Information Note on the Court’s case-law 205

March 2017

Polyakova and Others v. Russia - 35090/09, 35845/11, 45694/13 et al.

Judgment 7.3.2017 [Section III]

Article 8

Article 8-1

Respect for family life

Lack of due regard to impact on family life when allocating prisoners to remote penal facilities: violation

Facts – The applicants, prisoners and their families, had been affected by decisions of the Russian Fe deral Penal Authority (“the FSIN”) on prisoners’ allocation to post-conviction penal facilities. In the Convention proceedings, they alleged, in particular, violations of Article 8 on account of the lack of an effective opportunity for them to maintain fam ily and social ties during imprisonment in remote penal facilities.

Law – Article 8: While punishment remained one of the aims of imprisonment, the emphasis in European penal policy was on rehabilitation. According to the European Prison Rules , national authorities were under an obligation to prevent the breakdown of family ties and provide prisoners with a reasonably good level of contact with their families, with visits organised as often as possible and in a s normal a manner as possible. 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 the sphere of regulation of visiting rights of prisoners had been narrowi ng.

It was common ground between the parties that there had been an interference with the applicants’ right to respect for family life. The applicants argued that that interference had not been in accordance with the law.

Even where the geographical dista nce between a prisoner’s home and a penal facility was identical in respect of two prisoners, the capacity of their relatives to visit them could be radically disparate. What was required of the domestic law in the field of geographical distribution of pri soners was not that it defined a yardstick to measure the distance between a prisoner’s home and a penal facility or exhaustively listed grounds for derogation from the applicable general rules, but rather that it provided for adequate arrangements for an assessment by the executive authority of that prisoner’s and his or her relative’s individual situation.

(a) Initial allocation to a remote penal facility – The relevant domestic law established a general rule on geographical distribution of prisoners in Russia, according to which prisoners should be allocated to penal facilities, located in either their home region or conviction region (the general distribution rule). The law provided for an automatic exception to the general distribution rule, in respec t of a specific category of prisoners (those convicted of crimes such as kidnapping, aggravated human-trafficking and terror attacks) as it empowered the FSIN to freely allocate an individual belonging to such a category to a penal facility located anywher e in Russia irrespective of his or her place of residence or conviction. Nothing in the domestic law enabled that person or his family to foresee the manner of its application. The scope of such discretion conferred was not defined with sufficient clarity to give the individual adequate protection against arbitrary interference. There were no safeguard mechanisms that could counterbalance the FSIN’s extensive discretion or any mechanisms to weigh the competing individual and public interests and assess the proportionality of the relevant restriction to the rights of the persons concerned.

While the Convention did not grant prisoners the right to choose their place of detention, States had to aim to maintain and promote prisoners’ contacts with the outside world. To achieve that aim, domestic law should provide a prisoner (or where relevant, his or her relatives) with a realistic opportunity to advance before the domestic authorities reasons against his or her allocation to a particular penal facility, and to have them weighed against any other considerations in the light of the requirements of Article 8. The domestic authorities had to perform, before deciding on allocation to a penal facility, an individual assessment of a prisoner’s situation.

(b) Transfer to another facility – The applicants had attempted to obtain a prisoner transfer to another facility located closer to their respective families’ homes. The relevant rules provided that a prisoner should serve their sentence in its entirety in the same penal facility. That r ule was applicable regardless of whether the initial allocation of a prisoner had been made pursuant to the general distribution rule or as an exception to it. The FSIN’s response to the applicants indicated that their personal situations and their interes t in maintaining family ties were not considered by the executive authority as grounds for warranting their transfer. The FSIN agencies’ interpretation of the provision had been inconsistent and that was illustrative of the unpredictability of the manner i n which the law could be applied by the executive.

(c) Judicial review of the FSIN’s decisions – In the light of the continuous detention rule, the FSIN’s decisions on allocation of prisoners led to long-term consequences. It followed that, unless another decision was taken at a later point, the impact on a convicted person’s family life of the FSIN’s decision to allocate a convicted person to a remote penal facility, as well as the impact on his or her family, could be very long-lasting, if not lifelong. The impugned interference with the applicants’ right to respect for family life would, by its very nature, call for particularly searching scrutiny by an independent judicial authority.

The applicants had complained about the FSIN’s decisions to the domes tic courts. However, their arguments concerning the adverse impact of imprisonment in a remote penal facility on their family and social ties were dismissed as altogether irrelevant. The domestic courts failed to carry out a balancing exercise in order to genuinely review the proportionality of the impugned interference in the light of the criteria established by the Court’s case-law under Article 8.

(d) Conclusion – The Russian domestic legal system did not afford adequate legal protection against possibl e abuses in the field of geographical distribution of prisoners and the applicants were deprived of the minimum degree of protection to which they were entitled under the rule of law in a democratic society. Accordingly, the relevant provisions did not sat isfy the quality of law requirement and it was not necessary to examine whether the other requirements of paragraph 2 of Article 8 had been complied with.

Conclusion : violation (unanimously).

The Court also found, unanimously, a violation of Article 6 § 1 in respect of one of the applicants.

Article 41: sums ranging from EUR 652 to EUR 7,800 each in respect of non-pecuniary damage.

(See Khodorkovskiy and Lededev v. Russia , 11082/06 and 13772/05, 25 July 2013, Information Note 165 )

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

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