Information Note on the Court’s case-law 186

June 2015

Khoroshenko v. Russia [GC] - 41418/04

Judgment 30.6.2015 [GC]

Article 8

Article 8-1

Respect for family life

Respect for private life

Ban on long-term family visits to life prisoners: violation

Facts – The applicant is currently serving a sentence of life imprisonment. During the first ten years of detention in a special-regime correctional colony, he was pl aced under the strict regime, implying, inter alia , restrictions on the frequency and length of visits and a limitation on the number of visitors, and various surveillance measures in respect of those meetings. The applicant could correspond in writing wit h the outside world, but there was a complete ban on telephone calls except in an emergency.

Law – Article 8: The measures in respect of the visits to which the applicant was entitled during the ten years spent in prison under a strict regime amounted to i nterference with his right to respect for his “private life” and his “family life” within the meaning of Article 8.

The applicant’s detention under the strict regime within the special-regime correctional colony had a clear, accessible and sufficient legal basis.

For ten years, the applicant had been able to maintain contact with the outside world through written correspondence, but all other forms of contact had been subject to restrictions. He had been unable to make any telephone calls other than in an e mergency, and could receive only one visit from two adult visitors every six months, and then for four hours. He was separated from his relatives by a glass partition and a prison guard had been present and within hearing distance at all times.

The restrictions, imposed directly by law, had been applied to the applicant solely on account of his life sentence, irrespective of any other factors. The regime had been applicable for a fixed period of ten years, which could be extended in the event of bad behaviour, but could not be shortened. The restrictions had been combined within the same regime for a fixed period and could not be altered.

A sentence of life imprisonment could only be handed down in Russia for a limited group of extremely reprehens ible and dangerous actions and, in the case at hand, the authorities had had, among other things, to strike a delicate balance between a number of private and public interests. The Contracting States enjoyed a wide margin of appreciation in questions of pe nal policy. It could not therefore be excluded, in principle, that the gravity of a sentence could be tied, at least to some extent, to a type of prison regime.

According to the regulations at European level on the visiting rights of prisoners, including l ife-sentence prisoners, the national authorities were under an obligation to prevent the breakdown of family ties and to provide life-sentence prisoners with a reasonably good level of contact with their families, with visits organised as often as possible and in as normal a manner as possible. Although there was a considerable variation in practices regarding the regulation of prison visits, those in the Contracting States set out a minimum frequency of prison visits for life-sentence prisoners of no lower than once every two months. Further, the majority of the Contracting States did not draw any distinction between prisoners on the basis of their sentence and a generally accepted minimum frequency of visits was not less than once a month. In this context, the Russian Federation appeared to be the only jurisdiction within the Council of Europe to regulate the prison visits of all life-sentence prisoners as a group by combining an extremely low frequency of prison visits and the lengthy duration of such a re gime.

That situation had the consequence of narrowing the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private and family life in this sphere.

In contrast to the Russian Constituti onal Court in its decision of June 2005, the European Court considered that the regime had involved a combination of restrictions which considerably worsened the applicant’s situation compared with that of an average Russian prisoner serving a long-term se ntence. Those restrictions could not be seen as inevitable or inherent in the very concept of a prison sentence.

The Government submitted that the restrictions were aimed at “the restoration of justice, reform of the offender and the prevention of new crim es”. The applicant had been able to have only one cell mate throughout the relevant period and had belonged to a group of life-sentence prisoners who served their sentences separately from other detainees. The Court was struck by the severity and duration of the restrictions in the applicant’s case and, more specifically, by the fact that, for an entire decade, he had been entitled to only two short visits a year.

The Court’s case-law had consistently taken the position that, in general, prisoners continued to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention fell expressly w ithin the scope of Article 5 of the Convention, and that a prisoner did not forfeit his or her Convention rights merely because he or she had been detained following conviction.

Thus, the relevant Russian legislation did not take the interests of the convi ct and his or her relatives and family members adequately into account, as required by Article 8 of the Convention, the content of other international-law instruments concerning family visits and the practice of international courts and tribunals, which in variably recognised as a minimum standard for all prisoners, without drawing any distinction between life-sentence and other types of prisoners, the right to an “acceptable” or “reasonably good” level of contact with their families.

Referring to the Consti tutional Court’s decisions, the Government had contended that the restrictions served to reform the offender. The applicant’s prison regime did not pursue the aim of reintegration, but was rather aimed at isolating him. However, the Code of Execution of Cr iminal Sentences mentioned the possibility for a life-sentence prisoner to request release on parole after serving a period of twenty-five years. The very strict nature of the applicant’s regime prevented life-sentence prisoners from maintaining contacts w ith their families and thus seriously complicated their social reintegration and rehabilitation instead of fostering and facilitating it. This was also contrary to the recommendations of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment ( CPT ) in this area and to Article 10 § 3 of the Inte rnational Covenant on Civil and Political Rights , in force with respect to Russia since 1973, and also several other instruments.

Thus, the interference with the applicant’s private and family life resulting from the application for a long period, solely o n account of the gravity of his sentence, of a regime characterised by such a low frequency of authorised visits, had been, as such, disproportionate to the aims invoked by the Government. The effect of this measure had been intensified by the long period of time it was applied, and also by various rules on the practical arrangements for prison visits, such as the ban on direct physical contact, separation by a glass wall or metal bars, the continuous presence of prison guards during visits, and the limit o n a maximum number of adult visitors. This had made it especially difficult for the applicant to maintain contact with his child and elderly parents during a time when maintaining family relationships had been particularly crucial for all the parties invol ved. In addition, certain of his relatives and members of the extended family had simply been unable to visit him in prison throughout this entire period.

Having regard to the combination of various long-lasting and severe restrictions on the applicant’s a bility to receive prison visits and the failure of the regime on prison visits to give due consideration to the principle of proportionality and to the need for rehabilitation and reintegration of long-sentence prisoners, the measure in question had not st ruck a fair balance between the applicant’s right to the protection of his private and family life, on the one hand, and the aims referred to by the respondent Government on the other. It followed that the respondent State had overstepped its margin of app reciation in this regard.

Conclusion : violation (unanimously).

Article 41: EUR 6,000 in respect of non-pecuniary damage.

(See also the Factsheet on Detention conditions and t reatment of prisoners )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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