On behalf of the Russian Federation
of November 15, 2016 No. 24-P
On the case of check of constitutionality of the Item of part three of Article 125 and part three of article 127 of the Penal Code of the Russian Federation in connection with request of the Vologda regional court and the claim of citizens N. V. Koroleva and V. V. Koroleva
Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, K. V. Aranovsky's judges, A. I. Boytsova, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, O. S. Hokhryakova, V. G. Yaroslavtsev,
being guided by Article 125 (part 4) Constitutions of the Russian Federation, part one Items 3 and 3.1, parts three and the fourth Article 3, Article part one 21, Articles 36, 47.1, 74, 86, 96, 97, 99, 101, 102 and 104 Federal constitutional laws "About the Constitutional Court of the Russian Federation",
Reason for consideration of the case were the request of the Vologda regional court and the claim of citizens N. V. Koroleva and V. V. Koroleva. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation challenged by applicants of legislative provision.
Having heard the message of the judge-speaker Yu. M. Danilov, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation
1. According to the Penal Code of the Russian Federation the convicts serving sentence in corrective colonies of special regime in strict conditions are allowed to have two short-term appointments within year (Article part three Item 125); in strict conditions of serving sentence on arrival in corrective colony of special regime all convicts to lifelong imprisonment are located; transfer from strict conditions of serving sentence in usual conditions of serving sentence is made after departure at least 10 years in strict conditions of serving sentence on the bases specified in part six of article 124 of this Code; if during stay in the pre-trial detention center the disciplinary measures in the form of settlement in punishment cell were not applied to the convict, the term of its stay in strict conditions of serving sentence is estimated from the date of detention (Article part three 127).
1.1. The decision of the Belozersk district court of the Vologda region of April 11, 2016 satisfies the administrative claim of O. V. Matsynina who is married since April 26, 2013 to A. Yu. Matsynin who is condemned by the court verdict of February 3, 2014 to lifelong imprisonment, and their minor daughter acting in the interests and interests who was born on November 27, 2010 in federal state institution "Corrective Labour Colony No. 18 of Office of the Federal Penitentiary Service across the Yamalo-Nenets Autonomous Area". Having recognized illegal refusal in provision of long appointment by it and having assigned obligation to administration of correctional facility to provide one such appointment within year, the Trial Court referred among the European Court of Human Rights, other on the resolution of Big Chamber, of June 30, 2015 in the matter of "Horoshenko against Russia".
The judicial board on administrative cases of the Vologda regional court by consideration of administrative case according to the petition for appeal of federal state institution "Corrective Labour Colony No. 18 of Office of the Federal Penitentiary Service across the Yamalo-Nenets Autonomous Area" in which it was specified discrepancy of the decision of the Belozersk district court of the Vologda region to the current legislation came to conclusion about uncertainty availability in question of constitutionality of subjects to application in this case of the Item of part three of Article 125 and part three of article 127 of UIK of the Russian Federation and, having suspended appeal production, sent to the Constitutional Court of the Russian Federation inquiry according to the procedure of article 101 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" (determination of June 10, 2016).
According to judicial board on administrative cases of the Vologda regional court, the challenged legislative provisions as allowing failure to provide long appointments by the convict to lifelong imprisonment for an appreciable length of time (at least 10 years), violate the constitutional requirement about respect of private and family life to which provisions of the international legal acts (article 8 of the Convention on human rights protection and fundamental freedoms, the Recommendation of Committee of Ministers of the Council of Europe of January 11, 2006 of Rec correspond (2006) 2 "The European penitentiary rules", the resolution of the European Court of Human Rights of June 30, 2015 in the matter of "Horoshenko against Russia"), disproportionately limit constitutional rights of the convict and members of his family and by that contradict the Constitution of the Russian Federation, its Articles 15 (part 4), 21, 23 (part 1) and 55 (part 3).
1.2. N. V. Korolev condemned on cumulative sentences of May 15, 2008 and of April 10, 2012 to lifelong imprisonment, who arrived to colony of particular treatment on May 13, 2009 and serving sentence in strict conditions and his spouse V. V. Koroleva with whom it was got married on September 9, 2009 repeatedly appealed to Federal Penitentiary Service about provision of long appointments by it.
By Office of the Federal Penitentiary Service across the Yamalo-Nenets Autonomous Area to them it was explained that long appointments are provided only after the translation of the serving sentence condemned from strict conditions in regular that for N. V. Korolev according to part three of article 127 of UIK of the Russian Federation is possible in 2019. Babushkinsky district court of the city of Moscow, having considered the administrative action for declaration N. V. Koroleva and V. V. Koroleva about recognition illegal refusal of administration of colony of particular treatment in which N. V. Korolev serves sentence, in provision of long appointments by it, as the decision of February 9, 2016 recognized this refusal illegal and obliged administration to consider the matter repeatedly. However appeal determination of judicial board on administrative cases of the Moscow city court of July 4, 2016 the specified decision cancels and makes the new decision - on refusal in satisfaction of the declared requirements.
According to applicants, provisions of the Item of part three of Article 125 and part three of article 127 of UIK of the Russian Federation - in that measure in what they establish for convicts to lifelong imprisonment absolute prohibition on long appointments during at least first 10 years of imprisonment, - exclude natural conception of the child that in case of impossibility of use of auxiliary reproductive technologies is cruel and inhuman treatment and punishment, violation of the right to family life, including faces which was not committing crimes against society and the state and by that contradict Articles 15 (part 4), 21 and 23 Constitutions of the Russian Federation, and also to articles 3 and 8 of the Convention on human rights protection and fundamental freedoms in their interpretation by the European Court of Human Rights.
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