Orzeczenia sądów
Opublikowano: www.echr.coe.int

Decyzja
Europejskiego Trybunału Praw Człowieka
z dnia 10 września 2019 r.
6558/18

UZASADNIENIE

Wstęp

ECLI:CE:ECHR:2019:0910DEC000655818

THIRD SECTION

DECISION

Application no. 6558/18

Aleksey Mikhaylovich VOYEVODIN against Russia

and 9 other applications

(see list appended)

The European Court of Human Rights (Third Section), sitting on 10 September 2019 as a Committee composed of:

Alena Poláčková, President,

Dmitry Dedov,

Gilberto Felici, judges,

and Stephen Phillips, Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having deliberated, decides as follows:

Uzasadnienie faktyczne

THE FACTS

1. A list of the applicants, ten Russian nationals, is set out in the appendix.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. On various dates listed in the appendix, the applicants were convicted of serious criminal offences and sentenced to life imprisonment. They were sent to special-regime penal institutions to serve their sentences, where they were placed under a strict regime of imprisonment, governed by the relevant provisions of Russian law (see paragraphs 7-11 below).

4. That regime involves certain restrictions on the applicants' contact with the outside world. In particular, there is a complete ban on telephone calls except in situations of emergency, and the number of parcels the applicants are authorised to receive is limited to one large parcel and one small parcel per year.

B. Relevant domestic law

1. Types of facilities and regimes in Russian penal institutions

5. According to Article 58 of the Criminal Code, there are five main types of penal institutions in which prisoners serve their sentences, depending on the gravity of the crimes they have committed: settlement colonies, common-regime correctional colonies, strict-regime correctional colonies, special-regime correctional colonies, and prisons.

6. In the colonies, convicted prisoners are subject to three levels of prison regime, namely ordinary, facilitated, and strict regimes.

2. Detention in special-regime correctional colonies under a strict regime

7. All convicts sentenced to life imprisonment have to serve their sentences in special-regime correctional colonies. Upon arrival at a special-regime correctional colony such convicts are placed under a strict regime, where they have to spend at least the first ten years of their sentence (Article 58 of the CC and Article 127 § 3 of the Russian Code of Execution of Criminal Sentences, hereinafter "the CES").

8. Under that regime they are entitled to receive and send an unlimited number of letters, postcards and telegrams (Article 91 § 1 of the CES). They may also receive one large parcel and one small parcel a year (Article 125 § 3 of the CES). Telephone calls for them are permitted only in exceptional personal circumstances (Article 92 § 3 of the CES). Lastly, they are entitled to two short-term visits per year, and since 17 November 2016 to one long-term visit per year.

9. A short-term visit (a visit of up to four hours) may be made by relatives or others. A long-term visit can be made by the detainee's partner, parents, children, siblings, grandparents or grandchildren, and by others if the governor of the correctional colony allows them to visit (Article 89 § 2 of the CES).

10. The right to a long-term visit (a visit of up to three days) was instituted by the Russian Constitutional Court's judgment no. 24-П of 15 November 2016. That judgment entered into force on 17 November 2016.

11. On 29 September 2017 the Russian State Duma introduced amendments to Article 125 § 3 of the CES allowing prisoners in special–regime correctional colonies under a strict regime to have one long–term visit per year. The amendments entered into force on 27 October 2017.

Zarzuty

COMPLAINTS

12. The applicants complain under Articles 3 and 8 of the Convention that, as life-sentence prisoners, they are not entitled to any telephone calls, except in cases of emergency, nor to have visits replaced by telephone calls. They also complain about the restricted number of parcels they are allowed to receive per year.

13. The applicants also complain under Article 13 of the Convention that they have no effective remedies in the above connection.

14. The third, fifth and eighth to tenth applicants also complain under Article 14 of the Convention that the above-mentioned restrictions are stricter that those imposed on prisoners serving their sentence under different types of regime, and thus they suffer discrimination on account of their status.

Uzasadnienie prawne

THE LAW

A. Joinder of the applications

15. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

B. The Court's assessment

16. The applicants complain under Article 3 and 8 of the Convention about a violation of their right to respect for their private or family life on account of a statutory ban on telephone calls, the lack of a possibility to replace visits from their relatives with telephone calls and a restriction on the number of parcels they are allowed to receive yearly. The Court considers it appropriate to examine these complaints solely under Article 8 of the Convention, which, in its relevant part, reads as follows:

"1. Everyone has the right to respect for his private and family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

17. The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his or her private and family life (see Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015). While it is an essential part of a prisoner's right to respect for family life that the prison authorities should assist him or her in maintaining contact with his or her family, the Court recognises at the same time that some measure of control over prisoners' contacts with the outside world is called for and is not in itself incompatible with the Convention (see, for instance, Baybaşın v. the Netherlands (dec.), no. 13600/02, 6 October 2005).

18. The Court further reiterates that, in respect of telephone access, Article 8 of the Convention cannot be interpreted as guaranteeing prisoners the right to make telephone calls, in particular where the facilities for contact by way of correspondence are available and adequate (see A.B. v. the Netherlands, no. 37328/97, § 92, 29 January 2002; Davison v. the United Kingdom (dec.), no. 52990/08, 2 March 2010; Nusret Kaya and Others v. Turkey, nos. 43750/06 and 4 others, § 36, ECHR 2014 (extracts); and Lebois v. Bulgaria, no. 67482/14, § 61, 19 October 2017). Where, however, domestic law allows prisoners to conduct telephone conversations with their relatives, any restriction imposed thereon may be regarded as an interference with the exercise of a prisoner's right to respect for his or her relevant rights secured by Article 8 of the Convention, and so must meet the requirements of its second paragraph (see Nusret Kaya and Others, cited above, §§ 36-37, and Lebois, cited above, § 62).

19. In the present case, by virtue of their status as life-sentence prisoners, the applicants were placed in the strict regime upon their arrival at relevant penal institutions, with the results that their contacts with the outside world during the first ten years of detention are or have been subject to restrictions established by the relevant Articles of the Russian Code of Execution of Criminal Sentences, including, in particular, restrictions on the frequency and duration of prison visits and the number of visits and the number of visitors; a complete ban on telephone calls except in situations of emergency; and a restriction on the number of parcels per year (see paragraphs 7-11 above).

20. The Court has assessed the above-mentioned measures in the case of Khoroshenko (cited above, §§ 85, 107-149) from the standpoint of the right to respect to private and family life under Article 8 of the Convention. In that case, it focused its examination on the most serious restrictions, which concerned the frequency and duration of family visits, the number of visitors, and measures for the supervision of such visits, whereas the other measures, such as, for instance, a lack of telephone communications, were taken into account only as additional factors for the assessment of the overall cumulative effect of the interference of which the applicants complained. That approach has later been reaffirmed by the Court in its inadmissibility decision in the case of Chernenko and Others v. Russia ((dec.), no. 4246/14, § 40), where the Court stressed that it was the applicants' ability to receive family visits that was essential, all other restrictions being marginal factors that were only to be taken into account for the assessment of the overall cumulative effect of the restriction on the family visits.

21. As for the scope of the present case, the Court observes that the applicants do not complain that restrictions on visits from their family members or friends, as combined with other above-mentioned measures, have negatively affected their private or family life (compare and contrast Khoroshenko, cited above, §§ 85 and 107-149). Their complaints under Article 8 in the present case exclusively concern the general ban on telephone calls, the lack of a possibility to replace their relatives' visits with telephone calls, and the limited number of parcels they are allowed to receive per year. The Court will therefore limit its examination to assessing the measures complained of from the standpoint of the applicant's ability to maintain contacts with the outside world in the light of its principles summarised in paragraphs 17-18 above.

22. The Court observes in the above connection, that the relevant provisions of the Russian law do not grant the applicants the right to make telephone calls except in situations of emergency. In other words, under the relevant provisions of the Russian law, telephone facilities are only made available to lifelong prisoners "in situations of emergency" (see paragraph 8 above). Therefore, it is only a limitation on a possibility to make telephone calls "in situation of emergency" that may, in principle, be regarded as an interference with a lifelong prisoner's rights under Article 8 of the Convention (see Lebois, cited above, § 64). However, in the present case the applicants do not make any specific allegations that, at any point in time, they attempted to make a call in "situations of emergency", and that the prison authorities denied them access to a telephone in such a situation.

23. As noted above, the applicants are dissatisfied with the general ban on telephone calls, and the absence of a possibility to replace family visits with calls, as well as with the limited number of parcels they are allowed to receive per year. In other words, they seek rights that are not established in the domestic law. The Court observes in that connection that, under the applicable domestic legislation, life-sentence prisoners are entitled to receive and send an unlimited number of letters, postcards and telegrams and receive one big and one small parcel per year (see paragraph 8 above). The Court reaffirms the above-mentioned principles that Article 8 of the Convention cannot be interpreted as guaranteeing prisoners the right to make telephone calls, in particular where the facilities for contact by way of correspondence are available and adequate (see paragraph 18 above). It also finds that, similarly, Article 8 of the Convention cannot be interpreted as guaranteeing a prisoner's right to a particular number of parcels.

24. In the light of the foregoing, the Court concludes that, in so far as the applicant complain about the general lack of telephone calls, or a possibility to replace their relatives' visits with telephone calls; and with a limited number of parcels they are allowed to receive per year, these rights, as such, are not guaranteed by Article 8 of the Convention; no other elements have been submitted so that it can be brought into play. Accordingly, this part of the application is incompatible ratione materiae with the provisions of the Convention and must be dismissed pursuant to Article 35 § 4.

25. As regards the applicants' complaint under Article 13 of the Convention about the lack of effective domestic remedies in respect of the above-mentioned alleged violation of Article 8 of the Convention, the Court reiterates that Article 13 does not contain a general guarantee of legal protection for every substantive right. It relates exclusively to those cases in which an applicant alleges, on arguable grounds, that one of his rights or freedoms set forth in the Convention has been violated. According to the Court's case-law, this provision applies only where an individual has an "arguable claim" to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 51, Series A no. 131). The Court has found that the applicants' complaint under Article 8 of the Convention is inadmissible. It therefore concludes that the applicants do not have an "arguable claim", and Article 13 of the Convention in conjunction with Article 8 is inapplicable to the case. Therefore this part of the application is incompatible ratione materiae with the provisions of the Convention and must be dismissed pursuant to Article 35 § 4.

26. Lastly, in so far as some of the applicants complain under Article 14 of the Convention about the alleged discrimination (see paragraph 14 above), the Court notes that this complaint is closely linked to the complaint under Article 8. Consequently, taking into account its findings in paragraph above, the Court considers that Article 14 of the Convention in conjunction with Article 8 is inapplicable to the case. Therefore this part of the application is likewise incompatible ratione materiae with the provisions of the Convention and must be dismissed pursuant to Article 35 § 4.

Sentencja

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 3 October 2019.

Stephen Phillips

Alena Poláčková

Registrar

President

Appendix

No.

Application no.

Lodged on

Applicant

Date of Birth

Date of conviction

Detention facility

1

6558/18

14/12/2017

Aleksey Mikhaylovich VOYEVODIN

08/12/1984

14 June 2011

IK-18, Kharp, Yamalo-Nenetskiy Region

2

7355/18

23/01/2018

Aleksey Nikolayevich LUGACHEV

23/08/1979

16 July 2007

IK-56, Ivdel, Sverdlovskiy Region

3

29755/18

28/05/2018

Roman Mikhaylovich SHASHKOV

26/07/1963

Leningradskiy Region

16 March 2012

Z-47/6, Leningradskiy Region

4

30043/18

07/06/2018

Viktor Nikolayevich ROGOZIN

20/04/1977

11 July 2007

IK-18, Kharp, Yamalo-Nenetskiy Region

5

46573/18

03/09/2018

Andrey Ivanovich BERDNIKOV

25/05/1972

8 October 2007

IK-18, Kharp, Yamalo-Nenetskiy Region

6

46831/18

20/09/2018

Sergey Vyacheslavovich IVANOV

02/11/1975

31 May 2004

IK-18, Kharp, Yamalo-Nenetskiy Region

7

49524/18

01/10/2018

Sergey Aleksandrovich GALANOV

06/05/1986

21 February 2007

IK-18, Kharp, Yamalo-Nenetskiy Region

8

49797/18

02/10/2018

Aleksandr Aleksandrovich SENIN

13/07/1973

19 July 2004

IK-18, Kharp, Yamalo-Nenetskiy Region

9

51587/18

11/10/2018

Aleksandr Sergeyevich KOVALEV

17/04/1980

unknown

IK-18, Kharp, Yamalo-Nenetskiy Region

10

54594/18

01/11/2018

Vasiliy Ivanovich KHOKHLOV

13/03/1969

4 December 2009

IK-6, Elban, Khabarovsk Region