Communicated on 9 March 2015
FIRST SECTION
Application no. 35090/09
Elvira Vasilyevna POLYAKOVA against Russia
and 2 other applications
(see list appended)
The applicants are Russian nationals. Their personal details appear in the Appendix below.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 35090/09 by Ms Polyakova
The applicant is a live-in partner of Mr R. The couple have a minor son and established their home in Vladivostok in the Primorskiy region.
On 22 May 2008 Mr R. was convicted of drug-related crimes and sentenced to ten years’ imprisonment in a strict regime facility. After the conviction became final, he was placed to serve the sentence in IK-33 in the Primorskiy region close to his and the applicant’s home.
In September 2008 the head of the Primorskiy regional department of the Federal Penitentiary Service (“FSIN”) decided to transfer Mr R. to the Krasnoyarsk region (about 5,000 km from Vladivostok).
The applicant challenged the FSIN’s decision before a court asking to transfer her partner back to the Primorskiy region so that she and their son could visit him.
On 28 October 2008 the Sovetskiy district court of Vladivostok examined the applicant’s claims and dismissed them. It found, referring to Article 73 § 2 of the Russian Code on the Execution of Sentences (“CES”), that the strict regime facilities in the Primorskiy region had been overcrowded and that transfers of a number of detainees persons to other facilities had been necessary to protect their life and limb as there could be conflicts among inmates fighting for a sleeping berth. The court dismissed the applicant’s argument related to her private and family life as unsubstantiated stating that she could apply to the FSIN for a permission to visit Mr R. in the Krasnoyarsk region.
On 13 January 2009 the Primorskiy regional court summarily dismissed the applicant’s appeal.
2. Application no. 75632/11 by Ms Zborshchik
The applicant and her husband, Mr Z., live in St Petersburg.
On 26 August 2009 the St Petersburg city court sentenced Mr Z. to twelve years’ imprisonment in a strict regime facility. Once the conviction became final, Mr Z. was sent to serve the sentence in IK-51 in the Republic of Komi (about 1,620 km from St Petersburg).
On 26 October 2010 the applicant requested the St Petersburg regional department of the FSIN to transfer her husband to a penitentiary facility located closer to their home. Her request was dismissed with a reference to Article 73 of the CES. The applicant challenged the refusal before a court.
On 4 March 2011 the Dzerzhinskiy district court of St Petersburg dismissed the applicant’s complaint stating, inter alia, that the regional department of the FSIN had merely complied with the instructions issued by their higher body, the FSIN of Russia, to transfer up to forty detainees per month to facilities located in the Republic of Komi. The issue of the applicant’s right to respect for family life was not touched upon.
On 18 April 2011 the St Petersburg city court upheld the first-instance judgment.
3. Application no. 74186/14 by Ms Rozlovanu and Mr Minin
The applicant and her husband, Mr Minin, lived in Kostroma.
On 27 September 2013 the Ostankinskiy district court of Moscow convicted Mr Minin of fraud and sentenced to six years and six months’ imprisonment in a strict regime facility.
He was sent to serve his sentence to IK-9 in the Republic of Bashkortostan (about 1,200 km from Kostroma).
Ms Rozlovanu repeatedly requested the FSIN of Russia and various FSIN regional departments to ensure that her husband served his sentence closer to home.
On 5 June 2014 the FSIN of Russia replied to the applicant stating that her husband had been sent to Bashkortostan pursuant to Article 73 § 1 of the CES “to ensure his personal safety”.
On 25 September 2014 the Bashkortostan regional department of the FSIN informed the applicant that, since Mr M. had been placed in IK-9 on the basis of the order by the FSIN of Russia of 23 April 2014, the Bashkortostan department of the FSIN was incompetent to decide on his transfer elsewhere.
The applicants considered that challenge of the decisions by the FSIN bodies at various levels before domestic courts would be fruitless.
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 § 1 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. Under Article 81 § 2 of the CES, “transfer of a convict for further serving of the sentence from one penitentiary facility to another of the same type is allowed in case of illness of the convict or in order to ensure his personal safety, in cases of reorganization or liquidation of a penitentiary facility, as well as in other exceptional circumstances that preclude further stay of the convict in that penitentiary facility. Transfer of persons convicted for the crimes listed in Article 73 § 4 of this Code from one penitentiary facility to another of the same type is allowed on the basis of a decision by the federal body of the penitentiary system. The order of transfer of convicts shall be determined by the federal body of the penitentiary system, which performs functions on creating and implementation of the State policy and legal regulation in the field of execution of sentences.”
COMPLAINTS
The applicants complain under Article 8 of the Convention that because of the distance between their homes and the detention facilities they have been deprived of an effective opportunity to maintain social and family ties with their partner/husbands.
Ms Rozlovanu and Mr Minin complains under Article 13 of the Convention that they do not have effective domestic remedies in relation to their Article 8 complaint.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their private and/or family life, within the meaning of Article 8 § 1 of the Convention, in view of the respective decisions to transfer Ms Polyakova’s partner, Ms Zborshchik’s husband and Ms Rozlovanu’s husband, Mr Minin, to the penitentiary facilities outside their home regions and the effects those decisions had on the applicants’ contacts with their them? 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 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 authorities carry out a balancing exercise to assess proportionality of the impugned transfers to the aim(s) sought? Does Article 81 of the CES provide for a possibility of carrying out such balancing exercise once a detainee was transferred to a certain facility?
2. Did the applicants have effective domestic remedies for their complaints under Article 8 of the Convention at their disposal, as required by Article 13 of the Convention? In particular, bearing in mind the wording of Article 81 of the CES, is there an available avenue of redress allowing quashing the decision by the agencies of the Federal Penitentiary Service on a detainee’s placement in a facility located outside of his or her home region of Russia 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 name
date of birth
place of residence
Represented by
35090/09
13/06/2009
Ms Elvira Vasilyevna POLYAKOVA
born in 1976
Vladivostok
75632/11
14/10/2011
Ms Olga Ivanovna ZBORSHCHIK
born in 1974
St Petersburg
74186/14*
13/11/2014
1. Ms Larisa Konstantinovna ROZLOVANU
born in 1980
Kostroma
2. Mr Dmitriy Viktorovich MININ
born in 1977
Kostroma
Mr Aleksandr Vladimirovich VINOGRADOV
Full & Egal Universal Law Academy