The unjustified restrictions on remand pre -trial prisoners’ rights in terms of family visits, violates the right to protection of family life and constitutes a prohibited discrimination.

JUDGMENT

Chaldayev v. Russia 28.05.2019 (no. 33172/16)

see here  

SUMMARY 

Pre –trial  detention of a defendant and right to visit from family. The state has no right to lay down  restrictions on visits to relatives of pre-trial prisoners that are not considered appropriate and really  necessary. The applicant was held  on pre –trial detention and before his conviction became final , was denied the right to communicate with his parents, since the demands of his parents and his own for a visit,  were rejected by the Court without justification. The EU Court held that there had been a violation of Article 8 of the Convention (the right to private and family life) because the applicant was deprived of communication with his parents due to  restrictions imposed by the State without considering whether they were appropriate and necessary and violation of Article 14 (prohibition of discrimination) because the restrictions on the applicant’s visiting right was not justified as an individual case, but  he was equated to that , of a life prisoner  although he was pre trial prisoner and he should have the benefit from the presumption of innocence.

PROVISIONS

Article 8

Article 14

PRINCIPAL FACTS

The applicant, Artur Rinatovich Chaldayev, is a Russian national who was born in 1986. He is
currently detained in Ruzayevka.

On 24 January 2013 Mr Chaldayev, who was suspected of involvement in armed robbery, was
charged with the corresponding offence. On 18 May 2015 he was sentenced to thirteen years’
imprisonment. Mr Chaldayev appealed.

On 1 June 2015 Mr Chaldayev’s parents requested authorisation to visit their son. The judge
dismissed their request on the grounds that the parents had already been granted a visit shortly
beforehand. They complained about that decision to the President of the court, but their complaint
was dismissed.

On 10 August 2015 Mr Chaldayev requested authorisation to receive a visit from his parents. His
request was dismissed, no reasons being given for that decision. On 5 October 2015 the parents lodged two requests for authorisation to visit their son with the Supreme Court of the Republic of Mordovia. The Supreme Court dismissed their requests.

In the meantime, on 11 October 2015 Mr Chaldayev had lodged a complaint with the Prosecutor of
the Republic of Mordovia complaining about the small number and short duration of the visits which
he had received in prison. The visits had taken place in a room with a partition wall preventing any
physical contact between the prisoner and his visitors, and he had only been able to talk to his
parents by using a phone, which was tapped by the prison officers.

On 29 October 2015 Mr Chaldayev’s conviction became final, and on 27 November 2015 he was
transferred to a correctional colony to serve his prison sentence.

THE DECISION OF THE COURT 

Article 8

The Court observed that in many previous cases it had found a violation of Article 8 on account of a
refusal to authorise family visits to persons held in pre-trial detention, as well as the presence of a
partition wall between the detainee and his or her visitors. It had, in particular, considered that
section 18 of Law no. 103-FZ did not fulfil the quality and foreseeability criteria, because it conferred
unlimited discretionary powers on the domestic authorities in the sphere of prison visits and did not
define the circumstances under which such visits could be refused.

On 29 July, 12 August and 6 October 2015 the courts had dismissed requests for visits submitted by
Mr Chaldayev and his parents. Those decisions had not been accompanied by reasons.

The Court noted that the restrictions on visits to Mr Chaldayev had been based on paragraph 143 of
the Remand Prison Rules and been applied automatically in respect of all detainees. In that
connection, the Court pointed out that as regards visiting rights, the State could not have unfettered
discretion to lay down general restrictions without allowing for flexibility in determining whether the
restrictions were appropriate or really necessary.

Those facts were sufficient for the Court to find that there had been a violation of Article 8.

Article 14 read in conjunction with Article 8

The Court observed that, as persons deprived of their liberty, both detainees who had not been
convicted in a final judgment and prisoners whose convictions had become res judicata continued to
benefit from the right to respect for their private and family lives. The Court considered that Mr
Chaldayev had been held under conditions comparable to those of a convicted prisoner.

The Court noted that under section 18 of Law No. 103-FZ, visiting time granted to detainees in
remand prisons, including those who had not been convicted by a final judgment, was one hour
shorter (at three hours) than the duration set out in Article 89 of the Code of Execution of Criminal
Sentences (CECS) relating to convicted prisoners (four hours). Similarly, Law no. 103-FZ lacked any
provision for persons detained in remand prisons to receive long visits, whereas the CECS allowed
convicted prisoners to have at least two long visits per year. The restrictions on remand prisoners’
visiting rights were applicable generally to detainees, regardless of the reasons for their placement
in pre-trial detention, the stage reached in the criminal proceedings and any security considerations.
The Court saw no objective justification for such a difference in treatment as regards either the
length of short visits or the entitlement to long visits.

As regards it not being possible for Mr Chaldayev to obtain authorisation for a long visit by his
parents, the Court considered that his detention regime in a remand prison was equivalent to that of
a life prisoner, that is to say a person convicted of extremely reprehensible and dangerous acts,
whose detention involved solitary confinement. The Court could see no objective and reasonable
justification for subjecting the applicant to the same type of restrictions as life prisoners. Accused
persons who had not been convicted by a final judgment should benefit from the presumption of
innocence.

Nor could the Court discern any justification for the three-hour limit on short visits. That limit had
apparently derived from regulations on solitary confinement which the Committee on the
Prevention of Torture (CPT) had questioned in a report of 17 December 2013, inviting the authorities
to conduct an “in-depth review” of them. Indeed, assigning a person the status of suspect or accused
person and detaining him or her in a remand prison automatically limited his or her short visits to
three hours. Moreover, detainees in remand prisons automatically forfeited the right to long visits,
and their status as suspects or accused persons automatically reduced their short visits from four to
three hours.

The Court observed that all restrictions on detainees’ visiting rights had to be justified, in each
individual case, on grounds of prevention of disorder and maintenance of security and safety, or the
need to protect the legitimate interests of an investigation.

The Court found that there had been a violation of Article 14 read in conjunction with Article 8.

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicant 10,000 euros (EUR) in respect of non-pecuniary
damage and EUR 210 in respect of costs and expenses(echrcaselaw.com).


ECHRCaseLaw

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