CASE OF KHOROSHENKO v. RUSSIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Elisabeth Steiner;Erik Møse;Guido Raimondi;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mark Villiger;Mirjana Lazarova Trajkovska;Paul Mahoney;Paulo Pinto De Albuquerque;Ksenija Turković
9. The facts of the case may be summarised as follows. 10. The applicant was born in 1968 and is currently serving a life sentence in the town of Solikamsk, Perm Region. 11. On 21 November 1994 the applicant was arrested on suspicion of banditry, robbery and aggravated murder. 12. Between 21 November 1994, the date of his arrest, and the summer period of 1995 the applicant was held in various remand prisons in Ekaterinburg, Perm, Izhevsk and the Perm Region. 13. On 13 October 1995 the Perm Regional Court found the applicant guilty as charged and sentenced him to death. The judgment became final on 6 June 1996. 14. From the summer of 1995 to the autumn of 1999 the applicant was held in remand prison no. 1 in Perm. Following his conviction he was held in a special cell for prisoners awaiting the implementation of their death sentence. 15. On 19 May 1999 the President of Russia commuted the applicant’s death sentence to life imprisonment. 16. On 8 October 1999 the applicant was transferred to a special-regime correctional colony for life prisoners in the Perm Region, and on 11 October 1999 he began serving the first ten years of his sentence of imprisonment within the meaning of Article 127 § 3 of the Code of Execution of Criminal Sentences. The applicant fell within the exception from the general rule of that legal provision, in that the first ten years of his sentence were calculated from the date of his placement in the special-regime correctional colony, rather than from the date of his initial arrest in 1994. The exception applied only to those prisoners whose conduct during their detention on remand had been in breach of the rules (see paragraph 52 below). The applicant later unsuccessfully challenged this rule before the Constitutional Court (see paragraph 30 below). 17. For the next ten years the applicant was held under a strict regime of imprisonment, governed by Article 125 § 3 of the Code of Execution of Criminal Sentences (see paragraph 29 below). 18. On 11 October 2009, on expiry of the first ten years of his sentence, the applicant’s prison regime was changed from a strict regime to an ordinary regime, governed by Article 125 § 1 of the Code of Execution of Criminal Sentences (see paragraph 50 below). 19. At the time of his arrest on 21 November 1994 the applicant was married to S. and had a three-year-old son. His remaining family consisted of his parents, O. and A., his brother Se. and his grandmother M. According to the applicant, his extended family numbered seventeen people in total, and after his arrest he wished to maintain contact with all of them. 20. From 21 November 1994 to 8 October 1999 the applicant was not allowed to see his family at all, with the exception of one visit by his wife in the week following the first-instance judgment in the criminal case against him in October 1995. 21. In 1996, following the first-instance judgment in his criminal case, the applicant’s wife divorced him, on her initiative. 22. The applicant submitted that he had been allowed to start corresponding with the outside world following the entry into force of the Code of Execution of Criminal Sentences in January 1997. He then reestablished contact with all of his family members and his former wife. 23. During this period the applicant was allowed to have one short-term visit from his relatives every six months. The visits lasted no longer than four hours. During the meetings the applicant communicated with his visitors via a glass partition or through metal bars, under conditions which allowed no physical contact. A warden listened in to the conversations with his visitors. 24. The applicant used his right to short-term visits as frequently as possible, and received visits from his mother, his father and his brother. His friends also tried to visit the applicant, but this was not authorised by the prison administration. Long-term family visits during the first ten years of his sentence were not allowed. 25. According to the applicant, due to the severity of the restrictions on his contacts with the outside world he lost contact with some of his family members and with his own son, whom he had not seen for the past fifteen years. The applicant’s son refuses to see the applicant, but has agreed to help him financially. 26. After the applicant’s change of regime on 11 October 2009, he became entitled to long-term family visits in addition to short-term visits. The applicant availed himself of each subsequent opportunity to have a long-term visit, and saw his family members once every six months: once in 2009, twice in 2010, 2011, 2012 and 2013. On each of these occasions the visit was for the authorised maximum duration of three days, except for one visit in the spring of 2013. This visit was interrupted at the initiative of the applicant and his mother, who had to catch her train and leave earlier. The applicant’s brother also attended these visits. The visits lasted no more than seventy-two hours and his privacy was respected throughout. The applicant’s father participated in the short-term visits until 2007, but could not come for the long-term visits which started in 2009 on account of his health. 27. The Government submitted that, in total, the applicant had fourteen short-term visits and nine long-term visits during his detention in the special-regime correction colony. None of the applicant’s respective requests for a visit was refused. 28. On 24 August 2004 the applicant lodged a complaint with the Constitutional Court of Russia, challenging the constitutionality of the tenyear ban on long-term family visits for convicts sentenced to life imprisonment as contained in Article 125 § 4 of the Code of Execution of Criminal Sentences. He alleged, in particular, that the provision in question had been discriminatory and breached his right to respect for private and family life. 29. The Constitutional Court declared the applicant’s complaint concerning Articles 125 § 3 and 127 § 3 inadmissible, having ruled as follows: “... Nor do the provisions of Article 125 § 3 and Article 127 § 3 of the Code on the Execution of Criminal Sentences breach [the applicant’s] constitutional rights. Article 55 § 3 of the Constitution ... allows for the possibility of restricting human and civil rights by federal law, as a means of protecting the basis of the constitutional regime, morality, health, the rights and lawful interests of others, [and] securing the defence of the country and State security. Such restrictions may be linked, in particular, with the application of criminal sanctions against offenders, in the form of imprisonment and other measures related to punishment. ... Article 71 (o) of the Constitution empowers the federal legislature to provide for restrictive measures of this type in relation to convicted persons on whom a sentence has been imposed, which, as follows from Article 43 § 1 of the Criminal Code... consist, by their very nature, in deprivation or restriction of the convict’s rights and freedoms, as provided by law. At the same time, both the legislature, in establishing liability for a crime, and the law-enforcement agencies, in deciding on its application to an offender, are required to take into account the nature of the crime, the danger posed by it to the values defended by the Constitution and the criminal law, its seriousness, its causes and other circumstances in which the crime was committed, and also information about the offender, provided that regulation by those institutions, and their application, correspond to the constitutional principles of legal liability and guarantees to the individual in his or her public relations with the State. As the Constitutional Court noted in [its previous case-law ...], the legislative regulation of criminal liability and punishment without taking into account the offender’s personality and other objective and reasonable circumstances which facilitate an appropriate assessment of the social danger posed by the criminal act itself and by the offender, and the application of identical sanctions for crimes that pose varying degrees of social danger, without taking into account the offender’s degree of participation in the crime, his or her conduct subsequent to the crime and in serving a sentence where that has already been imposed, and other [relevant] factors, would both be contrary to the constitutional prohibition on discrimination and the principles of fairness and humanism expressed in the Constitution. In setting out criminal sanctions with a range of restrictions, corresponding to the gravity of the crime committed by the convict and the sentence imposed, and also in determining the manner in which that sentence is to be served, the legislature must proceed on the basis that convicts enjoy, as a whole, the same rights and freedoms as other citizens, with the exceptions determined by their individual personalities and the offences committed by them. The conditions for serving sentences, as laid down both in Articles 125 and 127 of the Code of Execution of Criminal Sentences and in a range of other provisions of that Code, are intended to tailor sentences to individual offenders and differentiate sanctions and their application, and to create the preconditions for achieving the aims of punishment, which, as stated in Article 43 § 2 of the Criminal Code, are the restoration of justice, reform of the offender and the prevention of new crimes ...” 30. On an unspecified date the applicant lodged a complaint with the Constitutional Court, this time challenging Article 127 § 3 of the Code of Execution of Criminal Sentences, in so far as this provision distinguished between two categories of detainees serving their sentence in special-regime colonies on the basis of whether or not they had previously breached prison rules while in their detention on remand and had been punished by solitary confinement. For those who had not previously breached prison rules and had not been punished by solitary confinement, the initial ten-year period of the strict-regime conditions started running from the date of their initial arrest and detention. For those who had previously breached prison rules and been punished by solitary confinement, the ten-year period under strictregime conditions began from the date of their arrival in a specialregime correctional colony. The applicant argued that this provision was unconstitutional and discriminatory. On 21 December 2006 the Constitutional Court declared the applicant’s second complaint against the above-mentioned provision inadmissible, ruling as follows: “... the [above-mentioned] provision does not violate the rights of [the applicant]. Article 55 § 3 of the Constitution allows for the possibility of restricting human and civil rights by federal law as a means of protecting the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of others, [and] ensuring the defence of the country and State security. Such restrictions may be linked to the application of criminal sanctions against offenders in the form of coercion by the State, the distinctive feature of which is that, throughout its execution, certain of the offender’s his rights and freedoms are withdrawn and specific obligations are imposed. At the same time, the restrictions imposed on a convicted person’s rights and freedoms shall correspond to the crime committed and to his or her personality. This requirement is also compulsory in respect of cases where [the authorities have punished] persons who breached the legally established regime in the course of the criminal proceedings or [already] while serving their sentence. The provision of Article 127 § 3 of the Code of Execution of Criminal Sentences [in so far as it includes the contested rules] is intended to tailor sentences to individual offenders and to differentiate the conditions for serving sentences, and to create the preconditions for achieving the aims of punishment, which, as stated in Article 43 § 2 of the Criminal Code, are the restoration of justice, reform of the offender and the prevention of new crimes. If, in the applicant’s opinion, his rights were violated by the relevant actions or decisions of the law-enforcement bodies when imposing a sanction in the form of a placement in a solitary confinement, during his transfer from a remand prison to a correctional colony or in calculating the term of his detention under the strict regime, he is entitled to appeal against them in court ...” 31. The applicant made attempts to bring civil claims against the prosecutor’s office and the lawyer who defended him in the course of the criminal proceedings. The applicant challenged in court the prosecutor’s refusal to institute criminal proceedings and the Ombudsman’s failure to act on his complaints. He also lodged a number of complaints with the Constitutional Court. All of these proceedings proved unsuccessful.