THIRD SECTION

CASE OF VOYNOV v. RUSSIA

( Application no. 39747/10 )

JUDGMENT

This version was rectified on 11 September 2018

under Rule 81 of the Rules of Court .

STRASBOURG

3 July 2018

FINAL

03/10/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to edit orial revision.

In the case of Voynov v. Russia ,

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

Helena Jäderblom , President, Helen Keller, Dmitry Dedov , Alena Poláčková , Georgios A. Serghides , Jolien Schukking , María Elósegui , judges, and Stephen Phillips , Section Registrar ,

Having deliberated in private on 5 June 2018 ,

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

PROCEDURE

1 . The case originated in an application (no. 39747/10) 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 Timur Vladislavovich Voynov (“the applicant”), on 11 June 2010 .

2 . The applicant was represented by Mr E. Markov, a lawyer practising in Budapest. The Russian Government (“the Government”) were represented by Mr G. Matyushkin , 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 alleged, in particular, that his right to respect for family life had been violated on account of the Russian authorities ’ decisions on his allocation to a post-conviction detention facility. He also complained of the lack of effective remedies available at the national level.

4 . On 15 April 2015 the complaints under Articles 8 and 13 of the Convention were communicated to the Government 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 1985 and lives in Oryol. He is currently serving his sentence in IK-7 in the village of Areyskoye , Krasnoyarsk Region.

6 . T he applicant , his partner and his mother were living in Oryol when the applicant was charged with drug-related crimes.

7 . On 2 December 2009 the Federal Penal Authority ( “ Федеральная служба исполнения наказаний ” , “the FSIN”) of Russia sent a telegram to the FSIN department for the Oryol Region (“the Oryol FSIN”) instructing the latter to send each month up to forty people detained in remand prisons and sentenced to a term of imprisonment in a strict - regime facility to the Krasnoyarsk Region. The instruction was valid as of 1 December 2009 until further notice.

8 . On 7 December 2009 the Sovetskiy District C ourt of Oryol convicted the applicant of drug-related crimes and sentenced him to twelve years ’ imprisonment in a strict - regime post-conviction detention facility . On 2 February 2010 the Oryol Regional C ourt upheld the conviction on appeal.

9 . Acting on the basis of the FSIN of Russia ’ s instruction of 2 December 2009 , on an unspecified date t he Oryol FSIN decided, in view of the overcrowding in the post ‑ conviction detention facilities in the Oryol Region, that the issue of which particular facility the applicant would be transferred to should be resolved by the FSIN department for the Krasnoyarsk Region (“the Krasnoyarsk FSIN”). The latter allocated the applicant to IK-7 , a strict - regime post-conviction detention facility in the village o f Areyskoye , Krasnoyarsk R egion (about 4,200 km from Oryol) , to serve his sentence. T he applicant has been detained there since 20 April 2010.

10 . The applicant has repeatedly asked the penal authorities at different levels to transfer him to a detention facility located closer to Oryol so that he could effectively maintain family ties while serving his sentence .

11 . On 12 November 2010 the FSIN of Russia rejected the applicant ’ s request , informing him that , under Article 81 of the Code on the Execution of Sentences (“ the CES”) , in the absence of exceptional circumstances convicts were to serve their prison term in its entirety in the same detention facility, and that there were no such exceptional circumstances in the applicant ’ s case. They noted as follows:

“[ a] s regards maintaining the convict ’ s social ties, the right to receive visits and parcels as well as the right to correspondence and phone calls should be realised in accordance with the laws on execution of sentences in force and does not depend on the place in which he is serving the sentence.”

12 . The applicant brought civil proceedings against the Oryol FSIN , claiming compensation for pecuniary and non ‑ pecuniary damage caused by the ir decision to transfer him to a penal facility in the Krasnoyarsk Region in breach of his right , under Article 73 § 1 of the CES , to serve his prison sentence in his home region , which had adversely affected his capacity to maintain his family and social ties .

13 . On 3 August 2012 the Zavodskoy District Court of Oryol dismissed the claims for damages with reference to Article 73 § 2 of the CES and Ruling No. 1700-O-O of the Constitutional Court of Russia . The court held that the Oryol FSIN ’ s decision had been lawful because between December 2009 and February 2010 the penal facilities in the Oryol Region had been overcrowded. It also noted that the defendant had acted in accordance with the FSIN of Russia ’ s instructions. The court did not address the applicant ’ s argument regarding his difficulties in maintaining family ties because of the distance between his family home and the detention facility . It appears that the applicant did not appeal against the judgment.

14 . Between July 2011 and October 2013 the applicant ’ s partner made long-term family visits to IK-7 on six occasions. In 2014 she gave birth to the couple ’ s daughter. While in IK-7, t he applicant received a number of parcels and phone calls from his mother and partner.

II. RELEVANT DOMESTIC LAW AND PRACTICE AND COUNCIL OF EUROPE MATERIALS

15 . Article 15 § 4 of the Constitution of the Russian Federation reads as follows:

“4. Universally recognised principles and norms of international law and international treaties of the Russian Federation form a constituent part of its legal system. Where an international treaty of the Russian Federation sets rules that are distinct from those established by [domestic] law, the rules of the international treaty shall prevail .”

17 . The domestic law and practice governing the geographic distribution of prisone r s , as well as the relevant Council of Europe documents, were summarised in Polyakova and Others v. Russia (nos. 35090/09 and 3 others, §§ 44-59, 7 March 2017).

18 . More recently, the Constitutional Court of Russia dismissed as inadmissible an application lodged by a convicted prisoner , A., contesting the constitutionality of Articles 73 § 4 and 81 § 2 of the CES as violating the right of prisoners and their families to respect for family life . Its Ruling No. 599-O of 28 March 2017 reads, in so far as relevant, as follows:

“Article 55 § 3 of the Constitution of the Russian Federation provides for a possibility to impose restrictions on human rights by federal law as a means of defend ing the foundations of the constitutional order, and the morals, health, rights and lawful interests of others, and of ensur ing the country ’ s defence and State security. Such restrictions, in particular, may be related to imposing on people who have committed a crime a criminal penalty as a measu re of State coercion ...

...

Setting deprivation of liberty as one of the measures of punishment, the State acts in its own interests as well as in those of society and its members. Serving such p unishment changes the usual rhythm of life of a person [and] his relations with people surrounding him and has certain moral and psychological consequences, thus limiting not only his rights and freedoms as a citizen, but [also] his rights as a person . This is connected with the unlawful behaviour of a culprit and is conditioned by the need to restrict his natural right to liberty with a view to defend ing the morals, rights and lawful interests of others.

...

The r ules of [Article 73 § 4 of the CES] are aimed at individualisation of punishment and differentiation of the conditions under which a sentence is served, taking into account the nature of the crime, its dangerousness ... intensity, causes and other circumstances in which it has been committed, as well as information regarding the person who has committed it . They thus create grounds for achieving the aims of punishment ... [such as] restitution of social justice, correction of the convict and prevention of the commission of new crimes.

At the same time , pursuant to point 8 of the [Ministry of Justice ’ s Instruction on Allocation of Prisoners] ... those convicted for the crimes listed in Article 73 § 3 of the CES ... shall as a rule be sent to serve their sentence within the [territory of a] subject of the Russian Federation where they have been sentenced; if it is impossible to detain such people where they have been sentenced , they shall be sent to serve their sentence in another subject of the Russian Federation by decision of the FSIN of Russia ...

Accordingly, the legal provisions in force do not imply that the place where a convict will serve his sentence is determined arbitrarily . T hey correspond to the international legal norms, in particular, the European Prison Rules 2006, under which detainees should where possible be sent to serve their sentence at penal facilities located in the vicinity of their home or places of social rehabilitation . [The international legal norms] are recommendatory in character and should be implemented subject to the availability of the requisite economic and social opportunities ...

...

The r ules [of Article 81 § 2 of the CES] have been set by the legislator within its powers, do not exceed the limits of constitutionally permissible restrictions on the rights and freedoms of citizens . [They] correspond to the principles of differentiation and individualisation of serving sentences , the rational application of measures of coercion and means of correction of convicts.

Therefore the contested norms may not be regarded as violating the applicant ’ s rights, and his application does not meet the criterion of admissibility and may not be accepted by the Constitutional Court of the Russian Federation for examination.”

THE LAW

I. ALLEGED VIOLATION S OF ARTICLE S 8 AND 13 OF THE CONVENTION

19 . The applicant alleged a violation of his right to respect for family life on account of the lack of practical opportunities for prison visits stemming from the decision to allocate him to a remote penal facility and his subsequent inability to obtain a transfer elsewhere. He relied on Article 8 of the Convention, which reads, in so far as relevant, 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 applicant further complained that he had not had at his disposal effective domestic remedies in respect of the alleged violation of Article 8 , in breach of Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties ’ submissions

1. The Government

21 . The Government submitted that the applicant had had effective domestic remedies at his disposal in respect of the alleged violation of Article 8. Without providing any details or examples of judicial practice, they referred to Chapter 25 of the CCP which at the material time had set out the procedure for challenging acts and omissions of State agencies. In the Government ’ s view, the applicant should have had recourse to the said remedy , but had failed to institute the relevant civil proceedings before the national courts. They concluded that the application should be declared inadmissible for non-exhaustion of dom estic remedies under Article 35 § 1 of the Convention .

22 . The Government further asserted that the six-month time-limit for the applicant ’ s complaint under Article 8 of the Convention had started running on the date of the FSIN ’ s decision to transfer him outside his “home” region to serve his sentence . That decision had been an instantaneous act; accordingly, the alleged violation could not be regarded as a continuous situation.

23 . The Government stated that Article 81 of the CES listing the grounds for transfer of a prisoner to another detention facility , including “other exceptional circumstances” , did not contain an exhaustive list of such circumstances because it would be “virtually impossible to envision all situations in life that may make the convict ’ s transfer necessary ” . Accordingly, an alleged interference with the right to private or family life might also give grounds for transferring a prisoner to another detention facility.

24 . The Government further stated that the applicant had been allocated to IK-7 in the Krasnoyarsk Region in his own interests , in view of the need to avoid overcrowding. The Russian authorities could not allow a situation where the applicant ’ s fundamental right under Article 3 of the Convention would be breached in order to protect his family values. They noted that Article 73 § 2 of the CES provide d for an exception to the general distribution rule in cases where it was impossible to allocate a prisoner to a detention facilit y located in the “ home ” region.

25 . According to the Constitutional Court ’ s Ruling 1700-O-O of 16 December 2010 , Article 73 § 2 was compatible with international law, given that the European Prison Rules were merely recommendations. Moreover, the Government referred to the Constitutional Court ’ s doctrine of “awareness of the consequences” , according to which a person committing a crime should expect repercussions on his family life.

26 . The Government pointed out that the applicant had made use of his right to a long-term family visit on six occasions and had maintained his family ties by means of phone calls and postal correspondence .

27 . The Government concluded that there had been no violations of Articles 8 and 13 of the Convention in the present case.

2. The applicant

28 . In reply to the Government ’ s non-exhaustion plea, the applicant stated that he had not had at his disposal effective domestic remedies in respect of the alleged violation of Article 8 , in breach of Article 13 of the Convention . The applicant pointed out that the Court had previously ruled that the existence of remedies must be sufficiently certain not only in theory but also in practice ; he submitted that he had attempted to use different avenues to challenge the FSIN ’ s decision at national level.

29 . The Zavodskoy District Court of Oryol had dismissed the applicant ’ s civil claims for damages , in which he had asked the court to acknowledge the Oryol FSIN ’ s decision as unlawful . The court had succinctly argued that the penal authority had acted in accordance with the law , but had failed to provide any analysis of the proportionality of the contested measure. Similarly to that civil ac tion, a complaint under Chapter 25 of the CCP would be devoid of any prospects of success as the domestic courts interpreted the domestic law in a strictly formal manner. The Government had failed to provide any examples of successful challenge s, under Chapter 25 of the CCP , of the FSIN ’ s decisions on the geographic distribution of prisoners . N or had they provided examples of successful requests , under Article 81 of the CES, for transfer to another detention facility on account of the inability to receive family visits in a remote facility. The applicant also drew a parallel with the Court ’ s practice of acknowledging that a complaint under Chapter 25 of the CCP would not be considered an effective remedy in respect of complaints concerning conditions of detention, lack of medical assistance in detention, or other aspects of serving a prison sentence. In sum, he insisted that he had not had at his disposal effective domestic remedies in respect of the alleged violation of Article 8 , as required by Article 13 of the Convention.

30 . The applicant further submitted that the FSIN ’ s decision to transfer him to IK-7 in the Krasnoyarsk Region had given rise to a continuous situation for the purposes of the six-month rule.

31 . As to the merits of his Article 8 complaint, the applicant submitted that the distance between his family home in Oryol and IK-7 in the Krasnoyarsk Region was approximately 4,200 kilometres. Because the distance was so great , the applicant had been unable to receive regular visits from his mother and partner. The latter had been the only person who had visited him several times; she had had to take a strenuous journey by train, plane and taxi that had cost her the equivalent of the average monthly wage in Oryol. Following her pregnancy, the applicant ’ s partner had no longer been in a position to visit him . He had never seen his daughter , who was born in 2014. The inability to see his mother, partner, baby and other relatives had had a profound adverse impact on the applicant. Accordingly, he considered that the FSIN ’ s decision to place him in IK-7 amounted to an interference with his right to respect for private and family life.

32 . In the applicant ’ s view, this interference had not been “in accordance with the law” as the Government had failed to prove that the FSIN had fulfilled the requirement of Article 73 § 2 of the CES applicable at the material time that a prisoner must be allocated to a region adjacent to the home one. Further more , his transfer had not pursued a legitimate aim of avoiding overcrowding as claimed by the Government , because IK-7 had been overcrowded. Lastly, the interference had not met the proportionality requirement , as the Government had not explained why the applicant had not been placed in a region adjacent to his home one and the FSIN had not taken into account his interests in maintaining family ties while in detention. The Russian system of geographic distribution of prisoners had not provided him with a measure of legal protection against arbitrary interference by the public authorities. Article 81 of the CES precluded any possibility of having the decision on his transfer to a remote detention facility reassessed after a lapse of time and of having the requisite balancing exercise carried out .

33 . The applicant concluded that his right to respect for private and family life had been violated.

B. The Court ’ s assessment

1 . Admissibility

34 . Taking note of the Government ’ s non-exhaustion plea (see paragraph 21 above), t he Court considers that the issue of non-exhaustion of domestic remedies in this case is closely linked to the merits of the applicant ’ s complaint that he did not have at his disposal an effective remedy regarding the alleged violation of his right to respect for family life. Thus, the Court finds it necessary to join the Government ’ s objection to the merits of the complaint under Article 13 of the Convention (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 70, 10 January 2012).

35 . As to the Government ’ s objection regarding the failure to comply with the six-month rule (see paragraph 22 above) , the Court has already found that a complaint under Article 8 of the Convention concerning the impossibility of effectively maintaining family and social ties during imprisonment in a remote penal facility must (unless an effective remedy was available) be submitted within six months of the end of the detention in that facility (see Polyakova and Others , cited above, § 66). Considering that the applicant introduced his complaint while serving his sentence in IK-7 in the Krasnoyarsk Region, the Government ’ s objection must be dismissed.

36 . The Court further considers that the applicant ’ s complaints concerning the right to respect for family life and the existence of effective domestic remedies are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established.

37 . The Court thus declares the applicant ’ s complaints about his allocation to a remote penal facility and the alleged absence of an effective domestic remedy in this respect admissible and joins to the merits the Government ’ s objection relating to the alleged non-exhaustion of domestic remedies.

2 . Merits

(a) Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention

40 . The Court notes that the Government have not submit ted any judicial decision showing that a person affected by the FSIN ’ s decision concerning the geographic distribution of prisoners had been able to protect his or her rights by using the remedy suggested, that is, where recourse to a court under Chapter 25 of the CCP had led to a proper assessment of the applicant ’ s claims under Article 8 of the Convention . They have likewise failed to provide an explanation as to why they could not submit any such examples.

41 . The Court observes that it has on many occasions analysed the effectiveness of the mechanism set out in Chapter 25 of the CCP as a remedy in a variety of contexts, such as conditions of pre-trial detention (see Ananyev and Others , cited above, §§ 107-12), non-enforcement of final domestic judgments (see Burdov v. Russia (no. 2) , no. 33509/04, § 103, ECHR 2009), and detention pending extradition (see Gaforov v. Russia , no. 25404/09, § 169, 21 October 2010). In all th o se instances the Court refused to accept a complaint under Chapter 25 of the CCP as an effective domestic remedy.

43 . Given the narrow scope of review by the domestic courts in proceedings under Chapter 25 of the CCP, the Court does not accept that such proceedings, had they been instituted, would have provided an avenue whereby the applicant could adequately vindicate his right to respect for family life (see, mutatis mutandis , C.G. and Others v. Bulgaria , cited above, § 63). It considers the applicant ’ s unsuccessful attempt to claim compensation for damage caused by the Oryol FSIN ’ s decision (see paragraph 13 above) relevant in this context , as the Zavodskoy District Court found that the Oryol FSIN h ad acted lawfully when deciding to send the applicant to the Krasnoyarsk Region without making any reference to his family situation or to the difficulties he would have in maintaining family ties. The Government do not suggest that the domestic courts ’ reasoning and findings as regards the lawfulness of the impugned measure would have been different in any way merely because the proceedings before it were initiated under Chapter 25 of the CCP.

45 . In the absence of any concrete example given by the Government of successful litigation under Chapter 25 of the CCP regarding an alleged violation of the right to respect for family life stemming from the FSIN ’ s decision concerning the geographic distribution of prisoners , or any structural reason which would indicate that, even without specific examples, the remedy could have been “effective”, the Court is not satisfied that the suggested remedy would have brought about the required discussion of the family life issues in the case . It thus considers that the capacity of the remedy suggested by the Government to provide effective redress for the alleged violation of Article 8 of the Convention has not been established with a sufficient degree of certainty (see , mutatis mutandis , Mustafa Sezgin Tanrıkulu v. Turkey , no. 27473/06 , § 29, 18 July 2017) .

46 . The Court is mindful of the fact that it has previously found on a number of occasions that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention into domestic law (see Appleby and Others v. the United Kingdom , no. 44306/98, § 56, ECHR 2003 ‑ VI; Ostrovar v. Moldova , no. 35207/03, § 113, 13 September 2005; I.G. and Others v. Slovakia , no. 15966/04, § 156, 13 November 2012; and Szabó and Vissy v. Hungary , no. 37138/14, § 93, 12 January 2016). However, the thrust of the applicant ’ s complaint is the absence of any meaningful avenues of redress open to him at the national level in respect of his particular situation, that is, his transfer to and subsequent detention in IK-7 in the Krasnoyarsk Region , which adversely affected his capacity to enjoy family life.

(b) Article 8 of the Convention

50 . The Court has already analysed the Russian domestic legal system in the context of the geographic distribution of prisoners ( ibid. , §§ 90-115) and c oncluded that the latter did not afford adequate legal protection against possible abuses , and that Article 73 §§ 2 and 4 and Article 81 of the CES did not satisfy the “quality of law” requirement (ibid., §§ 117-18) .

51 . There is n othing in the Government ’ s submissions regarding the present case to convince the Court to depart from the above findings. Moreover, Ruling No. 599-O of 28 March 2017 of the Constitutional Court of Russia (see paragraph 18 above) demonstrates that the national authorities ’ approach to the interpretation of domestic law in this field has not evolved since the delivery of the Polyakova and Others judgment . The Court thus concludes that the interference with the applicant ’ s right to respect for family life in the present case was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.

52 . Therefore, there has been a violation of Article 8 of the Convention.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

53 . 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.”

A. Damage

1. Pecuniary damage

54 . The applicant claimed 4,000 euros (EUR) , being the approximate costs of his partner ’ s travel from Oryol to IK-7. He did not submit any documents to substantiate the claim.

55 . The Court observes that the applicant ’ s claim under the head of pecuniary damage is not supported by any documentary evidence and dismisses it.

2. Non-pecuniary damage

56 . The applicant further claimed EUR 50,000 in respect of non ‑ pecuniary damage , submitting that he had sustained mental suffering, frustration and feeling s of injustice as a consequence of the alleged violation of Article 8 of the Convention.

57 . The Government submitted that Article 41 of the Convention should be applied in accordance with the Court ’ s case-law.

B. Costs and expenses

59 . The applicant claimed EUR 30 as postal expenses incurred by him. He did not provide any supporting documents in this respect. He further claimed EUR 1,970 as costs and expenses incurred before the Court for his lawyer ’ s fees , submitting a time - sheet for sixteen hours ’ work at an hourly rate of EUR 120, and EUR 50 in administrative expenses , unsupported by any document ation .

60 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria , the Court rejects the claim for postal expenses and considers it reasonable to award the sum of EUR 850 for the proceedings before the Court , payable into the bank account of the applicant ’ s representative . [1]

C. Default interest

61 . 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 and joins the Government ’ s objection as to the alleged non-exhaustion of domestic remedies to the merits ;

2 . Holds that there has been a violation of Article 13 of the Convention and dismisses the Government ’ s objection as to the alleged non-exhaustion of domestic remedies;

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

4 . Holds

(a) that the respondent State is to pay the applicant, within three months of 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 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage ;

(ii) EUR 850 ( eight hundred and fifty euros), plus any tax that may be chargeable, 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 amount 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 3 July 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Helena Jäderblom Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Elósegui is annexed to this judgment.

H.J . J.S.P.

Rectified on 11 September 2018 under Rule 81 of the Rules of Court.

             Stephen Phillips Vincent A. De Gaetano Registrar President

CONCURRING OPINION OF JUDGE ELÓSEGUI

1 . I agree with the whole judgment in the case of Voynov v. Russia and the Court has decided it unanimously. My concurring opinion seeks to analyse, in greater depth, paragraph 42 of the judgment in order to show what the Russian Government have failed to demonstrate. As the Court says in paragraph 42: “No attempts at balancing the claimants ’ interests against those of the State had been made”. For the Court, the proportionality test is a tool to secure the protection of Convention rights. It is not an end in itself, but a method for weighing Convention rights in the balance where there are conflicting interests between the parties, to ascertain whether or not there has been a violation of a right, or if an interference by the State with an individual ’ s rights has been justified.

2 . I suggest that in order to be more prescriptive, as regards our balancing test to establish proportionality, we could expect the Russian authorities and domestic Russian courts to perform a balancing exercise respecting the following steps [2] : suitability or adequacy, necessity, and proportionality stricto sensu (on the tripartite proportionality test, see the separate opinion of Judge Pinto de Albuquerque in Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, ECHR 2012 (extracts) ).

3 . The first step means that the authority has to carry out a balancing exercise as regards the justification for the interference with the applicant ’ s rights, namely the suitability of the measure in pursuit of a legitimate aim. The second step of the proportionality test is to examine the necessity of the measure. In the present case, the Government had to justify the existence of a specific reason to choose a faraway prison. For instance, in some circumstances this could be justified because of the dangerousness of the prisoner or for security reasons.

4 . Going to the third step, proportionality stricto sensu , this part of the test can further be divided into three stages. In the first stage, it would be necessary to examine the weight and gravity of the goal of avoiding prison overcrowding. We could attribute to this goal of the State a moderate degree of weight because it is an organisational aim, although it may be important for the purpose of protecting order and security in prisons. In the second stage, we could analyse the right of the prisoner to have a family life under Article 8 of the Convention. The intensity of the interference will be serious if the Government do not allow the fulfilment of this right (on the protection of family life of prisoners in Russia, see the joint concurring opinion of Judges Pinto de Albuquerque and Turković in Khoroshenko v. Russia [GC], no. 41418/04, ECHR 2015). In the third stage, we have to weigh up the results of the first two stages to see whether or not the overcrowding in some prisons justifies the decision to send the applicant to IK-7 prison 4,200 kilometres from his home.

5 . Also it has to be examined whether the State could attain the same goal with an alternative measure, namely choosing a prison that is closer to the applicant ’ s home, taking into account the applicant ’ s right to family life. The fact is that this great distance is a serious interference with his right to maintain family and social ties. Consequently, it is possible to conclude, after an analysis of the proportionality, that the legitimate aim of the Government to ensure better organisation of prisons could be fulfilled through a less severe interference with a fundamental right of the applicant. Here the overcrowding in some prisons does not justify the decision to send the applicant 4,200 kilometres away from his home. In this concrete case, the Government have not adequately weighed in the balance the applicant ’ s right to a family life, the limitation of which is not proportionate and is not justified in this case.

6 . Moreover, taking into account the empirical and normative assumptions, the empirical fact is that the IK-7 prison had also been overcrowded; and in relation to the norms, as the Court has said at the end of paragraph 42:

“The Court found that Russian domestic law governing the geographical distribution of prisoners as interpreted by the domestic courts did not enable an individual to obtain a judicial review of the proportionality of the FSIN ’ s decision to his or her vested interests in maintaining family and social ties.”

7 . In conclusion, a different measure could have been taken, namely to find a prison that was closer to the applicant ’ s home while fulfilling the same goal; this would have been less injurious to his right to family life.

[1] . Rectified on 11 September 2018: “payable into the bank account of the applicant’s representative” has been added.

[2] . See Robert Alexy’s Weight Formula in ALEXY, R., “The Absolute and the Relative Dimension of Constitutional Rights”, Oxford Journal of Legal Studies , (2016), pp. 1-17.