Communicated on 15 May 2017
THIRD SECTION
Application no. 53594/12
Eduard Vasilyevich KOVALEV
against Russia
lodged on 11 January 2012
STATEMENT OF FACTS
The applicant, Mr Eduard Vasilyevich Kovalev, is a Russian national who was born in 1968 and lived, prior to his arrest and conviction, in Kemerovo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 8 May 2005 the Kemerovo Regional Court convicted the applicant of gangsterism, murder, robbery, inflicting bodily injuries, theft and the unlawful storage of weapons and sentenced him to life imprisonment. After conviction the applicant was transferred to a special-regime correctional colony in Yamalo-Nenetskiy Region.
On 17 March 2010 the prison authorities decided to lift the special regime and to apply the ordinary prison regime instead.
On 31 May 2010 the Zavodskiy District Court of Kemerovo ordered the applicant’s transfer to the IZ-42/1 remand centre because he was involved as a witness in criminal proceedings against a third person.
On 16 July 2010 the applicant and his relatives asked the remand centre authorities to allow a short-term visit and a food parcel for the applicant.
On 27 July 2010 the applicant had a family visit of one hour.
On 11 August 2010 he received the parcel from his relatives. However, the remand centre informed the applicant and his relatives that the legislation in effect at the time did not provide for any further short-term visits or parcels.
On 22 September 2010 the applicant made a challenge before the Zavodskiy District Court of Kemerovo to the remand centre’s decision to reduce the duration of his short-term visit and its refusal to allow further family visits, to replace long-term family visits with short-term visits or a telephone call, and to stop him receiving parcels. It seems that the applicant did not have access to the documents submitted to the proceedings by the other party.
On 4 April 2011 the Zavodskiy District Court of Kemerovo rejected the applicant’s claim and refused him leave to appear on the grounds that there was no domestic legal provision for bringing detainees to courts. The court established that the remand centre had had to reduce visiting hours because of an overcrowding problem but found that that decision had not contravened the law.
On 24 July 2013 the Kemerovo Regional Court upheld the decision on appeal. The applicant was not present or represented at the hearing.
B. Relevant domestic law and practice
1. Family visits
Prisoners detained in a remand centre are subject to the rules prescribed by the Federal Law no. 103 FZ of 15 July 1995 on the Detention of Suspects and Defendants (“Custody Act”) and the rules that apply to them in the correctional colony where they are serving their sentence. Such detainees can exercise their right to visits in accordance with Custody Act. The right to a long-term visit may be replaced with the right to a short-term visit or a telephone call at the request of the detainee (Code of Execution of Criminal Sentences of 8 January 1997, Section 77.1 § 3 and 89 § 3).
The Internal Rules for Remand Centres establish the procedure for receiving and dispatching parcels and packages by suspects and defendants and organising meetings between suspects and defendants and their relatives (Custody Act, Section 16).
Prisoners serving a sentence under an ordinary regime in special-regime correctional colonies have the right to two short-term and two long-term family visits per year. They also have the right to receive three large parcels and three small parcels per year (Code of Execution of Criminal Sentences, Section 125 § 1).
Convicted prisoners are entitled to short-term visits lasting up to four hours and to long-term visits of up to three days (Code of Execution of Criminal Sentences, Section 89 § 1).
Suspects and defendants may receive unlimited number of parcels in accordance with postal rules and packages of up to thirty kilos per month to be handed directly at the remand centre (Custody Act, Section 25; Internal Rules for Remand Centres, Rule 66).
A person in charge of the criminal case may allow a suspect (accused) not more than two family visits per month lasting up to three hours (Custody Act, Section 18; Internal Rules for Remand Centres no. 189 of 14 October 2005, Rule 139).
The governor of a remand centre must provide written permission for a visit on the basis of identity documents and a written request from the person in charge of the criminal case. The governor then instructs his or her assistant to make the necessary arrangements. Visits take place in turns (Internal Rules for Remand Centres, Rules 140 and 141).
2. Participation of detainees in civil proceedings
For relevant provisions on this issue see Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, §§ 9-15, 16 February 2016.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the courts failed to ensure his effective participation in the hearings of 4 April 2011 and 24 July 2013 and that he was not provided with the documents submitted by the respondent and could not prepare for the hearing in question.
The applicant complains under Article 8 that his detention regime breached his right to respect for his private and family life, in particular because the remand centre authorities reduced the duration of a short-term family visit, did not allow further short-term visits and stopped him receiving parcels from his family.
QUESTIONS TO THE PARTIES
1. Do the restrictions applied to the applicant in respect of family visits and parcels 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, do these measures constitute an interference with the applicant’s private and/or family life? If so, is that interference justified under Article 8 of the Convention?
In particular:
(a) Is the interference “prescribed by law”? In particular, what rules apply to the convicts detained in remand centres in respect of number and duration of family visits and number of parcels and packages? Are they foreseeable?
(b) If so, does it pursue one or more of the legitimate aims referred to in Article 8 § 2 of the Convention?
(c) If so, is it “necessary in a democratic society” to achieve those aims?
The parties are invited to inform the Court of the number and duration of family visits allowed since 2010 and to provide the supporting documents.
2. Did the applicant have a fair hearing in the determination of his civil rights and obligations in accordance with Article 6 § 1 of the Convention in the proceedings he brought against the remand centre?
In particular:
(a) Was the applicant afforded an opportunity to effectively present his case before the domestic courts having regard to the fact that the courts refused his request for leave to appear at the hearings of 4 April 2011 and 24 July 2013?
(b) Did the applicant have the opportunity to study and comment on the arguments and evidence submitted by the respondent before the domestic courts? If not, was there a breach of the applicant’s right to adversarial proceedings and equality of arms enshrined in Article 6 § 1 of the Convention?
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