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FIRST
SECTION
CASE OF
ALEKSEYENKO v. RUSSIA
(Application
no. 74266/01)
JUDGMENT
STRASBOURG
8 January
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 Alekseyenko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 4 December 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 74266/01) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Aleksandr Borisovich
Alekseyenko (“the applicant”), on 22 January 2001.
- The
applicant, who had been granted legal aid, was represented by Mr A.
Artemov and Ms A. Koreshkova, lawyers practising in Moscow. The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Ms V. Milinchuk, former Representatives of the
Russian Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that the authorities had failed to
notify him of the hearing of 18 October 2000 and to respect his
Article 6 rights at that hearing. The applicant also complained of
the interference with his correspondence with the Court. He
complained, further, of a violation of his right of individual
petition, in that the authorities had allegedly tried to put pressure
on him to withdraw the case from the Court.
- By
a decision of 31 May 2007, the Court declared the application partly
admissible.
- The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other’s observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in the village of Trudovoy, the
Rostov Region.
A. Criminal proceedings against the applicant
- In
1996 the applicant was arrested and charged with a number of serious
offences, including possession of explosives, death threats,
attempted murder and murder.
- The
Rostov Regional Court examined the applicant’s case and gave
judgment on 18 February 1997 acquitting him on all charges.
- On
30 April 1997 the Supreme Court of Russia examined the first-instance
judgment on appeal. The court decided that the trial court had
committed serious breaches of procedure, quashed the judgment of
18 February 1997 and remitted the case for a fresh examination
at first instance.
- On
23 July 1997 the Rostov Regional Court re-examined the applicant’s
case and found him guilty on all charges. He was sentenced to fifteen
years’ imprisonment. The court also ordered the forfeiture of
the applicant’s property.
- An
appeal by the applicant against the judgment of 23 July 1997 was
dismissed by the Supreme Court of Russia on 25 December 1997.
- On
an unspecified date the Deputy Prosecutor General of the Russian
Federation lodged a special appeal against the judgment of 23 July
and the decision of 25 December 1997.
- On 18 October 2000 the Presidium of the Supreme Court
of Russia examined the prosecutor’s appeal. The court reopened
the proceedings and partly changed the decisions in the case. In
particular, the court declared the prosecution in respect of the
death threats to be time-barred and changed the legal
characterisation of the applicant’s criminal conduct in
relation to one of the other charges. The applicant’s sentence
remained unchanged.
- The applicant and his counsel were neither notified of
the hearing nor summoned to it. The prosecution was present and made
submissions.
B. Alleged censorship of the applicant’s letters
by the prison authorities
- In
letters dated 13 April 2001, 1 December 2001, 25 November 2002, 15
April 2004 and 18 May 2004 the applicant complained that he had been
unable to correspond freely with the Court, other domestic
authorities and his lawyers; that the authorities had not accepted
sealed envelopes for dispatch; and that there had been considerable
delays in forwarding correspondence to him after its receipt by the
prison and in actually sending letters out after their acceptance for
dispatch.
- In
their observations, the Government submitted the register of
correspondence which stated that the applicant had sent out letters
to various destinations on various dates. There was a short
description of the content of the letters dated between 1999 and
March 2000. In respect of the letters dated March 2000, it was
recorded that they had been “sealed”.
- In
a letter of 25 April 2005 the applicant informed the Court that its
letters of 1 February, 8 and 9 March 2005 had been forwarded to him
with considerable delay. In particular, the letter of 1 February had
been received by the prison on 16 February 2005, registered under the
incoming number 620, and had not been forwarded to him until 3
March 2005.
- In
a letter of 20 November 2005 the applicant informed the Court that
the Court’s letter of 20 June 2005 had been received by the
prison on 1 July 2005 and had not been served on him until 24
July 2005. He also stated that his understanding was that his letters
dated 13 January 2005 and 1, 9 and 24 February 2005 (outgoing
no. A-11 dated 19 January 2005, outgoing A 19 dated 2 February
2005 and outgoing A-26 dated 16 February 2005) had not been received
by the Court.
- In
reply, in a letter of 18 January 2006, the Government submitted that
the competent authorities had carried out an additional verification
and had established one occurrence of delayed forwarding of mail from
the Court to the applicant. As a result, some officials had been
reprimanded. The Government denied, however, that any letters had
been sent by the applicant to the Court on 13 January, 9 February and
24 February 2005.
- In
their further observations, the parties responded to the Court’s
factual questions concerning the applicant’s claims in this
respect and provided the following information.
- The
Government submitted that between 23 September 1998 and 1 February
2003 the applicant had served his sentence of imprisonment in
penitentiary establishment UCh-398/9, the Rostov Region. As of
11 February 2003 the applicant had been serving his sentence in
penitentiary establishment UCh-398-1, the Rostov Region.
- The
applicant did not contest these dates.
1. The Court’s letters to the applicant
- In
respect of the question concerning the total number of letters
received by the applicant from the Court through the prison services,
the Government submitted that between 22 January 2001 and 4 September
2007 the applicant had received ten letters. These letters had been
received by the prison and served on the applicant on the following
respective dates: 9 and 10 July and 15 and 16 December 2004, 13 and
14 (two letters) and 29 January, 3, 16 and 17 February, 26 and
27 March (two letters), 22 and 23 April and 1 and 24 July 2005.
- They
also submitted that all the letters had been handed to the applicant
in sealed envelopes and had not been censored.
- In
his further observations, the applicant submitted that during this
time he had received eleven letters from the Court through the prison
authority. He also alleged that all of these letters had been served
on him with substantial delays. He did not submit any concrete
evidence in support of the latter point.
- The
Court’s database indicates that between 22 January 2001 and
4 September 2007 it dispatched a total of twenty-three letters
to the applicant’s prison addresses, dated respectively 20
April, 2 August and 26 September 2001, 18 March, 6 September and
18 November 2002, 24 and 27 February, 19 March and 7 April 2003, 28
June and 5 July 2004, 2 September, 24 November and 1, 21
and 22 December 2004 and 18 January, 1 February, 8 and 9 March,
12 April and 20 June 2005.
2. The applicant’s letters to the Court
- In
respect of the question concerning the total number of letters sent
by the applicant to the Court through the prison services, the
Government submitted that between 22 January 2001 and 4 September
2007 the applicant had sent out eleven letters. These letters had
been sent by the applicant on the following dates: 7 September 2001,
20 August 2002, 14 January 2003, 30 September and 11 May 2004,
and 15 and 19 January, 2 and 16 February, 12 May and 13 July
2005.
- The
Government admitted that the applicant’s letters sent out on
7 September 2001, 20 August 2002 and 14 January 2003 had been
censored by the prison authorities under Article 91 of the Code of
Execution of Sentences then in force. They stated, further, that
there had been no censorship of the remaining letters as the relevant
applicable legislation had been amended and the European Court of
Human Rights had been added to the list of bodies with which a
prisoner could correspond without censorship.
- The
applicant submitted that, contrary to the Government’s
submission, during that period he had sent out 29 letters to the
Court through the prison administration and that the prison
administration had required him to hand these letters to them
unsealed for censorship. The dates of dispatch were as follows: 22
January, 15 and 28 May, 26 June, 31 August, 6 October, 1 and 10
December 2001; 20 May, 15 August, 25 November 2002; 6 and 14
January, 3 March, 25 May, 20 October 2003; 13 and 23 April, 18
May, 30 September, 20 November and 29 December 2004; 15 January, 2
and 9 February, 26 July and 20 November 2005; 20 February 2006;
and 15 March 2007.
- The
Court’s database indicates that between 22 January 2001 and
4 September 2007 it received a total of eighteen letters from
the applicant, dated respectively 22 January, 15 May, 31 August, 1
and 10 December 2001; 15 August, 14 October and 25 November 2002; 6
January and 20 November 2003; 15 April, 28 May, 30 September, 20
November and 21 and 30 December 2004; 25 April, 10 May and 20
November 2005; and 20 August and 1 September 2007. It is unclear
whether the applicant sent these letters out directly from his
prisons or through his relatives or a lawyer.
C. Alleged
interference by the authorities with
the applicant’s right of individual
petition
- On
28 August 2004 the Court gave notice of the application to the
respondent Government.
- On 21 December 2004 the Court received the applicant’s
letter of 20 November 2004. The letter stated that in September
2004 some officials from the Prosecutor’s Office and the Main
Directorate for the Execution of Sentences of the Ministry of Justice
had visited him and had forced him to sign some papers. They had
allegedly wanted the applicant to withdraw his application and had
told him that he would not prove anything and only make things worse.
- In
their observations, the Government included the statement by the
applicant dated 12 October 2004 and addressed to the Head of the Main
Directorate of Execution of Sentences of the Ministry of Justice in
charge of the Rostov Region, V.I. Khizhnyak, in which he stated that
he had “no complaints, claims against the prison
administration” and that he had no “claims concerning the
receipt and dispatch of correspondence to and from the European Court
of Human Rights”. The statement was written in the applicant’s
own hand. In it the applicant also said that he had made his
statement without physical or psychological coercion. The statement
was collected and signed on the same date by two officials: the
Assistant to the Head of the Main Directorate of Execution of
Sentences of the Ministry of Justice in charge of the Rostov Region,
Ch., and the Head of the Registry of the Main Directorate of
Execution of Sentences of the Ministry of Justice in charge of the
Rostov Region, B.
- In
respect of this letter the Government submitted that on 12 October
2004 the Assistant Chief of the Correctional Department of the
Ministry of Justice, Mr Ch., had had an interview with the applicant.
According to the Government, the purpose of the interview had been
the “clarification of some facts with a view to submitting the
position of the Russian Federation Ministry of Justice on the
application lodged by Mr Alekseyenko”. Mr Ch.’s
explanatory note to the interview stated that he had not requested
the applicant to withdraw his application to the European Court of
Human Rights, and that the interview had been conducted in the
correct form, without any rough, rude or degrading treatment on his
part. The applicant’s explanatory note stated that he had not
made any complaints or critical remarks in respect of the prison
administration and that he had not been subjected to any
psychological or physical pressure.
- The
Government submitted a letter from the Rostov Regional Court dated 13
October 2004 in which the Deputy President of that court had
certified that neither the applicant nor his counsel had made any
complaints to the competent lower courts in respect of alleged
interference with correspondence.
- The
Government submitted that on 14 October 2004 Mr K. from the Regional
Prosecutor’s Office had had an interview with the applicant.
The applicant had made the following statement to Mr K.:
“... My correspondence with the European Court of
Human Rights started in January 2001 during my detention in
establishment UCh-398/9 in the town of Shakhty. From that prison I
sent out eight letters (22 January 2001, 15 May 2001, 28 May 2001,
31 August 2001, 1 December 2001, 10 December 2001, 20 May 2002,
15 August 2002). All the above letters were received by the addressee
and I retain proof of that. There were no instances of refusal to
dispatch letters from prison IK-9. However, all letters were only
accepted by the administration in an unsealed form and were
dispatched with considerable delay. I made attempts to send out
sealed envelopes but the head of the special department returned them
to me with reference to the corresponding instructions from higher
authorities.
Since 11 February 2003 I have been serving my sentence
in UCh 398/1 of the Main Directorate for the Execution of Sentences
of the Ministry of Justice. From this correctional establishment I
dispatched five letters to the European Court of Human Rights (3
March 2003, 25 May 2003, 20 October 2003, 13 April 2004 and
30 September 2004). I only know that my letter of 13 April 2004
was dispatched on 11 May 2004, whilst three previous letters never
reached the Court. As to the letter of 30 September 2004, I am
unaware of its fate. All these letters were not accepted from me in
sealed form. The authority forced me to present them unsealed. As
regards the answers from the European Court, I received three whilst
serving the sentence in IK 1, and all were sealed. The incoming
numbers of IK-1 were: 5727 of 3 August 2004, 1751 of 6 April 2004. I
do not know the number of the third answer, because I did not keep
it. But I remember the date of receipt – 28 June 2004.
With all confidence I can state that I signed the
receipt in respect of one of the answers and don’t remember in
respect of the others. Whilst serving the sentence in IK-1 I received
copies of three answers from the European Court. They had been
forwarded from IK-9 since I had not received them there.
Apart from the foregoing, I don’t have any other
complaints in respect of the conditions of detention ...”
- On
20 January 2005 the applicant was interviewed by Mr Zh., the head of
the Department responsible for supervising the lawfulness of the
execution of sentences at the Regional Prosecutor’s Office. The
applicant confirmed that on 12 October 2004 he had had a word with Mr
Ch. from the Ministry of Justice and on 14 October with Mr K. from
the Prosecutor’s Office. The applicant submitted that they had
not put any pressure on him whatsoever and that all explanations had
been given by him voluntarily.
- On
21 January 2005 the applicant made the following statement to Mr Zh.:
“In a supplementary application form I mentioned
that I had been forced to sign some papers and this was formulated in
such a way that it could be understood that I had signed the
documents under pressure from the representative of the prosecutor’s
office and the Main Directorate for the Execution of Sentences. In
fact, this did not correspond to reality because in that case I was
referring to the relations that I had previously had with the prison
administration, when correspondence had been dispatched with delays
and the administration had requested me to withdraw the complaints
and had refused to send them out.
At present the administration has been replaced and many
officials fired, which is why I have normal relations with the
administration and have no complaints. ... I have given no
explanations against my will.”
- In their statements of 20 January 2005, Mr Ch. and Mr
K. explained that they had visited the applicant to check the facts
outlined in his complaints to the European Court of Human Rights and
interview the persons allegedly involved and that no coercion
whatsoever had been put on the applicant in connection with his
application to the Court.
- In
their further observations, the Government said that the
above-mentioned interviews had taken place during the check carried
out by the competent bodies of the Russian Federation in connection
with the request of the European Court of Human Rights dated 2
September 2004 to the Representative of the Government to clarify the
applicant’s allegations. They also submitted that the
difference in the applicant’s position in his statements of 12
and 14 October 2004 did not prove the alleged coercion as the
applicant could have changed his position for other reasons.
II. RELEVANT DOMESTIC LAW
A. Supervisory review proceedings under the Code of
Criminal Procedure of 1960
- Section
VI, Chapter 30 of the Code of Criminal Procedure of 1960,
(Уголовно-процессуальный
кодекс
РСФСР),
as in force at the material time, allowed certain officials to
challenge a judgment which had become operative and to have the case
reviewed.
- Pursuant
to Article 356 of the Code of Criminal Procedure of 1960, a judgment
became operative and was subject to execution as of the day when the
appeal (cassation) instance pronounced its judgment or, if it had not
been appealed against, when the time-limit for appeal had expired.
Article 379. Grounds for setting aside judgments
which have become operative
“The grounds for quashing or changing a judgment
[on supervisory review] are the same as [those for setting aside
judgments which have not become operative on cassation appeals].”
Article 342. Grounds for quashing or changing
judgments [on cassation appeal]
“The grounds for quashing or changing a judgment
on appeal are as follows:
(i) prejudicial or incomplete inquest,
investigation or court examination;
(ii) inconsistency between the facts of the
case and the conclusions reached by the court;
(iii) grave violation of procedural law;
(iv) misapplication of [substantive] law;
(v) inadequacy of the sentence in relation to
the gravity of the offence and the convicted person’s
personality.”
- Article
371 of the Code of Criminal Procedure of 1960 provided that the power
to lodge a request for a supervisory review could be exercised by the
Prosecutor General, the President of the Supreme Court of the Russian
Federation and their respective Deputies in relation to any judgment
other than those of the Presidium of the Supreme Court, and by the
Presidents of the regional courts in respect of any judgment of a
regional or subordinate court. A party to criminal or civil
proceedings could solicit the intervention of such officials for a
review.
- Articles 374, 378 and 380 of the Code of Criminal
Procedure of 1960 provided that a request for supervisory review was
to be considered by the judicial board (the Presidium) of the
competent court. The court could examine the case on the merits, and
was not bound by the scope and grounds of the extraordinary appeal.
The Presidium could dismiss or uphold the request. If the request was
dismissed, the earlier judgment remained in force. If it upheld the
request, the Presidium could decide whether to quash the judgment and
terminate the criminal proceedings, or remit the case for a new
investigation or fresh court examination at any instance, or uphold a
first-instance judgment reversed on appeal, or amend and uphold any
of the earlier judgments.
- Article
380 §§ 2 and 3 of the Code of Criminal Procedure of 1960
provided that the Presidium could in the same proceedings reduce a
sentence or amend the legal classification of a conviction or
sentence to the defendant’s advantage. If it found a sentence
or legal classification too lenient, it had to remit the case for a
new examination.
- In
accordance with Article 377 § 3 of the Code of Criminal
Procedure of 1960, a public prosecutor took part in hearings before a
supervisory review instance. A convicted person and his or her
counsel could be summoned if a supervisory review court found it
necessary. If summoned, they were to be given an opportunity to
examine the application for supervisory review and to make oral
submissions at the hearing.
B. The ruling of the Constitutional Court of 14
February 2000
- On
14 February 2000 the Constitutional Court of the Russian Federation
ruled that Article 377 § 3 of the Code was unconstitutional in
so far as it allowed supervisory review proceedings to be conducted
in the absence of the defence where a special appeal against the
previous decisions would, if successful, result in the worsening of
the convicted person’s situation.
C. Supervisory review proceedings under the Code of
Criminal Procedure of 2001
- Under
Article 407 of the new Code of Criminal Procedure of 2001, which
entered into force on 1 July 2002, a convicted person and his counsel
are notified of the date, time and place of hearings before the
supervisory review court. They may participate in the hearing
provided that they have made a specific request to that effect.
D. Control of correspondence in prison
- Article
91(2) of the Code of Execution of Sentences of 8 January 1997
(Уголовно-исполнительный
кодекс)
provided for censorship of prisoners’ correspondence.
- Law
no. 26-FZ of 20 March 2001 amended this Article to provide for an
exception from the rule in respect of correspondence with a court, a
prosecutor’s office, higher officials of the penitentiary
system and the Ombudsman of the Russian Federation. A prisoner’s
correspondence with his lawyer or representative could be censored in
certain cases upon a reasoned decision of the director or deputy
director of the prison authority.
- Law
no. 161-FZ of 8 December 2003 introduced further amendments to the
Article. The European Court of Human Rights was added to the list of
bodies with which the prisoner could correspond without censorship.
The Law entered into force as of the date of its first official
publication on 16 December 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the supervisory review proceedings before
the Supreme Court on 18 October 2000 had been unfair in that the
authorities had failed to notify and summon the defence whilst the
prosecution had been present. He relied on Article 6 which, in so far
as relevant, provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. The parties’ submissions
- The
Government submitted that, at the relevant time, the summoning of a
defendant in supervisory review proceedings had been the court’s
right but not its duty. In the present case, there had been no need
to summon either the applicant or his counsel and their absence from
the hearing had not been unlawful. In addition, domestic law only
required the applicant or his counsel to be summoned if the
applicant’s personal situation stood to worsen as a result of
the supervisory review proceedings.
- The
applicant disagreed and maintained his complaint.
B. The Court’s assessment
1. Applicability of Article 6 of the Convention
- The
Court reiterates that Article 6 of the Convention applies to
proceedings where a person is charged with a criminal offence until
that charge is finally determined (see Adolf v. Austria, 26
March 1982, § 30, Series A no. 49, and Delcourt v. Belgium,
17 January 1970, §§ 22-26, Series A no. 11). It
further reiterates that Article 6 does not apply to proceedings
concerning a failed request to reopen a case. Only the new
proceedings, after the reopening has been granted, can be regarded as
concerning the determination of a criminal charge (see Löffler
v. Austria, no. 30546/96, §§ 18 and 19, 3 October 2000,
and José Maria Ruiz Mateos and Others v. Spain, no.
24469/94, Commission decision of 2 December 1994, Decisions and
Reports 79).
- The Court observes that on 18 October 2000, acting on
the prosecutor’s request for supervisory review, the Presidium
of the Supreme Court of Russia initiated the supervisory review
proceedings, reopened the applicant’s criminal case and partly
changed the decisions in the case. In particular, the court declared
the prosecution in respect of the death threats time-barred and
changed the legal characterisation of the applicant’s criminal
conduct in relation to one of the other charges. It upheld the
first-instance judgment and the remainder of the appeal decision.
- The Court is of the view that, in so far as these
amendments were concerned, the supervisory review proceedings at
issue concerned the determination of a criminal charge against the
applicant. Accordingly, it finds that Article 6 § 1 of the
Convention under its criminal head applied to these proceedings.
2. Compliance with Article 6 of the Convention
(a) General principles
- The
Court reiterates that it flows from the notion of a fair trial that a
person charged with a criminal offence should, as a general
principle, be entitled to be present and participate effectively in
the first-instance hearing (see Colozza v. Italy, 12 February
1985, §§ 27 and 29, Series A no. 89).
- The
personal attendance of the defendant does not necessarily take on the
same significance for an appeal hearing, even where an appellate
court has full jurisdiction to review the case on questions of both
fact and law. Regard must be had in assessing this question to, inter
alia, the special features of the proceedings involved and the
manner in which the defence’s interests are presented and
protected before the appellate court, particularly in the light of
the issues to be decided by it and their importance for the appellant
(see Belziuk v. Poland, 25 March 1998, § 37, Reports
of Judgments and Decisions 1998 II).
- It
is also of crucial importance for the fairness of the criminal
justice system that the accused be adequately defended, both at
first-instance and on appeal (see Lala v. the Netherlands, 22
September 1994, § 33, Series A no. 297 A).
- The
principle of equality of arms is only one feature of the wider
concept of a fair trial, which also includes the fundamental right
that criminal proceedings should be adversarial. The latter means, in
a criminal case, that both prosecution and defence must be given the
opportunity to have knowledge of and comment on the observations
filed and the evidence adduced by the other party (see Brandstetter
v. Austria, 28 August 1991, §§ 66 and 67, Series A
no. 211).
(b) Application of the above principles to
the instant case
- The
Court would note at the outset that it does not consider it necessary
to decide whether the lack of participation of the applicant and his
counsel, taken separately, would render the proceedings before the
supervisory review court unfair. Neither of them was present before
the Presidium of the Supreme Court or could make prior submissions,
and it is against this background that the Court will determine the
complaint in issue.
- The
Court observes that the supervisory review proceedings under the Code
of Criminal Procedure of 1960 were different from “ordinary”
appeal proceedings in that, among other things, the power to initiate
these proceedings was vested with certain senior judicial and
prosecution officers, and not the parties.
- The
fact remains, however, that the supervisory review instance was not
bound by the scope of the request for supervisory review and could
carry out a full scale judicial review of the decisions in the case
by either quashing or amending them, remitting the case to lower
courts or an investigator, or terminating the criminal proceedings
partly or altogether (see Relevant Domestic Law above, paragraph 44).
Even though in the end the applicant’s sentence remained
unchanged, the Presidium of the Supreme Court did exercise its power
by amending the conviction and thereby determining a criminal charge
against him (see paragraphs 13 and 14 in the facts section and
paragraphs 56 and 57 above).
- Having
regard to the above and the fact that the supervisory review
proceedings were initiated on the prosecution’s request, the
Court considers that in order to satisfy the principle of fairness
enshrined in Article 6 of the Convention the Presidium of the Supreme
Court should have notified the applicant and his defence lawyer of
the contents of the prosecution’s supervisory review request
and the date and place of the hearing. And since the prosecution was
later present at the supervisory review hearing of 18 October
2000 and made submissions, the principle of adversarial proceedings
also required that the defence be present at that hearing in order to
be able to contest and comment on the arguments advanced by the
prosecution. In these circumstances, the Court rejects as irrelevant
the Government’s reference to the fact that the absence of the
applicant and his counsel from the hearing was not unlawful under
domestic law.
- The
Court finds the above considerations sufficient to conclude that the
proceedings before the Presidium of the Supreme Court did not comply
with the requirements of fairness.
- There
has therefore been a breach of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained of the control of his correspondence by the
prison authorities. According to the applicant, the prison
authorities had also interfered with his correspondence with the
Court by failing to deliver some of the letters. The Court will
examine these complaints under Article 8 of the Convention, which
reads as follows:
Article 8 of the Convention
“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.”
A. The parties’ submissions
- The
Government submitted that the applicant’s allegations had been
inaccurate, that his correspondence had not been censored, and that
in any event the applicant should have brought proceedings against
the prison administration in this connection but had clearly failed
to do so. They conceded that Article 91(2) of the Code of Execution
of Sentences provided for censorship of prisoners’
correspondence and that the applicant’s letters dated 7
September 2001, 20 August 2002 and 14 January 2003 had indeed been
censored. According to the Government, this measure had been lawful,
had pursued a legitimate aim and had been proportionate and in full
compliance with Article 8. They also argued that, as of the date of
entry into force of Law no. 161-FZ of 8 December 2003, the censorship
of the applicant’s correspondence with the Court had ceased and
there had thus been no violations of the applicant’s rights in
this respect.
- The
applicant disagreed and maintained his complaints. He insisted that
the prison administration had systematically required him to send the
letters in unsealed envelopes, that only on one occasion – on
30 September 2004 – had the letter been dispatched in a sealed
envelope and that many letters had been lost or remained undelivered,
that the mentioning of “sealed” in the letter log had
related to the state in which the letters had been sent out and not
the state in which they had been accepted for posting. He referred to
the example of the letter of 15 May 2001, which he had handed to the
prison administration on the same date and which had not been
dispatched until 26 June 2001. He alleged that on 13 April 2004 he
had received a letter from the Court and had immediately answered it,
but that his reply had not been dispatched by the prison authority
until 11 May 2004. As to the Government’s non-exhaustion
argument, the applicant submitted that it had been impossible to
fulfil the requirement in a situation where his entire correspondence
had been controlled by the authority.
B. The Court’s assessment
- The
Court reiterates that the Government maintained in respect of this
part of the application that the applicant had not exhausted
available domestic remedies, and that the Court in its decision of 31
May 2007 decided to join this issue to the merits of the case. It
will accordingly address this issue when examining the substance of
the applicant’s complaints under Article 8 of the Convention.
- The
Court will first examine the allegations concerning the prison
authorities’ failure to dispatch and deliver the applicant’s
correspondence and then turn to the censorship complaint.
1. Alleged failures of the prison authorities to
deliver and dispatch the applicant’s correspondence with the
Court
- At
the outset the Court notes that it requested the parties to
substantiate their respective submissions and submit detailed
information concerning the applicant’s incoming and outgoing
correspondence with the Court between 22 January 2001 and 4 September
2007.
(a) The applicant’s outgoing mail
- As
regards the information about the applicant’s outgoing mail,
the Government’s submissions regarding the applicant’s
letters to the Court (in particular their quantity) failed to match
those submitted by the applicant: according to the applicant, he had
sent out twenty-nine letters, whilst the Government submitted logs
from which it appeared that the applicant had only sent out eleven
such letters.
- The
Court would note, however, that nothing in the case file supports the
applicant’s allegation concerning the actual dispatch of the
allegedly eighteen missing letters. In fact, it has not been alleged
by the applicant that he had in any way been precluded from obtaining
proof of dispatch of these letters. In such circumstances, the Court
finds that the applicant has failed to provide any documentary
indication that he had indeed handed the allegedly missing letters
for dispatch to the respective prison authority and it is thus unable
to conclude that the applicant had in fact sent the eighteen missing
letters.
- It
follows that the applicant has failed to substantiate his allegations
concerning the authorities’ failure to dispatch his mail.
Accordingly, the Court concludes that there has been no violation of
Article 8. In these circumstances, the Court finds that it need not
decide on the Government’s preliminary objection in connection
with this grievance.
(b) The applicant’s incoming mail
- By
contrast to the outgoing mail the Court finds that the applicant’s
incoming mail could hardly be traced by him at all and he thus could
not know of, let alone prove, the loss of the letters and exhaust
domestic remedies in that respect. Accordingly, the Court rejects the
Government’s preliminary objection.
- The
Court notes the following concerning the information about the
applicant’s incoming mail.
- From
the Government’s submissions it follows that between 22 January
2001 and 4 September 2007 the applicant had received ten letters from
the Court. According to the applicant, during this time he had
received eleven letters from the Court through the prison authority.
He also alleged (without providing any concrete evidence to prove the
latter point) that all of these letters had been served on him with
substantial delays. At the same time, the Court’s own database
indicates that between 22 January 2001 and 4 September 2007 it
dispatched a total of twenty-three letters to the applicant’s
prison addresses, dated respectively 20 April, 2 August and 26
September 2001; 18 March, 6 September and 18 November 2002; 24 and 27
February, 19 March and 7 April 2003; 28 June and 5 July 2004;
2 September, 24 November and 1, 21 and 22 December 2004; and
18 January, 1 February, 8 and 9 March, 12 April and 20 June
2005.
- Having
examined the above information, the Court finds firstly that the
applicant’s allegations concerning the delay in the delivery to
the applicant of the Court’s letters are unsubstantiated as
there is nothing in the documents submitted by the parties to confirm
the allegation.
- Secondly,
the Court notes that irrespective of whether the applicant had
received ten (as the Government claimed) or eleven (as submitted by
the applicant) letters from the Court during the period at issue, the
data at the Court’s disposal indicates conclusively that at
least twelve of its letters were not delivered to the applicant at
all. The Court is prepared to accept that some of these letters may
have disappeared due to errors and omissions in the functioning of
the postal service. However, the total number of lost letters is too
high to be viewed merely as errors of the postal service and
accordingly the Court is of the view that the loss of a significant
portion of its correspondence with the applicant was attributable to
the relevant prison authorities. There has therefore been an
interference with the applicant’s right to correspondence
guaranteed by Article 8 of the Convention by the respective prison
administrations.
- Having
regard to the applicable domestic law, the Court finds that the
failure to deliver its letters was not based on any domestic legal
provision. Without going any further, the Court concludes that such
failure was unlawful and constituted a violation of the applicant’s
right to respect for his correspondence guaranteed by Article 8 of
the Convention.
2. Alleged censorship of the applicant’s
correspondence with the Court
- The
Court finds it appropriate to examine the applicant’s
grievances about the censorship of his correspondence in two distinct
periods: before 16 December 2003, which is the date of entry into
force of Law no. 161-FZ of 8 December 2003, and thereafter.
(a) The alleged censorship between 22
January 2001 and 16 December 2003
- The
Court notes that the Government have acknowledged that until the
entry into force of Law no. 161-FZ of 8 December 2003 the prison
authority had censored the applicant’s correspondence with the
Court. In particular, it was admitted that at least three letters
written by the applicant, dated 7 September 2001, 20 August 2002 and
14 January 2003 respectively, had been censored.
- In
view of the fact that during that period the censorship of inmates’
correspondence was provided for in the legislation and any complaints
to the prison authority’s hierarchical superiors and the courts
would be incapable of providing the applicant with relief, the Court
rejects the Government’s preliminary objection in this respect.
- The
Court further notes that this measure constituted an interference
with the applicant’s right to respect for his correspondence.
The Court will next examine whether it was in compliance with the
requirements of the second paragraph of Article 8 of the Convention,
namely, whether it was lawful, pursued a legitimate aim and was
proportionate to that aim.
- The
Court takes note of Article 91(2) of the Code of Execution of
Sentences of 8 January 1997, then in force, which provided for
censorship of prisoners’ correspondence and is thus prepared to
accept that the interference in question was lawful.
- As
to whether this measure pursued a legitimate aim and was
proportionate, the Court notes that the Government have failed to
submit any intelligible explanation for the need for the prison
authorities to open and read the letters that inmates are sending and
receiving from law-enforcement bodies, especially if these bodies are
courts. The Court would stress that in the absence of any concrete,
specific and persuasive explanation such control cannot be regarded
as pursuing a legitimate aim and necessary in a democratic society
(see Peers v. Greece, no. 28524/95, §§ 82-84,
ECHR 2001 III, and Klyakhin v. Russia, no. 46082/99, §
109, 30 November 2004).
- Accordingly,
the Court finds that the censorship of the applicant’s
correspondence with the Court between 22 January 2001 and 16 December
2003 was in breach of Article 8 of the Convention.
(b) The alleged censorship between 16
December 2003 and 4 September 2007
- As
to the alleged censorship in the period between 16 December 2003 and
4 September 2007, the Court would note that Law no. 161-FZ of
8 December 2003 (in force as of 16 December 2003) stated clearly
that a prisoner had a right to correspond with the Court without
censorship. Having regard to the elements in its possession, the
Court finds that the applicant could reasonably be expected to raise
this grievance at the domestic level by applying to the competent
courts with a complaint about the breach of his rights guaranteed by
the aforementioned Law.
- It
follows that the applicant has failed to exhaust the available
domestic remedies in respect of his grievances and this part of the
application must be rejected pursuant to Article 35 §§ 1
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- The
applicant complained that on a few occasions the authorities had
tried to force him to withdraw the case from the Court. This
complaint falls to be examined under Article 34 of the Convention
which provides as follows:
Article 34 of the Convention
“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. The parties’ submissions
- As
regards the alleged pressure by the authority to withdraw the case,
the Government denied it and submitted explanatory notes by the
officials allegedly involved (see paragraphs 32 to 39 above).
- The
applicant disagreed. In particular, he submitted that he was not the
author of the statement of 12 October 2004.
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 that applicants or potential applicants should be
able to communicate freely with the Court without being subjected to
any form of pressure from the authorities to withdraw or modify their
complaints (see, among other authorities, Akdivar and Others v.
Turkey, 16 September 1996, § 105, Reports
1996 IV, and Aksoy v. Turkey, 18 December 1996, §
105, Reports 1996-VI). In this context, “pressure”
includes not only direct coercion and flagrant acts of intimidation
but also other improper indirect acts or contacts designed to
dissuade or discourage applicants from pursuing a Convention remedy
(see Kurt v. Turkey, 25 May 1998, § 159, Reports
1998 III).
- Furthermore,
whether or not contacts between the authorities and an applicant are
tantamount to unacceptable practices from the standpoint of Article
34 must be determined in the light of the particular circumstances of
the case. In this respect, regard must be had to the vulnerability of
the complainant and his or her susceptibility to influence exerted by
the authorities (see Akdivar and Others and Kurt, both
cited above, § 105 and § 160 respectively). The
applicant’s position might be particularly vulnerable when he
is held in custody with limited contacts with his family or the
outside world (see Cotleţ v. Romania, no.
38565/97, § 71, 3 June 2003).
- The
Court notes that from the materials in its possession it follows that
the applicant was contacted by State officials on three occasions: on
12 October 2004 by Mr Ch. and Mr B. from the Ministry of
Justice, and on 14 October 2004 and on 20-21 January 2005 by
respectively Mr K. and Mr Zh. from the Regional Prosecutor’s
Office.
- The
Government explained, and in the absence of any indication to the
contrary the Court is satisfied with this explanation, that the
above-mentioned interviews had taken place during the check carried
out by the competent bodies of the Russian Federation in connection
with the request by the European Court of Human Rights dated 2
September 2004 to the Representative of the Government to clarify the
applicant’s allegations.
- From
the case file it is clear that these interviews directly concerned
the applicant’s allegations about the control of his
correspondence with the Court and nothing in the transcripts of these
interviews suggests that the applicant was in any way intimidated or
threatened. Moreover, by contrast, for example, with the case of
Popov v. Russia, no. 26853/04, § 250, 13 July 2006, the
officials in questions did not represent the prison authority
concerned but rather acted on behalf of the competent supervisory
bodies, the respective departments of the Ministry of Justice and the
Regional Prosecutor’s Office.
- Even
despite a difference between the applicant’s statements given
on 12 October 2004 to the officials of the Ministry of Justice, in
which he had “no complaints, claims against the prison
administration” and had no “claims concerning the receipt
and dispatch of correspondence to and from the European Court of
Human Rights”, and his subsequent statements to the officials
of the Regional Prosecutor’s Office dated 14 October 2004 and
20 21 January 2005 in which the applicant complained extensively
and in great detail, in the Court’s view there is insufficient
factual basis to enable it to conclude that any undue pressure or any
form of coercion was put on the applicant during the first or
subsequent interviews.
- In
the light of the above facts and considerations, the Court finds that
an alleged breach of the State’s obligation under Article 34 of
the Convention has not been established.
IV. 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. Non-pecuniary damage
- The
applicant claimed 50,000 euros (EUR) in compensation for
non-pecuniary damage sustained.
- The
Government did not submit any comments in this respect.
- The Court observes, as stated above, that the
Presidium of the Supreme Court amended the applicant’s
conviction in his absence and failed to notify him of the hearing. It
also finds that the applicant’s correspondence with it was
censored and that the prison authority failed to deliver some of the
Court’s letters sent to the applicant. The Court considers that
the applicant indisputably sustained non pecuniary damage, which
cannot be compensated solely by a finding of a
violation. Deciding
on an
equitable
basis, it
awards him EUR 3,000 for non-pecuniary damage, plus any tax
that may be chargeable on this amount.
B. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
2. Holds that there has been no violation of
Article 8 of the Convention on account of the authorities’
alleged failure to dispatch the applicant’s mail and decides
that it need not examine the Government’s preliminary objection
in connection with this complaint;
- Dismisses the Government’s preliminary
objection in respect of the complaints under Article 8 of the
Convention about the applicant’s incoming mail and holds
that there has been a violation of Article 8 of the Convention in
connection with the prison authority’s failure to deliver some
of the Court’s letters;
- Dismisses the Government’s preliminary
objection in respect of the complaint under Article 8 of the
Convention about the censorship of the applicant’s
correspondence between 22 January 2001 and 16 December 2003 and holds
that there has been a violation of Article 8 of the Convention on
account of the control of the applicant’s correspondence by the
prison administration during that period;
- Accepts the Government’s preliminary
objection about the applicant’s failure to exhaust in respect
of his Article 8 complaints in so far as it concerns the complaint
about the alleged censorship of his correspondence with the Court
between 16 December 2003 and 4 September 2007 and declares
this complaint inadmissible pursuant to Article 35 §§ 1 and
4 and of the Convention;
- Holds that there has been no violation of
Article 34 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000 (three thousand
euros) in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement,
plus any tax that may be chargeable:
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
