Communicated on 7 January 2016

THIRD SECTION

Application no. 26432/13 Yevgeniy Vitalyevich ZAVARZIN against Russia lodged on 20 February 2013

STATEMENT OF FACTS

The applicant, Mr Yevgeniy Vitalyevich Zavarzin , is a stateless person, who was born in 1983 and lives in Pushkino , Kaliningrad Region.

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

The applicant was born in Pavlodar. Following the dissolution of the Union of Soviet Socialist Republics, the city became part of Kazakhstan.

On 17 June 1999, having turned sixteen, the applicant was issued with identity documents (“an internal passport”) confirming his Russian citizenship by the consular section of the Russian Embassy in Kazakhstan. Eventually he moved to Russia.

On 16 February 2005 the applicant reported his identity documents stolen in Kaliningrad.

On 22 February 2006 the Tsentralnyy District Court, Kaliningrad found the applicant guilty of murder and sentenced him to eight years ’ imprisonment. The applicant was sent to serve his sentence in the IK-13 detention facility in the village of Slavyanovka , Kaliningrad Region.

While in IK-13, the applicant repeatedly applied to the administration of the facility for permission to receive a long-term visit from his life partner. He also asked to be provided with the necessary identity documents to marry her.

In October 2006 the Kaliningrad regional division of the Federal Migration Authority of Russia informed the administration of IK-13 that they could not issue the applicant with the relevant identity papers owing to the fact that an investigation had been undertaken in connection with the applicant ’ s report of his identity documents being stolen as a result of which it had been established that there had been no data to confirm that the applicant had acquired Russian citizenship.

In April to May 2012 the applicant complained to the Kaliningrad Region prosecutor ’ s office (“the prosecutor ’ s office”) that since 2006 he had been repeatedly denied assistance in obtaining the identity documents necessary to marry his life partner and that his applications for long-term visits had been refused owing to the fact that he and his partner had not been married. He specified particularly that the couple were interested in having children.

On 29 May 2012 the prosecutor ’ s office informed the applicant that, in accordance with Article 89 of the Code of Execution of Sentences and relevant bylaws, rights to long-term visitation of prisoners were only accorded to spouses, parents and adoptive parents, children, siblings and grandparents; a prison governor could allow a long-term visit from a person not falling into any of the above categories provided that the person in question “would not, in the prison administration ’ s opinion, exercise any negative influence on a detainee”. They concluded that the applicant ’ s rights had not been adversely affected.

On 19 July 2012 the applicant challenged the prosecutor ’ s office ’ s refusal before the Bagrationovskiy District Court, Kaliningrad (“the District Court”). He asked to be present at the hearing.

On 9 October 2012 the administration of IK-13 issued the applicant with a certificate stating that the applicant was a stateless person serving his sentence and that in accordance with section 16 of the Nationality Act applications for acquisition of Russian citizenship by convicted persons serving terms of imprisonment should be rejected until the end of the term of imprisonment.

On 26 November 2012 the District Court informed the applicant that “the Russian Code of Civil Procedure [did] not provide for participation in examination of civil cases of persons serving their sentences in detention facilities” and asked him to appoint a representative.

On 1 November 2012 the District Court held a hearing in the applicant ’ s absence and dismissed his complaint in full. The court observed that under domestic law the applicant could only apply for Russian nationality upon his release from detention. It further noted that the applicant was not married to his life partner and thus the issue of long-term prison visits fell within the discretionary powers of the administration of IK-13. The court concluded that there had been no violations of the applicant ’ s rights.

The applicant appealed, specifically requesting that his presence be assured at the appeal hearing.

On 19 December 2012 the Kaliningrad Regional Court (“the Regional Court”) dismissed the applicant ’ s appeal in his absence and upheld the District Court ’ s decision. The Regional Court found it established that the prosecutor ’ s office had replied to the applicant ’ s complaint in due time and observed that it could not examine the merits of the prosecutor ’ s office ’ s refusal for the following reason:

“However, the norms of the law in force do not provide for the possibility (even by means of judicial review) to require a prosecutor – an independent public office holder vested with relevant powers – to perform particular acts, including measures of prosecutorial scrutiny [ меры прокурорского реагирования ] where the prosecutor, having undertaken an investigation, finds no grounds to take any measures of prosecutorial scrutiny.”

The regional court concluded that the applicant had had an opportunity to challenge the prosecutor ’ s office ’ s refusal to a higher prosecutor or, alternatively, “to apply to a court with independent claims aimed directly at the protection of those rights which he [had] reported as violated in the complaint to the prosecutor ’ s office”.

On 18 June 2013, having served his sentence, the applicant was released from IK-13.

COMPLAINTS

1. The applicant complains that repeated refusals to allow him a long ‑ term visit from his life partner amount to an excessive interference with his right to private and family life. He invokes Articles 3 and 8 of the Convention.

2. The applicant further complains, under Article 12 of the Convention taken alone and in conjunction with Article 14 of the Convention, that he is precluded from entering a marriage because of his stateless status, which, in his view, is discriminatory.

3. The applicant complains, under Article 6 of the Convention, about his enforced absence from the court hearings at two instances.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention (civil) applicable to the proceedings in which the applicant challenged the decision by the prosecutor ’ s office of 29 May 2012?

2. Was there a violation of Article 6 § 1 of the Convention on account of the applicant ’ s absence from hearings at two instances before the Bagrationovskiy District Court, Kaliningrad and the Kaliningrad Regional Court?

3. Was there a violation of Article 8 of the Convention on account of the refusals to allow the applicant long-term visits from his life partner in IK ‑ 13 (see, mutatis mutandis , Khoroshenko v. Russia [GC] , no. 41418/04 , § § 116 ‑ 22, ECHR 2015) ?

4. Has there been a violation of Article 12 of the Convention? In particular, was the applicant ’ s right to marry restricted or reduced in such a way or to such an extent that the very essence of the right was impaired (see O ’ Donoghue and Others v. the United Kingdom , no. 34848/07, § 82, ECHR 2010 (extracts))? Regard being had to the State ’ s margin of appreciation, was the impugned interference with the applicant ’ s right to marry arbitrary or disproportionate (see Frasik v. Poland , no. 22933/02, § 90, ECHR 2010 (extracts))?

5. Was there a difference in the treatment of the applicant in connection with his right to marry? If so, was there an objective and reasonable justification for such a difference? In particular, did it pursue a legitimate aim? Was there a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Hämäläinen v. Finland [GC], no. 37359/09 , § 108, ECHR 2014) ?