CEDH · CASELAW;CLIN;ENG — 7 septembre 2021

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Russia (dec.) - 36027/19, 47807/20, 4241/21 et al. Decision 7.9.2021 [Section III] Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Prisoners’ failure to exhaust a new remedy to vindicate their right to family life in the context of their allocation to remote penal facilities: inadmissible Facts – The five applicants complained of a violation of their right to respect for family life on account of their or their relatives’ allocation to remote penal facilities and their subsequent inability to obtain a transfer elsewhere, all their transfer requests having been refused by the Federal Service of Execution of Sentences (“FSIN”). Only the fifth applicant challenged the refusal. He was successful at last instance before the Supreme Court which held it to be unlawful, quashed all previous courts’ decisions confirming it and sent the case for re-examination. The latter proceedings were still pending on the date of the Court’s examination of the present applications. Law – Article 35 § 1: In 2020, in response to the Court’s findings in the leading cases of Polyakova and Others v.   Russia and Voynov v. Russia concerning the lack of adequate legal protection against abuses as concerned decisions on prisoners’ allocation to penal facilities as well as the lack of an effective remedy regarding an alleged violation of the right to respect for family life stemming from such decisions, the Russian authorities adopted amendments to the relevant provisions of the Code on the Execution of Criminal Sentences (“CES”) to bring them into line with the Convention requirements. In particular, the convicted persons’ family situation was now expressly listed as one of the factors to be considered at the time of their initial allocation to a penitentiary facility (Article 73 §§ 1, 2 and 2.1 of the CES) and it was possible for convicted persons to request a transfer to another penitentiary institution located closer to the place of residence of their family members (Article 81 § 2). Such a request could also be lodged by a convicted person’s relatives. A refusal by the FSIN to take account of prisoners’ family situation either at the point of their initial allocation to a penitentiary institution or when examining their request for a subsequent transfer was amenable to a judicial review. With the inclusion of the specific reference to family-related reasons as a relevant decision-making factor on prisoners’ allocation or transfer, the Russian courts were no longer prevented from exercising the review of the proportionality of the FSIN’s decisions. Hence, applicants now had an avenue whereby they could adequately vindicate their right to respect for family life. Indeed, the Supreme Court’s decision in the fifth applicant’s case corroborated this assessment. That court had concluded that the inability of a convict to maintain family ties while serving his sentence constituted “exceptional circumstances” within the meaning of Article 81 § 2 of the CES and was one of the reasons for a prisoner to be relocated closer to his relatives’ place of residence. The Court was particularly mindful of that example, which had been included in the Review of judicial practice in administrative cases issued by the Presidium of the Supreme Court, as the fifth applicant belonged to one of the specific categories which had been excluded from the general distribution rule (pursuant to that rule, those sentenced to deprivation of liberty, save for those falling under several specific categories, should serve their sentences in correctional penal facilities in the region where they resided prior to their conviction or where they were convicted). Consequently, now all prisoners, and notably those excluded from the general distribution rule, could vindicate their right to respect for family life at the domestic level. It was true that the domestic proceedings in the fifth applicant’s case had not yet been concluded, their outcome under the new provisions could not as yet be ascertained and, more generally, the domestic courts had not so far been able to develop any extensive case-law under the new amendments. At this stage, however, the Court could not see any reason for believing that the amended CES provisions, as interpreted and applied by the Supreme Court, would not afford the applicants the opportunity to remedy their grievances at the domestic level or that they would offer no reasonable prospects of success. In any event, once recourse had been made by the applicants to the relevant national remedy, the Court could then assess, in every individual case, the question of whether, in view of the outcome of the domestic proceedings, they had lost victim status. Given its subsidiary role to the national systems safeguarding human rights, the Court considered that the applicants had at their disposal a new remedy allowing the national authorities to restore at the domestic level their rights envisaged by Article 8. The Court was particularly mindful of the fact that the aforementioned reform had been adopted in response to its previous judgments and in order to provide the national authorities with an opportunity to put matters right at domestic level, thus preventing numerous repetitive applications before it. This also justified departure from the rule that the assessment of whether domestic remedies had been exhausted was normally carried out with reference to the date on which the application was lodged. Lastly, as in the case of the present applicants, in virtually all the cases pending before it concerning this issue, convicts or their convicted relatives were still serving their sentences, and therefore retained possibility of lodging a transfer request with the FSIN and/or of challenging the proportionality of its refusal before the domestic courts. Thus, the applicants had to exhaust this remedy before their complaints could be examined, including those - in the instant case the first applicant- who had lodged their application before the adoption of the amendments. Conclusion : inadmissible (non-exhaustion of domestic remedies). (See also Polyakova and Others v.   Russia , 35090/09, 7 March 2017, Legal Summary ; Voynov v. Russia , 39747/10, 3 July 2018; Shmelev and Others v. Russia (dec.), 41743/17, 17   March 2020, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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