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FIFTH
SECTION
CASE OF MIKHAYLYUK AND PETROV v. UKRAINE
(Application
no. 11932/02)
JUDGMENT
STRASBOURG
10
December 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 Mikhaylyuk and
Petrov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11932/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Ukrainian nationals, Ms Iraida Ivanovna
Mikhaylyuk (“the first applicant”) and Mr Vladimir
Petrovich Petrov (“the second applicant”), on 24 November
2001.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
3 April 2007 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the allegedly
unlawful interception of the applicants’ correspondence by a
public authority to the Government. It also decided to examine the
merits of that part of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1949 and 1951, respectively, and live in
Odessa.
- From 1976 until 1996 the second applicant worked for
the Chernomorska Penitentiary Institution no. 74 (“the
colony”). He was provided with a room in a hall of residence,
which was situated on the site of the colony and had the same postal
address. He resided there until 1991. Afterwards, the applicants
lived together in the first applicant’s flat. The second
applicant is still entitled to reside in the colony and it remains
his registered place of residence.
- In
September 1998 the applicants instituted civil proceedings in
the Prymorskyy District Court of Odessa against the colony and the
local post office. They alleged that letters addressed to them by
domestic and international courts, which had been delivered to the
address of the second applicant, had been unlawfully opened and read
by the defendant institutions. The applicants sought compensation for
non-pecuniary damage.
- On
29 March 2001 the court rejected the applicants’
claims. It established that the colony had opened two letters
addressed to the applicants: the letter of 27 October 1998,
sent by the Starokyivskyy District Court of Kyiv to the first
applicant, and the letter of 24 August 1998, sent by the
European Court of Human Rights to the second applicant in the context
of his previous application to the Court (no. 44997/98, declared
inadmissible on 26 October 1999).
- The
court held that, pursuant to Article 28 of the Correctional
Labour Code of 1970 and section 7 of the Pre-Trial Detention Act
of 1993, the administration of the colony had been authorised to
monitor all correspondence delivered to it. Since the room of the
second applicant was situated on the premises of the colony, his
correspondence had been dealt with by its administration in
accordance with the rules applicable to detainees’
correspondence. The court also found that the administration had
acted in accordance with the Instruction on the processing of
documents in the organs of the Ministry of the Interior and the
Instruction on the organization of the monitoring of correspondence
of persons held in penitentiary institutions and pre-trial detention
centres, issued by the Ministry of the Interior on 22 June 1993
and 28 May 1999, respectively. The court further stated
that the letter addressed to the first applicant had been opened also
due to the fact that there had been a detainee with the same name in
the colony. The court concluded that the interception of the
applicants’ correspondence had not violated their
constitutional rights.
- On
19 July 2001 the Odessa Regional Court upheld the
first-instance court’s decision. On 15 May 2002 a
panel of three judges of the Supreme Court rejected the applicants’
request for leave to appeal in cassation.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine of 1996
- The
relevant provisions of the Constitution read as follows:
Article 31
“Everyone shall be guaranteed privacy of mail,
telephone conversations, telegraph and other correspondence.
Exceptions shall be established only by a court in cases envisaged by
law, with the purpose of preventing crime or ascertaining the truth
in the course of the investigation of a criminal case, if it is not
possible to obtain information by other means.”
Article 56
“Everyone shall have a right to compensation from
public or municipal bodies for losses sustained as a result of
unlawful decisions, acts or omissions by public or municipal bodies
or civil servants in the performance of their official duties.”
B. Interception of Detainees’ Correspondence
1. Correctional Labour Code of 1970 (repealed as of
1 January 2004)
- According
to Article 2 of the Code, the correctional labour legislation
regulated the procedure and conditions of serving criminal sentences
and the activities of the organs enforcing criminal sentences.
- Article
28 of the Code provided that detainees’ correspondence was
subject to censorship, and their parcels and packages were subject to
opening and checking.
2. Pre-Trial Detention Act of 1993
- According
to section 1 of the Act, pre-trial detention is a preventive measure
in respect of an accused, a defendant or a person suspected of having
committed a crime punishable with imprisonment, or a convicted person
whose sentence has not yet become final.
- Section
7 of the Act provides that detainees’ personal belongings and
correspondence must be checked.
C. Interception of Correspondence in the Framework of
Criminal Investigations or Related Inquiries
1. Code of Criminal Procedure of 1960
- At the material time Articles 177 and 187 of the Code
empowered investigators to intercept a person’s correspondence
on the basis of a prosecutor’s or a court’s warrant if
there were sufficient grounds to believe that such correspondence
contained information of importance for establishing the truth in a
criminal case.
2. Retrieval and Search Operations Act of 1992
- According to section 1 of the Act, as worded at the
material time, retrieval and search operations were aimed at
detection and recording of information about unlawful activities by a
person or groups of persons and about intelligence and subversive
activities of foreign special services, and in the interests of
public safety. Retrieval and search operations were to be carried out
by the organs of the Interior, the Security Service, the Boarder
Guard Forces, the State Guard Department, and the Tax Administration
(section 5). Interception of correspondence, as one of the types of
such activities, required a prosecutor’s warrant (section 8).
- Section 6 of the Act contained an exhaustive list of
grounds pursuant to which retrieval and search operations might be
carried out, which included the presence of sufficient information
about crimes, intelligence and subversive activities against Ukraine,
persons who were preparing or have committed crimes, persons hiding
from the investigative bodies or evading the application of criminal
sanctions, and disappeared persons; the submission of requests by the
relevant authorities to check persons for the reasons of granting
them access to secret information; and the need to obtain
intelligence information in the interests of public and State safety.
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that, after the communication of the case to the
respondent Government, the applicants introduced new complaints,
which concerned the first applicant’s allegedly unlawful
dismissal from her position as a teacher in a secondary school, the
authorities’ alleged persecution of the second applicant during
his employment with the Chernomorska Penitentiary Institution no. 74
in 1976-1996, and the exclusion of his name from the electoral roll
in the area where he lived.
- In
the Court’s view, the new complaints are not an elaboration of
the applicants’ original complaints to the Court, lodged
approximately seven and a half years earlier, about the State
authorities’ alleged interception of their correspondence. The
Court considers, therefore, that it is not appropriate now to take
these matters up separately (see Piryanik v. Ukraine, no.
75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained about the allegedly unlawful interception of
their correspondence by a public authority. They invoked Article 8
of the Convention, which reads, in so far as relevant, 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
Court notes that the application 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
- The
Government did not submit observations on the merits of the case.
- The
applicants maintained their above complaint. They further argued that
the interference by the authorities with their correspondence had not
been in accordance with the law and that the courts had groundlessly
relied in their case on the rules applicable to persons detained in
the course of criminal proceedings against them.
- The
Court reiterates that the opening of a letter is sufficient in itself
to disclose an interference with an applicant’s right to
respect for his correspondence (see Narinen v. Finland, no.
45027/98, § 32, 1 June 2004). Given that it was acknowledged by
the domestic courts that the opening by the authorities of the
letters addressed to the applicants had actually taken place, the
Court must examine whether that interference with the applicants’
rights had been in conformity with the requirements of the second
paragraph of Article 8, namely, whether it had been “in
accordance with the law”, had pursued a legitimate aim and had
been necessary in a democratic society in order to achieve that aim
(Valašinas v. Lithuania, no. 44558/98, § 128, ECHR
2001 VIII).
- The
Court reiterates that the expression “in accordance with
the law” requires firstly that the impugned interference has
some basis in domestic law; it also refers to the quality of the law
in question, requiring that it should be accessible to the person
concerned, who must moreover be able to foresee its consequences for
him, and be compatible with the rule of law (see, among many other
authorities, Poltoratskiy v. Ukraine, no. 38812/97, §
155, ECHR 2003 V).
- The
Court notes that, according to the domestic courts, the applicants’
correspondence was opened and reviewed pursuant to the national
legislation (see paragraph 8 above). In particular, they referred to
the provisions of section 7 of the Pre-Trial Detention Act of
1993 and Article 28 of the Correctional Labour Code of 1970. The
Court notes that those legislative provisions provided for the
screening of correspondence of a particular category of persons,
namely, persons held in pre-trial detention or serving their
sentences in penitentiary institutions.
- In
this context, the Court observes that the
applicant did not belong to that category of persons. Given the
purpose and wording of the above legislative provisions, they were
not applicable to the applicants, having regard to the mere
fact that the applicants were not detained in the colony. The
domestic courts’ conclusions to the contrary were not supported
by any reasonable explanation.
- As
regards the instructions on dealing with correspondence by the organs
of the Ministry of the Interior and the State Department for
Execution of Sentences, on which the courts also relied in the
applicants’ case, the Court notes that those instructions were
internal and unpublished and, thus, not accessible to the public,
including the applicants (see paragraph 8 above). Moreover, their
texts were not provided in the present case.
- On
the whole, the Court considers that given the applicants’
particular situation, the relevant Constitutional guarantees, and the
rules governing interception of correspondence at the material time
(see paragraphs 10-17 above), the interference with the applicants’
correspondence did not have any basis in domestic law. Therefore, the
Court finds that the requirement of lawfulness, within the meaning of
Article 8 § 2 of the Convention, was not met in the present
case.
- In
view of the above finding, the Court considers it unnecessary to
examine whether the interference was “necessary in a democratic
society” for one of the legitimate aims pursued within the
meaning of Article 8 § 2 of the Convention.
- There
has therefore been a violation of Article 8 of the Convention.
III. 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
applicants claimed 500,000 Ukrainian hryvnas
(UAH) each in respect of non-pecuniary damage.
- The
Government maintained that the applicants’ claim was
unsubstantiated.
- The
Court has no doubt that the applicants must have sustained
non pecuniary damage as a result of the interference with their
right to respect for their correspondence. The Court, making its
assessment on an equitable basis, as required by Article 41 of
the Convention, awards each applicant EUR 1,200 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed UAH 845
for the translation and correspondence expenses incurred before the
Court. They produced receipts in
respect of these expenses.
- The
Government left the matter for the Court’s consideration.
- The
Court reiterates that, according to its case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the requested
sum of EUR 81.
C. 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
- Declares the application admissible;
- Holds that there has been a violation of Article
8 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following sums, to be converted into the
national currency of the respondent State at the rate applicable on
the date of settlement:
(i) EUR 1,200
(one thousand two hundred euros) to each applicant in respect of
non-pecuniary damage;
(ii) EUR
81 (eighty-one euros) to the applicants jointly for costs and
expenses;
(iii) plus
any tax that may be chargeable to the applicants on the above
amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
