THIRD SECTION

DECISION

Application no . 7528/15 Natalia PSHENKINA against Sweden

The European Court of Human Rights (Third Section), sitting on 8 December 2015 as a Committee composed of:

Dmitry Dedov , President, Helena Jäderblom , Branko Lubarda , judges, and Marialena Tsirli, Deputy Section Registrar ,

Having regard to the above application lodged on 6 February 2015 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Natalia Pshenkina , is a Russian national born in 1980 and currently serving a life sentence in a prison in the town of Ystad , in Sweden.

A. The circumstances of the case

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

In 2006 the applicant was convicted of murder and sentenced to life imprisonment as well as expulsion from Sweden. In August 2013, while serving her prison sentence, the applicant initiated a relationship with another woman, M., by correspondence. The applicant and M. wanted to marry and therefore the applicant requested the Prison ( anstalten ) to grant her permission for a supervised visit from M. so that they could marry.

On 17 April 2014 the Prison rejected the application. They noted that the applicant and M. had not had a relationship before the applicant arrived at the prison and considered that there was nothing to indicate that the relationship between them was of a permanent or stable nature. M. could therefore not be considered to be a close relative of the applicant. The Prison further stated that it had information concerning M. ’ s personal situation, which was confidential and not revealed in the decision, which indicated that unsupervised visits by M. would pose a security risk in the prison or hinder the applicant ’ s possibilities to reintegrate into society. Since supervised visits were only granted for relatives, due to limited resources, this could not be granted in the applicant ’ s case.

The applicant requested the Prison and Probation Board ( Kriminal-vården ) to review the Prison ’ s decision and give her and M. permission for a supervised visit. On 21 May 2014 the Board rejected the request, reiterating the reasoning of the Prison.

The applicant appealed against the decision to the County Administrative Court ( förvaltningsrätten ) in Karlstad, maintaining her request and stating the following. According to Article 12 of the Convention, all adults have a right to marry and to establish a family. The Prison and Probation Board ’ s decision not to grant permission for a supervised visit was preventing her from exercising that right. She had explicitly told the Prison that the reason she wanted permission for a supervised visit with M. was for them to marry, since that was the only available option to arrange such a ceremony. The Tax Authority ( Skatteverket ) had already inquired into whether there were impediments for them to marry and had found that there were no such impediments. The prison chaplain had also been notified.

On 11 June 2014 the County Administrative Court rejected the appeal, stating that it agreed with the Prison and Probation Board ’ s assessment of the safety issues at hand and the applicant ’ s possibilities to reintegrate into society. The court further added that it was natural that persons serving a prison sentence had to accept some restrictions on their rights and thus the decision in this case did not violate the Convention.

The applicant appealed against the decision to the Administrative Court of Appeal ( kammarrätten ) in Gothenburg which, on 15 July 2014, refused leave to appeal. Upon further appeal, the Supreme Administrative Court ( Högsta förvaltningsdomstolen ) refused leave to appeal on 14 October 2014.

On 22 April 2015 the Prison and Probation Board, upon a new request by the applicant, granted her permission for a supervised visit with M. on 27 April 2015, in order for them to marry.

B. Relevant domestic law and practice

1. Civil liability of the State

Chapter 3 of the Tort Liability Act ( Skadeståndslagen , 1972:207) deals with the civil liability of the State. According to section 2 of that chapter, acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault or negligence.

An individual who wants to claim compensation from the State may proceed in either of two ways: he or she may petition the Chancellor of Justice ( Justitiekanslern ) in accordance with section 3 of the Ordinance on the Administration of Claims for Damages against the State ( Förordningen om handläggning av skadeståndsanspråk mot staten , 1995:1301), or bring a civil action against the State before a district court, with the possibility to appeal to a court of appeal and later to the Supreme Court. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts. In such proceedings, the State is represented by the Chancellor of Justice (section 2 of the Ordinance with Instructions for the Chancellor of Justice [ Förordning med instruktion för Justitiekanslern , 1975:1345]).

According to section 2 of the Limitations Act ( Preskriptionslagen , 1981:130), the period of limitation in respect of claims against the State is ten years from the point in time when the claim arose, unless the period has been interrupted beforehand.

2. Compensation for violations of the Convention

A comprehensive summary of the issue of compensation for violations of the Convention in the Swedish legal order can be found in S.J.P. and E.S. v. Sweden ([ dec. ], no. 8610/11 , §§ 52-60, 16 December 2014).

COMPLAINTS

The applicant complained under Articles 8, 12 and 14 of the Convention that the decision not to permit M. to visit her in prison in order for them to marry violated her right to private and family life and her right to marry, and that this was discriminatory since she is homosexual.

THE LAW

The applicant complained under Articles 8, 12 and 14 of the Convention which in relevant parts read:

Article 8

“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. ...”

Article 12

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

Article 14

“The enjoyment of the rights and freedoms set forth in this 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.“

The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references).

However, the only remedies which Article 35 § 1 requires being exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, Mifsud v. France ( dec. ) [GC], no. 57220/00, § 15, ECHR 2002 ‑ VIII, and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010).

The Court notes that, in its recent case-law, it has considered that there exists an effective remedy in Sweden that is capable of affording redress in respect of alleged violations of the Convention. The Court has referred to the case-law established by the Swedish Supreme Court and the Chancellor of Justice over recent years and their continued development of case-law in this domain. Consequently, the Court has found that potential applicants may, as a general rule, be expected to lodge a domestic claim to seek compensation for alleged breaches of the Convention before applying to the Court (see Eriksson v. Sweden, no. 60437/08 , 12 April 2012; Ruminski v. Sweden ( dec ), no. 10404/10, 21 May 2013; and Marinkovic v. Sweden, no. 43570/10, 10 December 2013).

Noting that there is more than one potentially effective remedy available in Sweden, applicants may choose to make their claims either to the Chancellor of Justice or the domestic courts (see, amongst other authorities, T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999, and Karakó v. Hungary , no. 39311/05, § 14, 28 April 2009).

Turning to the present case, the Court notes that the applicant has now been granted permission for a supervised visit in order to marry and thus the alleged violation is not on-going but has ended.

The Court can find no ground to depart from the general rule set out above in the present case, since the alleged violation of the Convention relied upon by the applicant has ended and compensation must thus be considered to be an appropriate and sufficient remedy for the alleged violation (see Marinkovic v. Sweden, cited above, § 41 ). The Court also notes that the Supreme Court and the Chancellor of Justice have dealt with matters falling under Article 8 of the Convention. Although the domestic case-law has not specifically involved the questions at hand in the present case, nor questions falling under Article 12 of the Convention, the Court finds that there is nothing to suggest that the ordinary courts or the Chancellor of Justice would refuse to consider the violations alleged in the present case.

It follows from the above that the application must be declared inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 7 January 2016 .

Marialena Tsirli Dmitry Dedov              Deputy Registrar President