Communicated on 9 March 2015
FIRST SECTION
Applications nos 1164/12 and 23502/12
Malika Akhmedovna KHAMASTKHANOVA and others against Russia
and Ilyas Eliyevich DOVLETMURZAYEV and Zulay Akhmadovna SAPAYEVA against Russia
lodged on 16 November 2011 and 10 March 2012 respectively
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. The applicants are Russian nationals. They are represented before the Court by Mr I. Timishev, a lawyer practicing in Nalchik.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Application no. 1164/12
The first applicant is an ex-wife of the second applicant; they have two minor children together. The third applicant is the second applicant’s mother.
On 14 December 2007 the Savelovskiy district court of Moscow convicted the second applicant of drug-related crimes and sentenced him to eleven years’ imprisonment in a strict regime facility. On 28 January 2008 the Moscow city court upheld the conviction on appeal.
The second applicant was sent to serve his sentence in IK-2 in the village of Vadino in the Smolensk region (about 2,000 km from Groznyy).
Despite the dissolution of their marriage after the second applicant’s conviction, the first and second applicants wished to remain in close contact.
In 2000 the first applicant complained to the Federal Penitentiary Service of Russia (“FSIN”) claiming that she had effectively been deprived of an opportunity to visit the second applicant. On 15 April 2010 the FSIN replied that the second applicant had been sent to the Smolensk region pursuant to Article 73 § 2 of the Russian Code on the Execution of Sentences (“CES”) because there were no strict regime facilities either in the Moscow area (where the second applicant had been convicted) or in the Chechen republic (the applicants’ home region) and that he could not be transferred to any other facility pursuant to Article 81 of the CES. The first applicant challenged the FSIN decision before a court.
On 11 May 2011 the Oktyabrkiy district court of Groznyy dismissed the complaint referring to Article 81 of the CES. The arguments related to the applicants’ private and family life were not analysed at all.
On 12 July 2011 the Supreme Court of the Chechen Republic upheld the first-instance judgment.
2. Application no. 23502/12
The first applicant is a son of the second applicant.
On 5 May 2005 the Groznenskiy district court of the Chechen Republic convicted the first applicant of aggravated robbery and sentenced him to twenty years’ imprisonment in a strict regime facility. The conviction became final. The first applicant was sent to serve his sentence to a facility in the Saratov region.
In 2009, following a supervisory review’s ruling that diminished the first applicant’s sentence to seventeen years’ imprisonment, he was transferred to IK-5 in the town of Koryazhma in the Arkhangelsk region (about 2,500 km from Groznyy).
In 2010 the second applicant requested the FSIN to transfer her son to a facility located closer to home arguing that she had been effectively deprived of an opportunity to visit him. She received no reply and challenged the FSIN inaction before a court arguing that because of the distance between Koryazhma and Groznyy her son could not receive visits from his child and mother.
On 26 October 2011 the Oktyabrskiy district court of Groznyy dismissed the second applicant’s complaint referring to Article 81 of the CES. The arguments related to the applicants’ private and family life were not addressed at all.
On 12 January 2012 the Supreme Court of the Chechen Republic upheld the first-instance judgment on appeal. The argument related to the applicants’ private and family life was dismissed as follows:
“The claimant’s argument that while serving the sentence in this [IK-5] penitentiary facility [Mr Dovletmurzayev] could not receive visits from his relatives should be disregarded because the possibility to receive visits is governed by the norms of the CES of Russia and is not connected to location of a penitentiary facility.”
B. Relevant domestic law
Russian Code on the Execution of Sentences (“CES”)
The Code provides for five main types of penitentiary facilities for convicted criminals: colony-settlement, general regime facility, strict regime facility, special regime facility and prison. The conditions of serving a sentence in a colony-settlement are the mildest. On the contrary, the regime in prisons is the most severe. The difference between the special, strict and general regime facilities concern such aspects as the amount of money a detainee has the right to spend, the number of letters and parcels a detainee can receive, the length of meetings with relatives, etc.
Under Article 73 of the CES persons sentenced to deprivation of liberty must serve their sentences in the federal entity (region) where they had their residence and where they were convicted. Derogations from this rule are possible only on medical grounds or in order to secure the safety of a detainee, or at his or her own request. Article 73 § 2 provides, however, that should there be no appropriate institution within the given region or if it proves impossible to place the convicted person in the existing penitentiary institutions the convicted person is to be sent to the nearest facilities located on the territory of the said region, or, exceptionally, they may be sent to facilities located on the territory of the next closest region. Article 73 § 4 stipulates, inter alia, that persons who are sentenced to imprisonment sentences for certain grave crimes are sent to serve their sentences in the order provided for by the federal penitentiary body.
Under Article 81 § 1 of the CES, “persons sentenced to deprivation of liberty should serve the whole term of the sentence, as a rule, in the same penitentiary facility”, unless a court changes the type of a penitentiary facility.
COMPLAINT
The applicants complain under Article 8 of the Convention that Mr Bashtayev’s and Mr Dovletmurzayev’s respective transfers to remote penitentiary facilities effectively amount to a breach of family ties between the detainees and their families and relatives.
QUESTIONS TO THE PARTIES
Has there been an interference with the applicants’ right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention, in view of the respective decisions to transfer Mr Bashtayev and Mr Dovletmurzayev to the penitentiary facilities outside their home regions and the effects those decisions had on the applicants’ contacts with their family members? If so, did the interference in question fulfil the criteria set out in Article 8 § 2 of the Convention (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, §§ 835-51, 25 July 2013)? In this connection, (a) having regard to the terms of Article 73 of the Russian Code on the Execution of Sentences, was the interference in question “in accordance with law”; (b) did it pursue one or more legitimate aims; and (c) was it “necessary” for the pursuit of such an aim, in other words supported by relevant and sufficient reasons and proportionate? More specifically, did the domestic court carry out a balancing exercise to assess proportionality of the impugned transfers to the aim(s) sought? Does Article 81 of the Code on the Execution of Sentences provide for a possibility of carrying out such balancing exercise once a detainee was transferred to a certain facility?
Appendix
Application no. 1164/12
Ms Malika Akhmedovna KHAMASTKHANOVA, born in 1979, lives in Groznyy; Mr Shamil Sharpudinovich BASHTAYEV, born in 1981, lives in Groznyy, currently is serving his sentence in IK-2 in the village of Vadino in the Smolensk region; Ms Tabarek Usmanovna BASHTAYEVA, born in 1949, lives in Groznyy.
Application no. 23502/12
1. Mr Ilyas Eliyevich DOVLETMURZAYEV, born in 1980, lives in Groznyy, currently is serving his sentence in IK-5 in the town of Koryazhma in the Arkhangelsk region;
2. Ms Zulay Akhmadovna SAPAYEVA, born in 1957, lives in Groznyy.
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