s refusals of prisoners’ transfer requests.10. The applicant in case no. 58700/16 submitted a copy of four administrative courts’ decisions of 2016 to 2018 declining jurisdiction to examine such a matter. He also provided the following case-law. On 6 March 2018 the Khmelnytskyy Circuit Administrative Court allowed a prisoner’s complaint against the central commission’s refusal of his request for a transfer to a different prison and obliged it to examine the issue afresh. On 13 June 2018 the Vinnytsya Administrative Court of Appeal quashed that ruling and discontinued the proceedings on the grounds that the matter was to be examined under the criminal procedural legislation as pertaining to enforcement of sentences. Following the prisoner’s appeal on points of law, on 29 November 2018[3] the Supreme Court ruled that the matter fell to be examined by its Grand Chamber, given that it concerned an alleged breach of the subject-matter jurisdiction. On 10 April 2019 the Supreme Court’s Grand Chamber allowed that prisoner’s appeal on points of law and held that the examination of complaints against the Ministry of Justice (the central commission being its part) was within the competence of administrative courts.Relevant statistics11. The Government provided the statistics of the examination of transfer requests from prisoners by the Ministry of Justice’s central commission. In 2018 it received 181 requests and granted 67 of them, in 2019 it examined 165 such requests, 81 of which were granted. In 2020, by early May, those figures were 22 and 10 respectively.THE LAW        JOINDER OF THE APPLICATIONS12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION13. The applicants complained that, as a result of their placement in remote prisons and the authorities’ rejections of their transfer requests, they had been deprived of the possibility to enjoy visits from their relatives. The applicants relied on Article 8 of the Convention which reads as follows:“1. Everyone has the right to respect for his private and family life ....2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”AdmissibilityApplication no. 66179/14 (Panchenko v. Ukraine)14. The applicant alleged that his placement in Novgorod-Siverskyy Prison no. 31 had amounted to an arbitrary and disproportionate interference with his right to maintain contact with his mother. In his reply to the Government’s observations, he additionally complained about his placement in Kryvyy Rig Prison no. 3.15. The Government contested those arguments.16. The Court observes that the applicant provided no details regarding his mother’s health, the existing public transport arrangements between her place of residence and the prison or any other obstacles rendering her travel to Novgorod-Siverskyy Prison no. 31 impossible or unduly difficult. Nor is there any indication that such details were provided to the domestic authorities dealing with the applicant’s transfer requests (contrast Vintman v. Ukraine, no. 28403/05, §§ 11 and 81, 23 October 2014).17. Furthermore, while the Ukrainian authorities did take efforts to reduce the distance between the applicant’s prison and his mother’s place of residence, having proposed him a transfer to Kryvyy Rig Prison no. 3 in early December 2013 (as a result of which the distance in question would be reduced from 750 km to 400 km), the applicant objected to that for unknown reasons. It appears from his administrative claim at the domestic level that he insisted on his transfer to one particular prison, finding no other solution acceptable (see the appended table).18. The Court therefore considers that the applicant did not substantiate his complaint, both as regards his placement in Novgorod-Siverskyy Prison no. 31 and, even more so, as regards his subsequent placement in Kryvyy Rig Prison no. 3. Even assuming that this last-mentioned grievance falls within the scope of the case, which is questionable given the timing of its introduction, it is not sufficiently substantiated.19. It follows that the applicant’s complaint under Article 8 of the Convention should be declared inadmissible as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.Application no. 58700/16 (Sili v. Ukraine)20. The Government submitted that the applicant had failed to exhaust domestic remedies by not having challenged the central commission’s refusal of his transfer request before administrative courts.21. The applicant argued that, having regard to the lack of clarity as to the administrative courts’ jurisdiction over the matter, which had existed until the decision of the Supreme Court’s Grand Chamber of 10 April 2019 (see paragraph 10 above), the remedy referred to by the Government could not be regarded as effective. He maintained that even thereafter its effectiveness remained limited.22. The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)) and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX). For example, the Court has accepted that this was the case when at the national level a new law, specifically designed to provide direct redress to violations of fundamental procedural rights, was introduced with retroactive effect and put thus an end to a structural problem that existed in the national legal system before its adoption (see Stoica v. Romania, no. 42722/02, § 104, 4 March 2008).23. Turning to the present case, the Court does not discern any elements that would justify departing from the general rule noted above. The applicant had been trying to obtain a transfer closer to his daughter’s place of residence since 2014 (see the appended table), that is once the domestic legislation had been amended with a view to providing for prisoners’ transfer to a prison near their close relatives’ place of residence (see paragraph 4 above). Furthermore, as soon as the new procedures had been put in place in 2017 (see paragraphs 6-8 above), the applicant applied to the newly created central commission, which rejected his request in December 2017 (see the appended table). As follows from the domestic case-law cited by the applicant (see paragraph 10 above), it remained unclear at that point which courts were competent to examine complaints against that commission’s decisions.24. In sum, the Court considers that the Government’s objection should be rejected. It further notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Application no. 58829/16 (Baylo v. Ukraine)25. The applicant argued that, by rejecting his request for a transfer to a prison in the Vinnytsia or Zhytomyr region, the domestic authorities had rendered impossible his contacts with his mother, who had lived in the Lviv region and who had died several days after that request had been submitted, as well as with his two sisters living in the Lviv region. In his reply to the Government’s observations, the applicant noted that he had married in May 2017 and that it was difficult for his wife, also living in the Lviv region, to visit him in Novgorod-Siverskyy Prison no. 31. The applicant also mentioned his brother, without further details.26. The Government submitted that the applicant’s complaint was unsubstantiated.27. The Court notes that, as it follows from the documents submitted by the applicant, his only relative whose existence he mentioned in his transfer request at the domestic level was his mother (see the appended table). Moreover, he emphasised that he had no other relatives. That being so, he cannot now blame the domestic authorities for any alleged difficulties in maintaining his contact with relatives.28. It follows that the applicant’s complaint under Article 8 of the Convention should be declared inadmissible as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.Application no. 38002/17 (Kus v. Ukraine)29. The Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits (applications nos. 58700/16 (Sili v. Ukraine) and 38002/17 (Kus v. Ukraine)30. The applicants maintained their complaints.31. The Government argued that there had been no violation of the applicants’ rights.32. The Court notes that it has already analysed a matter similar to that in the present applications in the cases of Vintman (cited above, §§ 76-104) and Rodzevillo v. Ukraine (no. 38771/05, §§ 83-87, 14 January 2016). It considers that, like in the cited cases, there was an interference with the applicants’ right to respect for their family life under Article 8 of the Convention, that it was “in accordance with the law” and pursued a legitimate aim of prevention of prison overcrowding (see Vintman, §§ 76‑99, and Rodzevillo, §§ 83-84, both cited above).33. In examining whether the interference was also “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, the Court notes that, on the basis of the material in its possession, it appears that the competent authorities took a formalistic and restrictive approach in interpreting and applying the relevant legislation. There is no appearance that they attempted, in any meaningful way, to consider the applicants’ and their relatives’ arguments concerning their personal situation. The circumstances giving rise to the applicants’ complaints under Article 8 of the Convention are very similar to those that served as a basis for the finding of a violation of that provision in Vintman (cited above, see §§ 100‑104) and Rodzevillo (also cited above, §§ 85-87). The legal assessment of the relevant facts in cases cited above is equally pertinent to the cases at issue.34. UKRAINE, BAYLO v. UKRAINE AND kus v. UKRAINE)35. Relying on Articles 6 § 1 and 13 of the Convention, the applicants in the above three cases complained that they had been denied access to a court and had had no effective domestic remedies in respect of their Article 8 complaint.36. The Court notes that the role of Article 6 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 (see, for example, Baka v. Hungary [GC], no. 20261/12, § 181, 23 June 2016). It follows that the Court will only examine the applicants’ complaints under Article 6 § 1 (see Canè and Others v. Malta (dec.), no. 24788/17, §§ 43-44, 13 April 2021, with further case-law references). The relevant part of this provision reads as follows:“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”AdmissibilityApplication no. 66179/14 (Panchenko v. Ukraine)37. The Court will examine the compatibility of this complaint ratione materiae with the provisions of Article 6 § 1 of the Convention, even though the Government did not raise any objection in that regard (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III).38. The Court notes that the criminal limb of Article 6 of the Convention is not applicable in the present cases, since the applicant’s attempt to get access to a court did not concern the determination of any criminal charge against him. For Article 6 § 1 in its “civil” limb to be applicable, there must be a genuine and serious dispute over a right that can be said, at least on arguable grounds, to be recognised in domestic law (see, among other authorities, Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012).39. It is the right as asserted by the claimant in the domestic proceedings that must be taken into account in order to assess whether Article 6 § 1 is applicable (see, for example, Mediation Berti Sports v. Turkey (dec.), no. 63859/12, 12 May 2020) .40. In the present case the applicant insisted in his claim before the domestic courts on his transfer to one particular prison. While the domestic legislation provided for a general rule that prisoners should serve their sentence close to their pre-conviction or their relatives’ place of residence (see paragraph 4 above), there was no right to serve a sentence in one particular prison of one’s choice.41. This complaint is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4.Application no. 58829/16 (Baylo v. Ukraine)42. The Court notes that the courts of three levels of jurisdiction examined the applicant’s administrative claim on the merits (see the appended table). The fact that he was not satisfied with the outcome of those proceedings does not mean that he was denied access to a court. It follows that this complaint is manifestly ill-founded and should be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Application no. 38002/17 (Kus v. Ukraine)43. The Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits (application no. 38002/17) (Kus v. Ukraine)44. The applicant maintained his complaint.45. The Government disagreed, with the reference to the domestic case‑law (see paragraph 9 above) and to the legislative amendments of 2017 (see paragraphs 6-8 above).46. The Court refers to the general principles on access to a court, as set out in the case of Zubac v. Croatia ([GC], no. 40160/12, §§ 76-82, 5 April 2018).47. In the present case, as a result of a disagreement between the general and administrative courts as to which of them were competent to examine the applicant’s claim, it was never examined on the merits (see the appended table). In the Court’s view, such a situation amounted to a denial of justice impairing the very essence of the applicant’s right of access to a court, as secured by Article 6 § 1 of the Convention (compare Tserkva Sela Sosulivka v. Ukraine, no. 37878/02, §§ 51-53, 28 February 2008).48. UKRAINE)49. The applicant complained that he had no effective domestic remedies in respect of his Article 8 complaint. He relied on Article 13 of the Convention reading as follows:“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”Admissibility50. The Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits51. The applicant noted he had taken all possible administrative steps for obtaining a transfer to a prison closer to his daughter’s place of residence. As regards the legally envisaged possibility to bring the matter before the courts, the applicant observed that it had been unclear even to the domestic courts, until April 2019, which courts had the competence to examine such claims.52. The Government argued that the applicant had had an effective domestic remedy at his disposal. They referred to the legislative amendments of 2017 (see paragraphs 6-8 above), the statistics of the examination of prisoners’ transfer requests by the Ministry of Justice’s central commission (see paragraph 11 above) and the domestic judicial decisions allowing prisoners’ claims against the aforementioned commission (see paragraph 9 above).53. The Court considers that the situation in the present case, at least until April 2019 (see paragraph 10 above), was similar to that in the case of Vintman (cited above, §§ 114-17), in which a violation of Article 13 was found, owing to, firstly, the broad discretional powers in examining transfer requests within the structure of the prison authorities and the lack of clarity as to the domestic courts’ jurisdiction. Although the legislative amendments of 2017 did clarify the procedural steps to be made by prisoners wishing a transfer to a different prison, as well as the documents to be collected, the discretion vested with the newly created commissions remained vast.54.

Outcome for Article 8: violation