CASE OF KHAMASTKHANOVA AND OTHERS v. RUSSIA (European Court of Human Rights) Applications nos. 1164/12 and 20 others – see appended list

Last Updated on July 8, 2021 by LawEuro

THIRD SECTION
CASE OF KHAMASTKHANOVA AND OTHERS v. RUSSIA
(Applications nos. 1164/12 and 20 others – see appended list)
JUDGMENT
STRASBOURG
8 July 2021

This judgment is final but it may be subject to editorial revision.

In the case of Khamastkhanova and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 17 June 2021,

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

PROCEDURE

1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The Russian Government (“the Government”) were given notice of the applications.

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the allocation or transfer to a remote penal facility irrespective of family life considerations. Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

I. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. as to locus standi of the applicants, applications nos. 1164/12 and 57234/18

A. Application no. 1164/12

6. The Court notes that it is clear from the materials submitted by the Government that at least, as of 2010, the first applicant Ms Khamastkhanova was no longer married to the second applicant Mr Bashtayev who had been married to a Ms Mer during the period under consideration. In the absence of any evidence to the contrary, the first applicant cannot be said to have had any family life with Mr Bashtayev within the meaning of Article 8 of the Convention after their divorce. The Court accordingly finds the complaint lodged by the first applicant, Ms Khamastkhanova, to be incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be rejected pursuant to Article 35 § 4 of the Convention.

7. The Court further notes that the third applicant Ms Bashtaeyeva died on 24 February 2020 and that no heirs or other persons have expressed the wish to pursue the application before the Court on her behalf. The Court finds no special circumstances regarding respect for human rights which require the continued examination of the complaint lodged by Ms Bashtayeva and considers it appropriate to strike this part of the application out of its list of cases under Article 37 § 1 (c) of the Convention.

B. Application no. 57234/18

8. The Court notes that the first applicant Mr Tolmachev died on 9 November 2020 and that the second applicant Ms Tolmacheva, his widow, asked the Court to continue the examination of the application in his stead. The Court takes into account Ms Tolmacheva’s statement and the specific nature of the case related to family rights set out in Article 8 of the Convention. It accepts that Ms Tolmacheva has standing to pursue the proceedings initiated jointly by her and her late husband.

III. ALLEGED VIOLATION OF ARTICLE 8 of the Convention

9. The applicants complained principally of the allocation or transfer to a remote penal facility irrespective of family life considerations. They relied, expressly or in substance, on Article 8 of the Convention, which reads as follows:

Article 8

“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.”

10. The Court reiterates that it has already established that it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or her, or if need be, assist him or her, to maintain contact with his or her close family (see, with further references, Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015), and that, on the issue of family visits, Article 8 of the Convention requires States to take into account the interests of the convict and his or her relatives and family members (ibid., § 142). The Court has also found that placing a convict in a particular penal facility may raise an issue under Article 8 of the Convention if its effects on his or her private and family life go beyond the “normal” hardships and restrictions inherent in the very concept of imprisonment (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 837, 25 July 2013), and that, in that case, given the geographical situation of remote penal facilities and the realities of the Russian transport system, both prisoners sent to serve a sentence far from their home and members of their families suffered from the remoteness of the facilities (ibid., § 838).

11. In the leading cases of Polyakova and Others v. Russia, nos. 35090/09 and 3 others, 7 March 2017, and Voynov v. Russia, no. 39747/10, 3 July 2018, the Court already found a violation in respect of issues similar to those in the present case.

12. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that the interference with the applicants’ right to respect for family life was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.

13. These complaints are therefore admissible and disclose a breach of Article 8 of the Convention.

IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

14. Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well-established case-law (see Idalov v. Russia [GC], no. 5826/03, §§ 103-08, 22 May 2012 and Tomov and Others v. Russia, nos. 18255/10 and 5 others, §§ 92-156, 9 April 2019, concerning conditions of transport and lack of an effective remedy in this regard, Gorlov and Others v. Russia, nos. 27057/06 and 2 others, §§ 58-110, 2 July 2019, concerning placement of detainees under permanent video surveillance and the lack of an effective remedy in that respect, and Voynov, cited above, §§ 38-48, concerning lack of an effective remedy in respect of allocation or transfer to a remote detention facility).

V. REMAINING COMPLAINTS

15. In applications nos. 47332/18, 23591/19, 38295/19 and 56340/19, the applicants also raised other complaints under various Articles of the Convention.

16. The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

17. 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.”

18. Regard being had to the documents in its possession and to its case‑law (see, in particular, Polyakova and Others, cited above, §§ 134-35, 7 March 2017, Voynov, cited above, § 58, and Pukhachev and Zaretskiy v. Russia, nos. 17494/16 and 29203/16, 16 November 2017), the Court considers it reasonable to award the sums indicated in the appended table.

19. 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Decides to strike application no. 1164/12 in part relating to the complaints lodged by Ms Bashtayeva out of its list of cases in accordance with the Article 37 § 1 (c) of the Convention;

3. Holds that Ms Tolmacheva has standing to pursue the proceedings initiated jointly by her and her late husband, Mr Tolmachev (application no. 57234/18);

4. Declares the complaints concerning the allocation or transfer to a remote penal facility irrespective of family life considerations and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of applications nos. 1164/12 (in respect of the complaints lodged by Ms Khamastkhanova), 47332/18, 23591/19, 38295/19 and 56340/19 inadmissible;

5. Holds that these complaints disclose a breach of Article 8 of the Convention concerning the allocation or transfer to a remote penal facility irrespective of family life considerations;

6. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see the appended table);

7. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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 8 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                                Darian Pavli
Acting Deputy Registrar                               President

___________

APPENDIX
List of applications raising complaints under Article 8 § 1 of the Convention
(allocation or transfer to a remote penal facility irrespective of family life considerations)

No.	Application no. Date of introduction	Applicant’s name Year of birth	Representative’s name and location	Detention facility	Family member	Place of residence of the family member	Approximate distance between the facility and the place of residence of the family members (in km)	Other complaints under well-established case-law	Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant /household (in euros)[i]
1.	1164/12 16/11/2011 (3 applicants)	Malika Akhmedovna KHAMASTKHANOVA 1979 Shamil Sharpudinovich BASHTAYEV 1981 Tabarek Usmanovna BASHTAYEVA 1949	Timishev Ilyas Yakubovich Nalchik	IK-2 Smolensk Region	the second applicant is an inmate, the first applicant is his ex-wife, the third applicant is the late mother of the second applicant	Grozny, Chechen Republic	2,000	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000 (to be paid to Mr Bashtayev)
2.	9218/15 28/01/2015	Anatoliy Aleksandrovich IGNATOV 1971	Velsh Oleg Valeryevich Barnaul	IK-33 Khakassia Republic	wife	Barnaul, Altay Region	1,050	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000
3.	19374/16 25/03/2016	Sergey Alekseyevich SUKHANOV 1976		IK-15 OIK-30 Norilsk Krasnoyarsk Region, IK-17 Krasnoyarsk Region	sister	Syktyvkar, Komi Republic	4,000	Art. 8 (1) – permanent video surveillance of detainees in pre-trial or post-conviction detention facilities – SIZO-1 Komi Republic, IK-15 OIK-30 Krasnoyarsk Region, IK-17 Krasnoyarsk Region; opposite-sex operators, detention in different cells with video surveillance; 14/10/2011 – 12/11/2016, Art. 13 – lack of any effective remedy in domestic law in respect of permanent video surveillance in prisons.	6,000
4.	36396/16 15/06/2016 AND 47332/18 10/09/2018	Household Olga Vladimirovna ALEKSEYEVA 1978 Anton Vladimirovich ALEKSEYEV 1978		IK-23 Murmansk Region	the first applicant is the wife of an inmate, the second applicant, the second applicant is an inmate	Syktyvkar, Komi Republic	2,200		6,000
5.	66697/16 28/10/2016	Movsar Abdul-Vagapovich TEMIRBIYEV 1977	Mezak Ernest Aleksandrovich Syktyvkar	IK-31 Komi Republic	mother, sister, brother	Vladikavkaz, Alaniya Republic	2,600	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000
6.	14921/17 24/01/2017 AND 25255/17 22/03/2017	Household Ashot Aleksandrovich ANDREYEV 1979 Tatyana Vasilyevna ANDREYEVA 1956		IK-23 Murmansk Region	the first applicant is an inmate, the second applicant is his mother, the first applicant also complains about inability to see his civil partner	Mother – Pechora, Komi Republic Civil partner – Syktyvkar, Komi Republic	2,800 3,500		6,000
7.	18618/17 15/05/2017	Artur Aramaisovich MANUKYAN 1960		IK-5 Belgorod Region	wife, children	Moscow Region	650	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000
	80447/17 13/11/2017	Tatyana Vladimirovna GUSHCHINA 1987	Andreyev Ashot Aleksandrovich Syktyvkar	IK-23 Murmansk Region	the applicant is the wife of an inmate	Ukhta, Komi Republic	1,520		6,000
8.	11497/18 29/01/2018	Yevgeniy Aleksandrovich BARKOV 1984	Egle Denis Sergeyevich Krasnoyarsk	IK-17 Krasnoyarsk Region	mother	Novosibirsk	800	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000
9.	41711/18 06/08/2018 AND 42530/18 13/08/2018	Household Dinara Pavlovna OVECHKINA 1952 Ilya Alekseyevich OVECHKIN 1984		IK-9 Orenburg Region	the first applicant is the mother of the second applicant, who is serving a prison sentence. The second applicant also complains about inability to see his grandmother and son.	Chelyabinsk	1,000	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000
10.	57234/18 14/11/2018	Household Aleksandr Mikhaylovich TOLMACHEV 1955 Galina Andreyevna TOLMACHEVA 1952		IK-9 Orenburg Region	the first applicant was an inmate, the second applicant is his widow, the first applicant also complained about inability to see his daughter and sister, and his grandson	Wife lives in Rostov-on-Don, sister lives in the Stavropol Region	2,000	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000
11.	23591/19 02/07/2019	Oleg Aleksandrovich DOROSHEV 1981		IK-3 Bashkortostan Republic, IK-31 Komi Republic, IK-1 Komi Republic	mother, father (until 27/11/2019)	Stavropol Region	2,500	Art. 13 – lack of any effective remedy in domestic law in respect of inadequate conditions of detention during transport and in respect of allocation to a remote colony, Art. 3 – inadequate conditions of detention during transport – on 09/04/2019, transport by train, van, 0.5 sq. m.	7,000
12.	28827/19 20/05/2019	Lyudmila Borisovna INKOVA 1956		IK-29 Kirov Region	the applicant is the mother of a detainee	Ivanovka, Ulyanovsk Region	2,000	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000
13.	38295/19 01/07/2019	Eduard Rafayelevich KHAYRULLIN 1983	Kozhevnikova Yelena Zafirovna Nizhniy Tagil	IK-5 and IK-53 Sverdlovsk Region	father, mother	Bashkortostan Republic	1,000	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000
14.	45374/19 21/07/2019	Danis Varisovich YAKHIN 1988		IK-5 Tatarstan Republic	sister	Bashkortostan	1,000	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000
15.	48356/19 30/08/2019	Anzhela Anatolyevna IVANOVA 1989		IK-12 Udmurtiya Republic	father, mother	Turinskaya Sloboda, Sverdlovsk Region	890		6,000
16.	56340/19 07/10/2019	Aleksey Sergeyevich KALAMAYEV 1985		IK-8 Komi Republic	mother, child, wife	St Petersburg, and Leningrad Region	1,800	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000
17.	33422/20 21/07/2020	Household Nadezhda Aleksandrovna CHOKLYA 1983 Artem Ivanovich CHOKLYA 1984	Andreyev Ashot Aleksandrovich Syktyvkar	IK-23 Murmansk Region, IK-16 Murmansk Region	the first applicant is the wife of the second applicant (a detainee), they also have a child	Syktyvkar, Komi Republic	2,200	Art. 13 – lack of any effective remedy in domestic law in respect of allocation to a remote detention facility.	6,000

[i] Plus any tax that may be chargeable to the applicants.