Visiting restrictions, the existence of a glass partition and the presence of a guard during family visits and the great distance of the prison facility from the relatives’ residence violate the prisoner’s right to his / her family life
JUDGMENT
Resin v. Russia 18.12.2018 (no. 9348/14)
SUMMARY
Rights of prisoners in family life. The limited number of relatives in the applicant’s visit, the existence of a glass partition in the visitor room, the constant supervision of his relatives ‘visits by the prison staff and the great distance of the prison (7,000 km) from the relatives’ residence violated the prisoner’s right in their family life, since these interventions were not necessary in a democratic society.
PROVISION
Article 8
PRINCIPAL FACTS
The case concerned a convicted prisoner’s complaint about restrictions on family visits.
The applicant, Andrey Resin, is a Russian national who was born in 1974 and is serving a life sentence
in the Sverdlovsk Region (Russia).
He served his sentence from 2012 to 2014 in penal colony IK-56 in the Sverdlovsk Region, which is
7,000 kilometres from his home town of Khabarovsk. During his time in this facility he was able to
have six short visits from his family, with a glass partition separating them and supervised by a prison
officer. He made a request to have visits without such restrictions, but it was rejected.
When transferred to a remand prison in Khabarovsk for two months in 2014 as part of an
investigation, he requested to have both short and long visits with his family. The prison governor
said it was up to the investigator to decide about the short visits, with the investigator and his
supervisor later rejecting his request. The governor rejected his request for a long visit because the
applicable law did not allow them for convicted prisoners taken to a remand prison from a
correctional facility as part of an investigation.
All of his challenges before the courts were apparently dismissed as unfounded.
Relying in particular on Article 8 (right to respect for private and family life), Mr Resin complained
that the restrictions on his family visits in the penal facility and remand prison had been excessive.
THE DECISION OF THE COURT
As is well established in the Court’s case-law, on imprisonment a person forfeits the right to liberty but continues to enjoy all other fundamental rights and freedoms, including the right to respect for family life, so that any restriction on those rights must be justified in each individual case. Detention entails inherent limitations on his family life, and some measure of control of the detainee’s contacts with the outside world is called for and is not of itself incompatible with the Convention. However, it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or, if need be, assist him to maintain contact with his close family.
An interference with a prisoner’s right to respect for his or her family life does not need to amount to an outright ban on family visits, but can consist in various other measures taken by the prison authorities. The Court has thus found that limitations on the frequency and duration of family visits, supervision of those visits and the subjection of a detainee to special visiting arrangements constitute an interference with the applicants’ rights under Article 8 of the Convention.
The applicant complained that he had been denied both short and long-stay visits during his time in the Khabarovsk remand prison and that, in the IK-56 facility, the number of visiting family members had been limited to two adults and short visits were conducted in the presence of a prison officer through a glass partition. The Court has established that denial of visits, separation barriers and other restrictive arrangements amount to an interference with the right to respect for family life. It remains to be seen whether they were applied “in accordance with the law”, pursued one or more of the legitimate aims listed in paragraph 2 and, in addition, were “necessary in a democratic society”.
2. Justification for the interference
(a) Limitation on the number of visiting family members
The Rules of Internal Order in Penal Facilities, as in force at the material time, restricted the number of adult family members who could visit a prisoner to two people . That rule applied in a general manner, regardless of the duration of the visit, and admitted no exceptions. Unlike a newer version of the same Rules, that restriction was not based on the capacity or availability of premises for long-stay visits.
The Court is satisfied that the impugned two-visitor restriction is no longer part of regulations governing prison visits. However, this does not alter the fact that, as it was in force at the material time, it impinged on the applicant’s right to respect for his family life and prevented four members of his extended family from visiting him in prison. The Court considers that, in the absence of any grounds or the Government’s arguments to the contrary, such inflexible regulation, which was unrelated to the availability or capacity of long-stay visiting rooms, was not necessary in a democratic society.
(b) Separation with a glass partition and presence of an officer
During his time in the IK-56 facility, the applicant was separated from his visitors by a glass partition and supervised by a prison officer during short visits throughout the entire period of his detention. He pointed out that the separation had been maintained even after he had been transferred from the strict-security regime to the standard-security regime and later to the light-security regime. He could have unsupervised long-stay visits, living together with his family, but could not touch them or talk to them in private during short visits.
The Government submitted that the rooms for short visits in the IK‑56 facility were equipped with “standard-issue cabins with a glass partition”. The inventory of the equipment had been established by Order no. 512 of 27 July 2006 of the Federal Penal Service.
The Court reiterates that the prohibition of physical contact between the detainee and his visitors may be justified by security considerations in certain cases but cannot be considered necessary in the absence of any established security risk .
The Government did not point to any security considerations which may have warranted physical separation of the applicant from his family or their constant supervision by a guard. The fact that the applicant was transferred to the light-security regime suggested that he was neither violent nor likely to cause injury to his visitors. In contrast to cases in which physical separation and supervision were needed to prevent the risk of collusion or passing information through family channels, the applicant had already been convicted and that risk was not present in the instant case. Nor has it been claimed that the barrier between the applicant and his visitors was necessary on account of any public-health concerns. It would therefore appear that the use of the security installation was a matter of routine rather than a reaction to any specific security risks or prison order issues.
Rule 78 of the Rules of Internal Order in Penal Facilities required that visitors arriving for long visits submit to a full search. If they refused, they could have a short supervised visit behind a physical barrier. The search requirement could have been deemed necessary to prevent prohibited objects or substances from being passed to detainees. The Government did not however explain why visitors on a short visit were not given any choice and were barred from having an unsupervised meeting without a physical barrier in all circumstances. Even if they could have agreed to being searched if requested to do so, Russian law did not offer them the option of uninhibited physical contact. Such an inflexible and automatic regulation of short-visit arrangements cannot be accepted as being “necessary in a democratic society” because the State does not have a free hand in introducing restrictions in a general manner without affording any degree of flexibility for determining whether the limitations are appropriate or indeed necessary in specific cases .
It follows that the measure consisting in physically separating the applicant from his visitors and supervising their short visits has not been shown to have been “necessary in a democratic society”.
(c) Refusal of short visits in the remand prison
During his stay in the Khabarovsk remand prison the applicant twice sought permission for his family to come on a short visit. Permission was withheld. Firstly the prison governor shifted the responsibility for authorising a visit onto the investigator. Later the investigator and his supervisor declined to authorise a visit.
Under Article 77.1 of the Code of Execution of Sentences, the matter of exercising visiting rights during a convicted prisoner’s stay at a remand prison was governed by section 18 of the Pre-trial Detention Act. The Court has previously found that this provision does not meet the “quality of law” requirement, in that it confers on the authority in charge of the case unrestricted discretion to grant or refuse prison visits. It does not limit the scope of the discretion and the manner of its exercise, and deprives the detainee of the minimum degree of protection against arbitrariness or abuse to which citizens are entitled under the rule of law in a democratic society.
In these circumstances, the Court reiterates its earlier finding that the interference based on a provision which it has previously found to be insufficiently precise and foreseeable in its application, was not “prescribed by law”. There is accordingly no need to examine whether it was “necessary in a democratic society”.
(d) Refusal of long visits in the remand prison
The applicant pointed out that he had been sent to serve the sentence in a facility located in a remote and inaccessible area some 7,000 kilometres from his home town of Khabarovsk where his family lived. Arranging a long-stay visit during his temporary stay in a remand prison in Khabarovsk would have saved his elderly mother the effort and expense of travelling to the remote location. The refusal could not have been due to the lack of suitable premises because the prison was equipped with rooms for long-stay visits.
However, beyond a reference to the applicable legal provision, the Government did not explain the legitimate aim or give any justification for the impugned measure. Nor did they provide any information which could have explained the general policy choice made by the legislature in favour of denying long-stay family visits to the individuals in the applicant’s situation who have been moved to a remand centre. By contrast, “stationary” categories of convicted prisoners, including those who served their sentence in the same remand prison to which the applicant had been transferred, did not forfeit their right to long-stay visits. It also notes that the Khabarovsk remand prison was equipped with visiting facilities suitable for long-stay visits. It also appears that the measure affected the applicant in a particularly harsh way. He was serving his sentence far away from his home town. After he was brought back to the place where his family lived and even though suitable accommodation was available in the same remand prison, he was still unable to have a long-stay visit from his family because of a general policy, for which no explanation has been put forward. The Court finds therefore that the restriction did not pursue a legitimate aim and was not “necessary in a democratic society”.
(e) Conclusion
In the light of the above considerations, the Court finds that there has been a violation of Article 8 of the Convention on account of the limitation of the number of visiting adults in the IK-56 facility, the physical separation and constant supervision during short visits in that facility, and the refusal of short and long-stay visits in the Khabarovsk remand prison.
Violation of Article 8
Just satisfaction: EUR 7,500 (non-pecuniary damage) and EUR 1,500 (costs and expenses)(echrcaselaw.com editing).
