THIRD SECTION
CASE OF RESIN v. RUSSIA
(Applications nos. 9798/12 and 4 others – see appended list)
JUDGMENT
STRASBOURG
29 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Resin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications (nos. 9798/12, 19897/15, 50779/16, 38642/17 and 15031/18) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian national, Mr Andrey Igorevich Resin (“the applicant”), on 23 November 2011, 5 April 2015, 5 August 2016, 16 April 2017 and 9 March 2018;
the decision to give notice to the Russian Government (“the Government”) of the complaints concerning conditions of detention and transport, handcuffing, absence at hearings in civil proceedings, prison uniform and confidentiality of telephone conversations, lack of effective remedies and discrimination and to declare inadmissible the remainder of the applications;
the parties’ observations;
Having deliberated in private on 8 June 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns various limitations imposed on the applicant, life prisoner serving his sentence in a correctional colony, in particular, conditions of detention and transport, his routine handcuffing and using a guard dog, absence at hearings in civil proceedings, obligation to wear prison uniform and discrimination, confidentiality of telephone conversations with his representatives before domestic courts and the Court and lack of effective remedies.
THE FACTS
2. The applicant was born in 1974 and is detained in IK-6, Khabarovk Region.
3. The Government were represented initially by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr A. Fedorov.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 7 February 2000 the Khabarovsk Regional Court convicted the applicant of aggravated murder and sentenced him to life imprisonment. On 6 April 2001 the Supreme Court of Russia upheld the judgment on appeal.
6. Since his conviction the applicant has been detained in various prisons and detention facilities. From 25 May 2012 till 1 October 2017 he was mainly detained in the life prisoners’ wing of the IK-56 prison, Sverdlovsk Region.The applicant’s routine handcuffing and using a guard dogHandcuffing in correctional colony
7. During the periods between 7 June 2000 and 2 June 2011 (10 years, 11 months, and 27 days) and between 25 May 2012 and 16 April 2015 (2 years, 10 months, and 22 days) the applicant’s hands were cuffed behind his back every time he left his cell, including during the walks.
8. During his detention between 2002 and 2014 the prison administration sanctioned the applicant several times for violations of the prison internal order, in particular, for keeping blades, a nail, money, food provisions in the cell; an act of self-mutilation; knocking on his cell’s door; and other breaches of internal regulations.
9. The applicant asked the Sverdlovsk Regional Office of the Federal Penitentiary Service to explain the legal grounds for his routine handcuffing.
10. Relevant part of the Federal Penitentiary Service’s letter of 6 March 2013 read as follows:
“... according to Section 30 of the Penitentiary Institutions Act, convicts may be handcuffed when their behaviour implies a possibility of absconding or causing harm to themselves or others. IK-56 is a special regime correctional colony housing life prisoners. Having regard to the gravity of the crimes committed and to the social danger, this category of convicts represents, there are reasons to believe that the convicts may abscond, harm others or themselves.”
11. On 7 July 2014 the Ivdel Town Court of the Sverdlovsk Region examined the applicant’s civil claim where he challenged the lawfulness of the systematic use of handcuffs. The applicant participated in the hearing by video conference. The court considered that the prison administration had failed to prove the necessity of such measure and granted the applicant’s claim.
12. The applicant then brought a civil claim for compensation in respect of non-pecuniary damages caused by unlawful use of handcuffs. On 19 December 2014 the Tverskoy District Court of Moscow granted the applicant’s claim in part in the presence of his lawyer and awarded him 1,000 Russian roubles (RUB) (12 euros (EUR)) in damages.
13. The applicant appealed arguing that the award was too low. On 20 May 2015 the Moscow City Court dismissed his appeal. The applicant’s representative was present and requested to establish a video-link connection with the applicant in order to ensure his effective participation. The City Court dismissed this request.Handcuffing and using a guard dog in remand prison
14. During his transportation between the prisons, the applicant stayed for several days in a remand prison where he was subjected to handcuffing every time he left the cell and during the walks in the prison territory. According to the applicant, the prison officer also used a guard dog to escort the prisoners.Conditions of detention and transport
15. In 2016-2017 the applicant was transported several times between the prisons by a van and a train in the following conditions: lack of fresh air, lack of privacy for toilet, small individual space (about 3,5 sq. m for 4 persons), restricted access to toilet.
16. In 2016-2017 the applicant alleges that he was kept in the prison hospital for 17 days in a 9 sq. m room alone; the ventilation and lighting were poor; the toilet was in his room; he could not go for a walk.Telephone conversations with the applicant’s representatives
17. From August 2014 to January 2015 the prison administration allowed 34 telephone conversations and 9 conversations by video link between the applicant and his representatives before domestic courts and the Court, most of them being made in the presence of or controlled by a prison officer. On 31 October 2014 the applicant had a telephone conversation with his lawyer in private. He was always escorted to the phone box in handcuffs.
18. The applicant complained before the domestic courts about use of handcuffs and the refusal to ensure communication in private with his lawyers and representatives, including his representative before the Court.
19. On 30 June 2014 the Industrialnyy District Court of Khabarovsk dismissed the applicant’s claim under the Code of Civil Procedure and in the applicant’s and his lawyer’s absence stating that according to effective law, the prison administration may control telephone conversations and that during the applicant’s conversations with his lawyer no technical devices had been used. As regards application of handcuffs, it had been justified due to the applicant’s sentencing to life imprisonment for serious crime. The fact of conviction for serious crime evidenced that the applicant was dangerous for others.
20. The applicant lodged an appeal stating that on 7 July 2014 the Ivdel Town Court had held that application of handcuffs to the applicant was unlawful and that his requests to ensure his telephone conversations with lawyer in private had been unlawfully rejected.
21. On 21 November 2014 the Khabarovsk Regional Court upheld this decision on appeal in the applicant’s and his lawyer’s absence stating that his handcuffing was lawful and that the applicant’s telephone conversations had been arranged in accordance with law.
22. On 22 January 2015 the Ivdel Town Court examined under the Code of Administrative Procedure the applicant’s second complaint regarding confidentiality of his telephone conversations and video meetings with his representatives and dismissed it by stating that the prisoners’ right to legal aid and representation before the Court were guaranteed by the legal provisions allowing an unlimited number of meetings with their representatives.
23. On 23 December 2015 the Sverdlovsk Regional Court upheld this decision on appeal. The court held that under effective law the conversations between a prisoner and his representative before the Court may be controlled by the prison administration.Prison uniform
24. In correctional colony IK-56 the applicant was provided with prison uniform consisting of black jacket and black trousers. The jacket had a breastplate indicating his surname, initials and a brigade number. On the back of the jacket the detention authorities stencilled with white paint “life imprisonment” and “81”, the prisoner’s number. The trousers had the prisoner’s number on the back of the knee.
25. According to the applicant, the detention authorities promised him that in 2014 all detainees would receive a new uniform, without the marks on the back, but new model obtained in September 2014 did not differ from the previous ones.
26. In December 2014 the applicant filed a lawsuit against the detention authorities seeking to declare unlawful the practice of marking the prison uniform with words “life imprisonment” and assigning numbers to detainees. He stated that those measures had been unlawful, discriminative and caused “intensive moral sufferings” to him.
27. On 22 December 2014 the Ivdel Town Court dismissed the claim. It found that the impugned measure had been lawful, because rules on prison uniform had not prohibited additional marks on it. In any event, in the court’s view there had been no interference with the applicant’s rights as the conditions of his detention had not been exacerbated in any way.
28. The applicant lodged an appeal against the decision of 22 December 2014. He argued that assigning a prison number and marking prion uniform was unlawful and that “he had been experiencing moral sufferings” on account of the impugned measures.
29. On 8 July 2015, the Sverdlovsk Regional Court dismissed the appeal, having upheld the lawfulness of the measures taken by the authorities, and the finding that it had not interfered with the applicant’s rights.
30. In November 2015 the applicant challenged the court decisions by way of cassation appeal, alleging that the interpretation of domestic law in the judgment was arbitrary.
31. On 29 February 2016 a judge of the Sverdlovsk Regional Court dismissed the claim under the Code of Administrative Procedure. He noted that the distinctive marks had been put on the prison uniform for security reasons, in particular, to facilitate the identification of the inmates and prevent their escape. Even if it amounted to certain restriction on the applicant’s rights, it was lawful and proportionate to the legitimate aim. He could not discern any appearance of discrimination in the case.
32. The second cassation appeal was dismissed by a judge of the Supreme Court of Russia on 6 April 2016 under the Code of Administrative Procedure on the grounds that the impugned measures had been lawful, justified by the security considerations and had not inflicted any physical or moral sufferings on the applicant.
RELEVANT LEGAL FRAMEWORK AND PRACTICEHandcuffing
33. Under Article 86 of the Code of Execution of Criminal Sentences of 8 January 1997 (the “CES”), measures of restraint may be applied to prisoners who put up physical resistance to prison officers, refuse to follow the lawful orders of staff, engage in aggressive behaviour, mass unrest, hostage-taking, assaults or other dangerous activity, or try to escape or harm themselves or others.
34. Section 30 of the Penal Institutions Act (Federal Law no. 5473-1 of 21 July 1993) provides that handcuffs may be used to suppress mass unrest or group violations of public order by detainees, as well as to apprehend offenders who persistently disobey or resist officers. They may also be used when moving and escorting prisoners whose behaviour indicates that they could abscond or harm themselves or others.
35. Paragraph 41 of the Internal Rules of Penal Facilities, approved by Order of the Ministry of Justice no. 205 on 3 November 2005 (the “Internal Rules”), provides that if the behaviour of persons serving a life sentence indicates that they could abscond or cause harm to themselves or others, their hands must be cuffed behind their backs when they leave their cells. Under paragraph 47 of the new Internal Rules of Penal Facilities, approved by Order of the Ministry of Justice no. 295 of 16 December 2016 (the “New Internal Rules”), life prisoners should move outside their cells with their hands behind their backs, measures of restraint (handcuffs) being subject to the Penal Institutions Act.Participation of detainees in court hearings
36. For domestic provisions relating to the participation of detainees in court hearings, see Yevdokimov and Others v. Russia (nos. 27236/05 and 10 others, §§ 9-15, 16 February 2016).Telephone conversations in prison
37. According to Article 92 § 5 of the CES and paragraph 86 of the Internal Rules and New Internal Rules, the telephone conversations of convicts may be controlled by the staff of the penitentiary facilities.Prison uniform
38. According to paragraph 14 of the Internal Rules and paragraph 16 of the New Internal Rules, the convicts must wear approved model of the prison uniform with breastplates and sleeve plates. The breastplate contains surname, initials and brigade number of the inmate. The sleeve plates “foreman”, or “charge hand” must be worn by the foremen and charge hands accordingly.
THE LAWJOINDER OF THE APPLICATIONS
39. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION on account of handcuffing and using a guard dog
40. The applicant complained about regular use of handcuffs on the mere ground of his life imprisonment in correctional colony and remand prison, including during his conversations with his representative, and use of a guard dog in remand prison, as well as the lack of an effective remedy to protect his right to decent treatment in prison under Articles 3 and 13 of the Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“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.”
41. The Government submitted that the applicant had not complied with the six-month rule with regard to the complaint regarding his handcuffing in correctional colony. They alleged that the applicant should have complained before the Court within six months from the starting date of his life imprisonment. They further submitted that the applicant had been convicted of violent crimes and that he had breached several times the internal rules of the prison. Therefore, there were reasonable grounds to believe that the applicant could abscond or cause harm and there had been reasons to use handcuffs. Although the effective rules provided for the use of a guard dog for safety purposes, the applicant had never been escorted with a guard dog. They also stated that the applicant had had in his disposal effective domestic remedies to protect his rights under Article 3. Moreover, he had used these remedies and had obtained compensation for violation of his rights.
42. The applicant maintained his complaint as outlined in applications nos. 9798/12, 19897/15 and 15031/18.Article 3Admissibility
43. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). In cases featuring a continuing situation, the six-month period runs from the cessation of that situation (see Seleznev v. Russia, no. 15591/03, § 34, 26 June 2008, and Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004).
44. In the event of a repetition of the same events, such as applicant’s handcuffing every time he left his cell, even if this did not last all day long, the absence of any marked variation in the restraint measure to which he had been routinely subjected created a “continuing situation” which brought the periods complained of within the Court’s competence. Thus, the six‑month time-limit starts to run from the cessation of the situation complained of.
45. The applicant had been regularly handcuffed every time he left his cell between 7 June 2000 and 2 June 2011 and between 25 May 2012 and 16 April 2015. The applicant first raised his complaint on 23 November 2011 and then on 13 October 2015, that is within the six-month period. Therefore, the Court dismisses the Government’s objection.
46. At the same time, the applicant complained to the domestic courts about handcuffing several times in 2014 and 2015 and final decisions fall within the six-month period allowed for filing an application with the Court.
47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits
48. The Court has consistently held that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail the use of force or public exposure exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person’s absconding or causing injury or damage (see Raninen v. Finland, 16 December 1997, § 56, Reports of Judgments and Decisions 1997‑VIII; Henaf v. France, no. 65436/01, § 49, ECHR 2003‑XI; Boris Popov v. Russia, no. 23284/04, § 51, 28 October 2010; Kashavelov v. Bulgaria, no. 891/05, § 38, 20 January 2011).
49. In the present case, it is not disputed and is confirmed by the materials of the case that the applicant was handcuffed each time when taken out of his cell on the ground that he was sentenced to life imprisonment (see paragraphs 10, 11 and 19 above). The Court takes note of the misgivings expressed by the prison authorities about the applicant’s conduct and of their assessment of the risk that he might pose (see paragraph 10 above). Those authorities need to exercise caution when dealing with individuals who have been convicted of violent offences and refuse to accept the fact of their imprisonment (see Kashavelov, cited above, § 39).
50. However, the systematic use of handcuffs in respect of the applicant lasted more than thirteen years. The authorities’ references to the applicant’s violations of internal order of the prison cannot justify routine handcuffing for such a long period of time (see paragraph 8 above). From the documents cited, it appears that the applicant was handcuffed on the ground of the de facto presumption in favour of routine handcuffing of life prisoners and in the absence of any regular assessment of whether the application of the measure in question was appropriate or pursued any specific aim.
51. Therefore, the systematic handcuffing of the applicant when escorting him inside the prison was a measure which lacked sufficient justification and can thus be regarded as degrading treatment.
52. There has therefore been a violation of Article 3 of the Convention on account of the applicant’s routine handcuffing.
53. The Court considers it unnecessary to establish whether the applicant was escorted by a prison officer with a guard dog and assess whether the use of a guard dog was lawful.Article 13
54. Having regard to the findings above, the Court considers that it is not necessary to examine the complaint under Article 13 of the Convention.ALLEGED VIOLATION OF ARTICLE 3 and 13 OF THE CONVENTION on account of conditions of transport
55. The applicant complained about inadequate conditions of transport between prisons in violation of Articles 3 and 13 of the Convention.
56. The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applicant in respect of his complaint concerning conditions of transport. They acknowledged the violation of the applicant’s rights, offered to pay him 1,000 euros (EUR) and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay that amount within the above mentioned three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
57. The payment will constitute the final resolution of case insofar as it concerns the complaint about conditions of transport.
58. The applicant was sent the terms of the Government’s unilateral declaration several weeks before the date of this decision. He informed the Court that he did not accept the terms of the declaration.
59. The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
60. Thus, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see, in particular, Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
61. The Court has established clear and extensive case-law concerning complaints relating to the inadequate conditions of transport (see, for example, Tomov and Others v. Russia, nos. 18255/10 and 5 others, §§ 114‑156, 9 April 2019).
62. Noting the admissions contained in the Government’s declaration as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the complaint about the conditions of transport covered by the unilateral declaration (Article 37 § 1 (c)).
63. In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this complaint (Article 37 § 1 in fine).
64. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
65. In view of the above, it is appropriate to strike case out of the list as regards the complaint concerning the inadequate conditions of transport.Alleged violation of Articles 3 and 13 of the convention on account of conditions of detention
66. The applicant complained under Articles 3 and 13 of the Convention about poor conditions of detention in the hospital where he had been treated in 2016-2017, as described in application no. 38642/17.
67. The Government submitted that the applicant had been properly treated in the hospital and detained there in adequate conditions.
68. The Court notes that the conditions of detention as outlined in paragraph 16 above do not appear to reach the minimum level of severity required by Article 3 of the Convention. It follows that this complaint must be rejected in accordance with Article 35 § 4 of the Convention.
69. The Court has declared the applicant’s complaint under Article 3 on account of conditions of detention in the hospital inadmissible. Accordingly, the applicant did not have an “arguable claim” of a violation of a substantive Convention provision and, therefore, Article 13 of the Convention is inapplicable to this part of the application. It follows that the complaint under Article 13 must also be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention (see Razvyazkin v. Russia, no. 13579/09, §§ 125-26, 3 July 2012).ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
70. The applicant further complained of the fact that he did not attend the hearings in compensation proceedings and proceedings relating to telephone conversations on the ground that the domestic law did not provide for the participation of convicted detainees in civil proceedings. He relied on Article 6 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
71. The Government submitted that the applicant’s right to fair trial had not been violated as he had been represented by a lawyer in compensation proceedings. As regards proceedings relating to telephone conversations, the Government agreed that there had been a violation of the applicant’s right to fair hearing.
72. The applicant maintained his complaint.Admissibility
73. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits
74. The Court observes that the general principles regarding the right to present one’s case effectively before a court and to enjoy equality of arms with the opposing side, as guaranteed by Article 6 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, §§ 5960, ECHR 2005-II, and Yevdokimov and Others, cited above, §§ 22-53).
75. The personal participation of the litigant was held to be necessary from the standpoint of Article 6 in cases where the character and way of life of the person concerned was directly relevant to the subject matter of the case or where the decision involved the person’s conduct or experience. The Court thus found a violation of Article 6 in cases in which the nature of the civil dispute was such as to justify the claimant’s personal presence before the court, irrespective of whether or not he had been represented at the hearing (see Gryaznov v. Russia, no. 19673/03, § 49, 12 June 2012, and Insanov v. Azerbaijan, no. 16133/08, § 145, 14 March 2013).
76. Given that the applicant’s claims were, by their nature, largely based on his personal experience, his statements would have been an important part of the plaintiff’s presentation of the case, and virtually the only way to ensure adversarial proceedings. In refusing to order his attendance, the domestic courts therefore failed to ensure a fair hearing of the applicant’s claims.
77. The Court considers that, in the instant case, the domestic courts deprived the applicant of the opportunity to present his case effectively and failed to meet their obligation to ensure respect for the principle of a fair trial.
78. There has therefore been a violation of Article 6 § 1 of the Convention.ALLEGED VIOLATION OF ARTICLES 8 and 14 OF THE CONVENTION
79. The applicant complained about the assignment of an individual prisoner’s number and marking prison uniform under Articles 8 and 14 of the Convention, which, in so far as relevant, provide:
Article 8
“1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
80. The Government submitted that the applicant had not complied with the six-month rule, the last decision in his case being issued on 8 July 2015, and that the requirement to wear uniform with marking was lawful, was necessary to distinguish life prisoners from other prisoners and had not caused sufferings to the applicant. Since the inscription of the applicant’s clothes had not resulted in violation of his right to respect for his private life, Article 14 of the Convention had not been breached.
81. The applicant maintained his compliant, as outlined in application no. 50779/16.
82. As regards the Government’s objection regarding the six-month rule, the Court notes that the obligation to wear uniform with marking does not concern the applicant’s individual situation and applies to all prisoners without any exception. Like in case of handcuffing, wearing of prison uniform shall be considered as continuing situation. The six-month rule does not apply while this situation persists. In the present case, the applicant is still in detention and has to wear prison uniform, thus he complied with the six-month rule. Moreover, the last court decision in the applicant’s case will be the decision of the Supreme Court of Russian issued on 6 April 2016 (see paragraph 32 above; Chigirinova v. Russia (dec.), no. 28448/16, § 31, 13 December 2016). The applicant lodged his complaint on 8 August 2016, that is within the six months from the date of final decision in his case.
83. In any event, the complaint about prison uniform is manifestly ill‑founded for the following reasons.
84. The Court has already found that normal restrictions and limitations consequent on prison life and discipline during lawful detention are not matters which would constitute in principle a violation of Article 8 (see D.G. v. Ireland, no. 39474/98, § 105, 16 May 2002, and Nowicka v. Poland, no. 30218/96, § 71, 3 December 2002). Although the requirement for prisoners to wear prison clothes may be seen as an interference with their personal integrity, it is undoubtedly based on the legitimate aim of protecting the interests of public safety and preventing public disorder and crime (see Nazarenko v. Ukraine, no. 39483/98, § 139, 29 April 2003). Also, in the context of Article 3, the Court has held that applicant’s mental or physical state was not affected by the prison outfit he allegedly had to wear or that wearing this outfit was aimed at debasing him (see Hadade v. Romania, no. 11871/05, § 93, 24 September 2013).
85. In the present case, the requirement to wear specific prison uniform, which constituted an interference with the applicant’s rights under Article 8, was lawful as it was grounded on prison rules (see paragraph 38 above). The interference in question perused a legitimate aim of insuring safety and was necessary to facilitate identification of life prisoners (see Nazarenko, cited above, § 139, and McFeeley and Others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980, DR 20, p. 91). This was also the analysis of the domestic courts which had examined the applicant’s claim in this respect and confirmed both lawfulness and proportionality of the interference in respect of a person convicted to life imprisonment (see paragraphs 27, 29, 31 and 32 above).
86. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
87. With reference to the above findings, the Court further considers that the case reveals no appearance of discrimination of the applicant. Consequently, his complaint under Article 14 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. ALLEGED VIOLATION OF ARTICLES 8, 13 and 34 OF THE CONVENTION
88. The applicant complained that he had not had private telephone conversations with his representatives before the domestic courts and the Court in violation of Articles 8 and 34 of the Convention.
89. As the Court is master of the characterisation to be given to the facts of the case, and having regard to the nature of the interference and the contents of the applicant’s submissions (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009), it considers that the matters relating to the telephone conversations between the applicant and his representatives raise issue under Articles 8 of the Convention (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 193, 22 May 2012).
90. The applicant also complained that he did not have any effective remedy to protect his right to telephone conversations in private with his representatives before the domestic courts and the Court in violation of Article 13 of the Convention.Admissibility
91. The Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits
92. The applicant submitted that most of telephone communications with his representatives before the domestic courts and the Court had been held in presence of a prison officer and that he did not have any effective remedy to protect his right to confidentiality of the above communications.
93. The Government submitted that the applicant’s right to telephone conversations with his representatives had been fully respected during his detention. Some of these telephone conversations had been made in presence of and controlled by a prison officer in compliance with the CES. The applicant had complained about monitoring of his telephone communications before the domestic courts and they had examined his claims.
94. The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his correspondence. It is not disputed that telephone communications are covered by the notions of “private life” and “correspondence” in Article 8 § 1 (see Roman Zakharov v. Russia [GC], no. 47143/06, § 173, ECHR 2015).
95. It is an essential part of a detainee’s right to respect for private life and correspondence that the authorities enable him or, if need be, assist him in maintaining contact with the outside world (see, mutatis mutandis, Moiseyev v. Russia, no. 62936/00, § 246, 9 October 2008).
96. Such restrictions as monitoring a prisoner’s telephone conversations with his representatives before the domestic courts and the Court constitute an interference with his rights under Article 8 but are not, by themselves, in breach of that provision. Such an interference will contravene Article 8 unless it is in line with the criteria provided for in paragraph 2 of Article 8 (see Szuluk v. the United Kingdom, no. 36936/05, § 43, ECHR 2009, and Yefimenko v. Russia, no. 152/04, § 138, 12 February 2013).
97. It is not in dispute between the parties, that the applicant’s conversations with his representatives before the domestic courts and the Court were monitored by the prison staff.
98. Telephone conversations between a prisoner and his representatives were subject to control by prison administration under the CES (see paragraph 37 above). Therefore, the interference was in accordance with the law.
99. However the legal framework on telephone conversations provided for monitoring of all telephone conversations by detainees in general terms, without distinguishing between different categories of telephone communications or establishing the length or scope of the measure, the reasons that may warrant its application, or the manner of its exercise. Nor did it provide for an independent review of the scope and duration of censorship measures. It follows that the provisions of Russian law failed to afford a measure of legal protection against arbitrary interference by public authorities with the applicant’s right to respect for his correspondence (see, mutatis mutandis, Moiseyev, cited above, § 266) and in particular, exchanges with the representatives. The impugned restrictions on the applicant’s telephone conversations cannot therefore be regarded as having been “prescribed by law”. In the light of the above finding, it is not necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with.
100. There has therefore been a violation of Article 8 on account of unjustified restrictions on the applicant’s correspondence.
101. As regards the applicant’s grievance under Article 13, having regard to the Court’s findings under Article 8 above, the Court considers that there is no need to give a separate ruling on this complaint.APPLICATION OF ARTICLE 41 OF THE CONVENTION
102. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
103. The applicant claimed 39,300 euros (EUR) in non-pecuniary damage, EUR 9,937 in legal costs and EUR 53 in postal costs.
104. The Government submitted that the award should be made in accordance with the Court’s case-law.
105. Regard being had to the documents in its possession and to its case law (see, for instance, Yevdokimov and Others, cited above, § 58; Igranov and Others v. Russia, nos. 42399/13 and 8 others, § 40, 20 March 2018; Resin v. Russia, no. 9348/14, § 50, 18 December 2018; Resin and Others v. Russia [Committee], no. 30428/14 and 8 others, § 15, 30 November 2017; and Gromovoy and Others v. Russia [Committee], no. 59591/12 and 2 others, § 20, 9 November 2017), as well to the previous awards the Court has made to Mr Resin in connection with the same period of detention, the Court considers it reasonable not to make any award in non-pecuniary damage (see Ivanov and Others v. Russia [Committee], no. 44363/14 etc., § 12, 4 June 2020). At the same time, the Court awards the applicant EUR 850 in legal costs and EUR 50 in postal costs, plus any tax that may be chargeable on the applicant.
106. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications;Declares the complaints concerning the applicant’s routine handcuffing, using a guard dog, conditions of transport and lack of effective remedy, absence at the hearings in civil proceedings and confidentiality of telephone conversations and lack of effective remedy admissible and the remainder of the applications inadmissible;Takes note of the terms of the respondent Government’s declaration in covering inadequate conditions of transport as well as of the arrangements for ensuring compliance with the undertakings referred to therein;Decides to strike the complaint about inadequate conditions of transport covered by the Government’s unilateral declaration out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s routine handcuffing;Holds that there has been a violation of Article 6 of the Convention on account of the applicant’s absence from civil proceedings;Holds that there has been a violation of Article 8 of the Convention on account of the lack of confidentiality of telephone conversations between the applicant and his representatives;Holds that there is no need to examine the issue regarding the use of a guard dog and lack of effective remedies under Articles 3 and 13 of the Convention;Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 900 (nine hundred euros) in costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that 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;Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 29 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli
Deputy RegistrarPresident
Appendix
List of cases
No.
Application no.
Lodged on
Complaints
1.
9798/12
23/11/2011
Handcuffing; absence from hearing; lack of effective remedies
2.
19897/15
05/04/2015
Confidentiality of telephone conversations, absence form hearing, handcuffing and lack of effective remedies
3.
50779/16
05/08/2016
Labelling of prison uniform
4.
38642/17
16/04/2017
Conditions of detention and transport and lack of effective remedies
5.
15031/18
09/03/2018
Handcuffing and using a dog in remand prison, conditions of transport and lack of effective remedies
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