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FIFTH
SECTION
CASE OF
GLINOV v. UKRAINE
(Application
no. 13693/05)
JUDGMENT
STRASBOURG
19
November 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Glinov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 13693/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Kazakh national, Mr Nikolay Andreyevich
Glinov (“the applicant”), on 4 April 2005.
- The
applicant, who had been granted legal aid, was represented by Mr V.V.
Shepetukha, a lawyer practising in Kharkiv. The Ukrainian Government
(“the Government”) were represented by their Agent,
Mr Yuriy Zaytsev.
- The
applicant alleged, in particular, that he had been detained
unlawfully and ill-treated in police custody, and that the conditions
of his detention were poor.
- On
16 May 2006 the Court decided, pursuant to Article 37 § 1 of the
Convention, to strike the application out of the list of cases, given
the applicant’s failure to comply with its numerous requests
for documentary substantiation of his complaints.
- On
26 May 2006 the Court received a letter from the applicant dated
15 May 2006, in which he requested withdrawal of his
application, alleging a failure on the part of the administration of
the detention centre (SIZO) to forward to the Court one of his
letters and general pressure on him.
- On
25 September 2006 the Court decided to restore the application to its
list of cases in accordance with Article 37 § 2 of the
Convention, to give notice of the complaints about the alleged
interference of the authorities with the applicant’s
correspondence to the Government and to adjourn the examination of
his complaints under Articles 3 and 5 of the Convention, having
requested the Government to submit copies of all documents concerning
the applicant’s pre-trial detention (reasons and length) and
his treatment while in detention, in particular with regard to his
allegation of ill-treatment and inadequate detention conditions.
Under the provisions of Article 29 § 3 of the
Convention, it was also decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1978 and is currently serving a sentence in
Rivne Regional Penitentiary no. 76.
A. The applicant’s pre-trial detention
1. From 19 to 21 October 2003
- According
to the applicant, he was detained and ill-treated in police custody
from 19 to 21 October 2003. There are no further details or
documents.
2. From 31 October 2003 to 23 March 2006
- In
the evening of 31 October 2003 the applicant, together with another
person, was arrested by the Fontanka police unit of the Kominternovo
District Police Department in flagrante delicto on the scene
of a robbery and car hijacking. As it would later be confirmed by at
least two eye-witnesses (see paragraph 23 below), the applicant
attempted escaping from and showed resistance to the police.
- According
to the applicant, he pleaded guilty to several counts of robbery
under torture. He alleged in particular that he had been heavily
beaten with rubber truncheons, hanged with his arms twisted behind
him and administered electric shocks.
- On
1 November 2003 the applicant signed the arrest report in
confirmation that his procedural rights had been explained to him.
- On
the same day the applicant was taken to the Kominternovo Temporary
Detention Facility, where a doctor examined him and made a note that
he had a bruise under his left eye.
- On
4 November 2003 the investigator submitted to the Kominternovo Town
Court (Комінтернівський
районний суд
– “the Kominternovo Court”) a motion on the
applicant’s detention as a preventive measure pending trial.
The investigator noted that the applicant was suspected of having
committed serious crimes (three counts of robbery with violence on
22, 26 and 31 October 2003), had no permanent place of residence and
had a criminal record, and thus could hinder the investigation or
abscond if at liberty. According to the investigator, the applicant
had fully admitted his guilt.
- On
the same date the Kominternovo Court remanded the applicant in
custody, having upheld the investigator’s reasoning.
- On
26 December 2003 the Kominternovo Court extended the term of the
applicant’s detention to four months, having referred to the
necessity to complete the investigation.
- On
15 June 2004 the applicant was committed for trial.
- No
further documents concerning the applicant’s detention are
available in the case file.
B. Conditions of the applicant’s detention
- While
having raised a general complaint about the conditions of his
detention, the applicant did not describe them until in response to
the information submitted by the Government.
- According
to the information provided by the Government, from 7 November
2003 to 3 November 2006 the applicant had been held in fifteen
different cells, the smallest of which had measured 7.17 square
meters (the applicant had spent three and a half months there,
sharing with another inmate), while the largest one had measured
about 34.1 square meters (where he had stayed for fifteen days,
sharing with eleven other inmates). Each of the cells had a toilet
separated from the living area, sufficient natural and artificial
light, operational heating, ventilation, water supply and sewage
system.
- As
it transpires from a note by the Odesa SIZO administration issued on
an unspecified date, disinfection, disinsection and rat extermination
were regularly carried out on the SIZO premises.
- The Government provided seven colour photos of the
cells the applicant had been detained in. The photos showed that the
cells were clean and looked as if they had been repaired not long
before the photos had been taken. They had sufficient natural light;
the lavatories were separated from the living area and appeared to be
clean.
- The
applicant contested the accuracy of the information submitted by the
Government in so far as the number of inmates per cell was concerned
and alleged that there had been more detainees in the cells than
indicated by the Government. He also alleged that he had not been
detained in the cells shown in the photos.
C. The applicant’s conviction
- On
23 March 2006 the Malynovskyy District Court of Odesa (Малинівський
районний суд
– “the Malynovskyy Court”), to which the
case had been transferred from the Kominternovo Court on an
unspecified date, found the applicant guilty of three counts of
robbery with violence, committed on 22, 27 and 31 October 2003
by a group of persons acting in concert, and sentenced him to
fourteen years’ imprisonment with confiscation of all his
personal property. The court based its findings, inter alia,
on the testimonies of the victims of all three instances of robbery,
medical reports concerning the injuries they sustained during those
robberies, as well as material evidence (certain items seized from
the applicant and recognised by the victims as the stolen ones; two
knives, a hammer and a sack discovered in the car, which the
co-defendants had left immediately before their arrest). The court
also heard two eye-witnesses of the applicant’s arrest on
31 October 2003, according to whom he had shown resistance to
the police and had tried to escape from the scene. Furthermore, it
was noted in the verdict that both co-defendants had fully confessed
to the crimes they had been charged with on 4 November 2003 and had
consistently pled guilty throughout the pre-trial investigation. The
court examined their allegations of ill-treatment in police custody,
voiced for the first time at the trial, and found them
unsubstantiated. Namely, it noted that they had failed to raise any
such complaints in the course of the pre-trial investigation and that
the circumstances of the case indicated (as confirmed by the
eye-witnesses of the arrest and by the police officers who had
carried out the arrest and who were questioned by the court) that the
bruise on the applicant’s face noted on 1 November 2003 might
have been sustained in the course of his fight with the police prior
to his arrest.
- On
22 May 2007 the Odesa Regional Court of Appeal (Апеляційний
суд Одеської
області) upheld that
verdict.
- The
applicant appealed in cassation, alleging that his conviction was not
based on solid evidence. The cassation appeal did not contain any
allegation of ill-treatment in police custody.
- No
information about the final outcome of the proceedings has been
provided by the parties. However, it appears from the case file that
the Supreme Court found against the applicant.
D. The applicant’s correspondence with the Court
- The
applicant’s letters to the Court dated 30 March, 10 May,
9 June, 12 July, 28 November, 8 and 15 December 2005,
as well as 20 March, 16 May and 3 November 2006,
were accompanied by cover letters, signed by the Governor of the
Odesa SIZO, which contained a brief summary of their contents (for
example: “Please find attached a complaint by the accused,
Glinov, concerning his rights and the conduct of the investigation in
his case”, “... concerning his case and actions of the
police officers”, “...concerning the judge’s
actions”, “... concerning the defence of his rights”,
“... concerning the withdrawal of his case”, etc.).
- The
first page of each of the eighteen letters from the applicant to the
Court bore the SIZO stamp with the dispatching date noted in
handwriting (eight of those had been sent before 21 December 2005,
the other ten on various dates after 21 December 2005 –
see paragraph 38 below).
- From
May 2005 to March 2006 the Registry of the Court requested the
applicant eight times to submit documents in substantiation of his
complaints under Articles 3 and 5 of the Convention.
- Each
of the requests was followed by a letter from the applicant, in which
he noted that: there were no copying facilities in the SIZO and that
he would copy the documents by hand; the facts of his case were
self-explanatory; the prospects of Ukraine’s accession to the
European Union were poor given the alleged violations in his case;
and the witnesses allegedly required protection for unspecified
reasons. The applicant made no explicit reference to the Court’s
requests.
- The
applicant’s letters reached the Court on average two weeks to
two months following their dispatch.
- The
case file contains copies of sixteen stamped certificates issued by
Odesa-59 Post Office to the SIZO administration in confirmation that
it had accepted correspondence from detainees (including the
applicant) to be sent to the Strasbourg Court. It also contains
copies of extracts from the SIZO logbooks of incoming and outgoing
correspondence and “correspondence delivery acts” signed
by the SIZO officials.
- Between
the end of December 2005 and April 2006 (with the exact date not
documented due to a technical mistake), the Court received a ten-
page letter from the applicant dated 13 December 2005, in which he
outlined his vision for the reform of penitentiaries in Ukraine with
a view of improving the conditions of detention. It was accompanied
by a cover letter from the SIZO administration dated 15 December
2005, according to which its registered number was 5-3-G-1087. The
case file contains a copy of a post office receipt of
16 December 2005 for the dispatch, inter alia, of
letter 5-3-G-1087 from Mr Glinov.
- By
a letter of 15 May 2006, which reached the Court on 26 May 2006,
the applicant sought the withdrawal of his application referring to
“... the failure [of the SIZO administration] to forward [his]
letter to the Court of 13 December 2005 in fifty-three
pages; a partial change of the charges against [him] on
23 December 2005; a ruling of the court and ... the intense
pressurising by the authorities ...”
- On
23 May 2006 the Court sent a letter to the applicant informing him
that his application had been struck out of the list by decision of
Committee on 16 May 2006.
- On
2 October 2006 the Court informed the applicant about the restoration
of the application to the list of cases and its communication to the
respondent Government on 25 September 2006.
- Following
the communication of the application to the Government, the
applicant’s correspondence with the Court continued, with some
of his letters bearing the SIZO stamp (see paragraph 28 above).
II. RELEVANT DOMESTIC LAW
- Section
13 of the Pre-Trial Detention Act, before it was amended on 1
December 2005 (with the amendments having entered into force on
21 December 2005), had provided for monitoring by the
administration of detention centres of applications, complaints and
letters of detainees, with an exception of correspondence with the
Ombudsman and with the prosecutor, which could not be monitored.
- By
the amendments of 1 December 2005 to the above Act, the list of
exceptions was extended to include correspondence with the Court.
- The
Instruction on Review of Correspondence of Persons Held in
Penitentiaries and Pre-trial Detention Facilities, approved by
Order no. 13 of the State Department for Enforcement of
Sentences of 25 January 2006, elaborates the above provision as
follows:
“1.5. ... Correspondence of prisoners and
detainees with the Ombudsman of the Verkhovna Rada of Ukraine, the
European Court of Human Rights, as well as with other relevant
international organisations of which Ukraine is a member or
participant, authorised persons of those international organisations
or prosecution authorities, shall not be subject to censorship and
shall be dispatched or handed to the prisoner or detainee within
twenty-four hours. ...
2.4. Prisoners or detainees shall personally and in the
presence of the inspector seal the envelopes with correspondence
addressed to the Ombudsman of the Verkhovna Rada of Ukraine, the
European Court of Human Rights, as well as to other relevant
international organisations of which Ukraine is a member or
participant, to authorised persons of those international
organisations or prosecution authorities. Prisoners or detainees
shall personally and in the presence of the inspector open letters
received from the Ombudsman of the Verkhovna Rada of Ukraine, the
European Court of Human Rights, as well as from other relevant
international organisations of which Ukraine is a member or
participant, from authorised persons of those international
organisations or from prosecution authorities. ...”
III. RELEVANT INTERNATIONAL LAW
- Article
3 of the European Agreement Relating to Persons Participating in
Proceedings of the European Court of Human Rights, ratified by
Ukraine on 4 November 2004 and in force for it since 1 January 2005,
reads as follows:
“1. The Contracting Parties shall respect the
right of the persons referred to in paragraph 1 of Article 1
of this Agreement to correspond freely with the Commission and the
Court.
2. As regards persons under detention, the exercise of
this right shall in particular imply that:
a) if their correspondence is examined by the competent
authorities, its despatch and delivery shall nevertheless
take place without undue delay and without alteration;
b) such persons shall not be subject to disciplinary
measures in any form on account of any communication sent
through the proper channels to the Commission or the Court;
c) such persons shall have the right to correspond, and
consult out of hearing of other persons, with a lawyer qualified to
appear before the courts of the country where they are detained in
regard to an application to the Commission, or any proceedings
resulting therefrom.
3. In application of the preceding paragraphs, there
shall be no interference by a public authority except such as is
in accordance with the law and is necessary in a democratic
society in the interests of national security, for the detection
or prosecution of a criminal offence or for the protection of
health.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- Having regard to the fact that many letters from the
applicant to the Court bore the SIZO stamp and were accompanied by
brief summaries of their contents produced by the SIZO
administration, the Court considered it appropriate to raise, of its
own motion, the issue of Ukraine’s compliance with Article 8
of the Convention on account of the monitoring of the applicant’s
correspondence with the Court. This Article, insofar as
relevant, reads as follows:
“1. Everyone has the right to respect
for 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.”
A. Admissibility
- The
Government submitted that the applicant had not exhausted all
available domestic remedies, having failed to raise the complaint
about the alleged monitoring of his correspondence before the
prosecutor or the domestic courts. In particular, they referred in
this respect to Article 55 of the Constitution of Ukraine, according
to which any decision, act or omission of the state authorities could
be challenged before the domestic judiciary. They further referred to
Article 13 of the Pre-Trial Detention Act, which provided for a
three-day time-limit for dispatching detainees’ complaints
addressed to prosecution authorities, as well as Article 22 of this
Act and Articles 44 and 45 of the Prosecutorial Service Act, which
concerned the prosecutorial supervision over adherence to the
legislation in the detention facilities. Lastly, the Government
referred to Article 9 of the Constitution, pursuant to which ratified
international treaties were a part of the national legislation, and
submitted that the applicant could have complained to the domestic
authorities about a breach of his right under the Convention.
- The
applicant disagreed. He contended that until 1 December 2005
the legislation had provided for the obligatory monitoring of
detainees’ correspondence other than that with the Ombudsman or
prosecutor, while even after the amendments entered into force
prohibiting any censorship of detainees’ correspondence with
the Court, monitoring of correspondence remained in place and was
broadly perceived as lawful. Furthermore, the applicant alleged that
he had not been aware of the fact that the SIZO administration had
been monitoring his letters to the Court and thus was not in a
position to complain about that.
- The
Court notes that before 21 December 2005 (the date of entry into
force of the amendments to the Pre-Trial Detention Act of
1 December 2005) the applicant’s letters had been
monitored by officials at the detention centre pursuant to section 13
of that Act, which provided for the monitoring of all detainees’
letters except for those addressed to the prosecutor and the
Ombudsman. It follows that the applicant’s complaint to the
prosecutor or to the court in this connection would have had no
prospect of success in so far as neither of those authorities was
empowered to overrule the legal provision underpinning such a
practice.
- In
so far as the Government’s plea of non-exhaustion concerns the
period after 21 December 2005, the Court notes that the
applicant alleged that he was completely ignorant of the monitoring
of his correspondence, and the Government did not submit any
information that would undermine that allegation. Accordingly, the
Court considers that the applicant cannot be reproached for his
failure to complain about what is not proven to have been within his
knowledge. In any event, the Government have not shown how the
remedies referred to by them could have redressed the applicant’s
situation.
- It
follows that the Government’s plea of inadmissibility on the
ground of non-exhaustion of domestic remedies must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant argued that the circumstances of his case disclosed a
breach of Article 8 of the Convention.
- The
Government refrained from expressing their opinion on the merits of
the complaint.
2. The Court’s assessment
(a) Existence of an interference
- The
Court notes that a considerable number of the applicant’s
letters bore the SIZO stamp and were accompanied by summaries of
their contents produced by the SIZO officials (see paragraphs 27 and
28 above).
- In
these circumstances the Court considers that those letters have been
opened and their contents read (see, for comparison, Kisielewski
v. Poland,
no. 26744/02, § 26, 7 July 2009).
- It
follows that the applicant’s letters to the Court were
monitored by the SIZO officials, which amounted to an “interference”
with his right to respect for his correspondence under Article 8
of the Convention.
(b) Whether the interference was justified
under Article 8 § 2 of the Convention
- The Court reiterates that any “interference by a
public authority” with the right to respect for correspondence
will contravene Article 8 of the Convention unless it is “in
accordance with the law”, pursues one or more of the legitimate
aims referred to in paragraph 2 of that Article and is
“necessary in a democratic society” in order to achieve
them (see, among many other authorities, Silver and Others
v. the United Kingdom, 25 March 1983, Series A
no. 61, p. 32, § 84; Campbell v. the
United Kingdom, 25 March 1992, Series A no. 233,
p. 16, § 34; and Niedbała v. Poland,
no. 27915/95, § 78, 4 July 2000).
- The
Court notes that the applicant initiated his correspondence with it
on 4 April 2005 and maintained it during the subsequent examination
of his case. The Court observes that the legal framework regulating
control of detainees’ correspondence with the outside world, in
particular, with the Court, changed on 1 December 2005 (effectively
on 21 December 2005), while the applicant’s
correspondence with the Court has been monitored by the SIZO
administration both before and after that date. Accordingly, the
Court will examine whether such monitoring was justified under
Article 8 § 2 of the Convention during those two
periods taken separately.
i. Before 21 December 2005
- Having
regard to its finding in paragraph 45 above, the Court is satisfied
that the applicant’s correspondence with the Court before
21 December 2005 had been monitored in compliance with the
domestic legislation.
- The
Court has already held that the applicable legislation in force at
the material time did not indicate with reasonable clarity the scope
and manner of exercise of the discretion conferred on the public
authorities in respect of the monitoring of detainees’
correspondence, which rendered such monitoring counter to the
lawfulness requirement of Article 8 § 2 of the
Convention (see Sergey Volosyuk v. Ukraine,
no. 1291/03, § 86, 12 March 2009).
- The
Court does not find any reasons to reach a different conclusion in
the present case.
- Consequently,
there has been a violation of Article 8 of the Convention with
regard to the monitoring of the applicant’s correspondence with
the Court before 21 December 2005.
ii. Since 21 December 2005
- Given
the explicit prohibition on any monitoring of detainees’
correspondence with the Court, applicable since 21 December 2005 (see
paragraphs 39 and 40 above), the Court finds that the monitoring of
the applicant’s correspondence with the Court after that date
(see paragraphs 27 and 28 above) was contrary to the domestic
legislation and thus not “in accordance with the law”
within the meaning of Article 8 § 2 of the Convention.
- The
Court therefore does not consider it necessary in the instant case to
ascertain whether the other requirements of paragraph 2 of Article 8
were complied with and holds that there has been a violation of that
provision with regard to the monitoring of the applicant’s
correspondence with the Court after 21 December 2005.
II. ALLEGED VIOLATIONS OF ARTICLE 34 OF THE CONVENTION
- The
Court notes that the applicant failed to comply with the Court’s
request to submit the documents related to his case, of which he had
been reminded on eight occasions (see paragraph 29 above).
Furthermore, he sought the withdrawal of his application, alleging,
in particular, that the SIZO administration had failed to forward his
letter to the Court and that he had been pressurised by the
authorities.
- The
Court considers that the aforementioned facts give rise to an issue
of the authorities’ hindrance with the effective exercise of
the applicant’s right of petition, guaranteed by Article 34
of the Convention, which reads as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. Submissions by the parties
- The
Government submitted that the applicant’s communication with
the Court had been free from any hindrance by the authorities. They
contended, in particular, that the SIZO administration had dispatched
his letters to the Court and handed him the letters from the Court in
a diligent and timely fashion. In substantiation, they submitted
copies of the relevant pages of the SIZO logbooks of incoming and
outgoing correspondence and receipts issued by the Odesa-59 Post
Office and signed by the SIZO officials, referred to as
“correspondence delivery acts”.
- The
applicant, in his turn, criticized the existing procedures for
dispatching and delivering correspondence, having pointed out that
the respective logbooks and the “correspondence delivery acts”
did not contain his signatures. He further argued that the Government
had failed to submit any documentary proof of the dispatch of his
correspondence to the Court.
B. The Court’s assessment
- The Court reiterates that it is of the utmost
importance for the effective operation of the system of individual
petition instituted by Article 34 of the Convention that
applicants should be able to communicate freely with the Convention
organs without being subjected to any form of pressure from the
authorities to withdraw or modify their complaints. The expression
“any form of pressure” must be taken to cover not only
direct coercion and flagrant acts of intimidation of applicants or
their legal representatives but also other improper indirect acts or
contacts designed to dissuade or discourage them from pursuing a
Convention remedy (see Kurt v. Turkey, 25 May 1998, § 160,
Reports 1998-III, and Tanrıkulu v. Turkey [GC],
no. 23763/94, § 130, ECHR 1999-IV).
- In
order to reach a conclusion as to whether the State has respected its
obligations under Article 34 of the Convention in the present case,
the Court will examine the facts of the case and the arguments of the
parties from the prospective of the following three questions: 1)
whether the SIZO administration failed to dispatch any of the
applicant’s correspondence to the Court; 2) whether it failed
to deliver any correspondence of the Court to the applicant; and 3)
whether there was any pressure by the authorities on the applicant
with a view to discouraging him from pursuing his application before
the Court.
1. The alleged failure of the SIZO administration to
dispatch the applicant’s correspondence to the Court
- The
Court notes that the applicant alleged that the SIZO administration
had failed to forward to the Court only one of his letters, which was
dated 13 December 2005 and consisted of fifty-three pages.
- The
Court observes that the applicant neither specified the contents of
that letter nor provided any details whatsoever as regards the
circumstances of or reasons for the administration’s failure
(or refusal) to dispatch it. On the other hand, the Government
provided documentary evidence of the fact that the letter from the
applicant of the aforementioned date had been transmitted by the SIZO
administration to the post office to be sent on to the Court (see
paragraph 32 above), and his letter of that date, albeit
consisting of ten pages, did reach the Court without major delay (see
paragraph 33 above).
- In
these circumstances, and given the fact that all of the applicant’s
previous (as well as subsequent) letters were sent to the Court
without significant delay (see paragraph 31 above), the Court
dismisses the applicant’s allegation as unsubstantiated (see
Valašinas v. Lithuania, no. 44558/98, § 136,
ECHR 2001 VIII).
2. The alleged failure of the SIZO administration to
deliver the Court’s correspondence to the applicant
- The
Court notes that this complaint is limited in substance to the
applicant’s criticism of the existing procedures for delivering
incoming correspondence to detainees, who are not required in
practice to confirm its receipt by their signatures. It further
observes that although the contents of the applicant’s letters
to the Court following its repeated requests for documents contain no
explicit reference to those requests, they do not contain any
indication that he had not received them (see paragraph 30 above). To
sum up, there is nothing in the materials of the case file to suggest
that the SIZO administration failed to deliver any of the Court’s
correspondence to the applicant.
- It
follows that no hindrances in the delivery of the Court’s
correspondence to the applicant have been established in the present
case.
3. The alleged pressure of the authorities on the
applicant with a view to discouraging him from pursuing his
application before the Court
- The
Court observes that the applicant underpinned this allegation with a
reference to an unspecified change of the charges against him in the
course of the criminal investigation, an equally unspecified ruling
of a court, as well as some other “pressure” by the
authorities (see paragraph 34 above).
- The
Court considers that the applicant has failed to provide a single
concrete example of his having been pressurized by the authorities
and dismisses his allegations as wholly unsubstantiated.
4. General conclusion
- In
the light of the above facts and considerations, the Court finds that
the allegations of hindrance with the applicant’s right to
petition under Article 34 of the Convention have not been made
up and that no further examination is required.
III. ALLEGED VIOLATIONS OF ARTICLES 3 AND 5 OF THE
CONVENTION
- The
applicant alleged, relying on Articles 3 and 5 of the Convention,
that he had been ill-treated in police custody, that he had
unlawfully been detained and that the conditions of his detention had
been inadequate.
- The
Court recalls that it requested the applicant on many occasions to
provide documentary substantiation of the above complaints, which he
failed to do and for which he is entirely at fault (see
paragraphs 70, 72 and 74 above).
- At
the same time, the Court is mindful of the fact that applicants might
face particular difficulties as regards collection of evidence
concerning the conditions of their detention. It notes that in the
present case, however, the applicant failed even to specify his
complaints in that connection (see paragraph 18 above), while the
Government, in their turn, provided evidence that the conditions of
his detention were not such as to raise an issue under Article 3
of the Convention (see paragraphs 19-21 above).
- It
follows that the applicant’s complaints under Articles 3 and 5
of the Convention are manifestly ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained, in a confused manner, about violations of
Articles 2, 6, 7, 11, 13 and 14 of the Convention. He alleged,
in particular, that his life was in danger and that he had been
convicted unfairly.
- However,
in the light of all the material before it, 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.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage, referring to the allegedly serious nature of the violation.
- The
Government contested that claim and considered it excessive.
- The Court considers that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage which the applicant may have sustained.
B. Costs and expenses
- The
applicant made no claim for costs and expenses. Accordingly, the
Court makes no award.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
the alleged monitoring of the applicant’s correspondence with
the Court admissible;
- Declares by six votes to one the remainder of
the application inadmissible;
- Holds unanimously that there had been a
violation of Article 8 of the Convention as regards the monitoring of
the applicant’s correspondence with the Court;
- Decides by six votes to one not to pursue the
allegations of hindrance with the applicant’s right to petition
under Article 34 of the Convention;
- Holds unanimously that the finding of a
violation of Article 8 of the Convention constituted in itself
sufficient just satisfaction for the non-pecuniary damage sustained
by the applicant;
- Rejects unanimously the remaining claim for just
satisfaction.
Done in English, and notified in writing on 19 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following partly dissenting
opinion of Judge Kalaydjieva is annexed to this judgment.
P.L.
S.P.
DISSENTING OPINION OF JUDGE KALAYDJIEVA
In
declaring the application admissible, the majority noted that “the
Government did not submit any information that would undermine [the
applicant’s] allegation” that he was “completely
ignorant of the monitoring of his correspondence (with the Court)”
and “consider[ed] that the applicant cannot be reproached for
his failure to complain about what is not proven to have been within
his knowledge” (paragraph 46).
I
fully agree with this conclusion and I join the majority in finding a
violation of Article 8 with regard to the monitoring of the
applicant’s correspondence with the Court before 21 December
2005. This conclusion was based on the fact that a considerable
number of the applicant’s letters were opened and that some of
them were accompanied by letters and summaries produced by SIZO
officials as well as on the view that “the applicable
legislation... did not indicate with reasonable clarity the scope and
manner of exercise of the discretion conferred on the public
authorities in respect of the monitoring of detainees’
correspondence” (paragraph 57).
Having
voted that the domestic law and practice left the applicant’s
correspondence open to interferences of which he could remain
ignorant, I find myself unable to conclude whether and/or to what
extent the applicant attempted to “provide documentary
substantiation of his complaints under Articles 3 and 5” (see
paragraph 77) and whether he was aware of the Court’s requests
for further information. In such circumstances it is not possible to
exclude other occasions of interferences with the applicant’s
correspondence with the Court and/or to determine the extent or
manner of such interferences. I find myself also unable to join the
majority’s satisfaction that a letter from the applicant
“albeit consisting of ten pages”, opened and accompanied
by a cover letter prepared by the prison authorities, which allegedly
consisted of 53 pages, reached the Court without major delay. Should
the Court be satisfied with such a dispatch? Following the logic of
the conclusions in Article 8, there is nothing to exclude that the
allegedly missing 43 pages contained the documentary substantiation
of the applicant’s complaints under Articles 3 and 5 requested
by the Court. If this was so, could one conclude with certainty that
there was no hindrance of the applicant’s right to individual
petition under Article 34? Taken together with the letter of
withdrawal under alleged pressure and the subsequent restoration of
the application to the list, can it be certain that the applicant was
not subject to “any form of pressure” in exercising this
right?
