European Court of Human Rights

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Cite as: [2012] ECHR 196

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THIRD SECTION

DECISION

Application no. 19279/03
by Igor BANNIKOV
against Latvia

The European Court of Human Rights (Third Section), sitting on 17 January 2012 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 12 June 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Igor Bannikov, is a Russian national who was born in 1966 and, having been sentenced by the Latvian courts, is currenty serving a prison sentence in Russia.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant’s detention and trial

On 7 May 2002 a fight took place between the applicant and two adult males who were fishing in Rīga. One of them, S.K., died as a result. After the fight the applicant fled the scene.

On 27 May 2002 the applicant was arrested on suspicion of murder.

On an unspecified date in December 2002 the case file was sent for adjudication to the Rīga Regional Court (Rīgas apgabaltiesa).

On 15 January 2003 a judge refused the applicant’s request that he be released, on the grounds of the gravity of the offence with which he had been charged.

On 31 January 2003 a judge refused the applicant’s request for release as unsubstantiated.

On 14 May 2004 the Rīga Regional Court convicted the applicant of aggravated murder and hooliganism; he was sentenced to sixteen years’ imprisonment. As an additional penalty the court ordered his expulsion from Latvia.

On 2 March 2005 the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) upheld the ruling of the first-instance court.

On 18 May 2005 the Criminal Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departments) dismissed the applicant’s appeal on points of law in a preparatory meeting.

On an unspecified date the applicant was transferred to a prison in Daugavpils to serve his sentence.

It appears that on 16 June 2011 the applicant was transferred to Russia to continue serving his sentence.

2. Refusal of long-term visits and subsequent review

On several occasions the relevant prison authority refused long-term visits in prison by the applicant’s partner, M.B., and her daughter, R.B., born in 2000, who he considered to be his only family in Latvia. The applicant lodged complaints against these refusals.

On 16 June 2006 the Daugavpils prison administration referred to section 45 of the Sentence Enforcement Code and observed that the applicant had a right to receive a long-term visit by R.B. if he was noted as her father in her birth certificate. The applicant could not receive a long term visit from M.B. since she was not close family. It appears that the applicant further complained to the Prisons Administration (Ieslodzījumu vietu pārvalde) and the Daugavpils prison administration replied to the latter that the applicant had not received any short-term visits from M.B. during his imprisonment.

On 12 October 2006 the applicant requested a long-term visit by his partner and her daughter. In reply, he received the following statement written on his request: “You have received an answer in writing in this respect”.

According to the applicant, he received a short-term visit from M.B. and R.B. in Daugavpils prison in June 2007.

The applicant was refused a short-term visit during his stay in the prison hospital in Rīga. He complained about the refusal and on 13 June 2007 he received a reply that only tuberculosis patients were allowed to receive short-term visits with the permission of a doctor, or seriously ill patients, with the permission of the head of the hospital.

Subsequently, a complaint by the applicant concerning long-term visits was accepted for review by the Ombudsman’s office.

On 18 April 2008 the Ombudsman delivered his opinion, which was not binding on the domestic authorities. He noted that the application of section 45 of the Sentence Enforcement Code was not uniform among the domestic authorities, but that in Daugavpils prison, in particular, long-term visits were often refused in the form of a simple reply using ambiguous phrases such as “to be refused in accordance with the law” or “impossible to determine the visit’s usefulness”. The refusal in the applicant’s case had been given in one sentence, informing him that M.B. was not close family. No other options had been considered, for example, that the applicant could also receive a long-term visit by M.B. (and not only R.B.). No individual assessment had been made in his case, which had breached the rules on administrative procedure.

On the one hand, the Ombudsman observed that even if the applicant had complained to the Prisons Administration and the administrative courts about the refusal of long-term visits, it was most likely that he would not have been granted such visits; he could, rather, only have received compensation. On the other hand, the Ombudsman informed the applicant that he could lodge a complaint with the Constitutional Court (Satversmes tiesa) about the compliance of the legal provision concerning such long term visits with the Constitution (Satversme).

On 12 May 2008 the applicant lodged a complaint with the Constitutional Court. By a decision of 4 June 2008 it was dismissed on formal grounds for non-compliance with the applicable admissibility criteria.

On 22 November 2008 the applicant applied to the administrative courts with his complaint concerning long-term visits.

On 22 January 2009 the Administrative District Court (Administratīvā rajona tiesa) exempted the applicant from the payment of the state duty and admitted the complaint for examination in part, in so far as an action of a public authority (faktiskā rīcība) was concerned (refusal of long-term visits by M.B. and R.B.). The applicant’s compensation claim for 20,000 Latvian lati (LVL) was not admitted, as he had not lodged such a claim with the Prisons Administration (in contrast to his complaint concerning an action of a public authority). The applicant lodged an ancillary complaint against this decision with the Administrative Regional Court (Administratīvā apgabaltiesa), to no avail.

Hearings were scheduled for 17 February 2010, but did not take place since the applicant was not taken to those hearings. The next hearing was scheduled for 20 July 2010.

On 5 August 2010 the Administrative District Court examined and dismissed the applicant’s complaint. The district court found that the applicant had on numerous occasions asked for permission to receive long term visits by M.B. and R.B. It considered that this had constituted an interference with the applicant’s rights under Article 8 of the Convention and Article 96 of the Constitution and that it had been prescribed by law (section 45 of the Sentence Enforcement Code). Notwithstanding, the district court held as follows:

“The court notes that the applicant can prove his father-daughter relationship by showing the birth certificate of R.B., where he is recorded as her father. The defendant [the Prisons Administration] confirmed during the hearing that the applicant could receive a long-term visit by his daughter, if he produced her birth certificate. The applicant, for his part, considered that he did not need to prove anything.

The court finds that the prison administration has not set an insurmountable obstacle by asking the applicant to provide documents attesting to his family relationships. The case file shows that the applicant has received several short-term visits by his partner, M.B., and her daughter, R.B., during which they could [in principle] comply with the formal requirement to show the R.B.’s birth certificate to receive a long-term visit [by her].

In view of the above, the court concludes that the applicant and the person from whom he requests to receive a long-term visit have not taken minimal steps to prove the applicant’s relationship with R.B. This created doubts that the applicant had a family relationship with R.B. Thus the defendant’s refusal to allow long-term visits by M.B. and R.B was justified.”

The applicant lodged an appeal against this ruling, which was initially refused on formal grounds, but later accepted by a decision of 8 April 2011 of the Administrative Regional Court.

On 9 June 2011 the Administrative Regional Court, in a final decision, upheld the ruling of the first-instance court.

B. Relevant domestic law

The relevant part of section 45 of the Sentence Enforcement Code (Sodu izpildes kodekss) provides as follows:

“Convicted persons shall be allowed ... to receive long-term visits (up to forty-eight hours). The convicted person shall be allowed to live together with his or her close family members during a long-term visit. The following persons shall be considered to be close family: parents, children, adoptive parents, siblings, grandfathers and grandmothers, grandchildren and spouses. If a convicted person does not have close family, or if they do not visit him or her, the prison administration may authorise long-term visits from other relatives or other persons.”

COMPLAINTS

In his first letter to the Court, posted on 12 June 2003, the applicant made several complaints under Article 3, Article 6 §§ 2 and 3 and Article 8 of the Convention. He posted the completed application form on 11 July 2003 and maintained those complaints.

The applicant introduced further complaints concerning the alleged use of force, forced labour, evaluation of evidence, procedural defence rights, discrimination and property rights. In particular, on 8 January 2004 the applicant complained about the length of his pre-trial detention. Lastly, on 19 August 2010 the applicant complained that he had not been able to receive long-term visits in prison by his long-term partner and her daughter.

THE LAW

A. Complaint concerning the length of the applicant’s pre-trial detention

The applicant complained about the length of his pre-trial detention. The Court will examine this complaint under Article 5 § 3 of the Convention which, in so far as relevant, provides as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicant’s complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Complaint concerning long-term visits

The applicant complained that he had not been able to receive long term visits in prison, in particular, by his partner and her daughter. The Court will examine this complaint under Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

C. Other complaints

The applicant further complained under different Articles of the Convention about numerous other alleged violations of his rights.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of his pre-trial detention and long-term visits in prison;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall
Deputy Registrar President