THIRD SECTION
DECISION
Applications nos. 57368/19 and 59831/19
Vladislav Viktorovich TAMAMSHEV against Russia
and Marina Lvovna TAMAMSHEVA and Others against Russia
The European Court of Human Rights (Third Section), sitting on 7 September 2021 as a Committee composed of:
Georges Ravarani, President,
Anja Seibert-Fohr,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above applications lodged on 7 October 2019 and 5 November 2019 respectively,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The first applicant, Mr Vladislav Viktorovich Tamamshev, was born in 1989. The second applicant, Mrs Marina Lvovna Tamamsheva, and the third applicant, Mr Viktor Nikolayevich Kazeykin, the first applicant’s parents, were born in 1960 and 1957, respectively. The fourth applicant, Mr Andrey Viktorovich Tamamshev, the first applicant’s brother, was born in 1995. All applicants are Russian nationals; they reside in the Khabarovsk Region.
2. The Government were represented initially by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office.
3. The applicants complained under Articles 8 and 13 of the Convention about disproportionate interference with their right to respect for family life on account of the first applicant’s allocation to a penal facility located far away from the family residence and about the lack of an effective remedy in this respect.
4. On 17 December 2019 and on 30 April 2020 the above applications were communicated to the Government.
5. By letters of 10 November 2019, 11 January, 1 April and 12 May 2021, the applicants informed the Court about new developments in their case. These letters were sent to the Government for information.
6. The facts of the applicants’ case can be summarised as follows.The circumstances of the cases
7. On 6 May 2012 the first applicant, who had been convicted to life imprisonment, was allocated to IK‑18 (Yamalo-Nenetskiy Region), located 8,300 km from the Khabarovsk Region, where he had previously lived together with his relatives, the other applicants.
8. On 18 January 2018 his request for a transfer to a penal facility in the Khabarovsk Region was dismissed by the Russian Federal Penal Authority (“Федеральная служба исполнения наказаний”, “the FSIN”).
9. On 28 June 2018 and 22 May 2019, the lawfulness of that decision was confirmed by the first instance and appeal courts.Further factual developments
10. On 26 August 2020 the Supreme Court of the Russian Federation found the refusal of the FSIN unlawful, quashed all the previous courts’ decisions and remitted the case for examination anew.
11. On 2 October 2020 the Zamoskvoretskiy District Court of Moscow took note of the FSIN decision to relocate the first applicant to a detention facility in his home region.
12. On 17 December 2020 the first applicant was transferred to IK-6 (Khabarovsk Region).Relevant domestic law and practiceRecent amendments to the Code on the Execution of Criminal Sentences (“the CES”) of 8 January 1997
13. The initial allocation and subsequent transfer of convicts are governed by Articles 73 and 81 of the CES. Their content prior to the recent amendments was summarised in the Polyakova and Others v. Russia judgment (nos. 35090/09 and 3 others, §§ 45-52, 7 March 2017). They provided that those sentenced to deprivation of liberty, save for those falling under the specific categories listed in Article 73 § 4 of the CES (e.g. convicts sentenced to life imprisonment, persons convicted for terrorism, etc.), should serve their sentences in correctional penal facilities in the region where they resided prior to their conviction or where they were convicted (“general distribution rule”).
14. On 1 April 2020 those provisions were amended under Federal Law no. 96-FZ, and the amendments entered into force on 29 September 2020. The amended Article 73 §§ 2 and 2.1 of the CES provides that prisoners subject to the general distribution rule may be sent to serve their punishment in a penal institution in one of the regions where their close relatives reside or, in the absence of an appropriate facility there, in the next closest region.
15. The amended Article 81 § 2 of the CES entitled prisoners and/or their relatives with the prisoner’s consent to apply for a subsequent transfer (once during the period of execution of the sentence) to a penal institution in one of the regions where one or family members reside or, in the absence of an appropriate facility there, in the next closest region.
16. Article 6 § 2 of the CES provides that criminal sentences are executed in accordance with the legislation in force at the time of their execution.Practice of the federal Supreme Court under the new amendments
17. On 23 December 2020 the Presidium of the Supreme Court of the Russian Federation issued a review of judicial practice in administrative cases. Referring to the European Prison Rules, to the judgment delivered by the Court in the case of Polyakova and Others (cited above, § 100) and the amended Articles 73 § 4 and 81 § 2 of the CES, the Supreme Court held in the proceedings initiated by a person convicted to life imprisonment against the FSIN refusal to grant his transfer request that since the legislation in force could not be interpreted as allowing arbitrary allocation of convicts to penal institutions, the “exceptional circumstances” referred to in the relevant provision of the CES should encompass the right to respect for family life, thus justifying the transfer of a convict to another penal facility should he or she be unable to maintain his/her family ties otherwise.
THE LAW
18. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
19. The applicants complained of a violation of their right to respect for family life on account of the first applicant’s allocation to a remote penal facility and their subsequent inability to obtain his transfer back to his home region. They relied on Articles 8 and 13 of the Convention, which read, in so far as relevant, as follows:
Article 8
“1. Everyone has the right to respect for his ... family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
20. The Court must ascertain whether the new developments brought to its attention – namely the domestic courts’ decisions delivered in the applicants’ favour and the first applicant’s subsequent transfer to a correctional facility located in his home region (see paragraphs 11-12 above) – lead it to conclude that the matter has now been resolved (see, for example, Association SOS Attentats and de Boery v. France (dec.) [GC], no. 76642/01, § 32, ECHR 2006 XIV) or that, for any other reason, it is no longer justified to continue the examination of the application (see, for example, Belošević v. Croatia (dec.), no. 57242/13, § 48, 9 January 2020) and that the application may consequently be struck out of its list of cases in accordance with Article 37 § 1 of the Convention, which provides:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
...
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
21. In order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for the applicant to pursue his application, the Court must examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Association SOS Attentats and de Boery, cited above, § 32).
22. The Court observes that in 2020 the relevant provisions of the CES criticised by the Court in its leading judgment were amended (see paragraphs 13-17 above and compare and contrast with Polyakova and Others, cited above, §§ 100 and 105). They were further supplemented by the decisions of the Supreme Court of the Russian Federation expressly extending their benefit to categories of convicted persons who were excluded from the general distribution rule, as notably demonstrated by the applicants’ case (see paragraphs 10 and 17). As a result of the measures taken by the authorities, the proceedings in the applicants’ case were reopened, the FSIN refusal to grant their request for the first applicant’s transfer quashed and the latter was eventually transferred to a penal facility in his home region, as initially requested by them (see paragraph 12 above). It is thus apparent that the circumstances complained of by the applicants no longer obtain.
23. As to the second criterion, the Court is mindful that the measures referred to above not only remedied the legislative omission criticised in its previous judgments but also allowed examination on the merits of the applicants’ transfer request by the domestic courts, followed by the first applicant’s effective transfer to his home region for family reasons. It is thus satisfied that the combination of general and individual measures adopted in the applicants’ case amounts to sufficient redress for a breach of their right to respect of their family life on account of the lack of express possibility at domestic level to challenge the proportionality of the refusal to allocate a convicted person to a penal facility closer to his/her family. In any event, the Court reiterates that in cases concerning structural problems at domestic level its role, once the general measures have been implemented by the respondent State, cannot be converted into providing individualised financial relief in repetitive cases arising from the same systemic situation (see, Lavic v. Bosnia and Herzegovina (dec.), no. 6340/20, § 15, 9 November 2020, with further references).
24. Accordingly, the Court considers that both conditions for the applications of Article 37 § 1 (b) of the Convention have been met in the present case.
25. In the light of the above, the Court considers that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention and that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the applications under Article 37 § 1 in fine.
26. Accordingly, the cases should be struck out of the list.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to strike the applications out of its list of cases.
Done in English and notified in writing on 30 September 2021.
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Olga Chernishova Georges Ravarani
Deputy Registrar President
Full & Egal Universal Law Academy