CEDH · CASELAW;CLIN;ENG — 6 décembre 2007

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Russia - 25664/05 Judgment 6.12.2007 [Section I] Article 8 Article 8-1 Respect for family life Remand prisoner prevented from bidding farewell to his dying father on the telephone in any meaningful way: violation   Facts : In December 2004 the applicant, a Russian and Dutch national, was charged with the attempted violent overthrow of State power and placed in detention on remand. In September 2005 he unsuccessfully applied for temporary release so that he could see his father in The Hague. The latter was dying of cancer and had asked for euthanasia, which was scheduled for the end of the month. The applicant was allowed to talk to his father on the telephone in Russian only. The Dutch Embassy paid for the call. His request for release with a view to attending a farewell ceremony was also rejected on the grounds of the gravity of the charge and the rarity of his contacts with his father. In December 2005 the applicant was convicted of participation in mass disorders and sentenced to suspended imprisonment. Law : Article 3 – By keeping the applicant in overcrowded cells and by refusing him medical assistance appropriate to his chronic kidney condition, the domestic authorities had subjected him to inhuman and degrading treatment. Conclusion : violation (unanimously). Article 5 § 3 – The applicant’s detention on remand had lasted for almost twelve months. While rejecting his applications for release the courts had relied, inter alia , on his Dutch nationality as a reason to believe that he might abscond. The applicant, on the other hand, had constantly referred to his close ties with Russia, such as his Russian nationality, his permanent place of residence and family in Russia and ongoing studies at a Russian university. The domestic authorities had not explained why the withdrawal of his Russian travel passport, a measure explicitly envisaged in domestic law for removing flight risks, would not have been sufficient to prevent him from absconding abroad. By relying essentially on the gravity of the charges and by failing to address the underlying facts or to consider alternative “preventive measures”, the authorities had prolonged the applicant's detention on grounds which, although “relevant”, could not be regarded as “sufficient”. Conclusion : violation (unanimously). Article 8 – The refusals to release the applicant so that he could see his father on his deathbed and attend the farewell ceremony for him had interfered with the applicant's rights under Article 8 of the Convention. The distinguishing feature of the case was that the date of the applicant's father's death was known in advance and that it was known that he would die within a matter of days. It was therefore the last opportunity for the applicant to meet his father. Given his father’s grave condition, it was unrealistic to expect him to travel abroad. Taking into account the exceptional circumstances of the case and the strong humanitarian considerations involved, the domestic authorities should have examined the applicant's request for release with particular attention and scrutiny. The Court understood the authorities’ apprehension that the applicant, who would have had to travel to the Netherlands to see his father, might not return. Despite the fact that the Dutch Ambassador had contacted them several times to request his release, the Russian authorities had not considered seeking assistance from their Dutch counterparts. Nevertheless, given that the domestic authorities were better placed than the European Court to assess the matter, the Court was unable to find that, in refusing to release the applicant, they had exceeded their margin of appreciation. Respect for his family life required that he be offered another way of saying goodbye to his dying father. However, a one-minute conversation in a language his father had difficulty understanding had not allowed the applicant to do that in a meaningful way. The Government had not explained why his phone conversation had been so quickly interrupted by the administration of the detention facility. No other possibility of contacting his father had been offered. The domestic authorities had therefore failed to secure respect for the applicant's family life. Conclusion : violation (unanimously). Article 41 – EUR 15,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes