Information Note on the Court’s case-law 229

May 2019

Chaldayev v. Russia - 33172/16

Judgment 28.5.2019 [Section III]

Article 14

Discrimination

Difference of severity in regulations on visits to detainees between prisons and remand prisons: violation

Article 8

Article 8-1

Respect for family life

Restrictions on the length and conditions of family visits to a person held in detention in a remand pr ison: violation

Article 35

Article 35-1

Six-month period

Starting point for the six-month period depending on whether the complaint concerns a refusal to authorise a family visit to prison or the conditions of such visit

Facts – In March 2013 the applicant was placed in pre-trial detention in a remand prison. In May 2015 he was sentenced at first instance to thirteen years’ imprisonment, but he appealed. After his conviction became final in October 2015, he was transferred to a correctional colony.

The applicant complained of the refusal to allow his parents to pay him long visits, as well as the limited duration of, and the practical arrangements for, the short visits which had been authorised, during his detention in a remand prison.

Under the statutory texts applicable to the various categories of detainees, the rules on visits differ as follows:

(a) Persons detained in order to serve a custodial sentence in prison

– short visits: up to a maximum four hours;

– long visits: at least two per year.

(b) Persons (including those in the previous category) with the status of suspect, accused, detainee or person transferred to a remand prison

– short visits: limited to three hours.

– long visits: none.

Law

Article 35 ( six-month time-limit ): The Court provided the following further information:

(a) Refusal to allow specific visits – Such refusals should be regarded as instantaneous acts. The part of the application concerning the first of the impugned refusals had been out of time: since the parents had requested the visit on behalf of their son, the six-month time-limit had started when they had been apprised of the refusal.

(b) Practical arrangements for the visits that had been authorised – In the absence of an effect ive remedy against the domestic legal provisions on the use of partition walls and communication devices in visiting rooms, on the one hand, and the considerable variations in the conditions under which the visits had taken place, on the other, the complai nt should be regarded as covering an ongoing situation which had ended only with the applicant’s transfer to a correctional colony after his conviction.

Conclusion : inadmissible in respect of the first of the visits in issue, and admissible in respect of t he others.

Article 8: The Court saw no reason to depart from its findings of a violation in, for example, the Andrey Smirnov v. Russia judgment (43149/10, 13 February 2018), in connection with the lack of any specific circumstances justifying either the re fusal to authorise certain visits or the practical arrangements for the visits authorised (partition wall and close surveillance by a prison officer).

Conclusion : violation (unanimously).

Article 14 read in conjunction with Article 8: The restrictions on t he applicant’s visiting rights had been linked to his status as an accused person placed in a remand prison, which is covered by the concept of “other status” within the meaning of Article 14.

The applicant compared two groups of persons deprived of their liberty at different stages in criminal proceedings: first of all, persons whose convictions were not final and, on the other, persons whose convictions were res judicata . Even though the aims of their respective detention were different, these two categor ies of detainees were nevertheless comparable as regards the right to respect for their private and family lives.

In that connection, regard should be had to the European Prison Rules (Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe), noting that:

– Rule 10.1 defined their scope as covering all detainees, drawing no distinction between pre-trial detention and detention in order to serve a criminal sentence;

– under Rule 99, unless there was a specific prohibition for a spec ified period by a judicial authority in an individual case, untried prisoners should receive visits in the same way as convicted prisoners.

Regard should also be had to the opinion voiced by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), to the effect that the practice of detaining untried prisoners in remand prisons in Russia was based on a misguided “confinement” concept which should be completely reformed.

Restrictions on the visiting rights of untried prisoners derive automatically from the applicable rules and statutes, regardless of the reasons for their placement in pre-trial detention, the stage reached in the criminal proceedings against them or any security considerations.

As regards, i n particular, the applicant’s inability to secure authorisation for a long visit by his parents, the regulations applied in remand prisons would seem to be broadly equivalent to those applied to life prisoners subject to a strict regime in a special correc tional colony. The Court took the view that although it was permissible, to some extent, to link up the severity of the sentence to a specific type of prison regime, there was nonetheless no objective and reasonable justification for applying to accused pe rsons who had not been finally sentenced and who should benefit from the presumption of innocence principle, the level of restrictions applicable to persons convicted of very serious and dangerous offences, who were imprisoned mainly in order to isolate th em.

In the absence of relevant submissions from the Government, the Court discerned no objective justification for such a difference in treatment in respect of both the length of the short visits and the granting of long visits. All restrictions on detaine es’ visiting rights had to be justified, in each individual case, by reasons relating, in particular, to the prevention of disorder, the protection of security and public safety, or the need to protect the legitimate interests of an investigation.

Conclusi on : violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage.

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

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