CASE OF GLINOV v. UKRAINE
(Application no. 13693/05)
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:
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:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s pre-trial detention
1. From 19 to 21 October 2003
2. From 31 October 2003 to 23 March 2006
B. Conditions of the applicant’s detention
C. The applicant’s conviction
D. The applicant’s correspondence with the Court
II. RELEVANT DOMESTIC LAW
“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
“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.”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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.”
1. The parties’ submissions
2. The Court’s assessment
(a) Existence of an interference
(b) Whether the interference was justified under Article 8 § 2 of the Convention
i. Before 21 December 2005
ii. Since 21 December 2005
II. ALLEGED VIOLATIONS OF 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. Submissions by the parties
B. The Court’s assessment
1. The alleged failure of the SIZO administration to dispatch the applicant’s correspondence to the Court
2. The alleged failure of the SIZO administration to deliver the Court’s correspondence to the applicant
3. The alleged pressure of the authorities on the applicant with a view to discouraging him from pursuing his application before the Court
4. General conclusion
III. ALLEGED VIOLATIONS OF ARTICLES 3 AND 5 OF THE CONVENTION
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
FOR THESE REASONS, THE COURT
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.
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?