Danilevich v. Russia (European Court of Human Rights)

Information Note on the Court’s case-law 255
October 2021

Danilevich v. Russia – 31469/08

Judgment 19.10.2021 [Section III]

Article 8
Article 8-1
Respect for family life

Unjustified and disproportionate general ban on telephone calls for life prisoners under strict regime: violation

Article 37
Article 37-1
Striking out applications

Matter before the Court resolved by adequate remedial measures by domestic courts ending routine handcuffing: Article 3 complaint struck out

Facts – The applicant is currently serving a sentence of life imprisonment. During the first ten years of his detention in special-regime correctional colonies, he was placed under the strict regime which involved among other things, a general ban on telephone calls. Save for telephone calls made in “exceptional personal circumstances” or emergency situations, the applicant could only correspond in writing with his family. The applicant’s challenges before the domestic courts were unsuccessful.

Law

Article 8: The Court was satisfied that the applicant, by maintaining written correspondence with his family had demonstrated that he had relatives with whom he genuinely wished and attempted to maintain contact in detention. The restrictions on the applicant’s telephone calls as a life prisoner under the strict regime constituted an interference with his rights to private and family life. They had a clear, accessible and sufficiently precise legal basis. It was not necessary, however, to examine whether they had pursued a “legitimate aim” as, in any event, they had not been “necessary in a democratic society” and amounted to a disproportionate interference with his abovementioned rights for the following reasons:

It was well established in the Court’s case-law that, during their imprisonment, individuals continued to enjoy all fundamental rights and freedoms, save for the right to liberty; on imprisonment a person did not forfeit his or her Convention rights. Having had the opportunity in a number of cases to examine the compatibility with Article 8 of such restrictions on prisoners’ telephone communications with their families (including under high-security prison regimes) as monitoring, frequency, duration, language that could be used, the Court was struck by the severity of the total ban on life-sentenced prisoners’ telephone communications with their relatives, except in an emergency, under the conditions of the strict regime. The applicant had not received any visits from his relatives living a significant distance away, which had left him – in the absence of any possibility of communicating by telephone – with written correspondence as the only way of maintaining contact with them. That means of communication had been seemingly insufficient for various reasons, including the time it took for letters to be delivered and the difficulty for the applicant to have an effective contact with his only child, who had been for many years too young for written correspondence. Given the child’s age (seven years old at the beginning of the applicant’s imprisonment in the special‑regime correctional colony under the strict regime), those years had been crucial for developing a family relationship between them. The very scarce occasions on which the applicant had been allowed to telephone his family in “exceptional personal circumstances” did not appear to change that situation.

As in Khoroshenko, the ban had been imposed directly by law and applied to the applicant solely on account of his life sentence, irrespective of any other factors. The regime had been imposed for a fixed period of ten years which could be extended in the event of poor behaviour but could not be shortened. Thus, the applicant’s arguments concerning his relatives’ difficulties to visit him in view of the remoteness of the prison and their lack of financial means, his son’s age and the availability of technical means for telephone calls from the prison had been dismissed as irrelevant by the domestic courts. This had been despite their finding, in the context of his handcuffing complaint (see below), that he did not present a risk of escape and the absence of any other specific security concerns. Indeed, the State did not have a free hand in introducing restrictions in a general manner without affording any degree of flexibility for determining whether limitations in specific cases were appropriate or indeed necessary, and the principle of proportionality required a discernible and sufficient link between the application of such measures and the conduct and circumstances of the individual concerned.

The Court found in Khoroshenko that the very strict nature of the regime concerned prevented life-sentence prisoners from maintaining contact with their families and thus seriously complicated their social reintegration and rehabilitation instead of fostering and facilitating it. Further, the relevant Council of Europe instruments highlighted the importance of preventing the breakdown of prisoners’ family ties by maintaining all forms of contact, including by telephone, as often as possible. Amongst other things, opportunities to make calls had to be made widely available, a minimum number of calls had to always be allowed, there was a need for flexibility for making and receiving telephone calls in order to maximise communication between imprisoned parents and their children as well as in respect of prisoners whose families lived far away (thereby rendering regular visits impracticable); any limitations on prisoners’ contact with the outside world had to be based exclusively on security concerns of an appreciable nature or resource considerations. A total ban on telephone calls was deemed unacceptable and no additional restrictions should be imposed on life‑sentenced prisoners as compared to other sentenced prisoners when it concerned the possibilities for them to maintain meaningful contact with their families and other close persons.

The cases examined by the Court indicated the availability of regular telephone calls for prisoners in a number of Contracting States, including in high‑security prisons, if need be, accompanied by the appropriate security arrangements.

The Constitutional Court’s position, relied on by the Government to justify the restrictions in the present case, had evolved since the Khoroshenko judgment and the ban on long-term visits had been abolished. Further, the Concept for the Development of the Russian Penal System for the period up to 2030, adopted by the Government in 2021, identified as one of the challenges prisoners’ loss of social ties leading, along with other factors, to recidivism on release and required additional measures aimed at the resocialisation and social adaptation of convicted persons, such as the increase in the number of telephone calls between convicted persons with their relatives.

Lastly, the fact that convicted prisoners, as a rule, were allowed telephone call, showed not only that the restrictions at issue did not “inevitably flow from the circumstances of imprisonment” but also that the necessary technical means were presumably available. The Government had not suggested that access to telephone calls would impose any significant administrative or financial demands on the State.

Conclusion: violation (unanimously)

Article 37 § 1 (b) (complaint under Article 3 regarding routine handcuffing): both conditions for the application of Article 37 § 1 (b) of the Convention had been met. First, the applicant was no longer subjected to the routine handcuffing complained of. Second, the domestic courts had declared unlawful the decision to systematically handcuff him and had ordered that he should not be subjected to handcuffing save for valid security measures; they had thus adequately and sufficiently remedied his complaint in the circumstances of the present case. In connection to the latter, the Court reiterated that according to its established case-law under Article 37 § 1 (b) it was not a requirement that the Government acknowledged a violation of the Convention or that the applicant, in addition to having obtained a resolution of the matter complained of directly, was also granted compensation. The matter could therefore be considered to have been resolved.

Conclusion: complaint struck out (unanimously)

The Court also found, unanimously, a violation of Article 6 § 1 of the Convention in that the applicant had been deprived of the opportunity to present his case effectively before the domestic courts and that thus there had been a failure to ensure respect for the principle of a fair trial.

Article 41: EUR 3,400 for non-pecuniary damage.

(See also Sisojeva and Others v. Latvia (striking out) [GC], 60654/00, 15 January 2007, Legal Summary; El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], 25525/03, 20 December 2007, Legal Summary; Hagyó v. Hungary, 52624/10, 23 April 2013; Khoroshenko v. Russia [GC], 41418/04, 30 June 2015, Legal Summary; Chernenko and Others v. Russia (dec.), 4246/14 et al, 5 February 2019, Legal Summary)

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