FIRST SECTION

CASE OF KOPANITSYN v. RUSSIA

(Application no. 43231/04)

JUDGMENT

STRASBOURG

12 March 2015

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 Kopanitsyn v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Isabelle Berro, President,
	Khanlar Hajiyev,
	Mirjana Lazarova Trajkovska,
	Julia Laffranque,
	Paulo Pinto de Albuquerque,
	Linos-Alexandre Sicilianos,
	Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 17 February 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 43231/04) 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 Dmitriy Yuryevich Kopanitsyn (“the applicant”), on 27 October 2004.
2.  The applicant, who had been granted legal aid, was represented by Mr P. Finogenov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3.  The applicant complained, in particular, that the conditions of his detention in a remand prison had been inhuman and degrading, that his pre‑trial detention had been unlawful, excessively long and without relevant and sufficient justification. He also maintained that the Russian authorities had hindered his right to individual petition to the Court.
4.  On 5 June 2009 the application was communicated to the Government.
5.  In his reply to the Government’s observations, dated 23 December 2009, the applicant further complained about the unlawfulness of the detention orders of 29 October 2004 and 1 March, 3 May and 20 October 2005.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1980 and lives in Moscow.
Section 1.01	A.  Criminal proceedings
7.  On 15 July 2004 the applicant was arrested on suspicion of robbery. He claimed that on the same day, in an attempt to extract a confession, a police officer had beaten him during an interview.
8.  On 16 July 2004 the Zamoskvoretskiy District Court of Moscow authorised the applicant’s detention until 19 July 2004. By further orders of 19 July, 3 September and 29 October 2004, 1 March, 3 May, 20 and 28 October 2005, and 17 January and 4 April 2006, the Zamoskvoretskiy and Izmaylovskiy District Courts extended the authorised period of the applicant’s detention. These orders cited the gravity of the charges, the possibility of the applicant’s absconding and the complexity of the criminal case as the main reasons for the continued detention.
9.  From 23 July to 10 September 2004 the applicant was placed in remand prison IZ-77/1 in Moscow. He claimed that the facility had been overcrowded and that the cells had been in a poor sanitary condition.
10.  On 20 July 2006 the Izmaylovskiy District Court found the applicant guilty as charged and gave him a custodial sentence.
Section 1.02	B.  The applicant’s correspondence with the Court
11.  On 20 September 2004 the applicant ‒ who by that time had been transferred to remand prison IZ-77/6 in Moscow ‒ dispatched a complaint to the Court through the prison postal service.
12.  For unknown reasons, instead of sending the letter to the Court the prison authorities sent it to the Administration of the President of Russia. From there it was transferred to the Moscow Prosecutor’s Office.
13.  On 14 October 2004 the applicant was notified that a prosecutor in the Moscow Prosecutor’s Office had examined his complaint to the Court and considered his allegations to be unfounded. Among other things, the applicant was informed that he should await a final decision in his criminal case in order to have exhausted the available domestic remedies in respect of his grievances prior to complaining to the Court.
14.  On 27 October 2004 the applicant sent another letter to the Court which read as follows:
“Complaint.
[Hereby I] lodge [this] complaint about unlawful actions of the [Russian] executive and judiciary [authorities].
I consider that their actions have violated Articles 3, 5, 6 and 13 of the European Convention [on Human Rights].
I will submit all the necessary evidence [thereof] together with the completed official application form.
I request you to register my complaint, to attribute it a number and to send me an official application form, an instruction for filling it in and the text of the Convention.
I request you to send the reply at the address of my detention.”
The letter reached the Court on 23 November 2004.
15.  On 23 November 2004 the Zamoskvoretskiy District Court of Moscow examined the applicant’s complaint regarding the examination of his correspondence of 20 September 2004 by the Moscow Prosecutor’s Office and found:
“The applicant complained about... the rejection [by the deputy prosecutor] of his complaint [to the European Court of Human Rights].
Prosecutor L. submitted that the complaint should be rejected on the following grounds.
Despite the fact that the applicant’s letter was addressed to the European Court [of Human Rights], the prison [authorities] sent it to the Administration of the President of Russia, as is apparent from the stamp on the envelope. The Administration of the President, in turn, redirected Mr Kopanitsyn’s correspondence to the Moscow Prosecutor’s Office ... Mr Kopanitsyn’s letter was allocated to [its] division 35 and examined on the merits.
The fact that the [personnel of the] remand prison dispatched the complaint to the Administration of the President of Russia instead of the European Court [of Human Rights], is beyond the scope of the prosecutor’s competencies and does not invalidate the prosecutor’s actions.
Having regard to the parties’ submissions and having examined the documents, the court considers that the complaint must be rejected... and that there are no grounds to declare the actions of the deputy prosecutor unlawful, as the applicant’s complaint was forwarded from the Administration of the President of Russia and [therefore] the prosecutor’s office [was obliged] to examine it.
The fact that the [personnel of the] remand prison dispatched the complaint to the Administration of the President of Russia instead of the European Court [of Human Rights], is beyond the scope of the prosecutor’s competencies and is not a subject of the present proceedings.”
This decision was essentially confirmed by the same court on 2 February 2005 in response to repeated complaints from the applicant in connection with the same problem.
16.  The decisions of 23 November 2004 and 2 February 2005 were upheld on appeal by the Moscow City Court on 23 December 2004 and 7 April 2005, respectively.
17.  In the meantime, on 24 November 2004 the applicant received another letter from the Moscow Prosecutor’s Office, which stated:
“It was established that your complaint addressed to the European Court of Human Rights was rightfully examined by the Moscow Prosecutor’s Office [acting] on assignment from the Administration of the President of Russia. According to Article 35 of the Convention on Human Rights, the [European] Court is competent to examine applications only when all the domestic remedies were exhausted... and lodged no later than six months from the date of the final domestic decision.
As you [currently have the status of] an accused in a criminal case which has not yet been heard by [the domestic] courts, the European Court of Human Rights may accept [your] complaint only after the judgment in your case would be given and the final decision of the supervisory review instance [court] would be taken.”
18.  In letters dated 1 and 22 February 2005 the Moscow Department of the Federal Service for the Execution of Sentences informed the applicant that there had been no malfunctioning of the prison postal service and that they had no explanation as to why the application form of 20 September 2004 had reached the President’s Office rather than the Court.
19.  On 22 February 2005 the applicant submitted the completed application form which reached the Court on 25 April 2005.
20.  On 7 September and 27 November 2009 the applicant, who was serving the sentence in a correctional colony at the time, sent two letters to Mr Finogenov, his representative before the Court. It appears that these letters were dispatched by the colony administration on 31 October and 10 December 2009, respectively.
Article II.	II.  RELEVANT LAW AND PRACTICE
21.  The relevant domestic law and the international material regarding the conditions of pre-trial detention in Russian custodial facilities are summed up in the judgment Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 25-60, 10 January 2012.
22.  For a comprehensive summary of the domestic provisions on pre‑trial detention and time-limits for trial, see Avdeyev and Veryayev v. Russia, no. 2737/04, §§ 22-34, 9 July 2009).
THE LAW
Article III.	I.  ALLEGED VIOLATIONS OF ARTICLES 3 AND 5 § 3 OF THE CONVENTION
23.  By a letter submitted on 17 January 2014, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised under Article 3 and Article 5 § 3 of the Convention, which read as follows:
“I..., the Representative of the Russian Federation at the European Court of Human Rights, hereby declare that the Russian authorities acknowledge that, between 23 July and 10 September 2004, Dmitriy Yuryevich Kopanitsyn was detained in detention facility no. IZ-77/1 in Moscow in the conditions, which did not comply with the requirements of Article 3 of the Convention, as well as without well-founded justification in violation of Article 5 § 3 of the Convention.
The authorities are ready to pay the applicant a sum of EUR 4 810 as just satisfaction.
The authorities therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as ‘any other reason’ which would justify striking the case out of the Court’s list of cases as referred to in Article 37 § 1 (c) of the Convention
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case.”
24.  By letter of 15 April 2014 the applicant rejected the Government’s offer, considering the proposed sum to be too low and insisting on the examination of his other complaints.
25.  The Court reiterates that Article 37 § 1 (c) of the Convention enables it to strike a case out of its list if:
“...for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
26.  It also points out that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
27.  To this end, the Court will examine the declaration carefully in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
28.  The Court is satisfied that the Government did not dispute this part of the allegations made by the applicant and explicitly acknowledged the breaches of Articles 3 and 5 § 3 of the Convention as claimed by him.
29.  As to the intended redress to be provided to the applicant, the Government have undertaken to pay EUR 4,810 in respect of pecuniary and non-pecuniary damages, as well as costs and expenses. The Court notes that even if that amount did not exactly correspond to the awards made by the Court in similar cases, what is important is that the proposed sum is not unreasonable in comparison with them (see Cocchiarella v. Italy [GC], no. 64886/01, § 105, ECHR 2006‑V). The Government have committed themselves to effecting payment of that sum within three months of the Court’s decision, with default interest to be payable in case of a delay in settlement.
30.  The Court notes that it has repeatedly found violations of Articles 3 and 5 § 3 of the Convention on account of inadequate conditions of detention in Russian custodial facilities (see Ananyev and Others v. Russia, cited above) and the excessively long pre-trial detention of applicants without relevant and sufficient reasons (see, among many other authorities, Kalashnikov v. Russia, no. 47095/99, §§ 104-121, ECHR 2002‑VI). It follows that the complaints raised in the present application are based on the clear and extensive case-law of the Court.
31.  The Court further notes that the Committee of Ministers remains competent to supervise, in accordance with Article 46 § 2 of the Convention, the implementation of the judgments concerning the same issues. Therefore, the Court is satisfied that the respect for human rights as defined in the Convention (Article 37 § 1 in fine) does not require it to continue the examination of this part of the application. In any event, the Court’s decision is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, this part of the application to its list of cases should the Government fail to comply with the terms of their unilateral declaration (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006). The Court thus considers that it is no longer justified to continue the examination of the case in this part.
32.  In view of the above, it is appropriate to strike out of the list the part of the application concerning the inhuman and degrading conditions of the applicant’s detention in remand prison IZ-77/1 in Moscow between 23 July and 10 September 2004 and the lack of relevant and sufficient reasons for his pre-trial detention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION
33.  The applicant complained under Article 5 § 1 (c) of the Convention that his pre-trial detention had been unlawful as the grounds for it adduced by the domestic courts had been neither relevant nor sufficient.
34.  The Government submitted that the pre-trial detention had been lawful and complied with both the relevant domestic legislation and Article5 § 1 of the Convention.
35.  The Court reiterates that the issues of reasonableness of a period of pre-trial detention and the existence of grounds for an individual’s continued detention fall within the scope of Article 5 § 3 of the Convention (see, among many other authorities, Avdeyev and Veryayev, cited above, §§ 58-62). Insofar as the applicant can be understood complaining about that aspect of his detention, the Court considers that it has been resolved by the Government’s unilateral declaration (see paragraphs 23-32 above) and does not raise any separate issue.
36.  Insofar as the applicant can be understood to have complained about the “lawfulness” aspect of his detention under Article 5 § 1 (c) of the Convention, the Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof (see Avdeyev and Veryayev, cited above, § 41). In that respect, the Court observes that it was not disputed by the applicant that each of the periods of his detention was authorised by a court order. It further notes that in issuing those orders, the courts acted within their jurisdiction. There is nothing to suggest that those decisions were invalid or unlawful under domestic law in so far as they authorised the applicant’s detention.
37.  It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Article V.	III.  ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
38.  The applicant complained that the examination of his complaint before the Court by a prosecutor and the delays in the processing of his correspondence with Mr Finogenov amounted to a hindrance to his right to individual petition as enshrined in Article 34 of the Convention, which reads:
“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.”
39.  The Government submitted that the applicant had been able to exercise his right to individual petition without any hindrance. His complaint, registered in the prison correspondence register on 22 September 2004, had been sent to the Court on the same day and the authorities never caused any hindrance to his correspondence.
40.  The Court observes at the outset that a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 141, 17 January 2012; Cooke v. Austria, no. 25878/94, § 46, 8 February 2000; and Ergi v. Turkey, 28 July 1998, § 105, Reports of Judgments and Decisions, 1998‑IV).
41.  The Court reiterates that 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. 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 instances of contact designed to dissuade or discourage them from pursuing a Convention remedy or having a “chilling effect” on the exercise of the right of individual petition by applicants and their representatives (see Fedotova v. Russia, no. 73225/01, § 48, 13 April 2006; Mechenkov v. Russia, no. 35421/05, § 116, 7 February 2008, and Yefimenko v. Russia, no. 152/04, § 164, 12 February 2013).
42.  In the light of the parties’ submissions, and in particular the acknowledgements made by the domestic authorities (see paragraphs 13 ‑ 18 above), the Court finds that the complaint addressed by the applicant to the Court reached the Moscow Prosecutor’s Office, where it was opened and examined by an official who sent the applicant several replies claiming that the complaint to the Court had been premature and that it had not complied with the Convention admissibility criteria.
43.  The Court considers that the opening and examination of the letter by a prosecutor produced a “chilling effect” on the exercise of the applicant’s right of individual petition, potentially dissuading and discouraging him from lodging the complaint. Therefore, the respondent State has failed to comply with its obligations under Article 34 of the Convention.
44.  In view of the above findings, the Court does not consider it necessary to examine the remaining allegations made by the applicant in relation to the exercise of his right of individual petition.
Article VI.	IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
45.  The applicant also complained under Articles 3 and 6 of the Convention that he had been ill-treated by policemen and that the domestic courts had erroneously assessed the evidence in his criminal case. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Article VII.	V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
46.  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.”
Section 7.01	A.  Damage
47.  The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
48.  The Government considered that the finding of a violation would be an adequate redress for the applicant.
49.  Having regard to its case-law in similar cases and the conditions of the Government’s declaration, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
Section 7.02	B.  Costs and expenses
50.  The applicant did not claim any costs or expenses. Accordingly, there is no call to make an award under this head.
Section 7.03	C.  Default interest
51.  The Court considers it appropriate that the default interest rate 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
1.  Decides, having regard to the terms of the Government’s declaration, and the modalities for ensuring compliance with the undertakings referred to therein, to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaints under Articles 3 and 5 § 3 of the Convention about the inhuman and degrading conditions of the applicant’s detention in remand prison IZ-77/1 in Moscow between 23 July and 10 September 2004 and the lack of relevant and sufficient reasons for his pre-trial detention;

2.  Declares the complaints submitted under Articles 3, 5 § 1 and 6 of the Convention inadmissible;

3.  Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention;

4.  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 the currency of the respondent State at the rate applicable at the date of settlement;
(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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Nielsen	Isabelle Berro
	Registrar	President