Communicated on 15 April 2015
FIRST SECTION
Application no. 28524/10
Igor Konstantinovich SOTNIKOV against Russia
and 4 other applications
(see list appended)
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. 28524/10 by Mr Sotnikov
The applicant and his family live in the village of Ilskiy in the Krasnodar region.
On 2 February 2000 the Krasnodar regional court convicted the applicant of murder and sentenced him to eighteen years’ imprisonment in a special regime facility. The conviction became final and the applicant was sent to serve his sentence to IK-18 in the settlement of Kharp in the Yamalo‑Nenetskiy region.
Later the applicant’s sentence was brought into conformity with the changes in legislation so that he serve it in a strict regime facility. The applicant was then transferred to IK-8 in Labytnagy in the Yamalo‑Nenetskiy region (about 4,400 km from Ilskiy in the Krasnodar region).
The applicant repeatedly requested various State agencies to ensure his transfer to a penitentiary facility located closer to the Krasnodar region, but in vain.
The applicant lodged a complaint against the Russian Federal Penitentiary Service (“FSIN”) with a court.
On 26 January 2010 the Labytnagy town court returned the statement of claims to the applicant unexamined for a failure to explain the alleged violation of the applicant’s rights.
On 4 March 2010 the Yamalo-Nenetskiy regional court upheld the ruling of 26 January 2010 on appeal.
2. Application no. 39224/10 by the Yevsyukov family
The third applicant is a son of the first and second applicants. The three applicants live in Moscow.
On 8 June 2010 the Supreme Court of Russia convicted the third applicant in the final instance of aggravated murder and sentenced him to a life imprisonment in a special regime facility.
The third applicant was sent to serve his sentence in IK-18 in the settlement of Kharp in the Yamalo-Nenetskiy region (about 3,500 km from Moscow).
The applicants unsuccessfully requested the FSIN to transfer the third applicant to a facility closer to Moscow and then challenged the FSIN’s refusal before a court.
On 2 November 2010 the Zamoskvoretskiy district court of Moscow examined two separate complaints, one of which was lodged by the third applicant and another one by the first and second applicants jointly, and delivered two respective judgments dismissing both complaints for the reason that the third applicant had been sent to Kharp pursuant to Article 73 § 4 of the Russian Code on Execution of Sentences (“CES”) and that he should remain there by virtue of Article 81 of the CES.
On 2 February and 14 March 2011 the Moscow city court upheld the judgments in the first and second applicants’ case and that of the third applicant, respectively.
3. Application no. 39747/10 by Mr Voynov
The applicant and his family live in Oryol.
On 7 December 2009 the Sovetskiy district court of Oryol convicted the applicant of drug-related crimes and sentenced him to twelve years’ imprisonment in a strict regime facility. On 2 February 2010 the Oryol regional court upheld the conviction on appeal.
The applicant was then sent to serve his sentence to IK-7 in the village of Areyskoye in the Krasnoyarsk region (about 4,200 km from Oryol).
The applicant requested the FSIN to transfer him to a penitentiary facility located closer to Oryol.
On 30 September 2010 the FSIN rejected the applicant’s request referring to Articles 73 and 81 of the CES.
The applicant lodged a complaint with a court. It appears that the complaint was left unexamined.
4. Application no. 32419/11 by Mr Korobov
The applicant and his family live in Kingisepp, the Leningrad region.
On 25 November 2001 the Kingisepp town court of the Leningrad region sentenced the applicant to ten years’ imprisonment. The conviction became final and the applicant was sent to serve his sentence to IK-9 in Omsk (about 3,300 km from Kingisepp).
The applicant brought a complaint about the FSIN’s decision to send him to Omsk with a court claiming non-pecuniary damages.
On 23 June 2010 the Zamoskvoretskiy district court of Moscow dismissed the applicant’s complaint referring to Articles 73 and 81 of the CES.
On 2 February 2011 the Moscow city court dismissed the applicant’s appeal.
It appears that the applicant was released from detention on 24 March 2011.
5. Application no. 45694/13 by Mr Vasilyev and Mr Vinogradov
Mr Vasilyev and his family live in Pechora in the Komi Republic; Mr Vinogradov and his family live in Syktyvkar in the Komi Republic.
The applicants were serving their respective sentences in IK-31 in the Komi Republic.
In June-July 2011, following the FSIN’s decision to relocate male inmates kept in IK‑31 to other facilities, Mr Vasilyev was sent to IK-54 in the town of Novaya Lyalya in the Sverdlovsk region (about 1,400 km from Pechora) and Mr Vinogradov was sent to IK-19 in the settlement of Mezhdurechenskiy in the Arkhangelsk region (about 1,200 km from Syktyvkar).
The applicants lodged a complaint with a court requesting to pronounce the FSIN’s decision to transfer them to facilities located far from their homes and the respective conditions of the applicants’ transport to be in breach of Articles 3 and 8 of the Convention. The applicants did not bring any claims for damages.
On 24 February 2012 the Syktyvkar town court dismissed the complaint in full. As regards the compatibility of the applicants’ transfers to remote facilities, the court referred to Articles 73 and 81 of the CES and noted that Mr Vinogradov had been transferred to ensure his personal safety while Mr Vasilyev had been transferred because IK-31 had become a women’s penitentiary facility. The complaint related to the conditions of transport was dismissed.
On 13 August 2012 the Supreme Court of the Komi republic quashed the first-instance judgment in part and pronounced the conditions of transport in June-July 2011 to be in breach of Article 3 of the Convention.
On 3 October 2012 the Presidium of the Supreme Court of the Komi republic examined a cassation appeal by the FSIN and quashed the judgment of 13 August 2012 in part related to the conditions of transport thus dismissing all of the applicants’ complaints.
In January 2013, having served his sentence, Mr Vasilyev returned to Pechora.
Mr Vinogradov is still serving his sentence in IK-19 in the Arkhangelsk region.
B. Relevant domestic law
Russian Code on the Execution of Sentences (“CES”)
The Code provides for five main types of penitentiary facilities for persons convicted of criminal offences: 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. 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
Applications nos. 28524/10, 39224/10, 39747/10, 32419/11 and 20691/13
The applicants complain under Article 8 of the Convention that their respective transfers to remote penitentiary facilities effectively amount to a breach of family ties between the detainees and their families and relatives.
Applications nos. 39224/10, 39747/10, 32419/11 and 20691/13
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.
COMMON 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 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 (“CES”), was the interference in question “in accordance with 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 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 after a detainee’s transfer to a certain facility?
3. 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
28524/10
13/04/2010
Igor Konstantinovich SOTNIKOV
01/09/1968
Ilyskiy, the Krasnodar region
39224/10*
15/07/2010
Viktor Yegorovich YEVSYUKOV
19/06/1951
Moscow
Valentina Mikhaylovna YEVSYUKOVA
11/10/1952
Moscow
Denis Viktorovich YEVSYUKOV
20/04/1977
Moscow
39747/10*
11/06/2010
Timur Vladislavovich VOYNOV
03/07/1985
Oryol
32419/11*
26/03/2011
Denis Yevgenyevich KOROBOV
30/05/1979
Kingisepp, the Leningrad region
20691/13*
13/02/2013
Dmitriy Lvovich VASILYEV
29/05/1958
Pechora, the Komi republic
Arkadiy Viktorovich VINOGRADOV
06/03/1983
Syktyvkar, the Komi republic
Ernest Aleksandrovich MEZAK
Full & Egal Universal Law Academy