GONCHAROV AND OTHERS v. RUSSIA
Doc ref: 68808/16;9245/20;13510/20;26584/20;36773/20;38866/20;39471/20;49099/20;5291/21;11095/21 • ECHR ID: 001-218572
Document date: June 30, 2022
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THIRD SECTION
DECISION
Application no. 68808/16 Fedor Nikolayevich GONCHAROV against Russia and 9 other applications
(see appended table)
The European Court of Human Rights (Third Section), sitting on 30 June 2022 as a Committee composed of:
Darian Pavli, President, Andreas Zünd, Mikhail Lobov, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having deliberated, decides as follows:
PROCEDURE
1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table
2. The Russian Government (“the Government”) were given notice of the applications.
FACTS
3. The list of applicants is set out in the appended table.
4. The applicants complained of their or their relative’s (a detainee) allocation or transfer to a remote penal facility irrespective of family life considerations. In some of the applications, complaints based on the same facts were also communicated under other provisions of the Convention.
THE LAW
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
6. The applicants complained of their or their relative’s allocation or transfer to a remote penal facility irrespective of family life considerations. They relied on Articles 8 and 13 of the Convention, which read, in so far as relevant, as follows:
Article 8
“1. Everyone has the right to respect for his private ... 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.”
Article 13
“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.”
7. The Court reiterates that in its recent decisions of Dadusenko and Others v. Russia ((dec.), no. 36027/19 and 3 others, 7 September 2021) and Tamamshev and Others v. Russia ((dec.) [Committee], nos. 57368/19 and 59831/19, §§ 22-23, 7 September 2021), it has accepted that that the Russian Code of Execution of Criminal Sentences (the “CES”) as amended on 1 April 2020 (effective as of 29 September 2020) provided for an effective remedy for the complaints about the breaches of Article 8 of the Convention, as regards allocation or transfer of prisoners to a remote penal facility irrespective of family life considerations, and, having dismissed those complaints for the applicants’ failure to exhaust a new remedy, it has declared that it will apply that approach to all similar applications pending before the Court (see Dadusenko and Others , cited above, §§ 25 ‑ 34).
8. In the present applications, having examined all the material before it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility of these complaints. It therefore considers that, in so far as the applicants have lodged prima facie well ‑ founded complaints, the amended CES affords them an opportunity to obtain adequate redress by lodging a transfer request with the Federal Service of Execution of Sentences and/or challenging the proportionality of the refusal of transfer in court. Accordingly, the applicants should exhaust this remedy before their complaints can be examined by the Court. It follows that these complaints under Article 8 of the Convention should be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
9. The Court has found above that the applicants have an effective remedy at their disposal which they have been required to use for the purpose of Article 35 § 1 of the Convention . Accordingly, their complaints under Article 13 of the Convention must be rejected as being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 21 July 2022.
Viktoriya Maradudina Darian Pavli Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 8 § 1 of the Convention
(allocation or transfer to a remote penal facility irrespective of family life considerations)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Detention facility
Family member
Place of residence of the family member
Approximate distance between the facility and the place of residence of the family members
(in km)
Other complaints under well-established case-law
68808/16
09/11/2016
Fedor Nikolayevich GONCHAROV
1982Gavrilitsa Irina Aleksandrovna
Krasnoyarsk
OIK-30 IK-15 Krasnoyarsk Region,
IK-17 Krasnoyarsk Region
The applicant is a detainee, his relatives are: wife, child, parents
Nerchinsk, Zabaykalskiy Region
2,400
Art. 13 - lack of any effective remedy in domestic law in respect of allocation to a remote detention facility
9245/20
31/01/2020
Household
Rustam Shamsayevich TAIPOV
1982Zulay Magamedovna TAIPOVA
1946Radnayeva Nadezhda Valeryevna
Balashikha
IK-49 Komi Republic
The first applicant is a detainee, the second applicant is his mother
Grozny, Chechen Republic
3,300
Art. 13 - lack of any effective remedy in domestic law in respect of allocation to a remote detention facility
13510/20
28/02/2020
(6 applicants)
Household
Soyelma Rinchindorzhiyevna SHAGZHIYEVA
1971Daba Sergeyevich SHAGZHIYEV
2010Asel Asilbekovna SHAGZHIYEVA
2015Nomik Sergeyevna SHAGZHIYEVA
2004Yevgeniya Sergeyevna SHAGZHIYEVA
1997Yuliya Sergeyevna SHAGZHIYEVA
1995Miller Irina Vladimirovna
Kansk
IK-17 Krasnoyarsk Region
The applicants are all relatives of a detainee (wife, children, granddaughter)
Gegetuy, Republic of Buryatiya
>2,000
Art. 13 - lack of any effective remedy in domestic law in respect of allocation to a remote detention facility
26584/20
03/06/2020
Dmitriy Petrovich SEMENOV
1979IK-17 Krasnoyarsk Region
The applicant is a detainee, his relatives are: father, mother, child, sister, wife
Novocheboksarsk
3,400
Art. 13 - lack of any effective remedy in domestic law in respect of allocation to a remote detention facility -
36773/20
04/08/2020
Roman Pavlovich BURDUKOVSKIY
1984Burdukovskaya Yevgeniya Pavlovna
Gelendzhik
IK-22 Primorye Region
The applicant is a detainee, his relatives is his mother
Ulan-Ude, Republic of Buryatia
3,700
Art. 13 - lack of any effective remedy in domestic law in respect of allocation to a remote detention facility -
38866/20
10/08/2020
and
39471/20
19/08/2020
Household
Lidiya Alekseyevna MOSKALEVA
1955Viktor Aleksandrovich MOSKALEV
1977IK-8 Komi Republic
The first applicant is the mother of the second applicant, who is a detainee
Balashikha, Moscow region
1,500
Art. 13 - lack of any effective remedy in domestic law in respect of allocation to a remote detention facility -
49099/20
22/10/2020
Dmitriy Nikolayevich GUSHCHIN
1979IK-15 Nizhniy Novgorod Region
The applicant is a detainee, his relatives are: mother, sister
Uliyanovsk, Uliyanovsk Region
465Art. 13 - lack of any effective remedy in domestic law in respect of allocation to a remote detention facility -
5291/21
28/12/2020
Marina Vladimirovna FEDOTOVA
1979IK-8 Komi Republic
The applicant is a sister of a detainee
Nizhniy Novgorod
1,000
Art. 13 - lack of any effective remedy in domestic law in respect of allocation to a remote detention facility -
11095/21
02/02/2021
Natalya Yuryevna
LAMEKO
1973IK-1 Komi Republic
The applicant is a detainee, her relatives is her husband
Moscow
1,300
Art. 13 - lack of any effective remedy in domestic law in respect of allocation to a remote detention facility -