Last Updated on August 22, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 4246/14
Konstantin Gennadyevich CHERNENKO and
Sergey Pavlovich SHAKHMATOV against Russia
and 4 other applications
(see list appended)
The European Court of Human Rights (Third Section), sitting on 5 February 2019as a Chamber composed of:
Vincent A. De Gaetano, President,
Branko Lubarda,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Jolien Schukking,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants, seven Russian nationals, and their representatives is set out in the appendix.
2. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
A. The circumstances of the case
3. The applicants were convicted of serious criminal offences and sentenced to life imprisonment. At various dates listed in the appendix they were sent to special-regime correctional colonies to serve their sentences, where they were placed under a strict regime of imprisonment, governed by Article 125 § 3 of the Code of Execution of Criminal Sentences (hereinafter “the CES”) (see paragraphs 22 and 25 below). That regime implied certain restrictions on the applicants’ contact with the outside world. The applicants’ individual situations are described below.
1. The first applicant
4. After his conviction the first applicant was transferred to a correctional colony located about 9,000 kilometres away from his home. According to him, his relatives are in a difficult financial situation and therefore they were unable to visit him in detention. The first applicant maintained correspondence with his mother, brother and a niece. Once a year he received a charity parcel from a religious organisation.
2. The second applicant
5. According to the second applicant, since his arrival at the correctional colony his family members, including his wife and a sister, have never visited him, owing to the remoteness of the correctional colony from their home region. Nothing suggests that the second applicant attempted to maintain contact with them. He submitted that all his family ties had ceased to exist. He maintained exchange of correspondence only with some friends, and on rare occasions receives parcels.
3. The third applicant
6. After the third applicant’s admission to a correctional colony located around 2,000 kilometres away from his home, his mother made two short‑term visits, on 22 July 2011 and 11 November 2015, and a long-term visit which lasted from 18 to 21 September 2017.
7. Also, every year his mother sent a parcel to him.
8. Besides, the third applicant maintained correspondence with his son and an aunt. According to him, his son wished to speak to him by telephone, but could not do so owing to the existing ban on telephone calls.
4. The fourth applicant
9. According to the fourth applicant, shortly after his arrival at a correctional colony he sought permission for a long-term visit, but his request was refused by the detention authority. The fourth applicant did not provide further details, nor did he provide any documents to support his allegation in this respect.
10. At some point he started corresponding with his father. According to him, the latter was unable to visit him, in view of his advanced age, poor health and the remoteness of the correctional colony, located around 4,500 kilometres away from his home.
11. According to the fourth applicant, on 19 December 2017 he asked the head of his prison unit verbally for permission to make a telephone call to his father, because the latter had not contacted him for a long time. The head of the unit refused his request, citing the relevant provisions of the CES (see paragraph 22 below).
5. The fifth applicant
12. The fifth applicant has a wife and a daughter. He did not submit any information as to whether he had maintained contact with them after his conviction.
6. The sixth applicant
13. The sixth applicant has a wife and two children.
14. After his arrival at a correctional colony, for some time he maintained contact with his family by post. At some point the exchange of correspondence between the applicant and his children ceased. In his submission, he maintained exchanges of correspondence with his wife. His family was unable to visit him owing to the remoteness of his correctional colony.
7. The seventh applicant
15. After his conviction the seventh applicant was transferred to a correctional colony located around 3,000 kilometres away from his home, and has remained there ever since, leaving the facility only in 2010-11 and 2012-13 on account of his participation in criminal proceedings against a third person.
16. According to him, his family, including his parents, was not able to visit him in the correctional colony owing to its remoteness. His relatives did not have the means to make the journey and his elderly parents were in poor health.
17. In 2015 the seventh applicant had a conversation with his mother and a sister by means of a video link. In 2016 he called his mother in connection with his father’s death.
18. On 15 March 2016 the seventh applicant made a formal request to the governor of the correctional colony seeking clarification as to whether he could make a telephone call or have a long-term visit from his family. On 4 April 2016 the head of the correctional colony replied that long-term visits and telephone calls were permitted only for prisoners under ordinary or facilitated regimes (see paragraphs 21 and 22 below). The seventh applicant submitted a copy of that reply to the Court.
B. Relevant domestic and international law and practice
1. Types of facilities and regimes in Russian penal establishments
19. According to Article 58 of the Criminal Code (hereinafter “the CC”), there are five main types of penal establishments in which prisoners serve their sentences, depending on the gravity of the crimes they have committed: settlement colonies, common-regime correctional colonies, strict-regime correctional colonies, special-regime correctional colonies, and prisons.
20. In the colonies, convicted prisoners are subject to three levels of prison regime, namely ordinary, facilitated, and strict regimes.
2. Detention in special-regime correctional colonies under a strict regime
21. All convicts sentenced to life imprisonment have to serve their sentences in special-regime correctional colonies. Upon arrival at a special‑regime correctional colony such convicts are placed under a strict regime, where they have to spend at least the first ten years of their sentence (Article 58 of the CC and Article 127 § 3 of the CES).
22. Under that regime they are entitled to receive and send an unlimited number of letters, postcards and telegrams (Article 91 § 1 of the CES). They may also receive one large parcel and one small parcel a year (Article 125 § 3 of the CES). Telephone calls for them are permitted only in exceptional personal circumstances (Article 92 § 3 of the CES). Lastly, they are entitled to two short-term visits per year, and since 17 November 2016 to one long-term visit per year.
23. A short-term visit (a visit of up to four hours) may be made by relatives or others. A long-term visit can be made by the detainee’s partner, parents, children, siblings, grandparents, or grandchildren, and by others if the governor of the correctional colony allows them to visit (Article 89 § 2 of the CES).
24. The right to a long-term visit (a visit of up to three days) was instituted by the Russian Constitutional Court’s judgment no. 24-П of 15 November 2016. That judgment entered into force on 17 November 2016.
25. On 29 September 2017 the Russian State Duma introduced amendments to Article 125 § 3 of the CES allowing prisoners in special‑regime correctional colonies under a strict regime to have one long‑term visit per year. The amendments entered into force on 27 October 2017.
3. Procedure for granting visits to convicted prisoners
26. The procedure for granting visits to convicts was provided by Chapter XIV of the Rules of internal order of penal establishments, approved by the Ministry of Justice on 3 November 2005 (no. 205), which was in force until 6 January 2017.
27. According that Chapter of those Rules, to obtain permission for a visit, a detainee or a person who wishes to visit should submit a written request to the governor of the penal establishment. If the request is refused, the grounds for the refusal should be indicated on the original request.
28. On 16 December 2016, by its order no. 295, the Ministry of Justice approved new Rules of Internal Order of Penal Establishments. According to them, to obtain a visit a detainee or a person who wishes to visit should submit a written request to the governor of the penal establishment, or apply for a visit on-line.
4. Other relevant materials
29. For other relevant provisions of domestic law and international law and practice see Khoroshenko v. Russia[GC], no. 41418/04, §§ 32-80, ECHR 2015.
COMPLAINTS
30. The applicants complained that the statutory restrictions on family visits, telephone calls and the number of permitted parcels during their post‑conviction detention under a strict regime were incompatible with their right to respect for their private and family life, secured by Article 8 of the Convention.
31. They also complained under Article 13 of the Convention that they had not had at their disposal effective domestic remedies in respect of the alleged violation of Article 8 of the Convention.
THE LAW
A. Joinder of the applications
32. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
B. Complaint under Article 8 of the Convention
33. The applicants complained about severe restrictions on their contacts with the outside world during their detention following conviction. They relied on 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.”
1. The parties’ submissions
34. The Government stated that when the Constitutional Court’s judgment of 15 November 2016 entered into legal force the applicants obtained an opportunity to lodge complaints with domestic courts seeking permission to have one long-term visit per year. However, the applicants had not used that opportunity. Therefore the applications should be dismissed for non-exhaustion of domestic remedies. In the alternative, the Government submitted that the interference with the applicants’ rights under Article 8 of the Convention had not been arbitrary.
35. In reply to the Government’s non-exhaustion plea, the applicants stated that they had not had at their disposal effective domestic remedies. All of the applicants, save for the fifth applicant, further submitted that because of the remoteness of their detention facilities from their homes coupled with the difficult financial situations of their families and the advanced age of their parents, they were unable to receive regular (or any) visits from their relatives.
2. The Court’s assessment
(a) Scope of the case
36. The Court observes that in reply to the Government’s observations the applicants argued that their relatives had been unable to visit them in view of the remoteness of the detention facilities from their homes and the lack of means to afford such a long and expensive journey.
37. The Court notes that the remoteness of the penal establishments is a separate issue (see Polyakova and Others v. Russia, nos. 35090/09 and 3 others, 7 March 2017), and that, for the first time, this issue was raised in the applicants’ comments to the Governments observations. Therefore the reference to it is not an elaboration of the original complaints lodged with the Court and communicated to the Government. For that reason the Court will not examine it within the present proceedings (see, for a similar reasoning, ElitaMagomadova v. Russia, no. 77546/14, §§ 37-38, 10 April 2018, with further references).
38. The Court further notes that, in their original applications, the applicants complained of various restrictions on their contacts with the outside world, in particular restrictions on family visits, inherent in the regime of their detention, which, in their view constituted an unjustified interference with their rights secured by Article 8 of the Convention.
39. The restrictions referred to by the applicants have been assessed by the Court in the case of Khoroshenko, cited above, from the standpoint of the right to respect to private and family life under Article 8 of the Convention. In that case the Court focused its examination on the most serious restrictions, which concerned the frequency and duration of family visits, the number of visitors, and measures for the supervision of such visits, whereas the other restrictions, such as, for instance, a lack of telephone communications, were taken into account only as additional factors aggravating the applicant’s suffering (see Khoroshenko, cited above, §§ 107-09, 130, 138, 140, 146-49).
40. The Court considers it appropriate to follow this approach in the present case. It will examine the alleged interference with the applicants’ right to respect for their private and family life on account of a lack of contacts with the outside world from the standpoint of their ability to receive family visits; all the other restrictions (lack of telephone communications and a limited number of parcels) being marginal factors that will only be taken into account for the assessment of the overall cumulative effect of the restrictions on the family visits.
(b) Exhaustion of domestic remedies
41. The Court observes that the Government raised an objection on the grounds of non-exhaustion of domestic remedies. Given that the impugned restrictions on the applicants’ contact with the outside world are established in primary legislation, it may be arguable whether the applicants had any remedy available. However, the Court will leave this question open, as the present applications are in any event inadmissible, in view of its findings below.
(c) Compatibility ratione personae
42. The Court observes at the outset that although the respondent Government did not raise any objection as to the Court’s competence ratione personae, with respect to the applicants’ status as “victims” within the meaning of Article 34 of the Convention, this issue requires its consideration, since the Court has to satisfy itself that it has jurisdiction in any case brought before it (see Vladimirova v. Russia, no. 21863/05, § 39, 10 April 2018, with further references).
43. The Court has already held that to be able to lodge an application under Article 34 of the Convention a person must be able to claim to be the victim of a violation of the rights set forth in the Convention. In order to make that claim, a person must be directly affected by the impugned measure: the Convention does not envisage the bringing of an actiopopularis for the interpretation of the rights it contains (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.47848/08, § 101, ECHR 2014, with further references).
(i) The Court’s approach to victim status
44. The Court has applied the above principle to complaints under Article 8 of the Convention concerning lack of family visits in detention. Thus in the case of Daktaras v. Lithuania ([Committee] (dec.), no. 78123/13, 3 July 2018) it declared the application inadmissible (incompatible ratione personae with the provisions of the Convention) because the applicant had failed to submit evidence showing that he had sought particular visits whilst in detention (ibid., §§ 60-61). In the case of Khoroshenko v. Russia ([GC], no. 41418/04, ECHR 2015), by contrast, the Court was satisfied that the applicant could claim to be a victim of the violation alleged because he had convincingly demonstrated that he had relatives and friends with whom he wished to maintain contact whilst in detention (ibid., § 19), that he had used his right to family visits as frequently as had been permitted under the domestic law, and that he had received visits from his mother, his father and his brother. His friends had also tried to visit him (ibid., §§ 24 and 26).
45. In the light of the foregoing, the Court considers that, where an applicant alleges a breach of the right to respect for private and family life on account of statutory restrictions on visits from family members or other persons in the first ten years of his lifelong imprisonment, as raised separately from the issue of the remoteness of the relevant penal establishment, in order to claim to be the victim of the alleged violation, he should demonstrate at least:
(1) that he has relatives or other persons with whom he genuinely wishes and attempts to maintain contact in detention (the applicant should specify them and provide an account of their attempted or actual visits), and
(2) that he has used his right to visits as frequently as was permitted under domestic law (at least in the period immediately preceding the application).
(ii) Application of the above approach to the present case
46. Turning to the circumstances of the cases at hand, the Court notes that the second applicant stated that his ties with his family had ceased to exist. He mentioned “some friends”, but provided no further information in that regard, failing to specify if he wished to be visited by them, or if they were ready to visit him (see paragraph 5 above). Also, the fifth applicant, whilst mentioning his wife and daughter, did not indicate if he maintained, or wished to maintain, contact with them (see paragraph 12 above). The Court thus finds that the second and fifth applicants did not demonstrate that they had relatives or other persons with whom they wished to maintain contact while in detention. In the absence of any such persons, the second and fifth applicants cannot be said to have been directly affected by the measure complained of.
47. The Court accepts that the remaining applicants have demonstrated the existence of relatives and their genuine attempts to maintain contacts with them by clearly specifying those relatives and providing an account of their attempts to maintain correspondence with them and to receive visits from them, or of actual visits from those relatives (see paragraphs 4, 6-8, 10-11, 13-14 and 16-18 above). They do not however appear to have used their right to visit as frequently as was permitted under domestic law. The Court observes that only the third applicant was visited by a member of his family (his mother) (see paragraph 6 above). However, the frequency of those family visits was substantially below that permitted by the CES. During more than nine years’ detention in the correctional colony the third applicant’s mother visited him on only three occasions, whereas the CES would have permitted more than eighteen visits during that period (two short-term visits per year, and since 17 November 2016 one long-term visit per year). In the absence of any evidence that the lack of visits was as a result of the authorities’ refusal to allow them, these applicants cannot be said to have been directly affected by the measure complained of.
48. In the light of the foregoing, the Court concludes that the applicants cannot claim to be victims of the alleged violation.
49. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must therefore be rejected pursuant to Article 35 § 4.
C. Alleged violation of Article 13 of the Convention
50. The applicants complained under Article 13 of the Convention that they had not had at their disposal effective domestic remedies in respect of the alleged violation of Article 8 of the Convention. The provision referred to by the applicants reads as follows:
“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.”
1. The parties’ submissions
51. The Government stated that the applicants’ complaint under Article 13 of the Convention is manifestly ill-founded. They did not elaborate further on that argument.
52. The applicants maintained their complaints, noting in particular that they had no effective domestic remedy to complain about the lack of long‑term visits, at least until the adoption of the relevant amendments to the CES in 2017 (see paragraph 25 above).
2. The Court’s assessment
53. The Court reiterates that Article 13 does not contain a general guarantee of legal protection for every substantive right. It relates exclusively to those cases in which an applicant alleges, on arguable grounds, that one of his rights or freedoms set forth in the Convention has been violated. According to the Court’s case-law, this provision applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see, among other authorities, Boyle and Rice v. the United Kingdom, 27 April 1988, § 51, Series A no. 131).
54. The Court has found that the applicants’ complaint under Article 8 of the Convention is inadmissible (see paragraph 49 above). It therefore concludes that the applicants did not have an “arguable claim”, and Article 13 of the Convention in conjunction with Article 8 is inapplicable to the case.
55. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, by a majority,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 7 March 2019.
Stephen Phillips Vincent A. De Gaetano
Registrar President
APPENDIX
| No. | Applicant
Date of birth
|
Application no.
Lodged on |
Place of detention Date of
arrival at the correctional colony |
Represented by |
| 1 | Konstantin Gennadyevich Chernenko
12/07/1978 |
4246/14 07/11/2013 |
IK-18, Kharp,
Yamalo-Nenetskiy Region 07/07/2007 |
Oksana Vladimirovna Preobrazhenskaya
Strasbourg |
| 2 | Sergey Pavlovich Shakhmatov
07/02/1963 |
IK-18, Kharp, Yamalo-Nenetskiy Region
21/03/2008 |
||
| 3 | Ruslan Rishatovich Bekmurzin
15/07/1982 |
33840/14 26/07/2013 |
IK-18, Kharp, Yamalo-Nenetskiy Region
03/04/2009 |
Oksana Vladimirovna Preobrazhenskaya
Strasbourg |
| 4 | Anatoliy Viktorovich Gontarenko
09/05/1964 |
IK-18, Kharp, Yamalo-Nenetskiy Region
28/02/2012 |
||
| 5 | Sergey Nikolayevich Kalinin
03/07/1971 |
12821/15
17/02/2015 |
IK-56, Lozvinskiy, Sverdlovsk Region
unspecified date |
Andrey Aleksandrovich Molostov
Karagayskiy, Chelyabinsk region |
| 6 | Anatoliy Yuryevich Zhakun
24/08/1965 |
52007/16
10/08/2016 |
IK-18, Kharp, Yamalo-Nenetskiy Region
15/12/2008 |
– |
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