CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 avril 2017

.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 } .s3F59B822 { font-family:Arial; font-weight:bold; 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 } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .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 } .sDF520BAF { margin-top:0pt; margin-bottom:0pt; text-indent:21.55pt } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s8578A85B { margin-top:0pt; margin-bottom:0pt; text-indent:11.6pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s75A32C27 { border-collapse:collapse } .s14D0E8B1 { height:41.1pt } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s598389F7 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt } .s1E6C756B { height:59.95pt } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s276B8A62 { margin-left:20.44pt; text-align:center; padding-left:4.66pt; font-family:Arial; font-size:10pt } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s55601073 { height:21pt } .sCE14500 { height:36.1pt } .sFEDEB2B2 { margin-left:20.44pt; text-align:justify; padding-left:4.66pt; font-family:Arial; font-size:10pt } .sEDEB3C86 { margin-left:25.1pt; text-align:center; font-family:Arial; font-size:10pt } .sC29C64EC { height:77.1pt } .sA473E089 { height:71.85pt } .s742E78A { height:10.3pt }   Communicated on 6 April 2017   THIRD SECTION Application no. 34963/12 Andrey Anatolyevich YUDIN against Russia and 16 other applications (see list appended) STATEMENT OF FACTS A list of the applicants is set out in the appendix. A.     The circumstances of the cases The applicants are either prisoners who are serving their sentences in special-regime correctional colonies, or their close relatives. They submit that they are affected by statutory restrictions on family visits, telephone calls and the number of parcels that they are permitted to receive; these restrictions constitute an inherent part of the strict regime of imprisonment applicable to life prisoners during their first ten years of imprisonment. The details of the individual applications, as submitted by the applicants, are summarised in the appendix. B.     Relevant domestic law and practice The relevant provisions of domestic law governing contact of life prisoners with the outside world are set out in the case of Khoroshenko v.   Russia [GC] (no. 41418/04, §§ 32- 54, ECHR 2015). On 15   November 2016 in its judgment no. 24-П/2016 the Constitutional Court held as follows: “1.3     The provisions of Articles 125 § 3 and 127 § 4 of the Code of Execution of Criminal Sentences [“the CES”] have already been the subject of applications before the Constitutional Court ... the Constitutional Court declared the relevant applications inadmissible (see Ruling no. 257-O dated 24 May 2005 on the case of Mr   A.A.   Khoroshenko and Ruling no. 248-O dated 9 June 2009 on the case of Mr   and Ms Z.). [Subsequently] the [Court] held that life prisoners’ inability to have long-term visits from close relatives during the first ten years of imprisonment constituted a violation of Article 8 of [the Convention] (see Khoroshenko v. Russia [GC], no.   41418/04, ECHR 2015)... In the light of the above, the Constitutional Court considers that it is possible to return to the examination of the constitutionality of [the impugned provisions of the CES] and admit [the applications] for examination on the merits ... 2.     The Constitutional Court based its rulings no. 257-O dated 24 May 2005 and no.   248-O dated 9 June 2005 on the finding that [it had been within parliament’s power to enact] the legal provisions allowing life prisoners to have long-term family visits not earlier that after the first ten years of imprisonment have been served ..., and that [the impugned legislative provisions], as they had been applied in the specific circumstances of the individual cases, ... did not breach the ... balance between the interests of the society as a whole and the interests of the individual. Nevertheless, in the present case, taking into account the fact that no final judgment on the constitutionality of [the impugned provisions] has been delivered, the Constitutional Court considers it necessary to take notice of the legal position of [the European Court of Human Rights], which was formulated on the basis of new approaches aimed at the socialisation of prisoners and rendering more humane the conditions under which sentences are served, after the delivery of rulings no. 257-O dated 24 May 2005 and no. 248-O dated 9 June 2005 by the Constitutional Court. ... 2.3     As can be seen from the judgment of the Constitutional Court no. 21-П/2015 dated 14 July 2015, interaction between the European conventional and the Russian constitutional legal orders is impossible [if one is subordinate to the other], because a dialogue between different legal systems [can only occur on the] basis of balanced [interaction], and the effectiveness of the rules set by [the Convention] within the Russian legal order heavily depends on the respect of [the Court] for the national constitutional identity; recognising the fundamental significance of the European system for the protection of human and civil rights and freedoms (of which the judgments of [the Court] form a part), the Constitutional Court is ready to search for a lawful compromise for the sake of maintaining this system, reserving for itself [the right to decide whether it is ready for such compromise], because it is the Constitution of the Russian Federation which outlines the scope for compromise in respect of this issue. When assessing the constitutionality of legislative provisions, and when delivering its decisions on that matter, the Constitutional Court of Russia [has to] examine which interpretation – its own, on the basis of the Constitution of Russia, or those given by [the Court] on the basis of [the Convention] – provides better guarantees for human rights within the Russian legal system, ensuring a balance between values protected by the Constitution and the legal status of the individual enshrined by the international documents. This relates not only to those individuals who have applied for protection, but to all those who might be affected by the impugned regulations. If the interpretation of [the Convention] results in enhanced guarantees for a group of individuals, and at the same time it does not encroach on the values protected by the Constitution of Russia, then according to the judgment of the Constitutional Court no. 21-П/2015 dated 14 July 2015, ... ways to harmonise approaches [adopted by [the Court] and by the Russian legislature should be found. As regards the constitutionality of [the impugned provisions], the Constitutional Court observes that ... it is not bound by the conclusion made in rulings no. 257-O dated 24 May 2005 and no. 248-O dated 9 June 2005 ... This is particularly so in view of the fact that the approach of [the Court] does not run counter to the Constitutional settings. ... 4.1     ... During the first ten years of detention, life prisoners, regardless of their conduct, [must remain under a strict detention regime] and may not be transferred to a more lenient prison regime. Domestic practice construes [the impugned legislative provisions] as establishing an absolute prohibition on long-term visits during the said period. It does not allow [the authorities] to take into account [prisoners’] conduct (such as a demonstrated desire to reform, or a negative attitude towards to the key values of society), or to individually tailor educational measures for prisoners ... Allowing long-term visits for life prisoners as a form of reward (“поощрение”) could not be seen as the sole solution for the constitutional problem raised by the applicants. 4.2.     In the light of the above, [the Constitutional Court concludes that the impugned provisions of the CES], as far as they exclude the possibility of long-term visits for life prisoners during the first ten years of their post-conviction detention, are incompatible with articles 15   §   4, 17   §   1, 23   §   1, and 55   §   3 of the Constitution of Russia, taken together with Article 8 of [the Convention], as construed [the Court]. ... the Constitutional Court considers that the present judgment should be enforced in the following manner: - the federal legislative should – under the guidelines of the requirements set out by the Constitution of Russia, and taking into account the legal opinions of the Constitutional Court and [the Court], cited in the present judgment – introduce the conditions and the procedure under which life prisoners could exercise a right to long ‑ term visits; - pending the introduction of the amendments to the applicable regulation, which follow from the present judgment, life prisoners should be allowed one long-term visit per year from the persons listed in Article 89   § 2 of [the CES]...” COMPLAINTS 1.     The applicants claim that the statutory restrictions on family visits, outside calls and the number of parcels allowed during the first ten years of their detention are incompatible with the requirements of Article 8 of the Convention. 2.     Relying on Article 13 of the Convention the applicants allege a lack of effective domestic remedies through which to complain about the aforementioned restrictions on contact with the outside world. 3.     The remaining complaints of the applicants are listed in the appendix.   COMMON QUESTIONS TO THE PARTIES 1.     Do the restrictions applied to the applicants in respect of long-term visits from close relatives, telephone calls and the number of parcels allowed constitute a violation of the applicants’ right to respect for their private and/or family life within the meaning of Article 8 of the Convention? In particular, do these measures constitute an interference with the applicants’ private and/or family life? If so, is that interference justified under Article 8 of the Convention? In particular: (a)     Is the interference “prescribed by law”? (b)     If so, does it pursue one or more of the legitimate aims referred to in Article 8   §   2 of the Convention? (c)     If so, is it “necessary in a democratic society” to achieve those aims? Are the restrictions applied to prisoners under high-security conditions proportionate to the legitimate aim pursued? Do the provisions of the Russian Code on the Execution of Sentences ( Уголовно ‑ исполнительный кодекс – “the CES”) on high-security conditions restricting convicts’ rights take into account the relevant individual circumstances of each life prisoner?     Do they take into account the needs in respect of prisoners’ rehabilitation and reintegration into free society? The Government are invited to comment separately on these questions in respect of the periods prior to and after the judgment of the Constitutional Court of Russia of 15 November 2016 no. 24-П/2016.   2.     Do the applicants have at their disposal effective domestic remedies, as required by Article 13 of the Convention, in respect of their complaints about the restrictions on visits, telephone calls and the number of parcels allowed? QUESTIONS IN RESPECT OF INDIVIDUAL APPLICATIONS 1.     Applications nos. 34963/12 and 49/14 1.     Was there a violation of the applicants’ right to a fair trial under Article 6 § 1 of the Convention on account of the domestic courts’ failure to ensure the personal attendance of the applicants at court hearings in civil proceedings which ended with the decisions delivered by the Yamalo ‑ Nenetskiy Regional Court on 16   January 2012 and by the Supreme Court of Russia on 13 June 2013? 2.     Application no. 64921/12 1.     Was there a violation of Article 3 of the Convention on account of the material conditions of the applicant’s detention in Orenburg correctional colony IK-56/1 from 14 January until 1   August 2012? 2.     Was the applicant subjected to constant video surveillance in Orenburg correctional colony IK-56/1 from 14 January until 1   August 2012? If so, did that measure constitute an interference with his private life? If so, was it justified under Article 8   §   2 of the Convention? In particular: (a)     Was the interference “prescribed by law”? (b)     If so, did it pursue one or more of the legitimate aims referred to in Article 8   §   2 of the Convention? (c)     If so, was it “necessary in a democratic society” to achieve those aims? In particular, could those aims have been achieved by using less intrusive means? 3.     Applications nos. 64921/12, 49/14, 6330/16, 10565/16, 17112/16, 46429/16, 50701/16, 52594/16, and 53819/16 1.     Does the applicants’ detention in prison facilities located outside their home regions 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.     Was there 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 their transfer from their respective home towns to remote detention facilities and the effect that it had on the applicants’ contact with members of their families? 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 CES, was the interference in question “in accordance with the law”? (b)     did it pursue one or more legitimate aims referred to in Article 8   §   2 of the Convention? (c)     was it “necessary” for the pursuit of such an aim – in other words, was it proportionate and supported by relevant and sufficient reasons? More specifically, did the domestic authorities carry out a balancing exercise to assess the proportionality of the impugned transfers to the aims sought? Does Article   81 of the CES provide for the possibility of carrying out such a balancing exercise prior to or after a detainee’s transfer to a certain facility? 4.     Application no. 49/14 Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention? 5.     Application no. 8068/14 Is the system allowing the routine monitoring/censorship of prisoners’ non-privileged correspondence set forth by the CES? If so, does it constitute an interference with the applicant’s right to respect for his private/family life and correspondence? If so, is it justified under Article 8   §   2 of the Convention? In particular: (a)     Is the interference “prescribed by law”? (b)     If so, does it pursue one or more of the legitimate aims referred to in Article 8   §   2 of the Convention? (c)     If so, is it “necessary in a democratic society” to achieve those aims? More specifically, does the CES limit the length and scope of the monitoring of non-privileged correspondence? Does it provide for the possibility of carrying out a balancing exercise and assessing the proportionality of that measure in each case? 6.     Application no. 46429/16 Does the applicant have an effective domestic remedy, as required by Article 13 of the Convention, by means of which to complain about his transfer to a remote detention facility? 7.     Application no. 47668/15 1.     Do the applicants’ complaints about the lack of opportunities for them to conceive a child fall within the scope of Article 8?   2.     Has there been an interference with the applicants’ private and/or family life by virtue of the refusals of the authorities to assist the applicants in their decision to become parents (see, mutatis mutandis Dickson v. the United Kingdom [GC], no.   44362/04, ECHR 2007 ‑ V)? If so, is it justified under Article 8 of the Convention? In particular: (a)     Is the interference “prescribed by law”? (b)     If so, does it pursue one or more of the legitimate aims referred to in Article 8   §   2 of the Convention? (c)     If so, is it “necessary in a democratic society” to achieve those aims? Did the domestic authorities duly weigh the relevant competing individual and public interests or assess the proportionality of the restrictions preventing the applicants from becoming parents? Alternatively, has there been a positive obligation on the part of the State to ensure that the applicant’s private/family life, within the meaning of Article 8 of the Convention, is respected? If so, was it fulfilled?   APPENDIX No App. No Lodged on Applicant Date of birth   Place of detention Particular facts The applicant’s particular complaint(s)   34963/12* 02/05/2012 Andrey Anatolyevich YUDIN 09/10/1970   IK-18, Kharp, Yamalo-Nenetskiy Region While in detention the applicant brought a civil claim against the prison authorities. He was not afforded the possibility to attend court hearings in respect of his case at two levels of jurisdictions. The final decision was delivered by the Yamalo ‑ Nenetskiy Regional Court on 16/01/2012. Art.   6: inability to attend the court hearings in the civil case   64921/12* 30/08/2012 Tyulegen Mingishevich KHABBASOV IK-2, Solikamsk, Perm Region At the time of his arrest the applicant lived in the Orenburg Region. After his conviction, pending appeal proceedings, he was detained in various remand prisons, including IK-56/1 in Orenburg, from 14/01/2012 until 01/08/2012. According to the applicant, he was placed in cell no. 12, which had a floor space measuring 10 sq. m. He shared the cell with three other inmates, having been deprived of the right to walk in the prison yard. The cell was in poor sanitary condition and was constantly under video surveillance. Art.   3: conditions of detention in IK-56/1, Orenburg, from 14/01/2012 until 01/08/2012   Art. 8: constant video surveillance in IK-56/1, Orenburg, from 14/01/2012 until 01/08/2012   Art. 8: transfer to a remote detention facility to serve his custodial sentence       49/14* 06/11/2013 Sergey Aleksandrovich FEDOROV 14/07/1980   IK-2, Solikamsk, Perm Region   On 13/03/2007 the applicant, who at that time lived in the Moscow Region, was arrested on suspicion of committing several criminal offences. He was charged with murder, robbery, extortion and arms trafficking. On 26/12/2011 he was convicted by the Moscow Regional Court. On 24/05/2012 the Supreme Court of Russia delivered a final decision in his criminal case. In November 2012 the applicant claimed compensation for the excessive length of the criminal proceedings. He was unable to attend the court hearings as the courts did not grant leave to appear. On 13/06/2013 the Supreme Court of Russia delivered a final decision in the case, dismissing the claim. The court cited the complexity of the case and the due diligence on the part of the investigating authorities. Art.   6: excessive length of the criminal proceedings   Art.   6: inability to attend the court hearings in the civil case   Art. 8: transfer to a remote detention facility to serve the custodial sentence   4246/14* 07/11/2013 Konstantin Gennadyevich CHERNENKO 12/07/1978   Sergey Pavlovich SHAKHMATOV 07/02/1963   IK-18, Kharp, Yamalo-Nenetskiy Region   None None   8068/14* 29/11/2013 Viktor Ivanovich KURITSYN 02/07/1963   IK-18, Kharp, Yamalo-Nenetskiy Region None Art.   8: compatibility of the legal framework allowing routine inspection of prisoners’ correspondence with the requirements of the Convention   33840/14* 26/07/2013 Ruslan Rishatovich BEKMURZIN 15/07/1982   Anatoliy Viktorovich GONTARENKO 09/05/1964   IK-18, Kharp, Yamalo-Nenetskiy Region None None   12821/15* 17/02/2015 Sergey Nikolayevich KALININ 03/07/1971 IK-56, Lozvinskiy, Sverdlovsk Region None None   47668/15* 18/09/2015 Nikolay Valentinovich KOROLEV 31/03/1981   Veronika Vadimovna KOROLEVA 08/08/1981   IK-18, Kharp, Yamalo-Nenetskiy Region   On 15/05/2008 Mr Korolev, was sentenced to life imprisonment. On 9/09/2009 the applicants married. Later they decided to have a child. Having been deprived of the opportunity to conceive a child in the natural way owing to the absolute long-term ban on conjugal visits that was at force at the relevant time, they unsuccessfully applied for assistance with artificial insemination. Their application was dismissed, in particular because the medical procedure sought required the transportation of the convict to a remote region. By a final decision dated 31/07/2015 the Supreme Court of Russia upheld the authorities’ refusal to assist with artificial insemination. Art. 8: lack of opportunity to conceive a child, including by the way of artificial insemination   6330/16 14/01/2016 Ruslan Kazymovich KUBASHEV 22/02/1985   IK-56, Lozvinskiy, Sverdlovsk Region Before his arrest the applicant lived in Nikolsk, in the Penza Region. Art. 8: transfer to a remote detention facility to serve the custodial sentence   10565/16* 31/05/2016 Nikolay Yuryevich BURTSEV 21/05/1988   IK-18, Kharp, Yamalo-Nenetskiy Region Before his arrest the applicant lived in the Perm Region. Art. 8: transfer to a remote detention facility to serve the custodial sentence     17112/16 03/03/2016 Vladislav Vasilyevich TEKHNYUK 11/02/1982   IK-56, Lozvinskiy, Sverdlovsk Region   Before his arrest the applicant lived in the Tyva Republic. Art. 8: transfer to a remote detention facility to serve the custodial sentence   46429/16* 22/07/2016 Yuriy Nikolayevich MAKHNOV 27/09/1977   IK-56, Lozvinskiy, Sverdlovsk Region Before his arrest the applicant lived in Chelyabinsk, in the Chelyabinsk Region. Art. 8: transfer to a remote detention facility to serve the custodial sentence   Art. 13: absence of effective domestic remedies in respect of the aforementioned complaint under Art.8.   50701/16* 27/07/2016 Arkadiy Vladimirovich VOLOKHOV 01/01/1987   IK-5, Ognennyiy, Vologda Region Before his arrest the applicant lived in the village of Teguldet, in the Tomsk Region. Art. 8: transfer to a remote detention facility to serve the custodial sentence     52007/16 10/08/2016 Anatoliy Yuryevich ZHAKUN 24/08/1965 IK-18, Kharp, Yamalo-Nenetskiy Region None None   52594/16* 08/08/2016   Mikhail Anatolyevich KARIMOV 27/09/1963   IK-18, Kharp, Yamalo-Nenetskiy Region Before his arrest the applicant lived in Vladivostok, in the Primorskiy Region. Art. 8: transfer to a remote detention facility to serve the custodial sentence     53819/16* 03/08/2016 Arbi Khamzatovich DANDAYEV 01/02/1974   IK-56, Lozvinskiy, Sverdlovsk Region Before his arrest the applicant lived in Grozny, in the Chechen Republic. Art. 8: transfer to a remote detention facility to serve the custodial sentence     61992/16 10/10/2016   Andrey Aleksandrovich BAYDIN 27/04/1978 IK-18, Kharp, Yamalo-Nenetskiy Region None None