CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 mars 2015

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A.     The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows. 1.     Application no. 61753/08 by Mr Kovshov The application was lodged on 14   November   2008 by Mr Gennadiy Yuryevich Kovshov who was born in   1964 and lives in Kursk. He is currently serving his sentence in IK-8 in the town of Labytnagy in the Yamalo-Nenetskiy region. The applicant’s close relatives live in Kursk. On 1 March 1999 the Kursk regional court convicted the applicant of murder and sentenced him to seventeen years’ imprisonment in a special regime facility. The Supreme Court of Russia upheld the conviction on appeal on 27 April 1999. Pursuant to Article 73 § 4 of the Russian Code on Execution of Sentences (“CES”), the applicant was sent to serve his sentence in a special regime facility in the village of Kharp in the Yamalo ‑ Nenetskiy region. On 7 September 2004 the Labytnagskiy town court brought the applicant’s sentence in conformity with changes in law, diminished his sentence to sixteen years’ imprisonment and changed the type of the detention facility from special to strict. The department of the Federal   Service for Execution of Sentences (“FSIN”) decided to transfer the applicant to a strict regime facility in the Yamalo-Nenetskiy region about 3,000 km from Kursk. The applicant challenged the lawfulness of his transfer before a court arguing that he should have been transferred to a detention facility in the Kursk region. On 28 March 2008 the Zamoskvoretskiy district court of Moscow examined the applicant’s complaint about the FSIN’s refusal to transfer him to the Kursk region closer to his relatives and dismissed it arguing that at the time of the applicant’s transfer from the special regime facility there had been no places available in the only strict regime facility in the Kursk region. The applicant’s argument related to visits from his family members was dismissed as follows: “Mr Kovshov’s arguments that he should be transferred to a strict regime facility located on the territory of the region that is the closest to his place of residence are unsubstantiated.” On 16 September 2008 the Moscow city court upheld the judgment of 28   March 2008 in full. 2.     Application no. 30636/11 by Mr Kirionchik This application was lodged on 30   March   2011 by Mr Aleksey Mikhaylovich Kirionchik who was born in   1976 and lives in Stavropol. He is currently serving his sentence in IK-6 in the village of Melekhovo in the Vladimir region. The applicant’s mother lives in Stavropol. On 12 May 2006 the applicant was convicted of murder and sentenced to nineteen years’ imprisonment in a strict regime facility. The conviction became final. The FSIN sent the applicant to serve his sentence in the Vladimir Region, 2,000 km from Stavropol. The applicant requested the FSIN to transfer him to a detention facility in the Stavropol region to be closer to his mother, but in vain. He then complained about the FSIN’s refusal to accede to his request to a court. On 26 April 2010 the Zamoskvoretskiy district court of Moscow dismissed his complaint stating that owing to the fact that at the time of his conviction the applicant had resided in Moscow and in the absence of strict regime facilities in Moscow and the Moscow region, he had been sent to the facility in the Vladimir region. The applicant’s argument that he could not receive visits from his family members was dismissed as follows: “The claimant’s arguments that as a result of serving his sentence in this detention facility his relatives cannot come to visit him should be disregarded because possibility to receive visits is governed by the norms of the CES and is unrelated to location of a detention facility.” On 2 December 2010 the Moscow city court upheld the first-instance judgment for the reason that, according to Article 81 of the CES, detainees were to serve the whole term in the same facility. 3.     Application no. 73561/13 by Mr Mamonov This application was lodged on 26   May   2014 by Mr Aleksandr Ivanovich Mamonov who was born in   1970 and lives in Yoshkar-Ola. He is currently serving his sentence in IK-20 in the settlement of Polevoy-2 in the Kirov region. The applicant’s family lives in the town of Zvenigovo in the Republic of Mari-El. On 6 February 2013 the Supreme Court of Mari-El convicted the applicant of extortion and sentenced him to eight years and six months’ imprisonment in a strict regime facility. The judgment was upheld by the Supreme Court of Russia on 18 June 2013. The applicant was sent to serve his sentence to a strict regime facility located in Mari-El. On 6 June 2013 the Mari-El FSIN decided to transfer the applicant to a strict regime facility in the Polevoy-2 settlement in the Kirov region (about 700 km from Zvenigovo of Mari-El) arguing that they had received information that the applicant’s life and limb had been at risk in the Mari-El facility. On 3 August 2013 the applicant was sent to the Kirov region. The applicant objected to the transfer as, in his opinion, the allegations of risks had been false. He challenged the FSIN’s actions before a court. On 13 December 2013 the Zamoskvoretskiy district court of Moscow dismissed the applicant’s complaint arguing that the Mari-El FSIN had had unspecified information about the risks as required by Article 81 of the CES. The court rejected the argument about possible breach of contacts with family members in the facility in the Kirov region as follows: “The claimant’s arguments that serving his sentence in the detention facility of the Kirov region would breach his social ties with family members cannot give grounds to granting the claims because possibility to receive visits from family members and relatives, to receive correspondence, to use phone is governed by the norms of the Code on Execution of Sentences and is unrelated to location of a detention facility.” On 16 April 2014 the Moscow town court upheld the judgment of 13   December 2013. The information about the risk that served as grounds for the applicant’s transfer was not mentioned in the text of the appeal judgment. 4.     Application no. 59747/14 by Mr Palilov   This application was lodged on 6   November   2014 by Mr Vladimir Aleksandrovich Palilov who was born on 1   December   1968 and lives in the Yaroslavl region. He is currently serving his sentence in IK-18, the village of Kharp in the Yamalo-Nenetskiy region. The applicant’s family live in the Yaroslavl region. 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. On 19 February 2007 the applicant was sent to serve his sentence to a facility in the village of Kharp in the Yamalo-Nenetskiy region (about 2,000   km from the Yaroslavl region). On 9 January 2013 he requested the FSIN to transfer him to any detention facility located closer to his family’s place of residence. On 14 February 2013 the FSIN dismissed his request stating that the applicant had been sent to serve his sentence in a remote detention facility pursuant to Article 73 § 4 of the CES. The applicant challenged the decision before a court. In his statement of claims he requested that he be present at court hearings. On 19 July 2013 the Zamoskvoretskiy district court of Moscow held a hearing in the applicant’s absence merely stating that he had been serving his sentence. The representative of the FSIN was also absent. The district court dismissed the complaint referring to Article 81 of the CES. The applicant’s argument related to his family connections was rejected as follows: “The claimant’s arguments that he cannot receive visits from his relatives cannot give grounds to granting the claims because possibility to receive visits from family members and relatives, to receive correspondence, to use phone is governed by the norms of the Code on Execution of Sentences and is unrelated to location of a detention facility.” The applicant appealed against the judgment and requested that an appeal hearing be held in his presence. On 4 June 2014 the Moscow city court held a hearing in the applicant’s absence and upheld the district court’s judgment. Referring to Article   73   §   4 of the CES, the appeal court stated that a 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 for which he had been convicted. 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 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. COMPLAINTS Applications nos. 61753/08, 30636/11, 73561/13, 59747/14   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. 59747/14   Mr Palilov complains under Article 6 § 1 of the Convention that in the course of the proceedings that ended on 4 June 2014 the domestic courts in two instances examined his complaint about the actions of the FSIN in his absence. COMMON QUESTION 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 the applicants 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? More specifically, did the domestic court carry out a balancing exercise to assess proportionality of the impugned transfers to the aim(s) sought? CASE SPECIFIC QUESTION Application no. 59747/14 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 Zamoskvoretskiy district court of 19   July   2013 and by the Moscow city court of 4 June 2014?   APPENDIX No. Application no. Lodged on Applicant name date of birth place of residence   61753/08* 14/11/2008 Gennadiy Yuryevich KOVSHOV 05/02/1964 Kursk     30636/11* 30/03/2011 Aleksey Mikhaylovich KIRIONCHIK 24/05/1976 Melekhovo     73561/13* 26/05/2014 Aleksandr Ivanovich MAMONOV 05/01/1970 Yoshkar-Ola     59747/14 06/11/2014 Vladimir Aleksandrovich PALILOV 01/12/1968 Kharp