CASE OF IVAN KARPENKO v. UKRAINE (No. 2)

FIFTH SECTION

CASE OF IVAN KARPENKO v. UKRAINE (No. 2)

(Application no. 41036/16)

JUDGMENT
 

STRASBOURG

24 April 2025

FINAL

24/07/2025

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 (no. 2),

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

 Mattias Guyomar, President,
 Armen Harutyunyan,
 Stéphanie Mourou-Vikström,
 Andreas Zünd,
 Diana Sârcu,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 41036/16) 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 25 June 2016;

the decision to give notice to the Ukrainian Government (“the Government”) of the application;

the parties’ observations;

Having deliberated in private on 18 March 2025,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the complaints of the applicant, a prisoner, that prison authorities had unlawfully monitored his correspondence and that, when he lodged a complaint with the courts in that connection, the domestic courts had failed to ensure that he could participate via videolink in the hearings of his case and to adequately reason their decisions. The applicant relied mainly on Articles 6 and 8 of the Convention.

THE FACTS

2.  The applicant was born in 1973 and is detained in Perekhrestivka in the Sumy Region. The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo, Mr O. Levytskyy and Ms A. Kozmenko, lawyers practising in Kyiv.

3.  The Government were represented by their Agent, Ms M. Sokorenko, of the Ministry of Justice.

4.  The facts of the case may be summarised as follows.

5.  The applicant has been serving a life sentence since 2004.

6.  In May 2014 the applicant handed an envelope to the prison personnel of Romny Prison no. 56 (“the prison”) that was to be sent to the Higher Administrative Court (“HAC”); the envelope contained documents concerning a previous dispute with the prison about his correspondence. The applicant submitted that the envelope was sealed.

7.  The relevant page of the prison correspondence records, a copy of which was provided to the Court by the Government, contains the following entry:

197

21.05.14.  

Karpenko I.I.

signature

High Administrative Court of Ukraine (request to add to the file copies of judicial decisions being appealed against)

8.  The relevant page also contains fourteen other records of correspondence to or from the courts for the period from 5 May to 3 June 2014, ten of them concerning the applicant. Some of the entries indicate the name of the court only, others also briefly state the content of the correspondence (statement of claim, statement of appeal and so on).

9.  The prison administration sent a cover letter to the HAC with the applicant’s above-mentioned correspondence, in which it stated the number of the applicant’s appeal and the number of enclosed pages. According to the applicant, this indicated that the prison administration had, in breach of the law, opened and reviewed his sealed correspondence.

10.  In September 2014 the applicant lodged an administrative complaint against the prison administration seeking that the monitoring of his correspondence with the HAC be declared unlawful and to be compensated in respect of non-pecuniary damage. The applicant also requested the court to examine his case via videolink. He had no representative in the proceedings. He did not ask to participate in the hearing physically (to be transported to the courtroom for the hearing). In his statement of claim and appeals the applicant asked to be exempted from court fees on the grounds that he did not have any income, did not work (according to him, due to the prison authorities’ failure to provide him with work) and did not have any funds on his prison account. He submitted certificates from the prison authorities in support of that request.

11.  The Sumy Circuit Administrative Court rejected the applicant’s requests to be heard via videolink, reasoning that, at the relevant time, the relevant provision of the Code of Administrative Justice (see paragraph 16 below) did not provide for participation in an administrative court hearing via videolink from a prison, and that the provisions of the Code of Criminal Procedure allowing for such participation could not be applied by analogy.

12.  The Sumy Circuit Administrative Court examined the case in a public hearing in which representatives of the prison administration took part and made oral submissions. It dismissed the applicant’s claim.

13.  In his appeal the applicant asked the Kharkiv Administrative Court of Appeal to examine his case via videolink. The Court of Appeal rejected that request. It confirmed the first-instance court’s interpretation (see paragraph 11 above) to the effect that the Code of Administrative Justice of Ukraine required that a person wishing to participate in a hearing via videolink had to come, on their own, to the courthouse from which the videolink were to be organised.

The Court of Appeal quoted the following passage from § 64 of the Court’s judgment in Roman Karasev v. Russia (no. 30251/03, § 64, 25 November 2010):

“64.  As to the applicant’s own presence at the civil hearing, the Court observes that the Russian legislation provided for a party’s right to an oral hearing... The Russian law, however, did not provide for bringing detainees to the courthouse in civil proceedings. However, Article 6 of the Convention does not guarantee the right to personal presence before a civil court but rather a more general right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants these rights...”

The Court of Appeal stated that, similarly to the Russian legislative framework discussed in Roman Karasev, the Code of Administrative Justice of Ukraine did not provide for the participation of imprisoned parties in court hearings. At the same time the prisoners had other means of effective participation in cases: the right to participate through a representative, to make written submissions and to ask the court to collect any evidence if that evidence could not be provided by the party.

14.  The Court of Appeal upheld the lower court’s judgment. Both courts confirmed that no monitoring of the correspondence in question was allowed under the law and referred to the relevant regulations governing how correspondence exempt from monitoring should be handled (see paragraphs 18-19 below). The courts observed that the correspondence the applicant had given to the prison administration on the relevant day had been registered in the correspondence register as correspondence to a court rather than as a “sealed envelope”, from which the courts concluded that it had been the applicant himself who had failed to submit his correspondence in a sealed envelope.

15.  The applicant appealed but on 24 December 2015 the HAC upheld the lower courts’ decisions, summarising their reasoning and stating that the applicant had not put forward any arguments which would put their findings in doubt.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

16.  Article 122-1 of the Code (as worded at the time) authorised administrative courts to order that a hearing be held via videolink. Paragraph 2 of the Article required that the party seeking to participate via videolink indicate the courthouse from which he or she wished to take part in the hearing. Paragraph 5 required that the ruling of the court ordering that a hearing be held using video-conferencing be sent to the court from which access to the video-conference would be provided.

17.  A new version of the Code was enacted on 3 October 2017, regulating the relevant matters in its Article 195. Most recently amended on 23 May 2024, it provides that parties can, if they so request and provided certain conditions are met, participate in hearings via videolink from the premises of another court or from a different location.

18.  Article 113 of the Code (as worded at the time of the events) prohibited the monitoring of prisoners’ correspondence with domestic courts, as well as correspondence with this Court, prosecutors and the Ukrainian Parliament Commissioner for Human Rights.

19.  Section II.5 of the Instruction provided that correspondence to addressees exempt from monitoring had to be personally sealed by prisoners in envelopes (with the addressee indicated). If the sender did not have an envelope, the administration of the facility had to provide the prisoner with an envelope and a postal stamp. Such correspondence had to be registered in the relevant prison correspondence register with the comment “sealed envelope”.

20.  In that case, the Constitutional Court examined a complaint by an incarcerated individual who argued that the domestic authorities did not have a unified approach when resolving issues as to the possibility of detainees appearing in civil proceedings. It provided an official interpretation of the constitutional provisions guaranteeing the principle of equality and of judicial protection of rights and declared that incarcerated individuals had equal rights with other individuals to participation in the examination of their cases in courts of all jurisdictions, specialisations and levels.

THE LAW

21.  The applicant complained that the domestic courts failed to grant him the right to participate in hearings via videolink and to adequately reason their decisions on that subject. He relied on Articles 6 and 13 of the Convention, which read, insofar as relevant, as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“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.”

22.  Being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), the Court finds it appropriate to examine these complaints under Article 6 § 1 of the Convention.

23.  The Government argued that the applicant’s complaint was manifestly ill-founded. They submitted that the domestic courts’ decisions were sufficiently reasoned. The courts had come to the reasonable conclusion that the applicant’s absence from the court hearings would not infringe his rights. The applicant had failed to indicate how his presence would have affected the outcome of his case or which evidence or arguments of his had not been properly evaluated.

24.  The applicant submitted that the domestic courts acted with excessive formalism dismissing his requests to allow his participation by videolink. He pointed out that in some of the other cases he had brought against the prison authorities the courts had agreed to hold hearings in which he participated via videolink – in those cases the courts had applied by analogy in administrative proceedings the rules of the Code of Criminal Procedure which, at the relevant time, allowed participation via videolink not only from courthouses but also from other locations, including prisons. The applicant also provided examples of domestic decisions by which administrative courts had ordered the examination of cases brought by other prisoners with their participation by videolink from prisons: Poltava Circuit Administrative Court, 6 December 2013, case no. 816/6621/13-a; Kyiv City Circuit Administrative Court, 31 January 2014, case no. 826/19758/13-a; Menskyi District Court of Chernigiv Region, 13 November 2015, case no. 738/1232/15-a; and High Administrative Court, 26 November 2015, case no. 800/357/15.

25.  The applicant had not been represented by a lawyer. He did not fall into the category of persons entitled to free legal aid under the legislation in force at the time. The applicant had not had financial means to hire a private lawyer, as he did not work nor had any other income. For this reason he had asked to be exempted from court fees (see paragraph 10 above).

26.  The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.  The Court concludes therefore that this part of the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

(a)   General principles

27.  The Court reiterates that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a “fair hearing” within the meaning of Article 6 § 1 of the Convention (see Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017). They require a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent or opponents (see Andrejeva v. Latvia [GC], no. 55707/00, § 96, ECHR 2009). Moreover, the parties must be given the opportunity to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (see Kress v. France [GC], no. 39594/98, §§ 65 and 74, ECHR 2001‑VI).

28.  As regards the form of proceedings, the right to a “public hearing” under Article 6 § 1 has been interpreted in the Court’s established case-law to include entitlement to an “oral hearing”. Nevertheless, the obligation under this Article to hold a hearing is not an absolute one. An oral hearing may not be necessary due to the exceptional circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties’ written observations. Also, provided that an oral hearing has been held at first instance, a less strict standard applies to the appellate level, at which the absence of such a hearing may be justified by the special features of the proceedings at issue. Thus, leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, even if the appellant was not given an opportunity of being heard in person by the appeal or cassation court (see Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, § 23, 16 February 2016, with further references).

29.  In cases where the applicant was in custody, the Court has accepted that, in view of the obvious difficulties involved in transporting prisoners from one location to another, representation of the detained applicant by a lawyer would not be in breach of the principle of equality of arms provided that the claim was not based on the applicant’s personal experience (ibid., § 24, with further references).

30.  By contrast, the personal participation of the litigant was held to be necessary from the standpoint of Article 6 in cases where the character and way of life of the person concerned was directly relevant to the subject matter of the case or where the decision involved the person’s conduct or experience. The Court thus found a violation of Article 6 in cases in which the nature of the civil dispute was such as to justify the claimant’s personal presence before the court, irrespective of whether or not he had been represented at the hearing (ibid., § 25, with further references).

(b)   Application of the above principles to the present case

31.  In the present case an oral and public hearing was held before the first-instance court. The applicant did not take part in it. This was the result of the domestic courts’ refusal to allow his participation by videolink (based on the supposed absence in the domestic law, as it stood at the time, of a provision for participation by videolink from prison) and, apparently, lack of legal framework for the participation of imprisoned litigants in hearings in civil cases in general (see paragraphs 11 and 13 above).

32.  The Court notes that the applicant was not represented in the proceedings. His submissions to the courts concerning his financial situation indicated that he had no means to retain a lawyer (see paragraph 10 above). Those submissions were not contested. It has also not been contested that the applicant had no access to legal aid (see paragraph 25 above).

33.  The Court has previously held, in cases of incarcerated litigants whose presence at their hearings was not secured, that to ensure compliance with the requirements of Article 6 the domestic courts must conduct a comprehensive analysis of the nature of the dispute. Such an analysis should determine whether the nature of the dispute is such as to require the incarcerated litigant’s appearance before the bench (see Yevdokimov and Others, cited above, §§ 33 and 35,). The Court expects the analysis to go beyond a reference to any deficiencies in the legal framework which might render the attendance of the incarcerated litigant impossible. Instead, it must take into account the concrete reasons for and against the litigant’s presence, interpreted in the light of the Convention requirements and all the relevant factors, such as the nature of the dispute and the civil rights concerned (ibid., § 38).

34.  If the claim is based largely on the detainee’s personal experience, his or her oral submissions to the court would be an important part of his or her presentation of the case and virtually the only way to ensure adversarial proceedings. In such circumstances, obvious solutions would be to conduct the proceedings at the place where the claimant is being detained, or to use a videolink (ibid., § 42, with further references).

35.  The Court considers that a similar approach was called for in the present case. However, the decisions of the domestic courts reveal that they did not consider whether the nature of the dispute necessitated the applicant’s attendance to ensure the overall fairness of the proceedings. The courts refused the applicant’s requests to participate in the hearing via videolink by relying on the absence of relevant legislative rules and reasoning that there was no possibility for a party to take part via videolink from anywhere but a courthouse.

36.  The applicant contested those findings as to the state of domestic legal framework and practice at the time. He provided the Court with four examples of domestic decisions by which administrative courts (including the HAC), in the period from 2013 to 2015, had ordered the examination of cases brought by prisoners with their participation by videolink from prisons (see paragraph 24 above). The Court also notes that the interpretation adopted by the courts in the present case appears to be at odds with the decision of the Constitutional Court of Ukraine of 12 April 2012, which declared that incarcerated individuals had equal rights with other individuals to participation in the examination of their cases in courts of all jurisdictions, specialisations and levels (see paragraph 20 above).

37.  Even if the Court were to accept the interpretation adopted by the domestic courts, a supposed lacuna in the domestic law cannot be a justification for failing to give full force to the Convention standards (see Yevdokimov and Others, cited above, § 31).

38.  In the present case, the matter before the courts concerned a factual dispute between the applicant and the prison administration over the circumstances in which his correspondence to the HAC had been handed over to them, a question on which the applicant’s personal experience of the situation was important.

39.  By failing to properly assess the nature of the case brought by the applicant with a view to deciding whether his presence, possibly via videolink, was indispensable and by focussing instead on perceived deficiencies in the domestic law, the domestic courts deprived the applicant of the opportunity to present his case effectively.

40.   Moreover, the prison administration had the advantage of being present at the hearing before the first-instance court and of making oral submissions on the substance of the case, notably the facts, aimed at refuting the applicant’s version of events (see paragraph 12 above) whereas the applicant, who was in prison, had no opportunity to respond to those oral submissions, either in person or through a representative. There was, therefore, also a breach of the principle of equality of arms in the proceedings (see Vardanyan and Nanushyan v. Armenia, no. 8001/07, §§ 88-90, 27 October 2016).

41.  There has, therefore, been a violation of Article 6 § 1 of the Convention.

42.  The applicant complained that the prison authorities had unlawfully monitored his correspondence as provided in Article 8 of the Convention, which reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

43.  The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

44.  The applicant complained that there had been unlawful monitoring of his correspondence of 21 May 2014 with the domestic court. The applicant submitted a number of court decisions from 2012 to 2020 in which, in similar cases, the courts had ruled in his favour and found that there had been unlawful monitoring of his correspondence. For example: (i) in a case about an incident that had occurred in 2009, the Romny Court held on 13 November 2012 that, in accepting a letter from the applicant to this Court that had not been placed in a sealed envelope, the prison authorities had breached the relevant regulations; (ii) in a case about an incident in May 2014 (that involved a letter to the Higher Specialised Civil and Criminal Court) the Kharkiv Administrative Court of Appeal held, on 28 October 2015, that the prison administration had acted unlawfully in accepting from the applicant a letter to the Higher Specialised Court that was not in a sealed envelope as, under the relevant regulations, prisons should only accept sealed correspondence to the courts. Even if the applicant had not had an envelope it had been up to the administration to provide him with one.

45.  The Government submitted that the domestic courts had duly examined the matter and had found the applicant’s allegations to be unfounded. They contended that the applicant himself had submitted the unsealed correspondence. They considered that that was shown by the relevant registry entry which did not contain the comment “sealed envelope”.

46.  The Court reiterates that any “interference by a public authority” with the right to respect for correspondence will contravene Article 8 of the Convention unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article and is “necessary in a democratic society” in order to achieve them (see Enea v. Italy [GC], no.  74912/01, § 140, ECHR 2009, and Glinov v. Ukraine, no. 13693/05, § 54, 19 November 2009).

47.  The Court notes that the parties disputed the relevant facts. The applicant alleged that he had handed a sealed envelope to the administration, which had subsequently been unsealed and its content examined by the prison administration without his knowledge. The prison administration claimed that the applicant had handed the letter to prison staff unsealed. For the domestic courts and the Government, the fact that the applicant had signed the relevant entry in the correspondence register, which summarised the content of his correspondence rather than simply recorded it as a “sealed envelope”, meant that he was responsible for the situation.

48.  However, the Court does not need to resolve the factual issue (as framed by the domestic courts and the Government) of whether the applicant handed over the correspondence sealed or unsealed.

49.  It is sufficient for the Court to observe that, as held by the domestic courts in a number of other disputes involving the applicant (see paragraph 44 above), it was the responsibility of the prison administration to ensure that the relevant domestic regulations were respected by its officials and, if needed, by the applicant. According to those regulations, correspondence to addressees exempt from monitoring (such as, in the present case, domestic courts) had to be submitted by the prisoners sealed and had to be registered as a “sealed envelope”. No explanation has been provided to the Court as to why the administration did not return the unsealed correspondence to the applicant rather than proceeding to record its contents in the correspondence register. None of the entries concerning correspondence with the court in the relevant register contained the required “sealed envelope” comment (see paragraph 7 above).

50.  The Court also notes that the administration’s cover letter to the HAC also contained information additional to that contained in the entry in the register that was signed by the applicant, namely the appeal number and the number of pages (see paragraph 9 above).

51.  The Court has previously, on many occasions, found a violation of Article 8 in view of the content of similar cover letters which disclosed the fact that prison officials had reviewed the content of prisoners’ correspondence (see Glinov, cited above, §§ 27, 60 and 61; Trosin v. Ukraine, no. 39758/05, §§ 55-56, 23 February 2012; and also compare, for illustrative purposes, Bosyy v. Ukraine [Committee], no. 13124/08, §§ 49-54, 22 November 2018; Burgazly v. Ukraine [Committee], no. 41920/09, §§ 64‑69, 21 March 2019; and Vasilenko v. Ukraine [Committee], no. 70777/12, §§ 8-10, 13 January 2022).

52.  The Court sees no reason to reach a different conclusion in the present case. It follows that the prison administration breached the legal ban on monitoring prisoners’ correspondence with domestic courts.

53.  There has accordingly been a violation of Article 8 of the Convention.

54.  Article 41 of the Convention provides:

“If 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.”

55.  The applicant claimed 20,000 euros (EUR) in respect non-pecuniary damage.

56.  The Government contested the above claims as unsubstantiated.

57.  The Court, having regard to its case-law (see Glinov, cited above, § 86), holds that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.

58.  The applicant also claimed EUR 4,925 for the costs and expenses incurred before domestic courts and this Court, to be paid directly to the representatives.

59.  The Government contested the claims, considering them unsubstantiated.

60.  Having regard to the documents in its possession, the Court rejects the claim in respect of costs in so far as it relates to the domestic proceedings. It finds it reasonable to award the sum of EUR 800 in respect of costs incurred in the proceedings before the Court (which is equal to EUR 1,650 less EUR 850, the sum received by Mr Tarakhkalo by way of legal aid), to be paid directly into the bank account of the applicant’s representative Mr O. Levytskyy.

61.  The Court further 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the account of the applicant’s lawyer Mr O. Levytskyy;

(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;

Done in English, and notified in writing on 24 April 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Mattias Guyomar
 Deputy Registrar President