Communicated On 27 August 2020 Published On 14 September 2020

FIFTH SECTION

Applicati On no. 45397/13 Ivan Ivanovych KARPENKO against Ukraine lodged On 3 August 2013

STATEMENT OF FACTS

The applicant, Mr Ivan Ivanovych Karpenko, is a Ukrainian national, who was born in 1973 and is serving a life sentence in Romny pris On no. 56. He is represented before the Court by Mr O.V. Levytskyy , a lawyer practising in Kyiv.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is serving a life sentence since 2004.

On 16 June 2009 he was disciplined by pris On authorities for speaking with another prisoner during a walk On 13 June 2009. It was indicated in the report that the applicant “had tried to enter into verbal communication” with another prisoner in breach of secti On 23 of the Internal Pris On Regulations. According to the applicant, he had only greeted a fellow prisoner. T he sancti On applied to the applicant was a “warning” (no further informati On being available in that regard [1] ).

On 26 May 2010 the applicant lodged an administrative claim against the pris On administrati On seeking that the disciplinary sancti On in questi On be declared unlawful and that the respective entry be removed from his records. On 9 June 2010 the Sumy Circuit Administrative Court rejected his claim due to its lack of competence to examine issues related to executi On of sentences. On 13 October 2010 the Kharkiv Administrative Court of Appeal upheld that ruling. On 27 December 2010 the applicant appealed On points of law. Referring to the fact that the appellate court had sent him a copy of its ruling On 8 November 2011 and that the pris On administrati On had handed it to him only On 27 December 2010, the applicant requested a renewal of the time-limit (twenty days from the date of the ruling). On 13 October 2011 the Higher Administrative Court rejected that request. It noted that the applicant had missed the twenty-day time-limit even if calculated from 8 November 2010. Accordingly, the Higher Administrative Court dismissed his appeal On points of law as belated.

On 13 June 2012 the applicant brought civil proceedings against the pris On administrati On seeking that the disciplinary measure in questi On be declared unlawful and claiming compensati On in respect of non-pecuniary damage. On 20 June 2012 the Romny Town Court rejected the applicant ’ s claim On the grounds that it fell to be examined by administrative courts. On 31 July 2012 the Sumy Regional Court of Appeal upheld that ruling. 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.

Article 107 provides for general rights and obligations of prisoners. It prohibits, in particular, “ communicati On with pris On fellows or other persons with breaches of the isolati On rules or asking them for unlawful actions” (§ 4).

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 one-hour outdoor walk (§ 5). Subject to “diligent behaviour and attitude to work”, they may be entitled to group educational, cultural and sport activities after having served five years in pris On (§ 6). Before the amendments of 2016, they had to serve at least fifteen years to be eligible for the above-mentioned group activities.

Article 17 § 2 provided that administrative courts had jurisdicti On over claims by individuals or legal entities against public authorities regarding the latter ’ s decisions, actions or omissions.

Internal Pris On Regulations of 2003 (repealed with effect from 23 January 2015) prohibited prisoners ’ “ communicati On with pris On fellows or other persons with breaches of the isolati On rules or asking them for unlawful actions” ( secti On 29). Life prisoners were also prohibited from “entering into contact with inmates detained in other cells” ( secti On 23).

The subsequent versions of the Regulations of 2014 (in force from 23 January 2015 to 14 September 2018) and of 2018 (currently in force) – retained only the first-mentioned restricti On applicable to all prisoners.

The relevant part reads as follows :

“1. All persons deprived of their liberty shall be treated with respect for their human rights.

2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decisi On sentencing them or remanding them in custody.

3. Restrictions placed On persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.

...

6. All detenti On shall be managed so as to facilitate the reintegrati On into free society of persons who have been deprived of their liberty.

...

25.1 The regime provided for all prisoners shall offer a balanced programme of activities.

25.2 This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction.

25.3 This regime shall also provide for the welfare needs of prisoners.

...

49. Good order in pris On shall be maintained by taking into account the requirements of security, safety and discipline, while also providing prisoners with living conditions which respect human dignity and offering them a full programme of activities in accordance with Rule 25.

50. Subject to the needs of good order, safety and security, prisoners shall be allowed to discuss matters relating to the general conditions of imprisonment and shall be encouraged to communicate with the pris On authorities about these matters.

...

57.1. Only conduct likely to constitute a threat to good order, safety or security may be defined as a disciplinary offence.

...

61. A prisoner who is found guilty of a disciplinary offence shall be able to appeal to a competent and independent higher authority.

...

102.2 Imprisonment is by the deprivati On of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment ...”

The relevant extract reads as follows:

“2. The aims of the management of life sentence and other long-term prisoners should be:

...

– to counteract the damaging effects of life and long-term imprisonment;

...

3. Considerati On should be given to the diversity of personal characteristics to be found among life sentence and long-term prisoners and account taken of them to make individual plans for the implementati On of the sentence ( individualisati On principle).

4. Pris On life should be arranged so as to approximate as closely as possible to the realities of life in the community ( normalisati On principle).

5. Prisoners should be given opportunities to exercise personal responsibility in daily pris On life (responsibility principle).

6. A clear distincti On should be made between any risks posed by life sentence and other long-term prisoners to the external community, to themselves, to other prisoners and to those working in or visiting the pris On (security and safety principle).

7. Considerati On should be given to not segregating life sentence and other long ‑ term prisoners On the sole ground of their sentence (non- segregati On principle).

8. Individual planning for the management of the prisoner ’ s life or long-term sentence should aim at securing progressive movement through the pris On system ( progressi On principle).

...

31. Special management care and attenti On should be given to the particular problems posed by prisoners who are likely to spend their natural life in prison. In particular, their sentence planning should be sufficiently dynamic and allow them to benefit from participati On in meaningful activities and adequate programmes including interventions and psychosocial services designed to help them cope with their sentence.”

The relevant extract reads as follows:

“77. ... Prisoners should not be subject to any restrictions which are not required for the maintenance of good order, security and discipline within the prison. In particular, the level of security applied to each individual should be proportionate to the risk presented by the person. The nature of the offence is only one factor in assessing this. As a matter of principle, the impositi On of the detenti On regime of life-sentenced prisoners should lie with the pris On authorities and always be based On an individual assessment of the prisoner ’ s situation, and not be the automatic result of the type of sentence imposed ...

78. Equally, except in the assessment phase, life-sentenced prisoners should not routinely be kept apart from other sentenced prisoners, although it would not be objectionable for long-term prisoners to be kept apart from very short-term prisoners. The length of sentence does not necessarily bear any relationship to the level of risk life-sentenced prisoners may represent inside a prison, and the principle of normalisati On requires that life-sentenced prisoners can at least associate with other long-term prisoners who have a predetermined release date. The, albeit limited, turnover this can create refreshes the experience of pris On for those who are to be incarcerated for a very long time. Concentrating life-sentenced prisoners in a specialised pris On also necessarily results in many such prisoners being kept very far from their families and outside contacts. A life sentence will in any event put a good deal of pressure On these relationships; compounding that by locating the prisoner a significant distance away from home reduces the possibility of maintaining what is a crucial element in promoting resocialisation. Further, no additional restrictions should be imposed On life-sentenced prisoners as compared to other sentenced prisoners when it concerns the possibilities for them to maintain meaningful contact with their families and other close persons. During the first years of imprisonment in particular, restrictions On contacts are likely to disrupt or even destroy such relationships. It is also important that life-sentenced prisoners have genuine access On as regular basis as possible to visits, telephone calls, letters, newspapers, radio and televisi On to maintain their sense of contact with the outside world.

79. Life-sentenced prisoners should have access to as full a regime of activities as possible, and normally in associati On with other prisoners. Work, education, sports, cultural activities and hobbies not only help pass the time, but are also crucial in promoting social and mental health well-being and imparting transferable skills which will be useful during and after the custodial part of the sentence. The involvement of prisoners in these activities, in additi On to their participati On in offending behaviour interventions, represents a significant factor in the ongoing assessment of each person ’ s performance. They allow staff of all grades to better understand prisoners and enable the staff to make informed judgments as to when it would be appropriate for the prisoner to progress through the regime and be trusted with lower security conditions...

80. There are undoubtedly some life-sentenced prisoners who are very dangerous. However, the approach should be the same as for other sentenced prisoners and includes: detailed assessments of the individual situati On of the prisoners concerned; risk management with plans to address the individual ’ s needs and to reduce the likelihood of re-offending in the longer term, while affording the necessary level of protecti On to others; regular reviews of security measures. The objective, as with all dangerous prisoners, should be to reduce the level of dangerousness by appropriate interventions and return the prisoners to normal circulati On as so On as possible.

81. The CPT calls up On member states to review their treatment of life-sentenced prisoners to ensure that this is in accordance with their individual risk they present, both in custody and to the outside community, and not simply in response to the sentence which has been imposed On them. In particular, steps should be taken by the member states concerned to abolish the legal obligati On of keeping life-sentenced prisoners separate from other (long-term) sentenced prisoners and to put an end to the systematic use of security measures such as handcuffs inside the prison.

82. Further, all possible efforts should be made to provide life-sentenced prisoners with a regime tailored to their needs and help them reduce the level of risk they pose, to minimise the damage that indeterminate sentences necessarily cause, to keep them in touch with the outside world, offer them the possibility of release into the community under licence and ensure that release can be safely granted, at least in the overwhelming majority of cases. To this end, procedures should be put in place which allow for a review of the sentence. Obviously, having a purely formal possibility to apply for release after a certain amount of time is not sufficient; member states must ensure, notably through the way they treat life-sentenced prisoners, that this possibility is real and effective. ”

COMPLAINTS

The applicant complains under Article 3 of the Conventi On that, being a life prisoner, he was prohibited from any communicati On with other inmates, which amounted to inhuman treatment. He also complains that the impugned restricti On was in breach of his right to respect for his private life under Article 8 of the Convention. Furthermore, the applicant complains under Article 6 that he had no access to court. Lastly, he complains under Article 13 that there had been no effective domestic remedies in respect of the above complaints.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment or punishment in breach of Article 3 of the Conventi On On account of the alleged prohibiti On of any communicati On with other inmates?

2. Has that prohibiti On constituted an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention? If so, was it in accordance with the law and necessary in terms of Article 8 § 2?

Your Government are requested to specify the nature, the scope and the legal and regulatory framework of the restricti On for life prisoners to communicate among themselves and with other inmates, as well as any evoluti On of the domestic legislati On and practice in that regard.

3. Did the applicant have access to court to challenge the disciplinary sancti On imposed On him On 13 June 2009, as required under Article 6 § 1 of the Convention?

4. Did the applicant have an effective domestic remedy in respect of the above complaints, as required by Article 13 of the Convention?

[1] The legal definition of this sanction was introduced to the Code of Enforcement of Criminal Sentences only with the amendments of 6 September 2016. It is defined as “a written warning about applying a specific disciplinary sanction to [a prisoner] in case of a repeated violation”.