Khoroshenko v Russia (European Court of Human Rights, Grand Chamber, Application No. 41418/04, 30 June 2015)
The European Court of Human Rights found that serious restrictions on a life prisoner’s family visits violated Article 8 of the European Convention on Human Rights. The restriction was non-rehabilitative in nature and its undifferentiated application to all life-sentence prisoners were disproportionate.
This case concerns the applicant, Andrey Khoroshenko, who is a Russian national. He was convicted of murder and sentenced to death in 1995. His sentence was changed to life imprisonment in 1999 and he is currently serving that life sentence.
In October 1999, the applicant was transferred to a correctional colony for life prisoners. During the first ten years of his imprisonment he was allowed to receive no more than one visit from relatives, lasing no longer than four hours, every six months. These were non-contact visits, and prison guards overhead every conversation with family members.
This special regime is usually applicable for ten years after the date of arrest. However, in the applicant’s case, this ten year period was calculated from October 1999 when he was placed in the correctional colony. This was because of the application of a special rule for prisoners who had misbehaved during their detention on remand.
The applicant maintains that due to these severe restrictions he lost contact with some family members, including his son.
In August 2004 the applicant lodged a complaint with the Russian Constitutional Court, which rejected his claim that the restrictions were discriminatory and breached his right to respect for private life.
In October 2004, the applicant lodged an application with the European Court of Human Rights. He complained that the restrictions on contacts with his family members under the regime in the correctional colony from October 1999 to October 2009 had been in breach of his rights under Article 9 and Article 14 of the Convention.
A Grand Chamber hearing took place on 3 September 2014.
There was a unanimous decision of the European Court of Human Rights in favour of the applicant.
The Russian legislation violated Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The court looked at the regulation of prison visits in other Council of Europe member States and observed a great variety of practices. However, visits in member States were all not lower than once every two months. A majority of these States did not discriminate between prisoners sentenced to life and other prisoners. Russia was the only state to treat life prisoners as a group and force upon them a low frequency of visits over a long time. These restrictions made the applicant considerably worse off than an average prisoner serving a long-term sentence in Russia.
The Court referred to its case law, and reinforced that it had consistently ruled that prisoners generally enjoyed all fundamental rights guaranteed by the Convention except the right to liberty. Where there is a severe measure that limits Convention rights, there had to be a sufficient link between the measures and the conduct and circumstances of the involved individual. The Russian Government states that the restrictions aimed at the ‘restoration of justice, reform and the prevention of new crimes’. The Court found that the restrictions on family visits were not proportionate to the Government’s aims. The restrictions complicated the applicant’s social reintegration and rehabilitation and isolated him.
In addition, the Court referred to the recommendations of the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment. These recommendations stated that long term prison regimes should seek to compensate for the desocialising effects of imprisonment.
The applicant’s claim succeeded under Article 8, and the court did not see the need to separately examine the complaints under Article 14.
Just satisfaction (Article 41)
Russia was ordered to pay the applicant 6,000 euros for non-pecuniary damage and 11,675 euros in costs and expenses.
This case is one in a growing trend of increasing rights for prisoners serving life-sentences. For example, the ECHR in Vinter v UK and Hutchinson v UK held that whole life sentences that denied any possibility of review and release were in breach of Art 3 ECHR (inhumane and degrading treatment).
Moreover, policies applying to life imprisonment are increasingly becoming standardized with reference to policies that apply to other prisoners.
The case represents a limit on State regulation in the area of penitentiary policy. Life imprisonment cannot be considered ‘civil death’, and the aims of regulations around life imprisonment cannot ignore social reintegration and rehabilitation. The loss of hope of prisoners serving life sentences is no longer acceptable. The Court rejected the Russian Government’s retributivist arguments that isolating life prisoners should be the sole aim of the relevant prison regime.
The Court also emphasized the need to have flexible penitentiary policy that can be tailored to the individual circumstances of the prisoner, instead of blanket bans.
The Court’s main judgement focused on the lack of proportionality between the aims of the Russian Government and the policy put in place. The concurring opinion criticized this approach on the basis that lack of legitimate aims should alone be enough to find a breach of the Convention.
The decision can be found online here.
Beatrice Paull is a legal researcher at the Human Rights Law Centre.