14 January 2011
FIRST SECTION
Application no. 41418/04
by Andrey Anatolyevich KHOROSHENKO
against Russia
lodged on 6 October 2004
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Andrey Anatolyevich Khoroshenko, is a Russian national who was born in 1968 and lives in Alapayevsk, Sverdlosvk Region.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
The applicant stood trial for banditry, robbery and murder. On 13 October 1995 the applicant was convicted and sentenced to death penalty. In 1999 the sentence was changed to life imprisonment which the applicant is currently serving. The applicant took part in the following sets of proceedings.
1. Civil action against legal counsel O.
On 18 November 2002 the applicant sought non-pecuniary damages from O., the legal counsel, who defended him in the course of the criminal proceedings, for improper performance by O. of his duties. On an unspecified date the applicant signed the power of attorney authorizing his mother and brother to represent him in the course of civil proceedings. On 27 June 2003 the Dzerzhinskiy District Court invited the applicant’s representatives to take part in the hearing of the applicant’s claim but they refused to appear.
On 10 September 2003 the applicant lodged the motions with the court to obtain some materials from his criminal case file and to transport him to the hearing of his claim. He gave no specific indication as to what documents exactly he wished to obtain.
On 17 October 2003 the Dzerzhinkiy District Court of Perm rejected the applicant’s claim in the applicant’s absence. The applicant appealed.
On 13 April 2004 the Perm Regional Court upheld the judgment in the absence of both parties.
2. Complaint about the high-security conditions of detention
On 24 August 2004 the applicant lodged a complaint with the Constitutional Court challenging the constitutionality of certain provisions of the Penitentiary Code which prescribed high-security conditions of detention for convicts sentenced to life imprisonment as having a discriminatory effect on him and violating his right to respect for private and family life. By decision of 24 May 2005 the Constitutional Court concluded that the relevant provisions were directed at individualization and differentiation of the sentences and did not have any discriminatory effect.
3. Other proceedings
The applicant also made attempts to bring civil action against the prosecutor’s office, challenge in court the prosecutor’s refusal to institute criminal proceedings and the Ombudsman’s failure to react to the applicant’s complaints. The courts rejected the applicant’s complaints. The applicant also filed a number of complaints with the Constitutional Court of Russia which found them unsubstantiated and refused to examine them.
B. Relevant domestic law
The Penitentiary Code of the Russian Federation provides that all convicts sentenced to life imprisonment are placed under high-security conditions upon arrival to the correctional colony. Having served at least ten years of imprisonment they can be transferred to “normal” regime conditions (Article 127 § 3). Under the high-security conditions the convicts have the right to two short-term visits a year (Article 125 § 3). Short-term visits last no more than four hours and take place in the presence of the institution’s official (Article 89 §§ 1 and 2). The Penitentiary Code does not envisage the right of convicts serving their sentence under high-security conditions to long-term visits by relatives.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that he was absent from the hearing of his civil claim against O. With regard to the same proceedings the applicant also complains about the lack of access to a court, the lack of effective remedies, the length of the proceedings, the lack of impartiality of the court and the second instance court’s failure to answer all arguments of his statement of appeal.
The applicant complains under Articles 6 and 13 of the Convention about the unfairness of the civil proceedings against the prosecutor’s office, the Ombudsman and about his unsuccessful attempts to initiate proceedings at the Constitutional Court of Russia.
The applicant complains under Articles 8 and 14 of the Convention that under the high-security conditions of detention he is not entitled to long-term visits by relatives. The applicant also complains under Article 14 of the Convention that all convicts sentenced to life imprisonment serve the sentence under the high-security conditions. The applicant also complains under Articles 6 and 13 of the Convention that the prohibition on long-term visits by relatives deprives him of the opportunity to convey secret personal information on them and hinders his efforts to protect his rights.
The applicant also makes general complaints under Article 6 of the Convention that the State does not provide him with the opportunity to earn money and that the authorities do not provide persons in detention with information about the territorial jurisdiction of various Russian courts.
The applicant complains under Article 34 of the Convention that the domestic courts sent him decisions with substantial delay.
QUESTIONS TO THE PARTIES
Does the lack of a right to long-term visits by family members under the high-security conditions constitute a violation of the applicant’s right to respect for his private and/or family life within the meaning of Article 8 of the Convention? In particular:
(a) Does the lack of a right to long-term family visits pursue a legitimate aim?
(b) Does the restriction on long-term visits constitute a blanket ban on prisoners, convicted to a life sentence?
(c) Is the restriction limited in duration?
(d) Do the provisions of the Penitentiary Code on the high-security conditions restricting the convicts’ rights on long-term visits by their families take into account relevant individual circumstances of each convict sentenced to life imprisonment?
(e) Is the restriction on family visits applied to convicts detained under the high-security conditions proportionate to the legitimate aim pursued?
Full & Egal Universal Law Academy