THIRD SECTION
\nDECISION<\/p>\n
Application no. 4246\/14
\nKonstantin Gennadyevich CHERNENKO and
\nSergey Pavlovich SHAKHMATOV against Russia
\nand 4 other applications
\n(see list appended)<\/p>\n
The European Court of Human Rights (Third Section), sitting on 5\u00a0February 2019as a Chamber composed of:<\/p>\n
Vincent A. De Gaetano, President,
\nBranko Lubarda,
\nDmitry Dedov,
\nPere Pastor Vilanova,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nJolien Schukking,
\nMar\u00eda El\u00f3segui, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n
Having regard to the above applications lodged on the various dates indicated in the appended table,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0A list of the applicants, seven Russian nationals, and their representatives is set out in the appendix.<\/p>\n 2.\u00a0\u00a0The Russian Government (\u201cthe Government\u201d) were represented by Mr\u00a0M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The 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 \u00a7 3 of the Code of Execution of Criminal Sentences (hereinafter \u201cthe CES\u201d) (see paragraphs 22 and 25 below). That regime implied certain restrictions on the applicants\u2019 contact with the outside world. The applicants\u2019 individual situations are described below.<\/p>\n 1.\u00a0\u00a0The first applicant<\/em><\/p>\n 4.\u00a0\u00a0After 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.<\/p>\n 2.\u00a0\u00a0The second applicant<\/em><\/p>\n 5.\u00a0\u00a0According 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.<\/p>\n 3.\u00a0\u00a0The third applicant<\/em><\/p>\n 6.\u00a0\u00a0After the third applicant\u2019s admission to a correctional colony located around 2,000 kilometres away from his home, his mother made two short\u2011term visits, on 22\u00a0July 2011 and 11 November 2015, and a long-term visit which lasted from 18 to 21 September 2017.<\/p>\n 7.\u00a0\u00a0Also, every year his mother sent a parcel to him.<\/p>\n 8.\u00a0\u00a0Besides, 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.<\/p>\n 4.\u00a0\u00a0The fourth applicant<\/em><\/p>\n 9.\u00a0\u00a0According 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.<\/p>\n 10.\u00a0\u00a0At 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\u00a0kilometres away from his home.<\/p>\n 11.\u00a0\u00a0According 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).<\/p>\n 5.\u00a0\u00a0The fifth applicant<\/em><\/p>\n 12.\u00a0\u00a0The 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.<\/p>\n 6.\u00a0\u00a0The sixth applicant<\/em><\/p>\n 13.\u00a0\u00a0The sixth applicant has a wife and two children.<\/p>\n 14.\u00a0\u00a0After 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.<\/p>\n 7.\u00a0\u00a0The seventh applicant<\/em><\/p>\n 15.\u00a0\u00a0After 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.<\/p>\n 16.\u00a0\u00a0According 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.<\/p>\n 17.\u00a0\u00a0In 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\u2019s death.<\/p>\n 18.\u00a0\u00a0On 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\u00a0April 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.<\/p>\n B.\u00a0\u00a0Relevant domestic and international law and practice<\/strong><\/p>\n 1.\u00a0\u00a0Types of facilities and regimes in Russian penal establishments<\/em><\/p>\n 19.\u00a0\u00a0According to Article 58 of the Criminal Code (hereinafter \u201cthe CC\u201d), 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.<\/p>\n 20.\u00a0\u00a0In the colonies, convicted prisoners are subject to three levels of prison regime, namely ordinary, facilitated, and strict regimes.<\/p>\n 2.\u00a0\u00a0Detention in special-regime correctional colonies under a strict regime<\/em><\/p>\n 21.\u00a0\u00a0All convicts sentenced to life imprisonment have to serve their sentences in special-regime correctional colonies. Upon arrival at a special\u2011regime 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\u00a058 of the CC and Article 127\u00a0\u00a7\u00a03 of the CES).<\/p>\n 22.\u00a0\u00a0Under that regime they are entitled to receive and send an unlimited number of letters, postcards and telegrams (Article 91 \u00a7 1 of the CES). They may also receive one large parcel and one small parcel a year (Article\u00a0125\u00a0\u00a7\u00a03 of the CES). Telephone calls for them are permitted only in exceptional personal circumstances (Article\u00a092\u00a0\u00a7\u00a03 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.<\/p>\n 23.\u00a0\u00a0A 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\u2019s partner, parents, children, siblings, grandparents, or grandchildren, and by others if the governor of the correctional colony allows them to visit (Article 89 \u00a7\u00a02 of the CES).<\/p>\n 24.\u00a0\u00a0The right to a long-term visit (a visit of up to three days) was instituted by the Russian Constitutional Court\u2019s judgment no. 24-\u041f of 15\u00a0November 2016. That judgment entered into force on 17\u00a0November 2016.<\/p>\n 25.\u00a0\u00a0On 29 September 2017 the Russian State Duma introduced amendments to Article 125 \u00a7 3 of the CES allowing prisoners in special\u2011regime correctional colonies under a strict regime to have one long\u2011term visit per year. The amendments entered into force on 27\u00a0October 2017.<\/p>\n 3.\u00a0\u00a0Procedure for granting visits to convicted prisoners<\/em><\/p>\n 26.\u00a0\u00a0The 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.<\/p>\n 27.\u00a0\u00a0According 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.<\/p>\n 28.\u00a0\u00a0On 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.<\/p>\n 4.\u00a0\u00a0Other relevant materials<\/em><\/p>\n 29.\u00a0\u00a0For other relevant provisions of domestic law and international law and practice see Khoroshenko v. Russia[GC], no. 41418\/04, \u00a7\u00a7 32-80, ECHR 2015.<\/p>\n COMPLAINTS<\/strong><\/p>\n 30.\u00a0\u00a0The applicants complained that the statutory restrictions on family visits, telephone calls and the number of permitted parcels during their post\u2011conviction 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.<\/p>\n 31.\u00a0\u00a0They 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.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Joinder of the applications<\/strong><\/p>\n 32.\u00a0\u00a0In accordance with Rule 42 \u00a7 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.<\/p>\n B.\u00a0\u00a0Complaint under Article 8 of the Convention<\/strong><\/p>\n 33.\u00a0\u00a0The 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:<\/p>\n \u201c1. Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 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.\u201d<\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 34.\u00a0\u00a0The Government stated that when the Constitutional Court\u2019s judgment of 15\u00a0November 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\u2019 rights under Article 8 of the Convention had not been arbitrary.<\/p>\n 35.\u00a0\u00a0In reply to the Government\u2019s non-exhaustion plea, the applicants stated that they had not had at their disposal effective domestic remedies.\u00a0\u00a0All of the applicants, save for the fifth applicant, further submitted\u00a0that 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.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0Scope of the case<\/p>\n 36.\u00a0\u00a0The Court observes that in reply to the Government\u2019s 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.<\/p>\n 37.\u00a0\u00a0The Court notes that the remoteness of the penal establishments is a separate issue (see Polyakova and Others v. Russia, nos.\u00a035090\/09 and 3\u00a0others, 7 March 2017), and that, for the first time, this issue was raised in the applicants\u2019 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.\u00a0Russia, no. 77546\/14<\/a>, \u00a7\u00a7 37-38, 10\u00a0April 2018, with further references).<\/p>\n 38.\u00a0\u00a0The 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.<\/p>\n 39.\u00a0\u00a0The 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\u2019s suffering (see Khoroshenko, cited above, \u00a7\u00a7\u00a0107-09, 130, 138, 140, 146-49).<\/p>\n 40.\u00a0\u00a0The Court considers it appropriate to follow this approach in the present case. It will examine the alleged interference with the applicants\u2019 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.<\/p>\n (b)\u00a0\u00a0Exhaustion of domestic remedies<\/p>\n 41.\u00a0\u00a0The 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\u2019 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.<\/p>\n (c)\u00a0\u00a0Compatibility ratione personae<\/p>\n 42.\u00a0\u00a0The Court observes at the outset that although the respondent Government did not raise any objection as to the Court\u2019s competence\u00a0ratione personae, with respect to the applicants\u2019 status as \u201cvictims\u201d 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.\u00a0Russia, no.\u00a021863\/05<\/a>, \u00a7 39, 10 April 2018, with further references).<\/p>\n 43.\u00a0\u00a0The 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\u00a0directly\u00a0affected\u00a0by the impugned measure: the Convention does not envisage the bringing of an\u00a0actiopopularis\u00a0for the interpretation of the rights it contains (see\u00a0 Centre for Legal Resources on behalf of Valentin C\u00e2mpeanu v. Romania\u00a0[GC], no.47848\/08, \u00a7 101, ECHR 2014, with further references).<\/p>\n (i)\u00a0\u00a0The Court\u2019s approach to victim status<\/p>\n