European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF KHAMASTKHANOVA AND OTHERS v. RUSSIA

(Applications nos. 1164/12 and 20 others –

see appended list)

 

 

 

 

 

 

JUDGMENT

 

STRASBOURG

8 July 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Khamastkhanova and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 17 June 2021,

Delivers the following judgment, which was adopted on that date:

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.

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the allocation or transfer to a remote penal facility irrespective of family life considerations. Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

I.        JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.      as to locus standi of the applicants, applications nos. 1164/12 and 57234/18

A.    Application no. 1164/12

6.  The Court notes that it is clear from the materials submitted by the Government that at least, as of 2010, the first applicant Ms Khamastkhanova was no longer married to the second applicant Mr Bashtayev who had been married to a Ms Mer during the period under consideration. In the absence of any evidence to the contrary, the first applicant cannot be said to have had any family life with Mr Bashtayev within the meaning of Article 8 of the Convention after their divorce. The Court accordingly finds the complaint lodged by the first applicant, Ms Khamastkhanova, to be incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be rejected pursuant to Article 35 § 4 of the Convention.

7.  The Court further notes that the third applicant Ms Bashtaeyeva died on 24 February 2020 and that no heirs or other persons have expressed the wish to pursue the application before the Court on her behalf. The Court finds no special circumstances regarding respect for human rights which require the continued examination of the complaint lodged by Ms Bashtayeva and considers it appropriate to strike this part of the application out of its list of cases under Article 37 § 1 (c) of the Convention.

B.    Application no. 57234/18

8.  The Court notes that the first applicant Mr Tolmachev died on 9 November 2020 and that the second applicant Ms Tolmacheva, his widow, asked the Court to continue the examination of the application in his stead. The Court takes into account Ms Tolmacheva’s statement and the specific nature of the case related to family rights set out in Article 8 of the Convention. It accepts that Ms Tolmacheva has standing to pursue the proceedings initiated jointly by her and her late husband.

III.  ALLEGED VIOLATION OF ARTICLE 8 of the Convention

9.  The applicants complained principally of the allocation or transfer to a remote penal facility irrespective of family life considerations. They relied, expressly or in substance, on Article 8 of the Convention, which reads as follows:

Article 8

“1. Everyone has the right to respect for his private and family 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.”

10.  The Court reiterates that it has already established that it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or her, or if need be, assist him or her, to maintain contact with his or her close family (see, with further references, Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015), and that, on the issue of family visits, Article 8 of the Convention requires States to take into account the interests of the convict and his or her relatives and family members (ibid., § 142). The Court has also found that placing a convict in a particular penal facility may raise an issue under Article 8 of the Convention if its effects on his or her private and family life go beyond the “normal” hardships and restrictions inherent in the very concept of imprisonment (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 837, 25 July 2013), and that, in that case, given the geographical situation of remote penal facilities and the realities of the Russian transport system, both prisoners sent to serve a sentence far from their home and members of their families suffered from the remoteness of the facilities (ibid., § 838).

11.  In the leading cases of Polyakova and Others v. Russia, nos. 35090/09 and 3 others, 7 March 2017, and Voynov v. Russia, no. 39747/10, 3 July 2018, the Court already found a violation in respect of issues similar to those in the present case.

12.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that the interference with the applicants’ right to respect for family life was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.

13.  These complaints are therefore admissible and disclose a breach of Article 8 of the Convention.

IV.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

14.  Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well-established case-law (see Idalov v. Russia [GC], no. 5826/03, §§ 103-08, 22 May 2012 and Tomov and Others v. Russia, nos. 18255/10 and 5 others, §§ 92-156, 9 April 2019, concerning conditions of transport and lack of an effective remedy in this regard, Gorlov and Others v. Russia, nos. 27057/06 and 2 others, §§ 58-110, 2 July 2019, concerning placement of detainees under permanent video surveillance and the lack of an effective remedy in that respect, and Voynov, cited above, §§ 38-48, concerning lack of an effective remedy in respect of allocation or transfer to a remote detention facility).

V.    REMAINING COMPLAINTS

15.  In applications nos. 47332/18, 23591/19, 38295/19 and 56340/19, the applicants also raised other complaints under various Articles of the Convention.

16.  The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

18.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Polyakova and Others, cited above, §§ 134-35, 7 March 2017, Voynov, cited above, § 58, and Pukhachev and Zaretskiy v. Russia, nos. 17494/16 and 29203/16, 16 November 2017), the Court considers it reasonable to award the sums indicated in the appended table.

19.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Decides to strike application no. 1164/12 in part relating to the complaints lodged by Ms Bashtayeva out of its list of cases in accordance with the Article 37 § 1 (c) of the Convention;

3.      Holds that Ms Tolmacheva has standing to pursue the proceedings initiated jointly by her and her late husband, Mr Tolmachev (application no. 57234/18);

4.      Declares the complaints concerning the allocation or transfer to a remote penal facility irrespective of family life considerations and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of applications nos. 1164/12 (in respect of the complaints lodged by Ms Khamastkhanova), 47332/18, 23591/19, 38295/19 and 56340/19 inadmissible;

5.      Holds that these complaints disclose a breach of Article 8 of the Convention concerning the allocation or transfer to a remote penal facility irrespective of family life considerations;

6.      Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see the appended table);

7.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 8 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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)