Communicated on 15 April 2015
FIRST SECTION
Application no. 46937/09
Roman Yevgenyevich TETEREV 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. 46937/09 by Mr Teterev
The applicant and his family live in the town of Pushkino in the Moscow region.
On 1 April 2003 the Savelovskiy district court of Moscow sentenced the applicant to ten years’ imprisonment in a strict regime facility. On 28 October 2004 the Moscow city court sitting as a supervisory review instance diminished the sentence to nine years and six months’ imprisonment. The Federal Penitentiary Service (“FSIN”) decided to transfer the applicant to IK-10 in the Saratov region. On 18 November 2005 the applicant was transferred to IK-7 in the Saratov region (about 900 km from Pushkino).
The applicant’s request to the FSIN that he be transferred to a facility located closer to Pushkino was dismissed. The applicant challenged the refusal before a court.
On 25 August 2008 the Zamoskvoretskiy district court of Moscow examined the applicant’s complaint in his absence and in the absence of his lawyer. Referring to Articles 73 and 81 of the Russian Code on the Execution of Sentences (“CES”), the district court dismissed the complaint for the reason that there were no strict regime facilities in the Moscow region. The court decided that the applicant had not complied with a three‑month statute of limitations to challenge lawfulness of an official’s actions established by Article 256 of the Russian Code of Civil Procedure, which, according to the district court, had started running on the day of his arrival to the Saratov region, i.e. on 16 July 2003. The applicant’s argument concerning his inability to receive visits from relatives was dismissed as follows:
“[Mr Teterev’s] arguments that as a result of his placement in a penitentiary facility in the Saratov region his rights to receive short- and long-term visits from relatives, to receive parcels and the right to defence are violated should be disregarded by the court because the right to receive visits from relatives and defence counsel and the right to receive parcels are governed by the morns of the Russian Code on the Execution of Sentences and the right to defence is governed by the Constitution of Russia and are unrelated to the location of the penitentiary facility in which the convicts serves his sentence.”
On 18 September 2008 the applicant sent via the penitentiary facility’s administration his statement of appeal against the judgment of 25 August 2008. In his submission, he did not receive any reply and his appeal remained unexamined.
2. Application no. 19309/13 by Mr Oshkin
The applicant and his elderly parents live in the village of Kulebakino, the Guryevskiy district in the Kemerovo region.
On 11 July 2006 the Sukhobuzimskiy district court of the Krasnoyarsk region convicted the applicant of robbery and sentenced him to eight years’ imprisonment in a strict regime facility. The conviction became final and the applicant was sent to serve his sentence to FKU-Tyurma («ФКУ Тюрьма») in the town of Minusinsk in the Krasnoyarsk region (about 900 km from the village of Kulebakino).
The applicant asked the FSIN to transfer him to a facility located closer to his home. On 5 September 2011 he received a reply dismissing his request with reference to Article 81 of the CES.
The applicant challenged the FSIN’s reply before a court. He specifically asked that his presence at a hearing be ensured.
On 5 April 2012 the Guryevskiy town court decided that the applicant’s presence at the hearing was unnecessary for the reason that he was serving his sentence.
On 4 May 2012 the Guryevskiy town court dismissed the applicant’s complaint concerning the FSIN’s actions. It referred to Article 81 § 2 of the CES and found that the applicant failed to demonstrate any exceptional circumstances that would justify his transfer to another penitentiary facility. It dismissed the applicant’s argument that he could not receive visits from his family members as follows:
“The claimant’s arguments that he is unable to receive long-term visits from his relatives cannot serve as grounds for granting his claims, because possibility to receive visits from next-of-kin and relatives, to receive correspondence, to have phone calls is governed by the norms of the Russian Code on the Execution of Sentences and is unrelated to location of a detention facility.”
The applicant appealed; he complained, inter alia, that the case had been examined in his absence and requested that his presence at an appeal hearing be ensured.
On 28 June 2012 the Guryevskiy town court dismissed the request for the applicant’s attendance of an appeal hearing.
On 16 October 2012 the Kemerovo regional court examined the applicant’s appeal. It quashed the judgment of 4 May 2012 for the reason that the applicant had not been duly notified of the date of the first-instance hearing and thus had not had an opportunity to submit evidence. The regional court delivered a new judgment in the case in the applicant’s absence dismissing his claims with reference to Article 81 § 2 of the CES for the reason that the applicant had not submitted “objective and admissible evidence” to the fact that there were exceptional circumstances warranting his transfer. The applicant’s argument concerning his right to respect for private and family life was dismissed as follows:
“Moreover, the court’s collegium reasons that possibility to receive visits from next-of-kin and relatives, to receive correspondence, to have phone calls is governed by the norms of the Russian Code on the Execution of Sentences and is unrelated to location of a detention facility.”
3. Application no. 21283/13 by Mr Dikan
The applicant and his family live in the town of Ukhta, in the Komi Republic.
On 18 March 2011 the Syktyvkar town court convicted the applicant of drug-related crimes and sentenced him to six years’ imprisonment in a strict regime facility. The conviction became final. The FSIN decided to send the applicant to serve his sentence to IK-15 in the settlement of Sosva, the Serovskiy district of the Sverdlovsk Region (about 1,200 km from Ukhta; according to the applicant, the actual driving distance is 2,050 km).
The applicant complained about the FSIN’s decision to a court.
On 1 June 2012 the Syktyvkar town court examined the applicant’s complaint. It dismissed the FSIN’s argument that the applicant had missed a three-month statute of limitations for the reason that the situation was continuing. The court dismissed the applicant’s complaint on the merits, referring to Articles 73 and 81 of the CES. It reasoned that the applicant’s transfer had been in accordance with the law and had been necessary to avoid overcrowding in penitentiary facilities of the Komi Republic. The court further accepted that the applicant’s transfer had touched upon his right to respect for private and family life and that Article 8 of the Convention was thus applicable, yet it found that the latter was not breached as the applicant nonetheless had ample opportunities to maintain his family and social ties by means of sending and receiving correspondence and receiving visits.
On 30 August 2012 the Supreme Court of the Komi Republic upheld the first-instance judgment on appeal.
On 27 March 2013 a judge of the Supreme Court of the Komi Republic rejected the applicant’s cassation appeal.
4. Application no. 36987/13 by Mr Safronov
The applicant, his mother and wife live in the village of Ostrov in the Leningrad Region.
The applicant was serving his sentence and attempted an escape.
On 19 September 2012 the Volosovskiy district court of the Leningrad region convicted the applicant of fleeing a penitentiary institution and, having combined the sentence with that previously imposed and unserved, sentenced him to four years’ imprisonment in a strict regime facility. It appears that the judgment was not appealed against.
On 19 January 2013 the applicant was transferred to IK-18 of the Murmansk region (about 1,400 km from his family’s home village). The applicant contested the FSIN’s decision to transfer him there before a court.
On 2 April 2014 the Oktyabrskiy district court of Murmansk dismissed the applicant’s complaint. Referring to Articles 73 and 81 of the CES, it found no reasons to send the applicant to a facility in the Leningrad region. The applicant’s argument that he could not receive visits from his family members was dismissed as follows:
“The claimant’s arguments that he is unable to receive visits from his relatives cannot serve as grounds for granting his claims, because possibility to receive visits from next-of-kin and relatives, to receive correspondence, to have phone calls is governed by the norms of the Russian Code on the Execution of Sentences and is unrelated to location of a detention facility.”
On 18 June 2014 the Murmansk regional court dismissed the applicant’s appeal for the reason that impossibility to receive visits from relatives could not be considered as an exceptional circumstance within the meaning of Article 81 § 2 of the CES.
5. Application no. 45694/13 by Mr Yeliashvili
The applicant and his close relatives live in the town of Noginsk in the Moscow region.
By the final judgment of the Moscow regional court the applicant was convicted of robbery and sentenced to eleven years’ imprisonment in a strict regime facility. The applicant was sent to serve his sentence to IK-8 in the settlement of Labytnagy in the Yamalo-Nenetskiy region (about 3,300 km from Noginsk).
The applicant requested the FSIN to transfer him to a facility located closer to Noginsk. On 21 November 2011 the FSIN dismissed his request for the reason that there were no strict regime facilities in the Moscow region.
The applicant challenged the FSIN’s refusal before a court. On 11 April 2012 the FSIN submitted their objections to the court, which read, in particular, as follows:
“The claimant’s arguments that he is unable to receive visits from his relatives cannot be taken into account because possibility to receive visits from next-of-kin and relatives is governed by the norms of the Russian Code on the Execution of Sentences and is unrelated to location of a detention facility.”
On 5 June 2012 the Zamoskvoretskiy district court of Moscow dismissed the applicant’s complaint with reference to Articles 73 and 81 of the CES. The judgment read, in so far as relevant, as follows:
“The claimant’s arguments that it is difficult to receive visits from relatives owing to the remoteness of the [place of] serving the sentence, cannot be taken into account by the court because possibility to receive visits is governed by the norms of the Russian CES and is unrelated to location of a detention facility”.
On 14 January 2013 the Moscow city court upheld the first-instance judgment.
B. Relevant domestic law
1. 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.”
2. Russian Code of Civil Procedure (“CCP”)
Under Article 256 of the CCP, a person willing to challenge lawfulness of an action or omission to act by a public official has a right to lodge a complaint with a court within three months after the date on which he or she learned about the alleged breach of their rights. If the three-month term has expired before lodging the complaint with the court, the court could refuse to grant the person’s complaint. However, it could not serve as grounds for refusal to examine the complaint.
COMPLAINTS
Applications nos. 46937/09, 19309/13, 21283/13, 36987/13, 45694/13
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.
Application no. 46937/09
Mr Teterev complains under Article 6 § 1 of the Convention that he was absent from the Zamoskvoretskiy district court’s hearing of 25 August 2008. He further complains that his statement of appeal against the judgment in question remained unexamined.
Application no. 19309/13
Mr Oshkin complains under Article 6 § 1 of the Convention that in the course of the proceedings that ended on 16 October 2012 the domestic courts in two instances examined his complaint about the actions of the FSIN in his absence.
Application no. 21283/13
Mr Dikan complains under Article 13 of the Convention that he did not have effective domestic remedies in relation to his complaint under Article 8 of the Convention at his disposal.
COMMON QUESTIONS
1. 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, 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?
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?
CASE SPECIFIC QUESTION
1. Application no. 19309/13
Has there been a violation of the applicant’s right to fair trial guaranteed by Article 6 § 1 of the Convention on account of his absence from the respective hearings held by the Guryevskiy town court on 4 May 2012 and by the Kemerovo regional court on 16 October 2012?
2. Application no. 46937/09
Has there been a violation of the applicant’s right to fair trial guaranteed by Article 6 § 1 of the Convention? In particular, was the applicant’s absence from the hearing held by the Zamoskvoretskiy district court of Moscow on 25 August 2008 compatible with this provision? Did the domestic authorities respect the applicant’s right of access to court by ensuring that his statement of appeal against the judgment of the Zamoskvoretskiy district court of 25 August 2008 be duly examined?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
46937/09*
27/07/2009
Roman Yevgenyevich TETEREV
01/05/1975
Pushkino, the Moscow region
19309/13*
01/02/2013
Mikhail Mikhaylovich OSHKIN
05/11/1976
Kulebakino, the Guryevskiy district in the Kemerovo region
21283/13*
28/02/2013
Roman Aleksandrovich DIKAN
07/02/1984
Ukhta, the Komi Republic
Ernest Aleksandrovich MEZAK
36987/13*
20/05/2013
Mikhail Yevgenyevich SAFRONOV
20/06/1985
Ostrov, the Leningrad region
45694/13
13/07/2013
Ivan Dzhimsherovich YELIASHVILI
23/01/1979
Noginsk, the Moscow region
Valeriy Vladimirovich SHUKHARDIN
Full & Egal Universal Law Academy