Court rulings to spotlight human rights protection in Russia

Two European court rulings expected tomorrow (7 March) will place human rights protection in Russia under the spotlight.

Polyakova and Others v. Russia (nos. 35090/09, 35845/11, 45694/13 and 59747/14)

The applicants are either prisoners, or the family members of prisoners, who were adversely affected by decisions of the Russian Federal Penal Authority (“the FSIN”) to imprison individuals far away from their families.

The applicant Elvira Polyakova is the partner of R.. The couple set up home in Vladivostok, and had a child together. However, since September 2008 R. has been imprisoned in the Krasnoyarsk
Region, 5,000 kilometres from Vladivostok. Ms Polyakova and her son have been able to visit him on three occasions.

The applicants Natalya Kibalo, Linda Kibalo and Iman Kibalo are the wife and two daughters (respectively) of Kh. They live in the village of Dubovskaya in the Chechen Republic. Since February 2008, Kh. has been imprisoned in the town of Blagoveshchensk in the Amur Region, 8,000 kilometres away from the family’s home.

Natalya visited her husband on eight occasions between 2008 and 2012, but could not to afford to travel in 2013 or 2014. Linda has made one visit, whilst Iman (who was born during Kh.’s detention) has never seen her father.

Since September 2009 the applicant Ivan Yeliashvili has been imprisoned in the Yamalo-Nenetskiy Region, about 3,300 kilometres from the home of his father, brother, sister and nephew in Noginsk, the Moscow Region. His relatives have never been able to afford to visit him.

The applicant Vladimir Palilov is from the Yaroslavl Region. Since February 2007 he has been imprisoned 2,000 kilometres away in the Yamalo-Nenetskiy Region. His elderly mother and sister could not afford to visit him there. The mother died in 2013.

All of the applicants (except Linda and Iman Kibalo) submitted requests to the FSIN, asking for the relevant locations of imprisonment to be changed in order to allow family contact. All of the requests were refused.

The applicants challenged the refusals in court. All of the claims were rejected, both at first instance and on appeal. In the courts’ reasoning the applicants’ complaints about the distance between a prisoner’s penal facility and their family members were held to be irrelevant to the applicable provisions of the Russian Code on the Execution of Sentences.

Relying on Article 8 (right to respect for private and family life), the applicants complain that the decisions to allocate prisoners to remote penal facilities – and their subsequent inability to obtain transfers – violated their rights to respect for family life. Palilov also complains under Article 6 § 1 (right to a fair trial) that the Russian courts examined his case in his absence, both at first instance and on appeal.

V.K. v. Russia (no. 68059/13)

The applicant, V.K., is a Russian national who was born in 2001 and lives in St Petersburg (Russia).

The case concerns his alleged mistreatment by teachers at his public nursery school when he was four years old. He claims that he was psychologically traumatised by the ill-treatment and developed a neurological disorder.

In the spring of 2005 V.K.’s parents noticed that he had become nervous and unwilling to go to the nursery school he had started attending the previous year.

On 7 November 2005, when picking him up from school, his mother remarked that her son’s eyes were twitching and that he had a bruise on his left temple. A teacher, Ms P., told her that one of the school children had an eye infection and, to prevent it spreading, all the children had been given antibiotic eye drops. Soon after V.K. developed eye and mouth tics and was examined by both an ophthalmologist, who found no eye infection, and a neurologist, who diagnosed hyperkinesia (a state of excessive restlessness affecting the ability to control motor movement and which is mainly
psychological in nature).

Shortly after this incident, V.K.’s parents complained to various local authorities, including the police.

On 16 November 2005 V.K.’s mother notably complained to the local department of education that her son had been administered eye treatment using physical force and without parental consent. As a result, he had developed nervous tics.

She therefore asked that her son be transferred to another nursery. The department replied that her complaints had been confirmed in part, that the nursery’s director as well as two of the teachers had been disciplined and that V.K. was to be transferred to another nursery.

On learning that he would not have to return to the nursery, V.K. told his parents that he had been mistreated by two teachers, Ms P. and Ms K.. He claimed in particular that: on several occasions he had been locked in the dark in the toilets and told that he would be eaten by rats and had been forced to stand in the nursery lobby in his underwear with his arms up for prolonged periods; and, on one occasion, had had his mouth sellotaped. He had also been told that, if he complained to his parents, he would be punished further.

V.K. repeated the same account of his alleged mistreatment when questioned during the ensuing pre-investigation inquiry and criminal investigation. The authorities also questioned a number of witnesses during these proceedings, including: the suspects and the medical nurse who denied any mistreatment; directors – past and present – of the nursery who stated that they had never had any complaints about P. or K.; the parents of children who attended the school, most of whom stated that their children had never complained of being mistreated; and, an assistant teacher as well as some parents who confirmed the incident with the eye drops and described some of the punishments used by the teachers against certain school children, including V.K.

The pre-investigation inquiry was opened on 27 October 2006 following a complaint lodged by V.K.’s parents. Over the following two years and three months the prosecuting authorities issued eight decisions refusing to open a criminal investigation. All these decisions were quashed because they were considered to be incomplete.

The police department eventually decided to open a criminal investigation on 19 January 2009. Aside from recording the various witness statements (mentioned above), the investigators also collected
other evidence from experts in psychiatry and psychology.

In particular, in January 2011 a panel of experts examined V.K. and analysed his medical records. They concluded that V.K. had not suffered from any psychiatric disorder before November 2005 and that he had been subjected to a prolonged, psychologically traumatic experience at the nursery from September to November 2005 that had resulted in a persistent neurological disorder.

On the basis of that evidence, the authorities found it established that the teachers had subjected V.K. to violent acts causing physical pain and cruel treatment.

Ultimately, however, the investigation was discontinued in July 2009 because the prosecution of the teachers under Articles 116 and 156 of the Criminal Code (battery or other violent acts causing physical pain and cruel treatment of minors) had become time-barred.

In the meantime, the authorities had also attempted to prosecute the teachers under Article 112 of the Criminal Code (premeditated infliction of medium severity damage to health).

An essential element of that offence was, however, the intent to cause damage to health and, as the prosecuting authorities had been unable to prove such intent, this investigation was eventually discontinued in November 2014 for lack of evidence.

The decisions to discontinue the investigation were also based on expert advice in April 2009 and January 2011 that, given V.K.’s young age at the time of the alleged mistreatment and the time that had elapsed since, his statements could no longer be considered reliable.

V.K.’s mother lodged numerous complaints with various authorities about delays in the investigation, being denied access to the case file and the authorities’ repeated failure to notify her of important procedural decisions. Most recently, in March 2014, the police department replied that the investigation had been thorough and that there was no need for any further investigative measures.

V.K. continues to suffer from nervous tics, has sleeping difficulties, nervousness and fears. He is regularly examined by a neurologist and follows treatment for a neurological disorder.

Relying on Article 3 (prohibition of torture and of inhuman or degrading treatment) and Article 13 (right to an effective remedy), V.K. alleges that he was ill-treated by his teachers at a public nursery school and that the ensuing investigation into his allegations was ineffective.

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