Credit: A. Savin via Wikimedia Commons
The European Court of Human Rights (ECtHR) issued a unanimous judgment on March 7 holding that imprisoning individuals thousands of miles away from their families violates their right to private and family life protected under Article 8 of the European Convention on Human Rights (ECHR). See ECtHR, Polyakova and Others v. Russia, Nos. 35090/09, 35845/11, 45694/13, 59747/14, Judgment of 7 March 2017. In Polyakova and Others v. Russia, three prisoners were held between 2,000 and 8,000 kilometers from their family members, and the distance, the applicants showed, had a direct effect on how often the prisoners were able to visit with family. Russia’s domestic legal system, the ECtHR found, allows for vast discretion in choosing a prisoner’s location, and does not require consideration of the effect a penal facility’s geographical location may have on a prisoner’s family life when placing a detainee. See id. at paras. 98-101, 116-19. Domestic procedures do not adequately safeguard against abuse of discretion through effective judicial review or another mechanism, the Court found, and, therefore, Russia’s interference with the prisoners’ rights was not justified. See id. at para. 119. The Court in its opinion recognized that the margin of appreciation given to States on “permissible limits of the interference with private and family life” when regulating family visits in prisons “has been narrowing.” See id. at para. 89. A 2013 case against Russia also found that placement in remote prisons and a lack of efficient transportation to those prisons implicated the right to private and family life for prisoners. See ECtHR, Khoroshenko v. Russia [GC], no. 41418/04, Judgment of 30 June 2015. The current case expanded upon that opinion, stating placing prisoners 2,000 to 8,000 kilometers away from family members interfered with their rights.
Case Background
The case involves three prisoners being held in prisons thousands of miles away from their respective families. The first prisoner, R, has a partner and child living 5,000 kilometers away and has only been able to see them three times since September 2008. See Polyakova and Others v. Russia, Judgment of 7 March 2017, paras. 9, 15. The second prisoner, Kh, is being held 8,000 kilometers from where his wife and two daughters live. Between 2008 and 2012, his wife was able to visit eight times, but he has not met one of his daughters and has only seen the other once during his time in detention. See id. at paras. 20-26. Finally, Vladimir Palilov was held in a prison 2,000 kilometers from his mother who died in 2013; she was never able to visit him since his imprisonment in February 2007. See id. at para. 37.
The applicants alleged that holding prisoners in remote areas away from their families was in violation of Article 8 of the ECHR, which protects the rights of “prisoner[s] and [their] relations to maintain social ties during imprisonment,” and that Russia’s interference with their family life was not “in accordance with the law” as required by Article 8. See id. at paras. 77, 80. Before submitting the case to the ECtHR, the applicants requested that the Russian Federal Penal Authority (FSIN) transfer the prisoners to facilities that would allow for family contact, all of which were denied. [ECtHR Press Release] Subsequently, the applicants challenged FSIN’s decisions in Russia’s domestic courts, but these were also denied by the court of first instance and on appeal. [ECtHR Press Release]
European Court’s Analysis
The ECtHR in this case expanded on its past precedent on the obligation to facilitate family visits to ensure prisoners’ right to private and family life. The Court has previously found that Article 8 of the ECHR protects a prisoner’s right to family life, imposes a requirement on States to assist prisoners in maintaining contact with their families during imprisonment and to take into account the interests of the prisoners and their family members, and protects prisoners from being placed in a facility that may impact private and family life beyond the “normal” hardships associated with imprisonment. See Polyakova and Others v. Russia, Judgment of 7 March 2017, paras. 80-81. Taking this into account, the ECtHR found that distances ranging from 2,000 to 8,000 kilometers between the prisoners and their families or relations created hardships that interfered with the applicants’ right to respect for family life. See id. at paras. 82-83.
The Court then turned to discern whether the interference with the applicants’ rights was justified. At issue was whether such interference was “in accordance with the law,” pursued a legitimate aim, and was “necessary in a democratic society” in pursuit of that aim. See id. at para. 85. The ECtHR held that Russia’s interference with the applicant’s rights failed on the first requirement that it be “in accordance with the law.” See id. at para. 118.
For an interference with a human right to be “in accordance with the law,” the domestic law must be accessible and foreseeable and must provide for safeguards against abuse of discretion. The former requirement is so that individuals are able to regulate their conduct in accordance with the law. The latter requirement includes safeguards that ensure that discretion left to the executive is exercised in a lawful manner and that prevent abuse of power. See id. at para. 91. In this case, the ECtHR found that Russia’s domestic law did not provide sufficient safeguards with respect to the initial allocation of the prisoners to a penal facility, the requests to transfer prisoners to a different facility, and the judicial review of the FSIN’s decisions. See id. at paras. 101, 107, 115.
The ECtHR found that FSIN has wide discretion in determining where a prisoner is held but lacks the safeguards and mechanisms necessary to counter its extensive discretion. See id. at paras. 98-101. With regard to a prisoner’s initial placement in a penal facility, the ECtHR noted that generally Russian law requires that prisoners are held in facilities located in the region where they reside or are convicted; however, when the FSIN departs from this rule, the European Court found, there are no requirements making it necessary for the FSIN to consider the implications of locating a prisoner to a facility away from family, to weigh competing prisoner interests with public interests, or to make an individual assessment of a prisoner’s situation. See id. at paras. 94-95, 100-101. FSIN may locate a prisoner outside of the region of conviction or the prisoner’s residence if “there is an ‘impossibility’ to allocate a prisoner” in the appropriate region. The law does not define what constitutes an impossibility. See id. at para. 96.
Similarly, the ECtHR found that domestic law did not provide sufficient safeguards against FSIN’s arbitrary dismissal of transfer requests. See id. at para. 107. In particular, domestic law provides as a general rule that a prisoner should serve an entire sentence in the same facility with certain exceptions, but the law, the ECtHR noted, does not consider family and social ties during imprisonment. See id. at 104. Further, the ECtHR concluded that the FSIN has interpreted the exceptions inconsistently, particularly the provision allowing for transfer due to “other exceptional circumstances”, under which family ties could potentially be offered as a ground for transfer. See id. at paras. 106-107.
Finally, the ECtHR reiterated that measures or interferences affecting fundamental rights must be subject to adversarial proceedings before an independent body. It found that FSIN’s decisions on the prisoners’ locations were not subject to an adequate judicial review process. See id. at paras. 108, 110. In particular, the ECtHR noted that domestic courts interpreting Russian law did not provide applicants with a real opportunity to present arguments pertaining to the rights guaranteed under Article 8 of the ECHR, and, therefore, applicants were prevented from obtaining judicial review of the proportionality between FSIN’s decisions and their interest in maintaining family ties and relations. See id. at paras. 111-15.
Additional Information
During the three-month period following this Chamber’s judgment, either party may request that the case be referred to the Grand Chamber of the Court pursuant to Articles 43 and 44 of the ECHR. If a party requests review of the judgment, a panel of judges will either refer the case to the Grand Chamber or refuse the referral, making this judgment final on that day.
For more information on the European Court of Human Rights, visit IJRC’s Online Resource Hub. For a summary of the European Court’s jurisprudence on detention conditions and treatment of prisoners, see its factsheet.