BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
DECISION
Application no.
19279/03
by Igor BANNIKOV
against Latvia
The
European Court of Human Rights (Third Section), sitting
on 17 January 2012 as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and Marialena Tsirli,
Deputy
Section Registrar,
Having
regard to the above application lodged on 12 June 2003,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Igor Bannikov, is a Russian national who
was born in 1966 and, having been sentenced by the Latvian courts, is
currenty serving a prison sentence in Russia.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant,
may be summarised as follows.
1. The applicant’s detention and trial
- On
7 May 2002 a fight took place between the applicant and two adult
males who were fishing in Rīga. One of them, S.K., died as a
result. After the fight the applicant fled the scene.
- On
27 May 2002 the applicant was arrested on suspicion of murder.
- On
an unspecified date in December 2002 the case file was sent for
adjudication to the Rīga Regional Court (Rīgas
apgabaltiesa).
- On
15 January 2003 a judge refused the applicant’s request that he
be released, on the grounds of the gravity of the offence with which
he had been charged.
- On
31 January 2003 a judge refused the applicant’s request for
release as unsubstantiated.
- On
14 May 2004 the Rīga Regional Court convicted the applicant of
aggravated murder and hooliganism; he was sentenced to sixteen years’
imprisonment. As an additional penalty the court ordered his
expulsion from Latvia.
- On
2 March 2005 the Criminal Chamber of the Supreme Court (Augstākās
tiesas Krimināllietu tiesu palāta) upheld the ruling of
the first-instance court.
- On
18 May 2005 the Criminal Department of the Senate of the Supreme
Court (Augstākās tiesas Senāta Krimināllietu
departments) dismissed the applicant’s appeal on points of
law in a preparatory meeting.
- On
an unspecified date the applicant was transferred to a prison in
Daugavpils to serve his sentence.
- It
appears that on 16 June 2011 the applicant was transferred to Russia
to continue serving his sentence.
2. Refusal of long-term visits and subsequent review
- On
several occasions the relevant prison authority refused long-term
visits in prison by the applicant’s partner, M.B., and her
daughter, R.B., born in 2000, who he considered to be his only family
in Latvia. The applicant lodged complaints against these refusals.
- On
16 June 2006 the Daugavpils prison administration referred to section
45 of the Sentence Enforcement Code and observed that the applicant
had a right to receive a long-term visit by R.B. if he was noted as
her father in her birth certificate. The applicant could not receive
a long term visit from M.B. since she was not close family. It
appears that the applicant further complained to the Prisons
Administration (Ieslodzījumu
vietu pārvalde) and the
Daugavpils prison administration replied to the latter that the
applicant had not received any short-term visits from M.B. during his
imprisonment.
- On
12 October 2006 the applicant requested a long-term visit by his
partner and her daughter. In reply, he received the following
statement written on his request: “You have received an answer
in writing in this respect”.
- According
to the applicant, he received a short-term visit from M.B. and R.B.
in Daugavpils prison in June 2007.
- The
applicant was refused a short-term visit during his stay in the
prison hospital in Rīga. He complained about the refusal and on
13 June 2007 he received a reply that only tuberculosis
patients were allowed to receive short-term visits with the
permission of a doctor, or seriously ill patients, with the
permission of the head of the hospital.
- Subsequently,
a complaint by the applicant concerning long-term visits was accepted
for review by the Ombudsman’s office.
- On
18 April 2008 the Ombudsman delivered his opinion, which was not
binding on the domestic authorities. He noted that the application of
section 45 of the Sentence Enforcement Code was not uniform among the
domestic authorities, but that in Daugavpils prison, in particular,
long-term visits were often refused in the form of a simple reply
using ambiguous phrases such as “to be refused in accordance
with the law” or “impossible to determine the visit’s
usefulness”. The refusal in the applicant’s case had been
given in one sentence, informing him that M.B. was not close family.
No other options had been considered, for example, that the applicant
could also receive a long-term visit by M.B. (and not only R.B.). No
individual assessment had been made in his case, which had breached
the rules on administrative procedure.
- On
the one hand, the Ombudsman observed that even if the applicant had
complained to the Prisons Administration and the administrative
courts about the refusal of long-term visits, it was most likely that
he would not have been granted such visits; he could, rather, only
have received compensation. On the other hand, the Ombudsman informed
the applicant that he could lodge a complaint with the Constitutional
Court (Satversmes tiesa)
about the compliance of the legal provision concerning such long term
visits with the Constitution (Satversme).
- On
12 May 2008 the applicant lodged a complaint with the Constitutional
Court. By a decision of 4 June 2008 it was dismissed on formal
grounds for non-compliance with the applicable admissibility
criteria.
- On
22 November 2008 the applicant applied to the administrative courts
with his complaint concerning long-term visits.
- On
22 January 2009 the Administrative District Court (Administratīvā
rajona tiesa) exempted the applicant
from the payment of the state duty and admitted the complaint for
examination in part, in so far as an action of a public authority
(faktiskā rīcība)
was concerned (refusal of long-term visits by M.B. and R.B.). The
applicant’s compensation claim for 20,000 Latvian lati
(LVL) was not admitted, as he had not lodged such a claim with the
Prisons Administration (in contrast to his complaint concerning an
action of a public authority). The applicant lodged an ancillary
complaint against this decision with the Administrative Regional
Court (Administratīvā
apgabaltiesa), to no avail.
- Hearings
were scheduled for 17 February 2010, but did not take place since the
applicant was not taken to those hearings. The next hearing was
scheduled for 20 July 2010.
- On
5 August 2010 the Administrative District Court examined and
dismissed the applicant’s complaint. The district court found
that the applicant had on numerous occasions asked for permission to
receive long term visits by M.B. and R.B. It considered that
this had constituted an interference with the applicant’s
rights under Article 8 of the Convention and Article 96 of the
Constitution and that it had been prescribed by law (section 45 of
the Sentence Enforcement Code). Notwithstanding, the district court
held as follows:
“The court notes that the applicant can prove his
father-daughter relationship by showing the birth certificate of
R.B., where he is recorded as her father. The defendant [the Prisons
Administration] confirmed during the hearing that the applicant could
receive a long-term visit by his daughter, if he produced her birth
certificate. The applicant, for his part, considered that he did not
need to prove anything.
The court finds that the prison administration has not
set an insurmountable obstacle by asking the applicant to provide
documents attesting to his family relationships. The case file shows
that the applicant has received several short-term visits by his
partner, M.B., and her daughter, R.B., during which they could [in
principle] comply with the formal requirement to show the R.B.’s
birth certificate to receive a long-term visit [by her].
In view of the above, the court concludes that the
applicant and the person from whom he requests to receive a long-term
visit have not taken minimal steps to prove the applicant’s
relationship with R.B. This created doubts that the applicant had a
family relationship with R.B. Thus the defendant’s refusal to
allow long-term visits by M.B. and R.B was justified.”
- The
applicant lodged an appeal against this ruling, which was initially
refused on formal grounds, but later accepted by a decision of
8 April 2011 of the Administrative Regional Court.
- On
9 June 2011 the Administrative Regional Court, in a final decision,
upheld the ruling of the first-instance court.
B. Relevant domestic law
- The
relevant part of section 45 of the Sentence Enforcement Code (Sodu
izpildes kodekss) provides as follows:
“Convicted persons shall be allowed ... to receive
long-term visits (up to forty-eight hours). The convicted person
shall be allowed to live together with his or her close family
members during a long-term visit. The following persons shall be
considered to be close family: parents, children, adoptive parents,
siblings, grandfathers and grandmothers, grandchildren and spouses.
If a convicted person does not have close family, or if they do not
visit him or her, the prison administration may authorise long-term
visits from other relatives or other persons.”
COMPLAINTS
- In
his first letter to the Court, posted on 12 June 2003, the applicant
made several complaints under Article 3, Article 6 §§ 2 and
3 and Article 8 of the Convention. He posted the completed
application form on 11 July 2003 and maintained those complaints.
- The
applicant introduced further complaints concerning the alleged use of
force, forced labour, evaluation of evidence, procedural defence
rights, discrimination and property rights. In particular, on 8
January 2004 the applicant complained about the length of his
pre-trial detention. Lastly, on 19 August 2010 the applicant
complained that he had not been able to receive long-term visits in
prison by his long-term partner and her daughter.
THE LAW
A. Complaint concerning the length of the applicant’s
pre-trial detention
- The
applicant complained about the length of his pre-trial detention. The
Court will examine this complaint under Article 5 § 3 of the
Convention which, in so far as relevant, provides as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of the applicant’s complaint and
that it is therefore necessary, in accordance with Rule 54 § 2
(b) of the Rules of Court, to give notice of this part of the
application to the respondent Government.
B. Complaint concerning long-term visits
- The
applicant complained that he had not been able to receive long term
visits in prison, in particular, by his partner and her daughter. The
Court will examine this complaint under Article 8 of the Convention,
which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
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.”
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of the applicant’s complaint and
that it is therefore necessary, in accordance with Rule 54 § 2
(b) of the Rules of Court, to give notice of this part of the
application to the respondent Government.
C. Other complaints
- The
applicant further complained under different Articles of the
Convention about numerous other alleged violations of his rights.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
For these reasons, the Court unanimously
Decides to adjourn
the examination of the applicant’s
complaints concerning the length of his pre-trial detention and
long-term visits in prison;
Declares the remainder of
the application inadmissible.
Marialena Tsirli Josep
Casadevall
Deputy Registrar President
