\nCASE OF PANCHENKO AND OTHERS v. UKRAINE<\/strong>
\n(Applications nos. 66179\/14 and 3 others \u2013 see appended table)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n14 October 2021<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Panchenko and Others v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n L\u0259tif H\u00fcseynov, President, Having regard to:<\/p>\n the applications (nos.\u00a066179\/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 (\u201cthe Convention\u201d) by four Ukrainian nationals, Mr Andrey Alekseyevich Panchenko, Mr Nikolay Yevdokimovich Sili, Mr\u00a0Oleg Grygorovych Baylo and Mr Pavlo Mykolayovych Kus (\u201cthe applicants\u201d), on the various dates indicated in the appended table;<\/p>\n the decision to give notice to the Ukrainian Government (\u201cthe Government\u201d) of the complaints under Articles 8 and 13 of the Convention in all the applications and under Article 6 \u00a7 1 of the Convention in respect of all the applications except no. 58700\/16, and to declare the remainder of the applications inadmissible;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 23 September 2021,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n 1. All the cases concern the applicants\u2019 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\u2019 access to a court (Article\u00a06\u00a0\u00a7 1 of the Convention).<\/p>\n THE FACTS<\/strong><\/p>\n 2. All the applicants are serving a life sentence. Their details and the relevant facts are set out in the appended tables.<\/p>\n 3. The Government were represented by their Agent, Mr\u00a0I.\u00a0Lishchyna.<\/p>\n RELEVANT LEGAL FRAMEWORK AND PRACTICE<\/p>\n I. Code on the Enforcement of Sentences (2003)<\/strong><\/p>\n 4. Article 93, which is relevant for the cases, is quoted in Vintman v.\u00a0Ukraine (no.\u00a028403\/05, \u00a7 42, 23\u00a0October 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\u00a0prison, as a rule, within the boundaries of an administrative territorial unit corresponding to the place of his\/her\u00a0residence before conviction. The 2014 amendments added \u201cthe permanent place of residence of a prisoner\u2019s relatives\u201d as an option. Both before and after the amendments, changing prisons was and remains permissible under exceptional circumstances preventing the prisoner\u2019s continued stay in the same prison.<\/p>\n II. Relevant regulations<\/strong><\/p>\n 5. 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, \u00a7 43).<\/p>\n 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\u2019 transfer requests.<\/p>\n 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\u2019 place of residence. He (or his close relative in the latter case, with the prisoner\u2019s written consent) must submit an application to that effect through the prison administration, with the authenticity of the prisoner\u2019s signature being certified by the prison governor. Such an application must enclose an information note from the prisoner\u2019s personal file and a copy of his passport or other identification document. If an application concerns a transfer to a prison near close relatives\u2019 place of residence, it must also enclose a copy of the relative\u2019s 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\u2019s pre-conviction place of residence is concerned, it must enclose a document proving his registered domicile or actual residence address prior to the conviction.<\/p>\n 8. Applications for transfers shall be submitted to the prison administration which then forwards them to the inter-regional or central commission. Those commissions\u2019 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 \u201cin accordance with the legally established procedure\u201d.<\/p>\n III. Domestic case-law<\/strong><\/p>\n 9. The Government referred to three administrative courts\u2019 decisions of 2018 overturning the central commission\u2019s refusals of prisoners\u2019 transfer requests.<\/p>\n 10. The applicant in case no. 58700\/16 submitted a copy of four administrative courts\u2019 decisions of 2016 to 2018 declining jurisdiction to examine such a matter. He also provided the following case-law. On 6\u00a0March 2018 the Khmelnytskyy Circuit Administrative Court allowed a prisoner\u2019s complaint against the central commission\u2019s refusal of his request for a transfer to a different prison and obliged it to examine the issue afresh. On 13\u00a0June 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\u2019s appeal on points of law, on 19 November 2018 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\u2019s Grand Chamber allowed that prisoner\u2019s 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.<\/p>\n IV. Relevant statistics<\/strong><\/p>\n 11. The Government provided the statistics of the examination of transfer requests from prisoners by the Ministry of Justice\u2019s 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.<\/p>\n THE LAW<\/strong><\/p>\n I. JOINDER OF THE APPLICATIONS<\/p>\n 12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 13. The applicants complained that, as a result of their placement in remote prisons and the authorities\u2019 rejections of their transfer requests, they had been deprived of the possibility to enjoy visits from their relatives. The applicants relied on Article\u00a08 of the Convention which reads as follows:<\/p>\n \u201c1. Everyone\u00a0has the right to respect for his private and family life\u00a0….<\/p>\n 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.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 1. Application no. 66179\/14 (Panchenko v. Ukraine)<\/em><\/p>\n 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\u2019s observations, he additionally complained about his placement in Kryvyy Rig Prison no. 3.<\/p>\n 15. The Government contested those arguments.<\/p>\n 16. The Court observes that the applicant provided no details regarding his mother\u2019s 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.\u00a031 impossible or unduly difficult. Nor is there any indication that such details were provided to the domestic authorities dealing with the applicant\u2019s transfer requests (contrast Vintman v.\u00a0Ukraine, no. 28403\/05, \u00a7\u00a7 11 and 81, 23 October 2014).<\/p>\n 17. Furthermore, while the Ukrainian authorities did take efforts to reduce the distance between the applicant\u2019s prison and his mother\u2019s place of residence, having proposed him a transfer to Kryvyy Rig Prison no.\u00a03 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).<\/p>\n 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.<\/p>\n 19. It follows that the applicant\u2019s complaint under Article 8 of the Convention should be declared inadmissible as manifestly ill-founded under Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n 2. Application no. 58700\/16 (Sili v. Ukraine)<\/em><\/p>\n 20. The Government submitted that the applicant had failed to exhaust domestic remedies by not having challenged the central commission\u2019s refusal of his transfer request before administrative courts.<\/p>\n 21. The applicant argued that, having regard to the lack of clarity as to the administrative courts\u2019 jurisdiction over the matter, which had existed until the decision of the Supreme Court\u2019s Grand Chamber of 10 April 2019 (see\u00a0paragraph 10 above), the remedy referred to by the Government could not be regarded as effective. He maintained that even thereafter its effectiveness remained limited.<\/p>\n 22. The Court reiterates that the assessment of whether domestic remedies have been\u00a0exhausted 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, \u00a7\u00a047, ECHR 2001\u2011V (extracts)) and Brusco v. Italy (dec.), no. 69789\/01, ECHR 2001\u2011IX). 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.\u00a0Romania, no.\u00a042722\/02, \u00a7 104, 4\u00a0March 2008).<\/p>\n 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\u2019s 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\u2019 transfer to a prison near their close relatives\u2019 place of residence (see paragraph 4 above). Furthermore, as soon as the new procedures had been put in place in 2017 (see\u00a0paragraphs\u00a06-8 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\u2019s decisions.<\/p>\n 24. In sum, the Court considers that the Government\u2019s objection should be rejected. It further notes that this complaint is neither manifestly ill\u2011founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.<\/p>\n 3. Application no. 58829\/16 (Baylo v. Ukraine)<\/em><\/p>\n 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\u2019s 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.<\/p>\n 26. The Government submitted that the applicant\u2019s complaint was unsubstantiated.<\/p>\n 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.<\/p>\n 28. It follows that the applicant\u2019s complaint under Article 8 of the Convention should be declared inadmissible as manifestly ill-founded under Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n 4. Application no. 38002\/17 (Kus v. Ukraine)<\/em><\/p>\n 29. The Court notes that this complaint is neither manifestly ill\u2011founded\u00a0nor inadmissible on any other grounds\u00a0listed in Article 35 of the Convention. It must therefore be declared admissible.<\/p>\n B. Merits (applications nos. 58700\/16 (Sili v. Ukraine) and 38002\/17 (Kus v. Ukraine)<\/p>\n 30. The applicants maintained their complaints.<\/p>\n 31. The Government argued that there had been no violation of the applicants\u2019 rights.<\/p>\n 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, \u00a7\u00a7 76-104) and Rodzevillo v. Ukraine (no. 38771\/05, \u00a7\u00a7 83-87, 14 January 2016). It considers that, like in the cited cases, there was an interference with the applicants\u2019 right to respect for their\u00a0family life under Article 8 of the Convention, that it was \u201cin accordance with the law\u201d and pursued a legitimate aim of prevention of prison overcrowding (see Vintman, \u00a7\u00a7\u00a076\u201199, and Rodzevillo, \u00a7\u00a7 83-84, both cited above).<\/p>\n 33. In examining whether the interference was also \u201cnecessary in a democratic society\u201d within the meaning of Article\u00a08\u00a0\u00a7\u00a02 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\u2019 and their relatives\u2019 arguments concerning their personal situation. The circumstances giving rise to the applicants\u2019 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\u00a0\u00a7\u00a7\u00a0100\u2011104) and Rodzevillo (also cited above, \u00a7\u00a7 85-87). The legal assessment of the relevant facts in cases cited above is equally pertinent to the cases at issue.<\/p>\n 34. There has therefore been a violation of Article\u00a08 of the Convention.<\/p>\n III. ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION in respect of applications nos. 66179\/14, 58829\/16 and 38003\/17 (PANCHENKO V. UKRAINE, BAYLO v.\u00a0UKRAINE AND kus v. UKRAINE)<\/p>\n 35. Relying on Articles 6 \u00a7 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\u00a08 complaint.<\/p>\n 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\u00a013 being absorbed by the more stringent requirements of Article 6 (see, for example, Baka v. Hungary [GC], no.\u00a020261\/12, \u00a7\u00a0181, 23 June 2016). It follows that the Court will only examine the applicants\u2019 complaints under\u00a0Article 6\u00a0\u00a7\u00a01 (see Can\u00e8 and Others v. Malta (dec.), no. 24788\/17, \u00a7\u00a7 43-44, 13 April 2021, with further case-law references). The relevant part of this provision reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 1. Application no. 66179\/14 (Panchenko v. Ukraine)<\/em><\/p>\n 37. The Court will examine the compatibility of this complaint ratione\u00a0materiae with the provisions of Article 6 \u00a7 1 of the Convention, even though the Government did not raise any objection in that regard (see Ble\u010di\u0107\u00a0v.\u00a0Croatia [GC], no.\u00a059532\/00, \u00a7 67, ECHR\u00a02006-III).<\/p>\n 38. The Court notes that the criminal limb of Article 6 of the Convention is not applicable in the present cases, since the applicant\u2019s attempt to get access to a court did not concern the determination of any criminal charge against him. For Article\u00a06\u00a0\u00a7 1 in its \u201ccivil\u201d limb to be applicable, there must be a genuine and serious dispute over a\u00a0right\u00a0that 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, \u00a7 90, ECHR 2012).<\/p>\n 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\u00a0Article 6\u00a0\u00a7 1 is applicable (see, for example, Mediation Berti Sports v. Turkey (dec.), no.\u00a063859\/12, 12\u00a0May 2020) .<\/p>\n 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\u2019 place of residence (see paragraph 4 above), there was no right to serve a sentence in one particular prison of one\u2019s choice.<\/p>\n 41. This complaint is therefore incompatible ratione\u00a0materiae with the provisions of the Convention within the meaning of Article 35\u00a0\u00a7\u00a03 (a) and must be rejected, in accordance with Article 35\u00a0\u00a7\u00a04.<\/p>\n 2. Application no. 58829\/16 (Baylo v. Ukraine)<\/em><\/p>\n 42. The Court notes that the courts of three levels of jurisdiction examined the applicant\u2019s 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\u00a035 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n 3. Application no. 38002\/17 (Kus v. Ukraine)<\/em><\/p>\n 43. The Court notes that this complaint is neither manifestly ill\u2011founded\u00a0nor inadmissible on any other grounds\u00a0listed in Article 35 of the Convention. It must therefore be declared admissible.<\/p>\n B. Merits (application no. 38002\/17) (Kus v. Ukraine)<\/strong><\/p>\n 44. The applicant maintained his complaint.<\/p>\n 45. The Government disagreed, with the reference to the domestic case\u2011law (see paragraph 9 above) and to the legislative amendments of 2017 (see paragraphs 6-8 above).<\/p>\n 46. The Court refers to the general principles\u00a0on\u00a0access to a court, as set out in the case of\u00a0Zubac v. Croatia\u00a0([GC],\u00a0no.\u00a040160\/12, \u00a7\u00a7 76-82, 5 April 2018).<\/p>\n 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\u2019s claim, it was never examined on the merits (see the appended table). In the Court\u2019s view, such a situation amounted to a denial of justice impairing the very essence of the applicant\u2019s right of access to a court, as secured by Article 6 \u00a7 1 of the Convention (compare Tserkva Sela Sosulivka v. Ukraine, no. 37878\/02, \u00a7\u00a7 51-53, 28 February 2008).<\/p>\n 48. There has therefore been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION in respect of application no. 58700\/16 (SILI v. UKRAINE)<\/p>\n 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:<\/p>\n \u201cEveryone 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.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 50. The Court notes that this complaint is neither manifestly ill\u2011founded\u00a0nor inadmissible on any other grounds\u00a0listed in Article 35 of the Convention. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 51. The applicant noted he had taken all possible administrative steps for obtaining a transfer to a prison closer to his daughter\u2019s 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.<\/p>\n 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\u2019 transfer requests by the Ministry of Justice\u2019s central commission (see paragraph 11 above) and the domestic judicial decisions allowing prisoners\u2019 claims against the aforementioned commission (see paragraph\u00a09 above).<\/p>\n 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, \u00a7\u00a7 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\u2019 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.<\/p>\n 54. The Court therefore considers that there has been a violation of Article\u00a013 of the Convention.<\/p>\n V. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION (cases nos. 58700\/16 and 38002\/17) (SILI v. UKRAINE and KUS v.\u00a0UKRAINE)<\/p>\n 55. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n 56. Mr Sili claimed 1,100,000 euros (EUR) in respect of non\u2011pecuniary damage and EUR 3,450 in respect of costs and expenses, whereas Mr Kus claimed EUR\u00a020,000 and EUR 2,500 under those heads.<\/p>\n 57. The Government considered those claims unjustified and excessive.<\/p>\n 58. Ruling on an equitable basis, the Court awards Mr Sili and Mr Kus EUR 3,000 each in respect of non-pecuniary damage.<\/p>\n 59. The Court also considers it reasonable to allow in full Mr Kus\u2019s claim for costs and expenses and awards him EUR\u00a02,500 under this head, to be transferred directly to the account of the applicant\u2019s lawyer Ms\u00a0Ovdiienko. In so far as Mr Sili\u2019s claim for costs and expenses is concerned, the Court awards him EUR\u00a01,650 (which is equal to EUR\u00a02,500 less EUR\u00a0850, the sum received by way of\u00a0legal aid\u00a0\u2013\u00a0see\u00a0the appended table), to be paid into Mr\u00a0Tarakhkalo\u2019s\u00a0bank account, as indicated by the applicant.<\/p>\n 60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Decides to join the applications;<\/p>\n 2. Declares the complaints under Articles 8 and 6 \u00a7 1 of the Convention in applications nos. 66179\/14 and 58829\/16 inadmissible and in application no. 38002\/17 admissible;<\/p>\n 3. Declares the complaints under Articles 8 and 13 of the Convention in application no. 58700\/16 admissible;<\/p>\n 4. Holds that there has been a violation of Article 8 of the Convention in applications nos. 58700\/16 and 38002\/17;<\/p>\n 5. Holds that there has been a violation of Article 6 \u00a7 1 of the Convention in application no. 38002\/17;<\/p>\n 6. Holds that there has been a violation of Article 13 of the Convention in application no. 58700\/16;<\/p>\n 7. Holds<\/p>\n (a) that the respondent State is to pay, within three months, the following amounts, plus any taxes that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i) to Mr Sili and Mr Kus EUR 3,000 (three thousand euros) each, in respect of non-pecuniary damage;<\/p>\n (ii) to Mr Sili EUR 1,650 (one thousand six hundred and fifty euros), in respect of legal costs before the Court, to be paid into the bank account of the applicant\u2019s representative Mr\u00a0Tarakhkalo;<\/p>\n (iii) to Mr Kus EUR 2,500 (two thousand five hundred euros), in respect of legal costs before the Court, to be paid into the bank account of the applicant\u2019s representative Ms\u00a0Ovdiienko;<\/p>\n (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 8. Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 14 October 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Martina Keller \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0L\u0259tif H\u00fcseynov ____________<\/p>\n APPENDIX<\/strong><\/p>\n <\/p>\n On 27 December 2017 the central commission of the Ministry of Justice, a newly created authority in charge of dealing with prisoners\u2019 transfer requests, rejected the applicant\u2019s request for a transfer to a prison close to Nikopol, for the absence of legal grounds. The applicant did not challenge that refusal before courts.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n <\/p>\n <\/p>\n ____________<\/p>\n 1.\u00a0In May 2016 the State Prisons Service was liquidated and the Ministry of Justice took over its functions.
\nLado Chanturia,
\nMattias Guyomar, judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n\n\n
\n 1. Application no.\u00a066179\/14<\/strong>
\nby
\nAndrey Alekseyevich Panchenko<\/strong>
\nBorn in 1975
\nRepresented by Ms H. Ovdiienko, a lawyer practising in Kharkiv (the applicant was granted legal aid)
\nLodged on 19 September 2014<\/td>\n<\/tr>\n\n Beginning of the life sentence<\/strong><\/td>\n Prison concerned<\/strong><\/td>\n Family\u2019s place of residence<\/strong><\/td>\n Distance from prison<\/strong><\/td>\n Period<\/strong><\/td>\n<\/tr>\n \n 2002<\/td>\n Novgorod-Siverskyy Prison no.\u00a031 (with a brief period in Buchanska Prison no. 85)<\/td>\n Gorlivka and Slovyansk, both in the Donetsk region (the applicant\u2019s mother moved from Gorlivka to Slovyansk in December 2014).<\/td>\n About 750 km;
\nabout 600 km<\/td>\nFrom July 2012 to June 2015<\/td>\n<\/tr>\n \n Steps taken at the domestic level and other relevant facts<\/strong><\/td>\n<\/tr>\n \n The applicant and his mother lodged numerous requests for his transfer to a prison closer to his hometown, mainly arguing that that was a legal requirement. It appears that on one occasion they also mentioned, in broad terms, that the applicant\u2019s mother had frail health. Having rejected several such requests, in particular, given the absence of free places in any prison in the Donetsk and Lugansk regions, on 2\u00a0December 2013 the State Prisons Service informed the applicant that he could apply for a transfer to Kryvyy Rig Prison no. 3, which was considerably closer to his mother\u2019s place of residence than Novgorod-Siverskyy Prison no.\u00a031 (about 400 km instead of 750 km). The applicant objected for unknown reasons. On 30 January 2014 he applied to the Novgorod-Siverskyy Town Court for his transfer to Slovyanoserbsk Prison no.\u00a060 as the closest prison to his mother\u2019s home. He emphasised that no other prison could be envisaged for his transfer. On 5\u00a0February 2014 that court dismissed the application as not falling within its competence. That decision was upheld by the higher-level courts.
\nOn 24 June 2015 the applicant was transferred to Kryvyy Rig Prison no.\u00a03, allegedly contrary to his will. He did not inform the Court about that event until submitting his reply to the Government\u2019s observations.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n\n\n
\n 2. Application no.\u00a058700\/16<\/strong>
\nby
\nNikolay Yevdokimovich Sili<\/strong>
\nBorn in 1958
\nRepresented by Mr\u00a0M.\u00a0Tarakhkalo and Ms\u00a0A.\u00a0Kozmenko, lawyers practising in Kyiv (the applicant was granted legal aid)
\nLodged on 11 November 2016<\/td>\n<\/tr>\n\n Prisons concerned<\/strong><\/td>\n Family\u2019s place of residence<\/strong><\/td>\n Distance from prisons<\/strong><\/td>\n Period<\/strong><\/td>\n<\/tr>\n \n Romny Prison no.\u00a056 and the Sumy SIZO (not counting a brief interval for medical treatment in a different prison)<\/td>\n Nikopol, Dnipropetrovska region<\/td>\n About 500 km<\/td>\n Since March 2009<\/td>\n<\/tr>\n \n Steps taken at the domestic level and other relevant facts<\/strong><\/td>\n<\/tr>\n \n The applicant and his daughter lodged numerous requests with the prison authorities for his transfer closer to Nikopol, notably in 2014 and 2016. They observed, in particular, that there was no direct bus or train connection between Nikopol and Romny (or Sumy) and that the journey took\u00a0some twenty-four hours one way and was financially burdensome for the applicant\u2019s daughter and her family. In 2010 and 2013 the applicant\u2019s grandchildren were born, whom he had never seen. Those requests were consistently rejected on the grounds that, firstly, there was a legal requirement that a convicted prisoner was to serve\u00a0his\u00a0entire\u00a0prison\u00a0sentence in the same\u00a0establishment\u00a0unless exceptional circumstances warranted\u00a0his transfer, and, secondly, given the absence of\u00a0available prison\u00a0places.<\/p>\n \n\n
\n 3. Application no.\u00a058829\/16<\/strong>
\nby
\nOleg Grygorovych Baylo<\/strong>
\nBorn in 1975
\nRepresented by O. Sapozhnikova, a lawyer practising in Kyiv
\nLodged on 3 September 2015<\/td>\n<\/tr>\n\n Prison concerned<\/strong><\/td>\n Family\u2019s place of residence<\/strong><\/td>\n Distance from prison<\/strong><\/td>\n Period<\/strong><\/td>\n<\/tr>\n \n Novgorod-Siverskyy Prison no. 31 (with a brief period, in May 2013, in the Chernigiv SIZO)<\/td>\n Lviv region<\/td>\n About 900 km<\/td>\n Since April 2012<\/td>\n<\/tr>\n \n Steps taken at the domestic level and other relevant facts<\/strong><\/td>\n<\/tr>\n \n On 23 April 2012 the applicant applied to the State Prisons Service for a transfer to a prison in the Vinnytsia or Zhytomyr region, where his mother, who lived in the Lviv region and who was seriously ill, could visit him. The applicant emphasised that he had no other relatives.
\nOn 28 April 2012 the applicant\u2019s mother died.
\nOn 23 May 2012 the State Prisons Service replied to the applicant that there were no grounds for granting his request.
\nIn June 2012 the applicant lodged an administrative claim against the prison authorities complaining of their unlawful inactivity in so far as the failure to transfer him to a different prison was concerned and raising numerous other, unrelated, complaints. He argued that he should be transferred to the Vinnytsia or Zhytomyr region, so that he could \u201crestore the lost social connections with the people to whom [his] destiny was not indifferent and who were willing to help [him] financially and morally\u201d. The courts of three levels of jurisdiction rejected his claim as unfounded.
\nIn May 2017 the applicant got married. His wife lives in the Lviv region. The applicant informed the Court about this event in his reply to the Government\u2019s observations of 12\u00a0November 2020.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n\n\n
\n 4. Application no.\u00a038002\/17<\/strong>
\nby
\nPavlo Mykolayovych Kus<\/strong>
\nBorn in 1978
\nRepresented by Ms H. Ovdiienko, a lawyer practising in Kharkiv
\nLodged on 18 May 2017<\/td>\n<\/tr>\n\n Prisons concerned<\/strong><\/td>\n Hometown \/ the family\u2019s place of residence<\/strong><\/td>\n Distance from prisons<\/strong><\/td>\n Period<\/strong><\/td>\n<\/tr>\n \n Yenakiyeve Prison no. 52 and
\nArtemivsk (renamed to Bakhmut in February 2016) Prison no. 6, both in the Donetsk region.<\/td>\nTernopil<\/td>\n About 1,200\u00a0km<\/td>\n From September 2004 to September 2017<\/td>\n<\/tr>\n \n Steps taken at the domestic level and other relevant facts<\/strong><\/td>\n<\/tr>\n \n According to the applicant, his mother visited him in prison only once, in April 2005, whereas his father never visited him. The applicant and his parents lodged numerous requests with the prison authorities for his transfer closer to his hometown. They referred, in particular, to the excessive length of the journey (more than nineteen hours one way) in the absence of direct transport connection, as well as to various health problems of the applicant\u2019s parents. More specifically, they pointed out that his mother was suffering from diabetes and had a disability on account of her hypertension and heart-related health concerns, whereas the applicant\u2019s father was suffering from tuberculosis, had almost completely lost his hearing and could not move on his own. Those requests were consistently rejected on the grounds that, firstly, there was a legal requirement that a convicted prisoner was to serve his entire prison sentence in the same establishment unless exceptional circumstances warranted his transfer, and, secondly, given the absence of available prison places. The applicant unsuccessfully tried to challenge those refusals before the courts: the administrative courts declined jurisdiction on the grounds that the matter was to be examined before the general courts under the criminal procedure, whereas the latter refused to open proceedings considering that the issue fell within the administrative courts\u2019 competence. As soon as the Prison Department\u2019s central commission became operational (see the \u201cRelevant legal framework\u201d), the applicant applied to it for his transfer closer to his home. On an unspecified date his request was granted and on 5\u00a0September 2017 the applicant was transferred to Chortkiv prison no.\u00a026 in the Ternopil region, about 75 km from his hometown. By that time, in April 2016, his mother had died.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\n2.\u00a0It entered into force on 10 March 2017 and was subsequently amended on several occasions.<\/p>\n