CASE OF POLYAKOVA AND OTHERS v. RUSSIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicants in each case were affected by decisions of the Russian Federal Penal Authority («Федеральная служба исполнения наказаний», “the FSIN”) on prisoners’ allocation to post-conviction penal facilities. The applicants’ individual circumstances are detailed below. 6. The application was lodged on 13 June 2009 by Ms Elvira Vasilyevna Polyakova, who was born in 1976 and lives in Vladivostok, Primorskiy Region. She was represented before the Court by Ms L. Ovchinnikova, a lawyer practising in Vladivostok. 7. The applicant is the live-in partner of Mr R. The couple originally set up home in Vladivostok in the Primorskiy Region. They have a son born in 2003. 8. On 22 May 2008 Mr R. was convicted of drug-related crimes and sentenced to ten years’ imprisonment in a strict-regime penal facility. After the conviction became final he was allocated to IK-33 in the Primorskiy Region, close to his family home. 9. In September 2008 the head of the Primorskiy regional department of the FSIN decided to transfer Mr R. to the Krasnoyarsk Region, some 5,000 kilometres from Vladivostok. It appears that the basis for this decision was a telegram of 18 April 2008 from the deputy head of the FSIN of Russia that read as follows: “The Primorskiy regional department of the FSIN are allowed, until special notice, to send up to thirty convicts per month from remand prisons to the care of the Krasnoyarskiy regional department of the FSIN pursuant to Article 73 § 2 of the CES.” 10. On 30 September 2008 the Primorskiy regional department of the FSIN informed Ms Polyakova that her request for Mr R. to be allowed to remain in the facility in the Primorskiy Region had been refused, and advised the applicant as follows: “... pursuant to Article 73 § 2 of the CES and the instruction by the FSIN of Russia, on 14 September 2008 Mr R. was sent to serve the remainder of his sentence in the care of the Krasnoyarskiy regional department of the FSIN. You will be notified of his arrival at a penal facility.” 11. The applicant challenged the FSIN’s decision before a court, asking for her partner to be transferred back to the Primorskiy Region so that she and their son could afford to visit him. 12. On 28 October 2008 the Sovetskiy District Court of Vladivostok examined the applicant’s complaint under Article 258 of the Russian Code of Civil Procedure (“CCP”) and dismissed it. It found, referring to Article 73 § 2 of the Russian Code on the Execution of Sentences (“CES”), that strict-regime facilities in the Primorskiy Region were overcrowded and that transfers of a number of detainees to other facilities had been necessary for their own safety, as there could be conflicts among inmates fighting for a sleeping place. The District Court dismissed the applicant’s argument related to her family life as unsubstantiated, stating that she could apply to the FSIN for permission to visit Mr R. in the Krasnoyarsk Region. 13. On 30 December 2008 the FSIN of Russia dismissed the applicant’s request for Mr R. to be transferred from the penal facility in the Krasnoyarsk Region to one in the Primorskiy Region, stating that under Article 81 of the CES prisoners should, as a rule, serve the entirety of their sentence in the same penal facility, and that there were no reasons for Mr R.’s transfer. 14. On 13 January 2009 the Primorskiy Regional Court summarily dismissed the applicant’s appeal. 15. The applicant and her son visited Mr R. in the penal facility in the Krasnoyarsk Region on three occasions. 16. The application was lodged on 6 June 2011 by Ms Natalya Anatolyevna Kibalo, born in 1979, Miss Linda Aliyevna Kibalo, born in 2006, and Miss Iman Aliyevna Kibalo, born in 2009. The applicants live in the village of Dubovskaya in the Shelkovskiy District of the Chechen Republic. They were represented before the Court by lawyers of the Memorial Human Rights Centre. 17. Ms Natalya Kibalo is the wife of Mr Kh. The couple are the parents of Linda and Iman Kibalo. 18. On 29 May 2007 the Supreme Court of Dagestan found Mr Kh. guilty of kidnapping, illegal possession of arms, and attempted murder of a law-enforcement officer. Mr Kh. was sentenced to twenty years’ imprisonment in a strict-regime penal facility. The judgment was upheld on appeal. 19. On an unspecified date the FSIN decided to send Mr Kh. to serve his sentence outside the North Caucasus area. 20. On 7 February 2008 Mr Kh. arrived at UV14/8, a strict-regime penal facility in the town of Blagoveshchensk in the Amur Region, some 8,000 kilometres from Dubovskaya village. 21. Ms Natalya Kibalo asked the FSIN to transfer Mr Kh. to a penal facility located closer to their home village, arguing that she had been de facto deprived of the opportunity to visit her husband because it would take her about eight days to travel from her home village to Blagoveshchensk by train, and because the cost of the trip was prohibitive for her as an unemployed mother of two young children. 22. On 25 May 2009 the head of a department of the FSIN dismissed the first applicant’s request, referring to the lack of grounds for transfer listed in Article 81 of the CES. Ms Natalya Kibalo challenged the refusal before a court. 23. On 21 August 2009 the Zamoskvoretskiy District Court of Moscow refused to examine Ms Natalya Kibalo’s complaint on the merits, stating that she had no standing to bring a complaint on behalf of her husband. The Moscow City Court quashed that ruling on 14 January 2010 on appeal. 24. On 17 June 2010 the Zamoskvoretskiy District Court of Moscow held a hearing in the absence of both parties. It examined Ms Natalya Kibalo’s complaint under Articles 254-6 and 258 of the CCP and dismissed it. The District Court observed that Mr Kh. had been allocated to the penal facility in Blagoveshchensk under Article 73 § 4 of the CES, and that under Article 81 of the CES, as a rule, convicts should serve their sentence in the same facility throughout. It reasoned that Mr Kh. had breached prison rules on multiple occasions both in the remand prison and in UV14/8, and that he had been “convicted of terrorist offences in the Dagestan Republic, shows no remorse, and does not undertake to commit no unlawful actions in the future”. The judgment read, in particular, as follows: “The claimant’s argument that neither she nor her children could come to visit [Mr A. Kh.] because he is serving his sentence in the Amur Region cannot be taken into consideration, because the possibility of receiving visits is governed by the norms of the CES and is unrelated to the location of a penal facility.” 25. On 7 December 2010 the Moscow City Court upheld the judgment of 17 June 2010 on appeal. It reasoned that the Zamoskvoretskiy District Court had not erred in finding that there were no grounds listed in Article 81 of the CES that would warrant Mr Kh.’s transfer to another penal facility, and that “the appeal statement contain[ed] no references to circumstances that would refute the [first-instance] court’s findings and demonstrate that there were grounds for Mr Kh.’s transfer from one facility to another within the meaning of Article 81 of the CES”. 26. Between 2008 and 2012 Ms Natalya Kibalo visited her husband in Blagoveshchensk on eight occasions. On six of those occasions, between 2008 and 2010, her travel expenses were sponsored. She visited her husband once in 2011 and once in 2012 but could not afford to travel at all in 2013 or 2014. Miss Linda Kibalo accompanied her mother on her trip to visit Mr Kh. once. Miss Iman Kibalo, born during Mr A. Kh.’s detention, has never seen her father. 27. The application was lodged on 13 July 2013 by Mr Ivan Dhzimsherovich Yeliashvili, who was born in 1979 and lives in Noginsk, the Moscow Region. He is currently serving his sentence in IK-8 in Labytnangi, the Yamalo-Nenetskiy Region. The applicant, who had been granted legal aid, was represented before the Court by Mr V. Shukhardin, a lawyer practising in Moscow. 28. By a final judgment of 8 September 2009 the Moscow Regional Court convicted the applicant of robbery and sentenced him to eleven years’ imprisonment in a strict-regime facility. 29. On 15 September 2009 the FSIN decided to send the applicant to serve his sentence in IK-8 in the settlement of Labytnangi in the YamaloNenetskiy Region, located about 3,300 kilometres from Noginsk. 30. The applicant asked the FSIN to transfer him to a facility closer to Noginsk, arguing that his father, brother, sister and nephew all lived in that town and that they would have no realistic opportunity to visit him in Labytnangi. On 21 November 2011 the FSIN dismissed his request, noting that the applicant had been allocated to the penal facility in Labytnangi under Article 73 § 2 of the CES because of the lack of strict-regime penal facilities in the Moscow Region, and that under Article 81 of the CES prisoners should serve their entire sentence in the same penal facility. 31. The applicant challenged the FSIN’s refusal before a court. On 11 April 2012 the FSIN submitted their objections to the Zamoskvoretskiy District Court of Moscow, 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 the possibility of receiving 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 the location of any penal facility.” 32. On 5 June 2012 the Zamoskvoretskiy District Court of Moscow examined the applicant’s complaint under Articles 254-5 and 258 of the CCP, and dismissed it 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] the sentence is being served cannot be taken into account by the court, because the possibility of receiving visits is governed by the norms of the Russian CES and is unrelated to the location of any penal facility.” 33. On 14 January 2013 the Moscow City Court upheld the first-instance judgment. 34. To date, the applicant’s relatives have not been able to afford to visit him in Labytnangi. 35. The application was lodged on 6 November 2014 by Mr Vladimir Aleksandrovich Palilov, who was born in 1968 and lives in the Yaroslavl Region. He is currently serving his sentence in IK-18 in the settlement of Kharp, the Yamalo-Nenetskiy Region. The applicant, who had been granted legal aid. was represented before the Court by Mr E. Markov, a lawyer practising in Strasbourg. 36. On 11 August 2006 the Yaroslavl Regional Court convicted the applicant of murder and sentenced him to life imprisonment. The conviction was upheld on appeal and became final. 37. On 19 February 2007 the applicant was sent to serve his sentence in a special-regime facility for those sentenced to life imprisonment in the village of Kharp in the Yamalo-Nenetskiy Region, 2,000 kilometres from the Yaroslavl Region. 38. On 9 January 2013 the applicant asked the FSIN to transfer him to any detention facility located closer to his elderly mother’s and sister’s place of residence. 39. On 14 February 2013 the FSIN dismissed the request, stating that the applicant had been sent to serve his sentence in a remote penal facility under Article 73 § 4 of the CES, and noting that under Article 81 of the CES a prisoner must serve their entire sentence in the same facility. The applicant challenged the decision before a court. In his statement of claims he requested to be present at court hearings. 40. On 19 July 2013 the Zamoskvoretskiy District Court of Moscow held a hearing in the applicant’s absence, which was referred to in the judgment as follows: “[t]he applicant was notified of the date of the hearing. He has failed to appear at the court hearing owing to the fact that he is serving a sentence”. The representative of the FSIN was also absent. The District Court examined the complaint pursuant to Articles 254-5 and 258 of the CCP and dismissed it, noting that there were “no grounds listed in Article 81 § 2 of the CES that would preclude Mr Palilov from continuing to serve his sentence in the penal facility in the Yamalo-Nenetskiy Region”. The applicant’s argument related to the difficulties of maintaining his family ties was rejected as follows: “The claimant’s arguments that he cannot receive visits from his relatives does not give grounds for allowing the claims, because the possibility of receiving visits from family members and relatives, receiving correspondence, or using the telephone, are all governed by the norms of the Code on Execution of Sentences and are unrelated to the location of any penal facility.” 41. The applicant appealed against the judgment and requested that an appeal hearing be held in his presence. 42. On 4 June 2014 the Moscow City Court held a hearing in the applicant’s absence, which was explained as follows: “under Article 167 of the Code of Civil Procedure the appellate collegium deems it possible to examine the case in the absence of the parties to the proceedings; they have been notified of the date and place of the court hearing”. The appellate court upheld the Zamoskvoretskiy District Court’s judgment. Referring to Article 73 § 4 of the CES, it stated that the rule on serving a sentence in a particular region close to a detainee’s permanent residence was inapplicable to the applicant given the nature of the crime of which he had been convicted. The City Court also found that the Zamoskvoretskiy District Court had correctly interpreted Article 81 § 2 of the CES, reasoning as follows: “... there were no medical recommendations that would contain contraindications for Mr Palilov’s serving his sentence in the penal facility in the Yamalo-Nenetskiy Region. Other exceptional circumstances that the law connects with the FSIN’s obligation to grant a claimant’s request to be transferred to another penal facility were not referred to The argument that Mr Palilov is being deprived of the opportunity to maintain contact with his relatives because of the remoteness of the penal facility cannot serve, in the context of Article 73 § 4 of the CES, as grounds for declaring the actions of the penal authority’s officials unlawful.” 43. The applicant’s mother and sister could not afford to visit him in Kharp. The mother died in 2013.