Communicated on 30 August 2016
THIRD SECTION
Application no 38417/11
Ramzan Shamsudinovich MALAYEV against Russia
and 4 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the Appendix. The applicants are Russian nationals.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 38417/11 by Mr Malayev
On 17 August 2010 the Ostankinskiy District Court of Moscow convicted the applicant of armed robbery and sentenced him to eight years’ imprisonment in a strict-regime post-conviction detention facility. On 29 November 2010 the Moscow City Court upheld the conviction on appeal.
On 16 December 2010 the Federal Penitentiary Service (“the FSIN”) decided that the applicant should serve his sentence in post-conviction detention facility IK‑5 in the Arkhangelsk Region.
Following the applicant’s conviction, his wife, Ms F., together with their three minor children, moved from Moscow to the Chechen Republic where the applicant’s sister and other relatives lived. A request submitted by Ms F. to the FSIN to transfer her husband closer to the Chechen Republic in order to facilitate contacts with the family was unsuccessful.
On 28 April 2011 the applicant was transferred from IK-5 to IK-4 in the town of Kotlas, the Arkhangelsk Region (about 2,500 km from the Chechen Republic). The reason for the transfer was that IK-5 served as a post‑conviction facility for those convicted for the first time whereas IK-4 was designated for repeat offenders.
Ms F. brought civil proceedings before the Zamoskvoretskiy District Court of Moscow challenging the FSIN’s refusal to transfer the applicant to a post-conviction detention facility in the Chechen Republic.
On 12 December 2013 the District Court dismissed Ms F.’s complaint. It held that the applicant had been sent to serve his sentence in the Arkhangelsk Region because of a lack of available places in strict-regime post-conviction detention facilities in Moscow and the Moscow Region. He had been transferred from IK-5 to IK-4 because the fact that he had a previous conviction had only come to light while he had been serving the sentence imposed on 17 August 2010. The District Court concluded that the applicant’s transfer to the Arkhangelsk Region had been compatible with domestic law and that his rights had not been breached. It reasoned, in particular, as follows:
“There are no grounds listed in Article 81 § 2 of the Code on the Execution of Sentences that would preclude the convict Malayev from continuing to stay in a penal facility in the Arkhangelsk Region.
...
The claimant’s argument that [she] cannot visit the convict Malayev cannot serve as grounds for granting her claims because the possibility of receiving visits from family members and relatives, of receiving correspondence, and of having telephone conversations is governed in this case by the norms of the Code on the Execution of Sentences and is unrelated to the location of the detention facility.”
On 24 June 2014 the Moscow City Court dismissed Ms F.’s appeal and upheld the judgment of 12 December 2013 in full.
2. Application no. 48751/14 by Mr Basargin
The applicant’s wife and son, as well as his siblings, live in the Altay Republic.
The applicant was sentenced to nineteen years’ imprisonment by a final judgment of 25 March 2006 by the Supreme Court of the Altay Republic. He was then placed in IK-1, a strict-regime post‑conviction detention facility in Gorno-Altaysk, the Altay Republic. While in IK-1, the applicant received visits from his family.
On 25 June 20112 the applicant was transferred to IK-15 (OIK-30) in Norilsk, the Krasnoyarskiy Region, located 4,000 km from his family home. His family could not afford to travel there to visit him.
The applicant complained about his transfer to Norilsk before the Zamoskvoretskiy District Court of Moscow.
On 15 September 2014 the District Court dismissed the applicant’s complaint. It reasoned that on 25 March 2011 IK‑1 in Gorno-Altaysk had been reclassified as a post-conviction detention facility for repeat offenders. The applicant, who had no previous conviction, had been transferred to IK‑15, a facility for first-time offenders, pursuant to Article 80 § 2 of the CES and owing to the lack of such facilities in the Altay Republic. The District Court concluded as follows:
“The claimant’s argument that he cannot receive visits from relatives cannot serve as grounds for granting the claims because the possibility of receiving visits from family members and relatives, of receiving correspondence, and of having telephone conversations is governed by the norms of the Code on the Execution of Sentences and is unrelated to the location of the detention facility.”
The applicant received a copy of the judgment of 15 September 2014 on 22 May 2015. On 25 May 2015 he sent an appeal statement, together with a request to reset the time-limit for lodging an appeal, to the Moscow City Court via the Zamoskvoretskiy District Court of Moscow. It is unknown whether the appeal statement has been examined to date.
3. Application no. 62709/14 by Mr Kaplanov
The applicant’s mother and brother live in Gudermes, the Chechen Republic.
On 15 February 2013 the Primorskiy Regional Court convicted the applicant of murder and sentenced him to twenty years and six months’ imprisonment, to be served in a strict-regime post-conviction detention facility. The judgment became final on 26 July 2013.
The applicant was then sent to facility IK-17 in Krasnoyarsk (about 4,300 km from Gudermes), where he arrived on 5 December 2013.
On 9 April 2014 the applicant was transferred to facility IK-15 (OIK-30) in Norilsk, the Krasnoyarskiy Region, which is located about 7,000 km from Gudermes. The applicant was unaware of the reasons for his transfer from IK-17.
The FSIN refused a request submitted by the applicant to transfer him to a facility in the Chechen Republic or a neighbouring region.
On 14 July 2014 the applicant lodged a complaint with the Zamoskvoretskiy District Court of Moscow, concerning his placement by the FSIN in facilities in the Krasnoyarsk Region. Relying on Article 8 of the Convention, he claimed that he had suffered an unjustified interference with his family life.
On 10 November 2014 the District Court dismissed the complaint in the applicant’s absence. The applicant was not promptly notified of the decision, nor was he provided with a copy of it.
4. Application no. 72125/14 by Mr Malkhozov
The applicant’s mother lives in the Karachayevo-Cherkessiya Republic.
On 6 April 2009 the Luberetskiy Town Court of the Moscow Region convicted the applicant of murder and sentenced him to ten years’ imprisonment, to be served in a special-regime post-conviction detention facility. On 2 June 2009 the Moscow Regional Court upheld the conviction in full. The applicant was sent to serve his sentence in a special-regime post‑conviction detention facility, IK-34 (OIK-36), in the village of Startsevo, the Krasnoyarskiy Region, located more than 6,000 km from the Karachayevo‑Cherkessiya Republic.
On 5 October 2011 the Presidium of the Moscow Regional Court reduced the sentence on supervisory review to nine years and eleven months and indicated that it should be served in a strict-regime facility. The applicant was then transferred to IK-43 (OIU-26), a strict-regime facility in the village of Oktyabrskiy, the Krasnoyarskiy Region.
The FSIN refused a request submitted by the applicant to transfer him to one of the regions adjacent to the Karachayevo-Cherkessiya Republic. The applicant challenged the refusal before the Zamoskvoretskiy District Court of Moscow.
On 12 November 2012 the District Court dismissed the applicant’s complaint. It reasoned, in particular, as follows:
“There are no grounds listed in Article 81 § 2 of the CES that would preclude the convict Malkhozov from continuing to stay in a penal facility in the Krasnoyarsk Region.
...
The claimant’s argument that [he] cannot receive visits from relatives cannot serve as grounds for granting the claims because the possibility of receiving visits from family members and relatives, receiving correspondence, and having telephone conversations is governed in this case by the norms of the Code on the Execution of Sentences and is unrelated to the location of the detention facility.”
On 26 November 2014 the Moscow City Court dismissed an appeal lodged by the applicant and upheld the judgment of 12 November 2012 in full.
For an unknown reason, the applicant was later transferred to a strict‑regime post‑conviction detention facility, IK-5 (OIK‑36) in the village of Startsevo, the Krasnoyarsk Region.
5. Application no. 77395/14 by Mr Mozgin-Maltsev
The applicant’s ex-wife and his minor son live in the Rostov Region.
On 30 June 2010 the Rostov Regional Court sentenced the applicant to eleven years and nine months’ imprisonment in a strict-regime post‑conviction detention facility. The conviction became final and the applicant was sent to serve his sentence in facility IK-7 in the Zabaykalskiy Region, which is located more than 7,000 km from the Rostov Region.
The applicant requested that the FSIN transfer him to a facility located closer to the Rostov Region. On 7 July 2014 the Zabaykalskiy regional department of the FSIN informed him, in particular, that the grounds for transfer to another facility listed in Article 81 of the CES did not include “family matters” and that convicts were to serve their entire sentence in the same facility.
The applicant complained before the Rostov Regional Court about the FSIN’s decision to send him to the Zabaykalskiy Region. On 26 August 2014 the Rostov Regional Court informed the applicant by letter that it lacked jurisdiction to examine his complaint. The applicant attempted to complain about the letter to the Supreme Court of Russia, which informed him that a letter was not amenable to appeal.
B. Relevant domestic law
Russian Code on the Execution of Sentences (“CES”)
The CES provides that persons convicted of criminal offences may be sent to five main types of post-conviction penal facility: colony‑settlement, general‑regime facility, strict-regime facility, special-regime facility and prison. The detention conditions in a colony-settlement are the mildest, whereas the regime in prisons is the most severe. The differences 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 may receive, and the length of meetings with relatives.
Under Article 73 of the CES persons sentenced to deprivation of liberty must serve their sentences in the federal entity (region) where they were resident and convicted. Derogations from that 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 penal institutions, he or she is to be sent to the nearest facility located in the same region, or, exceptionally, to a facility located in the next closest region. Article 73 § 4 stipulates, inter alia, that persons who are sentenced to imprisonment for certain serious crimes are sent to serve their sentences in accordance with the order issued by the federal body responsible for the penitentiary system.
Under Article 80 § 2 of the CES, persons sentenced to a term of imprisonment for the first time should be detained separately from those who have previously served a prison sentence.
Under Article 81 § 1 of the CES, persons sentenced to deprivation of liberty should, as a rule, serve the whole term of the sentence in the same penal facility, unless a court changes the type of facility. Article 81 § 2 of the CES provides:
“The transfer of a convict for the continuation of his or her sentence from one penal facility to another of the same type is allowed in the event of the convict’s illness; in order to ensure his personal safety; in the event of reorganisation or liquidation of a penal facility; as well as in other exceptional circumstances that preclude the convict’s further stay in that penal facility. The transfer of persons convicted for the crimes listed in Article 73 § 4 of this Code from one penal facility to another of the same type is allowed on the basis of a decision by the federal body responsible for the penal system. An order to transfer a convict must be issued by the federal body responsible for the penal system, whose functions include the creation and implementation of State policy and legal regulation in the field of execution of sentences.”
COMPLAINTS
The applicants complain under Article 8 of the Convention that their respective transfers to remote penal facilities effectively amount to a deprivation of contact with their families.
Applications nos. 48751/14 and 62709/14
The applicants complain under Article 13 of the Convention that they did not have at their disposal effective domestic remedies in relation to their complaint under Article 8 of the Convention.
QUESTIONS
1. Does the detention of a convict in the penitentiary facility located outside his home region give rise to a “continuing situation” for the purposes of calculating the six-month rule under Article 35 § 1 of the Convention? Have the applicants complied with the six-month rule in relation to their respective complaints under Article 8 of the Convention?
2. 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 their respective transfers to the penal facilities outside their home regions and the effects those decisions had on the applicants’ contacts with members of their family? 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 (“CES”), was the interference in question “in accordance with the law”; (b) did it pursue one or more legitimate aim(s); 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 authorities carry out a balancing exercise to assess the proportionality of the impugned transfers to the aim(s) sought? Does Article 81 of the CES provide for the possibility of carrying out such a balancing exercise prior to or after a detainee’s transfer to a certain facility?
3. Did the applicants Mr Basargin and Mr Kaplanov have at their disposal effective domestic remedies for their complaints under Article 8 of the Convention, as required by Article 13 of the Convention? In particular, bearing in mind the wording of Article 81 of the CES, is there an avenue of redress available that would allow the agencies of the Federal Penitentiary Service to revoke a decision on a detainee’s placement in a facility located outside his or her home region prior to or after its implementation on the grounds of an alleged interference with the detainee’s private and/or family life?
APPENDIX
No.
Application no.
Lodged on
Applicant’s name
Date of birth
Place of residence
Represented by
38417/11
28/05/2011
Ramzan Shamsudinovich MALAYEV
20/02/1962
IK-4, Kotlas, the Arkhangelsk Region
Yevgeniya Anatolyevna FOMINA
48751/14
01/09/2014
Ruslan Anatolyevich BASARGIN
29/06/1978
IK-15 (OIK-30), Norilsk, the Krasnoyarsk Region
62709/14
11/08/2014
Elbek Mayrbekovich KAPLANOV
20/09/1980
IK-15 (OIK-30), Norilsk, the Krasnoyarsk Region
72125/14
20/03/2015
Oleg Vladimirovich MALKHOZOV
10/04/1970
IK-5 (OIK-36), Startsevo, the Krasnoyarsk Region
77395/14
17/03/2015
Pavel Petrovich MOZGIN - MALTSEV
20/01/1964
IK-7, Olovyannaya, the Zabaykalskiy Region
Igor Yuryevich KOLESNIKOV
Full & Egal Universal Law Academy