CEDH · CASELAW;COMMUNICATEDCASES;ENG — 13 octobre 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sB853CD33 { font-family:Arial; font-size:7pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s6B505E72 { margin:0pt; padding-left:0pt } .sA56BACAB { font-family:Arial; font-weight:bold; list-style-position:inside } .s13783063 { width:6.24pt; font:7pt 'Times New Roman'; display:inline-block } .s3537C2D6 { font-weight:normal }     Communicated on 13 October 2014   FIRST SECTION Applications nos 26083/07 and 35845/11 Yuriy Kharitonovich ALEKSANDROV against Russia and Natalya Anatolyevna KIBALO and others against Russia lodged on 11 May 2007 and 6 June 2011 respectively STATEMENT OF FACTS A list of the applicants is set out in the appendix. A.     The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows. 1.     Application of Mr Aleksandrov In the beginning of 2006 Mr Aleksandrov lived together with his then pregnant wife in the town of Kurgan. It appears that his eldest daughter also lived in the same town. On 24 April 2006 the applicant was arrested on suspicion of murder. He alleges that the police officers used force against him without providing any detailed description of the alleged ill-treatment. On 27 December 2006 the Kurgan Town Court found the applicant guilty of murder and sentenced him to thirteen years’ imprisonment to be served in a strict regime penitentiary facility. On 6 February 2007 the Federal Service for Execution of Sentences of (“FSIN”) established that strict regime penitentiary facilities of the Kurgan Region were populated up to the maximum capacity and decided that the applicant should be transferred to a strict regime penitentiary facility in the Udmurt Republic. On 27 February 2007 the Kurgan Regional Court upheld the applicant’s conviction on appeal. On 13 July 2007 the applicant arrived at penitentiary facility IK-1 of Yagul, the Udmurt Republic, located 1,200 km away from Kurgan. According to the applicant, after the transfer it became virtually impossible for his wife and two daughters, born in 1988 and 2006, respectively, to visit him in prison as they could not afford to travel to the Udmurt Republic. On 4 August 2009 the Department of the FSIN of the Kurgan Region notified the applicant that he could not be transferred back to a penitentiary facility in the Kurgan Region because, pursuant to Article 81 of the Russian Code on the Execution of Sentences, a detainee ought to serve the whole term of sentence in the same facility. On 18 May 2010 the Kurgan Town Court rejected the applicant’s claims for non-pecuniary damages caused by his transfer to a remote penitentiary facility. It established that in 2007 the strict regime facility of the Kurgan Region had been overpopulated by 10%. The applicant was absent from the hearing. His subsequent request to restore the term for lodging an appeal statement against the judgment was granted. It remains unclear whether the applicant has lodged a statement of appeal afterwards and, if so, whether his appeal has been heard. 2.     Application of Ms Kibalo and her daughters Ms Kibalo is the wife of Mr Ali Khadzhiyev, born in 1979. Linda and Iman Kibalo are her minor daughters. She and her daughters live in the Dubovskaya village in the Chechen Republic. On 29 May 2007 the Supreme Court of Dagestan found Mr Khadzhiyev guilty of kidnapping, illegal possession of arms and an attempted murder of a law-enforcement officer and sentenced him to twenty years’ imprisonment in a strict regime penitentiary facility. The judgment was upheld on appeal and Mr Khadzhiyev was sent to serve his sentence outside the Republic of Dagestan. On 7 February 2008 Mr Khadzhiyev arrived at the penitentiary facility in the town of Blagoveschensk of the Amur Region in the Far-East of Russia, some 8,000 kilometres away from the Dubovskaya village. The first applicant applied to the FSIN to ask for Mr Khadzhiyev’s transfer to a penitentiary facility located near their home village arguing that she had been de facto deprived of a possibility to visit her husband because it would take her about eight days to travel from her home village to Blagoveschensk by train. On 25 May 2009 the head of FSIN dismissed the first applicant’s request. The first applicant challenged the refusal before a court. On 21 August 2009 the Zamoskvoretskiy District Court of Moscow refused to examine the first applicant’s complaint on the merits stating that she had no standing to bring a complaint on behalf of her husband. On 14 January 2010 the Moscow City Court quashed the ruling of 21   August 2009 on appeal. On 17 June 2010 the Zamoskvoretskiy District Court of Moscow held a hearing in the absence of both parties and dismissed the applicant’s claims for the reason that Mr Khadzhiyev had breached prison rules on multiple occasions and found that there were no reasons to transfer him to another penitentiary facility. On 7 December 2010 the city court upheld the judgment of 17 June   2010 on appeal. 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 colony, strict regime colony, special regime colony 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 “strict” regime and “ordinary” regime colonies 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 penal institutions the convicted person is to be sent to the nearest penal institutions located on the territory of the said region, or, exceptionally, they may be sent to penal institutions located on the territory of the next closest region. Article 73 § 4 stipulates, inter alia , that persons who are sentenced to prison 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. COMPLAINT The applicants complain under Article 8 of the Convention that Mr   Alexandrov’s and Mr Khadzhiyev’s respective transfers to remote penitentiary facilities effectively amount to a breach of family ties between the detainees and their wives and children. QUESTIONS TO THE PARTIES   1.     Have the applicants exhausted all domestic remedies as required by Article 35 § 1 of the Convention? If not, what effective avenues of recourse were available to them to challenge the transfer of a convict to a particular penitentiary institution?   2.     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?   3.     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 the respective decisions to transfer Mr Aleksandrov and Mr   Khadzhiyev 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 aims; and (c) was it “necessary” for the pursuit of such an aim, in other words supported by relevant and sufficient reasons and proportionate?   Appendix   Application no. 26083/07   Mr Yuriy Kharitonovich ALEKSANDROV is a Russian national who was born in 1966 and lives in Kurgan. He is currently serving his sentence in IK-1 of Yagul, the Udmurt Republic.   Application no. 35845/11       Ms Natalya Anatolyevna KIBALO is a Russian national born in 1979.     Ms Iman Aliyevna KIBALO is a Russian national born in 2009.     Ms Linda Aliyevna KIBALO is Russian national born in 2006. The applicants live in the village of Dubovskaya, the Chechen Republic. They are represented before the Court by lawyers of Memorial Human Rights Centre.