THIRD SECTION
\nCASE OF VOYNOV v. RUSSIA
\n(Application no. 39747\/10)<\/p>\n
JUDGMENT
\nThis version was rectified on 11 September 2018 under Rule 81 of the Rules of Court.
\nSTRASBOURG
\n3July 2018<\/p>\n
FINAL
\n03\/10\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Voynov v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Chamber composed of:<\/p>\n Helena J\u00e4derblom, President, Having deliberated in private on 5 June 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 39747\/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Mr TimurVladislavovich Voynov (\u201cthe applicant\u201d), on 11 June 2010.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr E. Markov, a lawyer practising in Budapest. The Russian Government (\u201cthe Government\u201d) were represented by Mr\u00a0G.\u00a0Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that his right to respect for family life had been violated on account of the Russian authorities\u2019 decisions on his allocation to a post-conviction detention facility. He also complained of the lack of effective remedies available at the national level.<\/p>\n 4.\u00a0\u00a0On 15 April 2015 the complaints under Articles 8 and 13 of the Convention were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1985 and lives in Oryol. He is currently serving his sentence in IK-7 in the village of Areyskoye, Krasnoyarsk Region.<\/p>\n 6.\u00a0\u00a0The applicant, his partner and his motherwere living in Oryol when the applicant was charged with drug-related crimes.<\/p>\n 7.\u00a0\u00a0On 2 December 2009 the Federal Penal Authority (\u201c\u0424\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u0430\u044f\u0441\u043b\u0443\u0436\u0431\u0430\u0438\u0441\u043f\u043e\u043b\u043d\u0435\u043d\u0438\u044f\u043d\u0430\u043a\u0430\u0437\u0430\u043d\u0438\u0439\u201d, \u201cthe FSIN\u201d) of Russia sent a telegram to the FSIN department for the Oryol Region (\u201cthe Oryol FSIN\u201d) instructing the latter to send each month up to forty people detained in remand prisons and sentenced to a term of imprisonment in a strict-regime facility to the Krasnoyarsk Region. The instruction was valid as of 1 December 2009 until further notice.<\/p>\n 8.\u00a0\u00a0On 7 December 2009 the Sovetskiy District Court of Oryol convicted the applicant of drug-related crimes and sentenced him to twelve\u00a0years\u2019\u00a0imprisonment in a strict-regime post-conviction detention facility. On 2 February 2010 the Oryol Regional Court upheld the conviction on appeal.<\/p>\n 9.\u00a0\u00a0Acting on the basis of the FSIN of Russia\u2019s instruction of 2 December 2009, on an unspecified date the Oryol FSIN decided, in view of the overcrowding in the post\u2011conviction detention facilities in the Oryol Region, that the issue of which particular facility the applicant would be transferred to should be resolved by the FSIN department for the Krasnoyarsk Region (\u201cthe Krasnoyarsk FSIN\u201d). The latter allocated the applicant to IK-7, a strict-regime post-conviction detention facility in the village of Areyskoye, Krasnoyarsk Region (about 4,200 km from Oryol), to serve his sentence. The applicant has been detained there since 20 April 2010.<\/p>\n 10.\u00a0\u00a0The applicant has repeatedly asked the penal authorities at different levels to transfer him to a detention facility located closer to Oryol so that he could effectively maintain family ties while serving his sentence.<\/p>\n 11.\u00a0\u00a0On 12 November 2010 the FSINof Russia rejected the applicant\u2019s request, informing him that,under Article 81 of the Code on the Execution of Sentences (\u201cthe CES\u201d),in the absence of exceptional circumstances convicts were to serve their prison term in its entirety in the same detention facility, and that there were no such exceptional circumstances in the applicant\u2019s case. They noted as follows:<\/p>\n \u201c[a]s regards maintaining the convict\u2019s social ties, the right to receive visits and parcels as well as the right to correspondence and phone calls should be realised in accordance with the laws on execution of sentences in force and does not depend on the place in which he is serving the sentence.\u201d<\/p>\n 12.\u00a0\u00a0The applicant brought civil proceedings against the Oryol FSIN,claiming compensation for pecuniary and non\u2011pecuniary damage caused by their decision to transfer him to a penal facility in the Krasnoyarsk Region in breach of his right, under Article 73 \u00a7 1 of the CES, to serve his prison sentence in his home region, which had adversely affected his capacity to maintain his family and social ties.<\/p>\n 13.\u00a0\u00a0On 3 August 2012 the Zavodskoy District Court of Oryol dismissed the claims for damages with reference to Article 73 \u00a7 2 of the CES and Ruling No. 1700-O-O of the Constitutional Court of Russia.The court held that the Oryol FSIN\u2019s decision had been lawful because between December 2009 and February 2010 the penal facilities in the Oryol Region had been overcrowded. It also noted that the defendant had acted in accordance with the FSIN of Russia\u2019s instructions. The court did not address the applicant\u2019s argument regarding his difficulties in maintaining family ties because of the distance between his family home and the detention facility. It appears that the applicant did not appeal against the judgment.<\/p>\n 14.\u00a0\u00a0Between July 2011 and October 2013 the applicant\u2019s partner made long-term family visits to IK-7 on six occasions. In 2014 she gave birth to the couple\u2019s daughter. While in IK-7, the applicant received a number of parcels and phone calls from his mother and partner.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE AND COUNCIL OF EUROPE MATERIALS<\/p>\n 15.\u00a0\u00a0Article 15 \u00a7 4 of the Constitution of the Russian Federation reads as follows:<\/p>\n \u201c4.\u00a0\u00a0Universallyrecognised principles and norms of international law and international treaties of the Russian Federation form a constituent part of its legal system. Where an international treaty of the Russian Federation sets rules that are distinct from those established by [domestic] law, the rules of the international treaty shall prevail.\u201d<\/p>\n 16.\u00a0\u00a0The provisions of Chapter 25 of the Russian Code of Civil Procedure (\u201cCCP\u201d) (repealed as of 15 September 2015) were summarised, in particular, in Roman Zakharovv. Russia [GC], no. 47143\/06, \u00a7\u00a7 92-100, ECHR 2015).<\/p>\n 17.\u00a0\u00a0The domestic law and practice governing the geographic distribution of prisoners, as well as the relevant Council of Europe documents, were summarised in Polyakova and Others v.\u00a0Russia(nos. 35090\/09 and 3 others, \u00a7\u00a7\u00a044-59, 7 March 2017).<\/p>\n 18.\u00a0\u00a0More recently, the Constitutional Court of Russia dismissed as inadmissible an application lodged by a convicted prisoner, A.,contesting the constitutionality of Articles 73 \u00a7 4 and 81 \u00a7 2 of the CES as violating the right of prisoners and their families to respect for family life.Its Ruling No.\u00a0599-O of 28 March 2017 reads, in so far as relevant, as follows:<\/p>\n \u201cArticle 55 \u00a7 3 of the Constitution of the Russian Federation provides for a possibility to impose restrictions on human rights by federal law as a means of defending the foundations of the constitutional order, and the morals, health, rights and lawful interests of others, and of ensuring the country\u2019s defence and State security. Such restrictions, in particular, may be related to imposing on people who have committed a crime a criminal penalty as a measure of State coercion…<\/p>\n …<\/p>\n Setting deprivation of liberty as one of the measures of punishment, the State acts in its own interests as well as in those of society and its members. Serving such punishment changes the usual rhythm of life of a person [and] his relations with people surrounding him and has certain moral and psychological consequences, thus limiting not only his rights and freedoms as a citizen, but [also] his rights as a person.This is connected with the unlawful behaviour of a culprit and is conditioned by the need to restrict his natural right to liberty with a view to defendingthe morals, rights and lawful interests of others.<\/p>\n …<\/p>\n The rules of [Article 73 \u00a7 4 of the CES] are aimed at individualisation of punishment and differentiation of the conditions under which a sentence is served, taking into account the nature of the crime, its dangerousness… intensity, causes and other circumstances in which it has been committed, as well as information regarding the person who has committed it.They thus create grounds for achieving the aims of punishment … [such as] restitution of social justice, correction of the convict and prevention of the commission of new crimes.<\/p>\n At the same time, pursuant to point 8 of the [Ministry of Justice\u2019s Instruction on Allocation of Prisoners] … those convicted for the crimes listed in Article 73 \u00a7 3 of the CES … shall as a rule be sent to serve their sentence within the [territory of a] subject of the Russian Federation where they have been sentenced; if it is impossible to detain such people where they have been sentenced, they shall be sent to serve their sentence in another subject of the Russian Federation by decision of the FSIN of Russia…<\/p>\n Accordingly, the legal provisions in force do not imply that the place where a convict will serve his sentence is determined arbitrarily.They correspond to the international legal norms, in particular, the European Prison Rules 2006, under which detainees should where possible be sent to serve their sentence at penal facilities located in the vicinity of their home or places of social rehabilitation.[The international legal norms] are recommendatory in character and should be implemented subject to the availability of the requisite economic and social opportunities…<\/p>\n …<\/p>\n The rules [of Article 81 \u00a7 2 of the CES] have been set by the legislator within its powers, do not exceed the limits of constitutionally permissible restrictions on the rights and freedoms of citizens.[They] correspond to the principles of differentiation and individualisation of serving sentences, the rational application of measures of coercion and means of correction of convicts.<\/p>\n Therefore the contested norms may not be regarded as violating the applicant\u2019s rights, and his application does not meet the criterion of admissibility and may not be accepted by the Constitutional Court of the Russian Federation for examination.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLES8AND 13 OF THE CONVENTION<\/p>\n 19.\u00a0\u00a0The applicant alleged a violation of his right to respect for family life on account of the lack of practical opportunities for prison visits stemming from the decision to allocate him to a remote penal facility and his subsequent inability to obtain a transfer elsewhere. He relied on Article 8 of the Convention, which reads, in so far as relevant, as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his … family life …<\/p>\n 2.\u00a0\u00a0There 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 20.\u00a0\u00a0The applicant further complained that he had not had at his disposal effective domestic remedies in respect of the alleged violation of Article 8, in breach of Article 13 of the Convention, which reads 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.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 1.\u00a0\u00a0The Government<\/em><\/p>\n 21.\u00a0\u00a0The Government submitted that the applicant had had effective domestic remedies at his disposal in respect of the alleged violation of Article 8. Without providing any details or examples of judicial practice, they referred to Chapter 25 of the CCP which at the material time had set out the procedure for challenging acts and omissions of State agencies. In the Government\u2019s view, the applicant should have hadrecourse to the said remedy, but had failed to institute the relevant civil proceedings before the national courts. They concluded that the application should be declared inadmissible for non-exhaustion of domestic remedies under Article 35 \u00a7 1 of the Convention.<\/p>\n 22.\u00a0\u00a0The Government further asserted that the six-month time-limit for the applicant\u2019s complaint under Article 8 of the Convention had started running on the date of the FSIN\u2019s decision to transfer him outside his \u201chome\u201d region to serve his sentence. That decision had been an instantaneous act; accordingly, the alleged violation could not be regarded as a continuous situation.<\/p>\n 23.\u00a0\u00a0The Government stated that Article 81 of the CES listing the grounds for transfer of a prisoner to another detention facility, including \u201cother exceptional circumstances\u201d,did not contain an exhaustive list of such circumstances because it would be \u201cvirtually impossible to envision all situations in life that may make the convict\u2019s transfer necessary\u201d. Accordingly, an alleged interference with the right to private or family life might also give grounds for transferring a prisoner to another detention facility.<\/p>\n 24.\u00a0\u00a0The Government further stated that the applicant had been allocated to IK-7 in the Krasnoyarsk Region in his own interests, in view of the need to avoid overcrowding. The Russian authorities could not allow a situation where the applicant\u2019s fundamental right under Article 3 of the Convention would be breached in order to protect his family values.They noted that Article 73 \u00a7 2 of the CES provided for an exception to the general distribution rulein cases where it was impossible to allocate a prisoner toa detention facility located in the \u201chome\u201d region.<\/p>\n 25.\u00a0\u00a0According to the Constitutional Court\u2019s Ruling 1700-O-O of 16\u00a0December 2010, Article\u00a073 \u00a7 2 was compatible with international law, given that the European Prison Rules were merely recommendations. Moreover, the Government referred to the Constitutional Court\u2019s doctrine of \u201cawareness of the consequences\u201d, according to which a person committing a crime should expect repercussions on his family life.<\/p>\n 26.\u00a0\u00a0The Government pointed out that the applicant had made use of his right to a long-term family visit on six occasions and had maintained his family ties by means of phone calls and postal correspondence.<\/p>\n 27.\u00a0\u00a0The Government concluded that there had been no violations of Articles 8 and 13 of the Convention in the present case.<\/p>\n 2.\u00a0\u00a0The applicant<\/em><\/p>\n 28.\u00a0\u00a0In reply to the Government\u2019s non-exhaustion plea, the applicant statedthat he had not had at his disposal effective domestic remedies in respect of the alleged violation of Article 8,in breach of Article 13 of the Convention. The applicant pointed out that the Court had previously ruled that the existence of remedies must be sufficiently certain not only in theory but also in practice; he submitted that he had attempted to use different avenues to challenge the FSIN\u2019s decision at national level.<\/p>\n 29.\u00a0\u00a0The Zavodskoy District Court of Oryol had dismissed the applicant\u2019s civil claims for damages,in which he had asked the court to acknowledge the Oryol FSIN\u2019s decision as unlawful.The court had succinctly argued that the penal authority had acted in accordance with the law,but had failed to provide any analysis of the proportionality of the contested measure. Similarly to that civil action, a complaint under Chapter\u00a025 of the CCP would be devoid of any prospects of success as the domestic courts interpreted the domestic law in a strictly formal manner. The Government had failed to provide any examples of successful challenges, under Chapter\u00a025 of the CCP, of the FSIN\u2019s decisions on the geographic distribution of prisoners.Nor had they provided examples of successful requests, under Article\u00a081 of the CES, for transfer to another detention facility on account of the inability to receive family visits in a remote facility. The applicant also drew a parallel with the Court\u2019s practice of acknowledging that a complaint under Chapter 25 of the CCP would not be considered an effective remedy in respect of complaints concerning conditions of detention, lack of medical assistance in detention, or other aspects of serving a prison sentence. In sum, he insisted that he had not had at his disposal effective domestic remedies in respect of the alleged violation of Article 8, as required by Article 13 of the Convention.<\/p>\n 30.\u00a0\u00a0The applicant further submitted that the FSIN\u2019s decision to transfer him to IK-7 in the Krasnoyarsk Region had given rise to a continuous situation for the purposes of the six-month rule.<\/p>\n 31.\u00a0\u00a0As to the merits of his Article 8 complaint, the applicant submitted that the distance between his family home in Oryol and IK-7 in the Krasnoyarsk Region was approximately 4,200 kilometres. Because the distance was so great, the applicant had been unable to receive regular visits from his mother and partner. The latter had been the only person who had visited him several times; she had had to take a strenuous journey by train, plane and taxi that had cost her the equivalent of the average monthly wage in Oryol. Following her pregnancy, the applicant\u2019s partner had no longer been in a position to visit him. He had never seen his daughter,who was born in 2014. The inability to see his mother, partner, baby and other relatives had had a profound adverse impact on the applicant. Accordingly, he considered that the FSIN\u2019s decision to place him in IK-7 amounted to an interference with his right to respect for private and family life.<\/p>\n 32.\u00a0\u00a0In the applicant\u2019s view, this interference had not been \u201cin accordance with the law\u201d as the Government had failed to prove that the FSIN had fulfilled the requirement of Article 73 \u00a7 2 of the CES applicable at the material time that a prisoner must be allocated to a region adjacent to the home one. Furthermore, his transfer had not pursued a legitimate aim of avoiding overcrowding as claimed by the Government, because IK-7 had been overcrowded. Lastly, the interference had not met the proportionality requirement, as the Government had not explained why the applicant had not been placed in a region adjacent to his home one and the FSIN had not taken into account his interests in maintaining family ties while in detention. The Russian system of geographic distribution of prisoners had not provided him with a measure of legal protection against arbitrary interference by the public authorities. Article 81 of the CES precluded any possibility of having the decision on his transfer to a remote detention facility reassessed after a lapse of time and of having the requisite balancing exercise carried out.<\/p>\n 33.\u00a0\u00a0The applicant concluded that his right to respect for private and family life had been violated.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 1.\u00a0\u00a0Admissibility<\/em><\/p>\n 34.\u00a0\u00a0Taking note of the Government\u2019s non-exhaustion plea (see paragraph 21above), the Court considers that the issue of non-exhaustion of domestic remedies in this case is closely linked to the merits of the applicant\u2019s complaint that he did not have at his disposal an effective remedy regarding the alleged violation of his right to respect for family life. Thus, the Court finds it necessary to join the Government\u2019s objection to the merits of the complaint under Article 13 of the Convention (see Ananyev and Others v. Russia, nos. 42525\/07 and 60800\/08, \u00a7 70, 10\u00a0January 2012).<\/p>\n 35.\u00a0\u00a0As to the Government\u2019s objection regarding the failure to comply with the six-month rule (see paragraph 22above), the Court has already found that a complaint under Article 8 of the Convention concerning the impossibility of effectively maintaining family and social ties during imprisonment in a remote penal facility must (unless an effective remedy was available) be submitted within six months of the end of the detention in that facility (see Polyakova and Others, cited above, \u00a7 66). Considering that the applicant introduced his complaint while serving his sentence in IK-7 in the Krasnoyarsk Region, the Government\u2019s objection must be dismissed.<\/p>\n 36.\u00a0\u00a0The Court further considers that the applicant\u2019s complaints concerning the right to respect for family life and the existence of effective domestic remedies are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. No other ground for declaring them inadmissible has been established.<\/p>\n 37.\u00a0\u00a0The Court thus declares the applicant\u2019s complaints about his allocation to a remote penal facility and the alleged absence of an effective domestic remedy in this respect admissible and joins to the merits the Government\u2019s objection relating to the alleged non-exhaustion of domestic remedies.<\/p>\n 2.\u00a0\u00a0Merits<\/em><\/p>\n (a)\u00a0\u00a0Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention<\/p>\n 38.\u00a0\u00a0The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The scope of the Contracting States\u2019 obligations under Article\u00a013 varies depending on the nature of the applicant\u2019s complaint. However, the remedy required by Article 13 must be \u201ceffective\u201d in practice as well as in law. The \u201ceffectiveness\u201d of a \u201cremedy\u201d within the meaning of Article\u00a013 does not depend on the certainty of a favourable outcome for the applicant (see, with further references, Khlaifia and Others v. Italy [GC], no.\u00a016483\/12, \u00a7 268, ECHR 2016 (extracts)).In view of its findings concerning Article 8 of the Convention in Polyakova and Others (cited above, \u00a7 122), it considers that the applicant has an \u201carguable complaint\u201d under Article 8 within the meaning of the Court\u2019s case-law.<\/p>\n 39.\u00a0\u00a0The Government argued before the Court that Chapter 25 of the CCP constituted an effective remedy in respect of the applicant\u2019s complaint underArticle 8 of the Convention (see paragraph 21 above).The applicant, in turn, insisted that the suggested remedy was ineffective and that there had been a violation of Article 13 of the Convention (see paragraph\u00a029 above).<\/p>\n 40.\u00a0\u00a0The Court notes that the Governmenthave not submitted any judicial decision showing that a person affected by the FSIN\u2019s decision concerning the geographic distribution of prisoners had been able to protect his or her rights by using the remedy suggested, that is, where recourse to a court under Chapter 25 of the CCP had led to a proper assessment of the applicant\u2019s claims under Article 8 of the Convention. They have likewise failed to provide an explanation as to why they could not submit any such examples.<\/p>\n 41.\u00a0\u00a0The Court observes that it has on many occasions analysed the effectiveness of the mechanism set out in Chapter 25 of the CCP as a remedy in a variety of contexts, such as conditions of pre-trial detention (see Ananyev and Others, cited above, \u00a7\u00a7 107-12), non-enforcement of final domestic judgments (see Burdov v. Russia (no. 2), no. 33509\/04, \u00a7\u00a0103, ECHR 2009), and detention pending extradition (see Gaforov v. Russia, no.\u00a025404\/09, \u00a7\u00a0169, 21 October 2010). In all those instances the Court refused to accept a complaint under Chapter 25 of the CCP as an effective domestic remedy.<\/p>\n 42.\u00a0\u00a0The Court further notes that the applicants in the case of Polyakova and Othershad brought civil proceedings under Chapter 25 of the CCP, namely, its Articles 254 and 258, as in force at the material time, challenging the FSIN\u2019s decisions in their respective cases. However, the domestic courts had rejected their claims in a summary fashion, referring to the FSIN\u2019s position expressed in objections to the claims, according to which domestic law did not provide for an opportunity to obtain a review of the decision on the geographic distribution of prisoners on account of considerations pertaining to the right to respect for family life (cited above, \u00a7\u00a7 12, 24, 32\u00a0and 40). No attempts at balancing the claimants\u2019 interests against those of the State had been made. The Court observes in this connection that, in accordance with its established case\u2011law, the effective remedy required by Article 13 of the Convention is one where the domestic authority examining the case has to consider the substance of the Convention complaint. In cases involving Article 8 of the Convention, this means that the authority has to carry out a balancing exercise and examine whether the interference with the applicants\u2019 rights answered a pressing social need and was proportionate to the legitimate aims pursued, that is, whether it amounted to a justifiable limitation of their rights (see, with further references, C.G. and Others v. Bulgaria, no. 1365\/07, \u00a7 62, 24 April 2008).In Polyakova and Others (cited above, \u00a7116) the Courtfound that Russian domestic law governing the geographical distribution of prisoners as interpreted by the domestic courts did not enable an individual to obtain a judicial review of the proportionality of the FSIN\u2019s decision to his or her vested interests in maintaining family and social ties.<\/p>\n 43.\u00a0\u00a0Given the narrow scope of review by the domestic courts in proceedings under Chapter 25 of the CCP, the Court does not accept that such proceedings, had they been instituted, would have provided an avenue whereby the applicant could adequately vindicate his right to respect for family life (see, mutatis mutandis, C.G. and Others v. Bulgaria, cited above, \u00a7\u00a063). It considers the applicant\u2019s unsuccessful attempt to claim compensation for damage caused by the Oryol FSIN\u2019s decision (see paragraph13above) relevant in this context, as the ZavodskoyDistrict Court found that the Oryol FSIN had acted lawfully when deciding to send the applicant to the Krasnoyarsk Region without making any reference to his family situation or to the difficulties he would have in maintaining family ties. The Government do not suggest that the domestic courts\u2019 reasoning and findings as regards the lawfulness of the impugned measure would have been different in any waymerely because the proceedings before it wereinitiated under Chapter 25 of the CCP.<\/p>\n 44.\u00a0\u00a0The Court reiterates that, as regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. The availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case-law. Such case-law must in principle be well established and date back to the period before the application was lodged, subject to exceptions which may be justified by the particular circumstances of the case (see, with further references, Gherghina v.\u00a0Romania (dec.) [GC], no. 42219\/07, \u00a7 88, 9\u00a0July 2015).<\/p>\n 45.\u00a0\u00a0In the absence of any concrete example given by the Government of successful litigation under Chapter 25 of the CCP regarding an alleged violation of the right to respect for family life stemming from the FSIN\u2019s decision concerning the geographic distribution of prisoners, or any structural reason which would indicate that, even without specific examples, the remedy could have been \u201ceffective\u201d, the Court is not satisfied that the suggested remedy would have brought about the required discussion of the family life issues in the case. It thus considers that the capacity of the remedy suggested by the Government to provide effective redress for the alleged violation of Article 8 of the Convention has not been established with a sufficient degree of certainty (see, mutatis mutandis,Mustafa SezginTanr\u0131kulu v. Turkey, no. 27473\/06, \u00a7 29, 18 July 2017).<\/p>\n 46.\u00a0\u00a0The Court is mindful of the fact that it has previously found on a number of occasions that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention into domestic law (see Appleby and Others v. the United Kingdom, no.\u00a044306\/98, \u00a7 56, ECHR 2003\u2011VI; Ostrovar v.\u00a0Moldova, no. 35207\/03, \u00a7\u00a0113, 13 September 2005; I.G. and Others v.\u00a0Slovakia, no. 15966\/04, \u00a7\u00a0156, 13\u00a0November 2012; and Szab\u00f3 and Vissyv. Hungary, no. 37138\/14, \u00a7\u00a093, 12\u00a0January 2016). However, the thrust of the applicant\u2019s complaint is the absence of any meaningful avenues of redress open to him at the national level in respect of his particular situation, that is, his transfer to and subsequent detention in IK-7 in the Krasnoyarsk Region, which adversely affected his capacity to enjoy family life.<\/p>\n 47.\u00a0\u00a0The Court thus considers that the proceedings under Chapter 25 of the CCP were not an effective remedy to be exhausted in the context of the present case. Furthermore, given that the domestic court did not address the applicant\u2019s argument regarding his difficulties in maintaining family ties in the proceedings for compensation of damages that the applicant pursued(see paragraph 13above), such proceedings did not provide him with an effective domestic remedy either(see paragraph 43 above).<\/p>\n 48.\u00a0\u00a0In view of the above, the Court dismisses the Government\u2019s objection as to the non\u2011exhaustion of domestic remedies and finds that the applicant did not have at his disposal an effective domestic remedy for his grievances under Article 8, in breach of Article 13 of the Convention.<\/p>\n (b)\u00a0\u00a0Article 8 of the Convention<\/p>\n 49.\u00a0\u00a0It is an essential part of a prisoner\u2019s 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, 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. 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 \u201cnormal\u201d hardships and restrictions inherent in the very concept of imprisonment, in particular, in view the geographical situation of remote penal facilities and the realities of the transport system (see, with further references, Polyakova and Others, cited above,\u00a7\u00a081).<\/p>\n 50.\u00a0\u00a0The Court has already analysed the Russian domestic legal system in the context of the geographic distribution of prisoners (ibid.,\u00a7\u00a7 90-115) and concluded that the latter did not afford adequate legal protection against possible abuses, and that Article 73 \u00a7\u00a7 2 and 4 and Article 81 of the CES did not satisfy the \u201cquality of law\u201d requirement (ibid., \u00a7\u00a7 117-18).<\/p>\n 51.\u00a0\u00a0There is nothing in the Government\u2019s submissions regarding the present case to convince the Court to depart from the above findings. Moreover, Ruling No.\u00a0599-O of 28 March 2017 of the Constitutional Court of Russia (see paragraph 18above) demonstrates that the national authorities\u2019 approach to the interpretation of domestic law in this field has not evolvedsince the delivery of the Polyakova and Others judgment. The Court thus concludes that the interference with the applicant\u2019s right to respect for family life in the present case was not \u201cin accordance with the law\u201d within the meaning of Article 8 \u00a7 2 of the Convention.<\/p>\n 52.\u00a0\u00a0Therefore, there has been a violation of Article 8 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 53.\u00a0\u00a0Article 41 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 A.\u00a0\u00a0Damage<\/strong><\/p>\n 1.\u00a0\u00a0Pecuniary damage<\/em><\/p>\n 54.\u00a0\u00a0The applicant claimed 4,000 euros (EUR),being the approximate costs of his partner\u2019s travel from Oryol to IK-7. He did not submit any documents to substantiate the claim.<\/p>\n 55.\u00a0\u00a0The Court observes that the applicant\u2019s claim under the head of pecuniary damage is not supported by any documentary evidence and dismisses it.<\/p>\n 2.\u00a0\u00a0Non-pecuniary damage<\/em><\/p>\n 56.\u00a0\u00a0The applicant further claimed EUR 50,000 in respect of non\u2011pecuniary damage, submitting that he had sustained mental suffering, frustration and feelings of injustice as a consequence of the alleged violation of Article 8 of the Convention.<\/p>\n 57.\u00a0\u00a0The Government submitted that Article 41 of the Convention should be applied in accordance with the Court\u2019s case-law.<\/p>\n 58.\u00a0\u00a0The Court observes that the present case bears close similarities to that of Polyakova and Others as the violations of Article\u00a08 of the Convention found in the two cases originate from the very same issue with the quality of the Russian domestic law. Having regard to the nature of the violations found in respect of the applicant, and noting that he must have suffered non-pecuniary damage which cannot be compensated for by mere findings of violations, the Court awards the applicant EUR 6,000 in respect of non\u2011pecuniary damage, plus any tax that may be chargeable.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 59.\u00a0\u00a0The applicant claimed EUR 30 as postal expenses incurred by him. He did not provide any supporting documents in this respect. He further claimed EUR 1,970 as costs and expenses incurred before the Court for his lawyer\u2019s fees, submitting a time-sheet for sixteen hours\u2019 work at an hourly rate of EUR 120, and EUR 50 in administrative expenses, unsupported by any documentation.<\/p>\n 60.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for postal expenses and considers it reasonable to award the sum of EUR 850 for the proceedings before the Court, payable into the bank account of the applicant\u2019s representative.[1]<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 61.\u00a0\u00a0The 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.\u00a0\u00a0Declaresthe application admissible and joins the Government\u2019s objection as to the alleged non-exhaustion of domestic remedies to the merits;<\/p>\n 2.\u00a0\u00a0Holds that there has been a violation of Article 13 of the Convention and dismisses the Government\u2019s objection as to the alleged non-exhaustion of domestic remedies;<\/p>\n 3.\u00a0\u00a0Holds that there has been a violation of Article 8 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three monthsof the date on which the judgment becomes final, in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;<\/p>\n 5.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 3 July 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stephen Phillips\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Helena J\u00e4derblom _________________<\/p>\n In accordance with Article\u00a045 \u00a7\u00a02 of the Convention and Rule\u00a074 \u00a7\u00a02 of the Rules of Court, the separate opinion of Judge El\u00f3segui is annexed to this judgment.<\/p>\n H.J. Rectified on 11 September 2018 under Rule 81 of the Rules of Court.<\/p>\n Stephen Phillips\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Vincent A. De Gaetano <\/p>\n CONCURRING OPINION OF JUDGE EL\u00d3SEGUI<\/strong><\/p>\n 1.\u00a0\u00a0I agree with the whole judgment in the case of Voynov v. Russia and the Court has decided it unanimously. My concurring opinion seeks to analyse, in greater depth, paragraph 42 of the judgment in order to show what the Russian Government have failed to demonstrate. As the Court says in paragraph 42: \u201cNo attempts at balancing the claimants\u2019 interests against those of the State had been made\u201d. For the Court, the proportionality test is a tool to secure the protection of Convention rights. It is not an end in itself, but a method for weighing Convention rights in the balance where there are conflicting interests between the parties, to ascertain whether or not there has been a violation of a right, or if an interference by the State with an individual\u2019s rights has been justified.<\/p>\n 2.\u00a0\u00a0I suggest that in order to be more prescriptive, as regards our balancing test to establish proportionality, we could expect the Russian authorities and domestic Russian courts to perform a balancing exercise respecting the following steps[2]: suitability or adequacy, necessity, and proportionality strictosensu (on the tripartite proportionality test, see the separate opinion of Judge Pinto de Albuquerque in Mouvementra\u00ebliensuisse v. Switzerland [GC], no. 16354\/06, ECHR 2012(extracts)).<\/p>\n 3.\u00a0\u00a0The first step means that the authority has to carry out a balancing exercise as regards the justification for the interference with the applicant\u2019s rights, namely the suitability of the measure in pursuit of a legitimate aim. The second step of the proportionality test is to examine the necessity of the measure. In the present case, the Government had to justify the existence of a specific reason to choose a faraway prison. For instance, in some circumstances this could be justified because of the dangerousness of the prisoner or for security reasons.<\/p>\n 4.\u00a0\u00a0Going to the third step, proportionality strictosensu, this part of the test can further be divided into three stages. In the first stage, it would be necessary to examine the weight and gravity of the goal of avoiding prison overcrowding. We could attribute to this goal of the State a moderate degree of weight because it is an organisational aim, although it may be important for the purpose of protecting order and security in prisons. In the second stage, we could analyse the right of the prisoner to have a family life under Article 8 of the Convention. The intensity of the interference will be serious if the Government do not allow the fulfilment of this right (on the protection of family life of prisoners in Russia, see the joint concurring opinion of Judges Pinto de Albuquerque and Turkovi\u0107 in Khoroshenko v. Russia [GC], no. 41418\/04, ECHR 2015). In the third stage, we have to weigh up the results of the first two stages to see whether or not the overcrowding in some prisons justifies the decision to send the applicant to IK-7 prison 4,200\u00a0kilometres from his home.<\/p>\n 5.\u00a0\u00a0Also it has to be examined whether the State could attain the same goal with an alternative measure, namely choosing a prison that is closer to the applicant\u2019s home, taking into account the applicant\u2019s right to family life. The fact is that this great distance is a serious interference with his right to maintain family and social ties. Consequently, it is possible to conclude, after an analysis of the proportionality, that the legitimate aim of the Government to ensure better organisation of prisons could be fulfilled through a less severe interference with a fundamental right of the applicant. Here the overcrowding in some prisons does not justify the decision to send the applicant 4,200 kilometres away from his home. In this concrete case, the Government have not adequately weighed in the balance the applicant\u2019s right to a family life, the limitation of which is not proportionate and is not justified in this case.<\/p>\n 6.\u00a0\u00a0Moreover, taking into account the empirical and normative assumptions, the empirical fact is that the IK-7 prison had also been overcrowded; and in relation to the norms, as the Court has said at the end of paragraph 42:<\/p>\n \u201cThe Court found that Russian domestic law governing the geographical distribution of prisoners as interpreted by the domestic courts did not enable an individual to obtain a judicial review of the proportionality of the FSIN\u2019s decision to his or her vested interests in maintaining family and social ties.\u201d<\/p>\n 7.\u00a0\u00a0In conclusion, a different measure could have been taken, namely to find a prison that was closer to the applicant\u2019s home while fulfilling the same goal; this would have been less injurious to his right to family life.<\/p>\n _______________<\/p>\n [1].\u00a0\u00a0Rectified on 11 September 2018: \u201cpayable into the bank account of the applicant\u2019s representative\u201d has been added.
\nHelen Keller,
\nDmitry Dedov,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nGeorgios A. Serghides,
\nJolien Schukking,
\nMar\u00eda El\u00f3segui, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\nJ.S.P.<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\n[2].\u00a0\u00a0See Robert Alexy\u2019s Weight Formula in ALEXY, R., \u201cThe Absolute and the Relative Dimension of Constitutional Rights\u201d, Oxford Journal of Legal Studies, (2016), pp. 1-17.<\/p>\n