RESIN v. RUSSIA - 9348/14 (Judgment : Article 8 - Right to respect for private and family life : Third Section) [2018] ECHR 1024 (18 December 2018)

In the case of Resin v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Vincent A. De Gaetano, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Georgios A. Serghides,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 27 November 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 9348/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Andrey Igorevich Resin ("the applicant"), on 17 December 2013.

2. The applicant was represented by Mr A. Molostov, a lawyer practising in the Chelyabinsk Region. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant complained about excessive restrictions on family visits.

4. On 17 March 2017 the Government were given notice of the above complaint and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1974 in Khabarovsk and is serving a life sentence in the Sverdlovsk Region.

6. From 25 May 2012 to 10 April 2014 the applicant was held in penal colony IK-56 in the Sverdlovsk Region. He was able to have five short visits in 2013 and one short visit in 2014.

7. On 15 July 2013 the applicant asked the governor to allow him a short meeting with four adult relatives, his mother, sister and two cousins. He also asked for the meeting to be held without a glass partition between him and his visitors or the presence of a prison officer. The governor signed his decision on the petition: "Rejected. Not allowed under the Code of Execution of Sentences".

8. From 15 May to 16 July 2014 the applicant was transferred to remand prison SIZO-1 in Khabarovsk - where his family still lived - to take part in another investigation.

9 . On the day after his arrival at the prison, he asked the prison governor to authorise a short meeting with four family members - his sister, two cousins and aunt - without a physical partition between him and the visitors or the presence of prison officers. By a letter of 21 May 2014, the governor rejected his request. He pointed out that, pursuant to section 18 of the Pre-�trial Detention Act, visits are subject to written authorisation from the official or authority in charge of the criminal case. Furthermore, the Rules of Internal Order in Remand Prisons required that visiting rooms be equipped with a physical partition and that visits be supervised by a prison officer.

10 . On 3 June 2014 the applicant asked the governor to authorise a long meeting with his mother and sister. He relied on Article 89 of the Code of Execution of Sentences (CES) and emphasised that the remand prison was equipped with rooms for long-stay visits which could be used by convicted prisoners serving their sentence in that prison. Three days later the governor replied that the applicable law did not make a provision for long-stay visits in respect of remand prisoners. He referred the applicant to Article 77.1 of the CES.

11 . The applicant subsequently asked the authorities in charge of the criminal case to authorise short visits from his family members. On 11 June and 1 August 2014 the investigator and the deputy head of the investigations department, respectively, rejected his request. They informed the applicant that "the authorities in charge of the investigation were not preventing [him] from having short visits from his family members as long as it did not contradict Russian law, including the Code of Execution of Sentences".

12. The applicant challenged the restrictions on family visits before a court of general jurisdiction. According to the information from the Government, all of his challenges were dismissed as unfounded.

13 . According to a certificate issued by the governor on 27 April 2017, the applicant did not have any short or long-stay visits during his time in the Khabarovsk remand prison.

II. RELEVANT DOMESTIC LAW

14 . Article 77.1 of the Code of Execution of Sentences (CES) regulates the manner in which convicted prisoners may be involved in further investigative actions. Paragraph 1 establishes that they may be transferred to a remand prison for that purpose. Paragraph 3 specifies that they exercise their right to family visits in accordance with the provisions of the Pre-trial Detention Act. Section 18 of the Pre-trial Detention Act (Federal Law no. 103-FZ of 15 July 1995) provides as follows:

"Subject to written authorisation from the official or authority in charge of the criminal case, suspects and defendants may have no more than two visits per month from their family members and other persons, each visit lasting for up to three hours.

Visits from family members and other persons shall be supervised by an officer of the custodial facility; should there be an attempt to pass prohibited objects, substances or food, or to communicate information capable of preventing the truth from being established in the criminal proceedings or contributing to the commission of an offence, the visit will be cut short."

15. Article 89 of the CES provides that convicted prisoners are entitled to short visits lasting for up to four hours and to long-stay visits of up to three days, on the prison premises (paragraph 1). A short visit takes place in the presence of a prison officer; prisoners may stay together with their family members during long visits (paragraph 2).

16. Section XVI of the Rules of Internal Order in Remand Prisons, as approved by the Ministry of Justice's Order no. 189 of 14 October 2005, governs the arrangements for organising visits in remand prisons. Rule 139 establishes the following limitations: no more than two visits per month; the written authorisation to be valid for one visit only; no more than two adult visitors each time. Rule 143 specifies that meetings should be held in purpose-built rooms equipped with a partition or separator that prevents any objects from being passed but does not obstruct oral or visual contact. Detainees may talk to visitors on an intercom system and their discussion may be listened to by prison guards.

17 . Section XIV of the Rules of Internal Order in Penal Facilities, as approved by the Ministry of Justice's Order no. 205 of 3 November 2005, as in force at the material time, described the arrangements for long-stay and short visits in penal facilities. Rule 74 set the number of adult family members who could pay a short or long-stay visit to a convicted prisoner at no more than two people. Rule 78 provided that visitors who refused a search of their body and belongings would not be allowed to have a long-�stay visit. The long-stay visit would be replaced with a short visit.

18 . The current version of the Rules of Internal Order in Penal Facilities was approved by the Ministry of Justice's Order no. 295 of 16 December 2016. Rule 70 establishes that short visits are conducted under the supervision of a prison officer, while long-stay visits allow prisoners to live together with their family members. The number of long-stay visitors is determined by reference to the accommodation capacity of long-stay visit rooms and the visiting schedule. Rule 78 was reproduced verbatim in the new version.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

19. The applicant complained of a violation of Article 8 of the Convention on account of various restrictions on visiting arrangements in the penal facility and remand prison. Article 8 reads as follows:

"1. Everyone has the right to respect for his ... 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."

20. The Government submitted that the arrangements for short visits in the IK-56 penal facility had been compatible with the requirements of the Code of Execution of Sentences (Article 89 § 2) and the Rules of Internal Order in Penal Facilities. The visiting arrangements in the Khabarovsk remand prison were likewise compatible with the provisions of Article 77.1 of the Code and the Rules of Internal Order in Remand Prisons. The Government concluded that there had been no violation of Article 8.

A. Admissibility

21. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Existence of interference

22. As is well established in the Court's case-law, on imprisonment a person forfeits the right to liberty but continues to enjoy all other fundamental rights and freedoms, including the right to respect for family life, so that any restriction on those rights must be justified in each individual case. Detention entails inherent limitations on his family life, and some measure of control of the detainee's contacts with the outside world is called for and is not of itself incompatible with the Convention. However, it is an essential part of a prisoner's right to respect for family life that the authorities enable him or, if need be, assist him to maintain contact with his close family (see Trosin v. Ukraine , no. 39758/05, § 39, 23 February 2012, and Khoroshenko v. Russia [GC], no. 41418/04, §§ 116-17, ECHR 2015).

23. An interference with a prisoner's right to respect for his or her family life does not need to amount to an outright ban on family visits, but can consist in various other measures taken by the prison authorities. The Court has thus found that limitations on the frequency and duration of family visits, supervision of those visits and the subjection of a detainee to special visiting arrangements constitute an interference with the applicants' rights under Article 8 of the Convention (see Van der Ven v. the Netherlands , no. 50901/99, § 69, ECHR 2003-II; Klamecki v. Poland (no. 2) , no. 31583/96, § 144, 3 April 2003; Kučera v. Slovakia , no. 48666/99, § 127, 17 July 2007; Ferla v. Poland , no. 55470/00, § 38, 20 May 2008; and Vidish v. Russia , no. 53120/08, § 36, 15 March 2016).

24. The applicant complained that he had been denied both short and long-stay visits during his time in the Khabarovsk remand prison and that, in the IK-56 facility, the number of visiting family members had been limited to two adults and short visits were conducted in the presence of a prison officer through a glass partition. The Court has established that denial of visits, separation barriers and other restrictive arrangements amount to an interference with the right to respect for family life (see Moiseyev v. Russia , no. 62936/00, § 247, 9 October 2008, and Andrey Smirnov v. Russia , no. 43149/10, § 38, 13 February 2018). It remains to be seen whether they were applied "in accordance with the law", pursued one or more of the legitimate aims listed in paragraph 2 and, in addition, were "necessary in a democratic society".

2. Justification for the interference

(a) Limitation on the number of visiting family members

25. The Rules of Internal Order in Penal Facilities, as in force at the material time, restricted the number of adult family members who could visit a prisoner to two people (see Rule 74 in paragraph 17 above). That rule applied in a general manner, regardless of the duration of the visit, and admitted no exceptions. Unlike a newer version of the same Rules, that restriction was not based on the capacity or availability of premises for long-stay visits (see paragraph 18 above).

26. The Government did not put forward any arguments in support of the restriction beyond a reference to the applicable regulations. They did not explain why the number of visitors had been limited to two adults in a general manner, irrespective of the actual capacity of the premises.

27. The Court is satisfied that the impugned two-visitor restriction is no longer part of regulations governing prison visits. However, this does not alter the fact that, as it was in force at the material time, it impinged on the applicant's right to respect for his family life and prevented four members of his extended family from visiting him in prison (see Khoroshenko , cited above, § 147 in fine ). The Court considers that, in the absence of any grounds or the Government's arguments to the contrary, such inflexible regulation, which was unrelated to the availability or capacity of long-stay visiting rooms, was not necessary in a democratic society.

(b) Separation with a glass partition and presence of an officer

28. During his time in the IK-56 facility , the applicant was separated from his visitors by a glass partition and supervised by a prison officer during short visits throughout the entire period of his detention. He pointed out that the separation had been maintained even after he had been transferred from the strict-security regime to the standard-security regime and later to the light-security regime. He could have unsupervised long-stay visits, living together with his family, but could not touch them or talk to them in private during short visits.

29. The Government submitted that the rooms for short visits in the IK-�56 facility were equipped with "standard-issue cabins with a glass partition". The inventory of the equipment had been established by Order no. 512 of 27 July 2006 of the Federal Penal Service.

30. As regards the legal basis for the interference, the Government did not refer to any legislation or regulation requiring that glass partitions be installed in correctional facilities for convicted prisoners. Unlike the Rules of Internal Order in Remand Prisons which specifically laid down a requirement for partitions in remand prisons (see Andrey Smirnov , cited above, § 52), the Rules of Internal Order in Penal Facilities contained no such provision - whether in their previous or current version - referring, as they did, only to the presence of a correctional officer (see paragraphs 17 and 18 above). An internal order of the Federal Penal Service listed the equipment available in those facilities but did not regulate the manner for conducting short visits. The Court, however, does not need to continue the examination of the legal basis for the impugned restriction for the reasons that follow.

31. The Court reiterates that the prohibition of physical contact between the detainee and his visitors may be justified by security considerations in certain cases but cannot be considered necessary in the absence of any established security risk (see Van der Ven , cited above, §§ 69-�72; Ciorap v. Moldova , no. 12066/02, § 117, 19 June 2007, and Horych v. Poland , no. 13621/08, §§ 129-32, 17 April 2012).

32. The Government did not point to any security considerations which may have warranted physical separation of the applicant from his family or their constant supervision by a guard. The fact that the applicant was transferred to the light-security regime suggested that he was neither violent nor likely to cause injury to his visitors. In contrast to cases in which physical separation and supervision were needed to prevent the risk of collusion or passing information through family channels (see the references cited in Khoroshenko , cited above, §§ 124-25), the applicant had already been convicted and that risk was not present in the instant case. Nor has it been claimed that the barrier between the applicant and his visitors was necessary on account of any public-health concerns (compare Andrey Smirnov , cited above, § 55). It would therefore appear that the use of the security installation was a matter of routine rather than a reaction to any specific security risks or prison order issues.

33. Rule 78 of the Rules of Internal Order in Penal Facilities required that visitors arriving for long visits submit to a full search. If they refused, they could have a short supervised visit behind a physical barrier (see paragraphs 17 and 18 above). The search requirement could have been deemed necessary to prevent prohibited objects or substances from being passed to detainees. The Government did not however explain why visitors on a short visit were not given any choice and were barred from having an unsupervised meeting without a physical barrier in all circumstances. Even if they could have agreed to being searched if requested to do so, Russian law did not offer them the option of uninhibited physical contact. Such an inflexible and automatic regulation of short-visit arrangements cannot be accepted as being "necessary in a democratic society" because the State does not have a free hand in introducing restrictions in a general manner without affording any degree of flexibility for determining whether the limitations are appropriate or indeed necessary in specific cases (see Khoroshenko , § 126, and Andrey Smirnov , § 54, both cited above).

34. It follows that the measure consisting in physically separating the applicant from his visitors and supervising their short visits has not been shown to have been "necessary in a democratic society".

35. During his stay in the Khabarovsk remand prison the applicant twice sought permission for his family to come on a short visit. Permission was withheld. Firstly the prison governor shifted the responsibility for authorising a visit onto the investigator. Later the investigator and his supervisor declined to authorise a visit (see paragraphs 9 and 11 above).

36. Under Article 77.1 of the Code of Execution of Sentences, the matter of exercising visiting rights during a convicted prisoner's stay at a remand prison was governed by section 18 of the Pre-trial Detention Act (see paragraph 14 above). The Court has previously found that this provision does not meet the "quality of law" requirement, in that it confers on the authority in charge of the case unrestricted discretion to grant or refuse prison visits. It does not limit the scope of the discretion and the manner of its exercise, and deprives the detainee of the minimum degree of protection against arbitrariness or abuse to which citizens are entitled under the rule of law in a democratic society (see Vlasov v. Russia , no. 78146/01, §§ 125-26, 12 June 2008; Moiseyev , cited above, §§ 249-50; and Andrey Smirnov , cited above, §§ 40-42).

37. The investigative authorities rejected the applicant's request, submitted under section 18 of the Pre-Trial Detention Act, to have family visits authorised. By contrast with the above-cited cases where the refusal had been explicit, the reply in the present case was couched in non-�committal, ambiguous terms, indicating that they did not object to his having such a visit provided that it complied with the law (see paragraphs 9 and 11 above). However, it was a difference of form, not of substance. The outcome for the applicant was identical to that in the above-cited cases. He was unable to exercise his right to a short visit (see paragraph 13 above) and forfeited the opportunity to meet his family members during his brief time in the remand prison located in his hometown.

38. In these circumstances, the Court reiterates its earlier finding that the interference based on a provision which it has previously found to be insufficiently precise and foreseeable in its application, was not "prescribed by law" (see the authorities in paragraph 36 above). There is accordingly no need to examine whether it was "necessary in a democratic society".

(d) Refusal of long visits in the remand prison

39. The applicant pointed out that he had been sent to serve the sentence in a facility located in a remote and inaccessible area some 7,000 kilometres from his home town of Khabarovsk where his family lived. Arranging a long-stay visit during his temporary stay in a remand prison in Khabarovsk would have saved his elderly mother the effort and expense of travelling to the remote location. The refusal could not have been due to the lack of suitable premises because the prison was equipped with rooms for long-stay visits.

40. The Court notes that Article 77.1 of the Code Execution of Sentences explicitly bars convicted prisoners who - as was the applicant's case - are brought to a remand prison from a correctional facility as part of an investigation, from having long-stay family visits (see paragraph 14 above). The restriction was thus based on the specific legislative provision and there is no dispute about the authorities' compliance with the law. Nevertheless, the Court has repeatedly held that legislative choices underlying the impugned restriction are not beyond its scrutiny and that the Government are expected to be able to demonstrate the necessity of the impugned law as a general measure (see Correia de Matos v. Portugal [GC], no. 56402/12, § 129, 4 April 2018, and Bayev and Others v. Russia , nos. 67667/09and 2 others, §§ 63-64, 20 June 2017).

41 . However, beyond a reference to the applicable legal provision, the Government did not explain the legitimate aim or give any justification for the impugned measure. Nor did they provide any information which could have explained the general policy choice made by the legislature in favour of denying long-stay family visits to the individuals in the applicant's situation who have been moved to a remand centre. By contrast, "stationary" categories of convicted prisoners, including those who served their sentence in the same remand prison to which the applicant had been transferred, did not forfeit their right to long-stay visits. It also notes that the Khabarovsk remand prison was equipped with visiting facilities suitable for long-stay visits (see paragraph 10 above). It also appears that the measure affected the applicant in a particularly harsh way. He was serving his sentence far away from his home town. After he was brought back to the place where his family lived and even though suitable accommodation was available in the same remand prison, he was still unable to have a long-stay visit from his family because of a general policy, for which no explanation has been put forward. The Court finds therefore that the restriction did not pursue a legitimate aim and was not "necessary in a democratic society".

(e) Conclusion

42. In the light of the above considerations, the Court finds that there has been a violation of Article 8 of the Convention on account of the limitation of the number of visiting adults in the IK-56 facility, the physical separation and constant supervision during short visits in that facility, and the refusal of short and long-stay visits in the Khabarovsk remand prison.

II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 8

43. The applicant also complained under Article 14 of the Convention, taken in conjunction with Article 8, of a difference in treatment between various groups of detainees in the Khabarovsk remand prison. Article 14 reads as follows:

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

44. The Government submitted that the applicant had exercised his visiting rights in compliance with Russian law and that there had been no violation of Article 14, taken in conjunction with Article 8.

45. The Court reiterates that, where a substantive Article of the Convention has been invoked both on its own and together with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary to consider the case also under Article 14 unless a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom , 22 October 1981, § 67, Series A no. 45).

46. The Court considers that its finding of a violation of Article 8 has adequately highlighted the absence of a justification for the differential treatment of various groups of prisoners in the remand prison in relation to their right to long-stay visits (see paragraph 41 above). It is therefore not necessary to examine the same issue also from the standpoint of Article 14 in conjunction with Article 8 (see Khoroshenko , cited above, § 151).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

48. The applicant claimed 10,000 euros (EUR) in respect of non-�pecuniary damage and EUR 2,058 in respect of legal costs, postal and translation expenses.

49. The Government submitted that Article 41 was to be applied in accordance with the established case-law.

50. The Court awards the applicant EUR 7,500 in respect of non-�pecuniary damage and EUR 1,500 for the costs and expenses, plus any tax that may be chargeable to the applicant.

51. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds that it is not necessary to examine the complaint under Article 14 of the Convention, taken in conjunction with Article 8;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Vincent A. De Gaetano
Deputy Registrar President

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