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ANATOLIY TARASOV v. RUSSIA - 3950/02 [2010] ECHR 219 (18 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/219.html
Cite as:
[2010] ECHR 219
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FIRST
SECTION
CASE OF ANATOLIY TARASOV v. RUSSIA
(Application
no. 3950/02)
JUDGMENT
STRASBOURG
18
February 2010
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 Anatoliy Tarasov v.
Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 28 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 3950/02) 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 Anatoliy Valeryevich
Tarasov (“the applicant”), on 22 November 2001.
The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
On
9 May 2005 the President of the Third Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3). On 12 September 2005 the President
of the Third Section requested the Government to submit further
observations in connection with the applicant’s complaint about
the alleged hindrance of his right of petition.
Subsequently,
the application was transferred to the First Section.
The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1961 and is serving a prison sentence in
correctional colony IK-3 in the Bashkortostan Republic.
A. The applicant’s arrest and placement in
custody.
On
14 September 1998 the applicant was arrested in the town of Glazov on
suspicion of murder and several robberies. He was searched and police
officers allegedly withheld his money and jewellery and beat him up.
They took him to Glazov town police station where the beatings
allegedly continued.
On
an unspecified date the applicant was charged with aggravated
robbery, murder, unlawful detention of an individual, extortion,
unlawful possession of firearms and use of force against a State
official – offences under Articles 162, 105, 127, 163, 222 and
318 of the Criminal Code. The applicant was placed in custody.
B. Trial
On
12 October 1999 the Supreme Court of the Udmurtiya Republic found the
applicant guilty of robbery committed with a view to acquiring
others’ property on a large scale and accompanied by infliction
of grievous bodily harm on the victim (Article 162 § (b) and
(c)); unlawful detention of a person entailing grave consequences
(Article 127 § 3); murder with a lucrative aim accompanied by a
robbery (Article 105 § 2 (i)); extortion aimed at acquisition of
others’ property on a large scale (Article 163 § 3 (b));
unlawful possession of a firearm (Article 222 § 1) and assault
on a State official (Article 318 § 1). The court established
that the applicant had instigated his two co-defendants to rob
employees of a trading company. Accompanied by the co-defendants and
carrying a firearm, the applicant had stopped the employees’
car, had robbed them, tied them to a tree in the forest and shot one
of them dead. The court further found that the applicant had
blackmailed another victim, extorting a sum of money from him and had
assaulted police officers during his arrest. The court based the
applicant’s conviction on testimonies by his co-defendants, the
surviving victims and witnesses and the material evidence. The
applicant was sentenced to twenty-three years’ imprisonment. He
appealed against the judgment.
On
an unspecified date in May 2000 the applicant was transferred to
remand centre SIZO-3 in Moscow in order to secure his presence at the
appeal hearing. He was allegedly placed in a cell where he was
severely beaten by other inmates.
On
4 October 2000 the Supreme Court of the Russian Federation upheld the
applicant’s conviction on appeal.
C. Supervisory review
On
16 April 2001 a deputy Prosecutor General of the Russian Federation
lodged with the Presidium of the Supreme Court of the Russian
Federation an application for supervisory review of the judgments of
12 October 1999 and 4 October 2000. The prosecutor requested a
different legal characterisation of the applicant’s criminal
acts, in particular that the charge of “unlawful detention of
an individual by an organised group” under Article 127 § 3
of the Criminal Code be reclassified as “unlawful detention of
two or more individuals by a group of persons with the use of weapons
and violence dangerous to [their] health” under Article 127 §
2 (a), (c), (d) and (h). Furthermore, he requested that the charge of
“murder for financial gain coupled with robbery”
under Article 105 § 2 (i) be
reclassified as “murder coupled with robbery” under the
same provision.
According
to the Government, a copy of the prosecutor’s application was
sent to the applicant “simultaneously” and on 27 July
2001 he was informed that the hearing before the Presidium was
scheduled for 8 August 2001. They further submitted that the
applicant had been subsequently notified that the hearing had been
postponed. The copy of the application of the deputy Prosecutor
General produced by the Government contained handwritten notes:
“postponed [signature] 08.08.”, “postponed
[signature] 23.05”, “postponed 27.06.2001 [signature]”.
According
to the applicant, he obtained a copy of the deputy Prosecutor
General’s application only on 16 August 2001. On unspecified
dates the applicant sent to the Prosecutor General’s Office and
the Presidium of the Supreme Court his observations in connection
with the prosecutor’s application. He also sought leave to
appear at the supervisory review hearing. It appears that his
requests were left without reply.
On
3 October 2001 the Presidium of the Supreme Court of the Russian
Federation examined the application. After having heard the
prosecutor and the judge rapporteur and examined the materials of the
case, the Presidium granted the request, reclassified the applicant’s
acts as sought by the prosecutor and reduced the sentence to
twenty-two years’ imprisonment. The Presidium court’s
decision contained no reference to the applicant’s observations
or arguments raised therein. The applicant did not attend the
hearing.
D. The alleged intimidation of the applicant
From 6 April to 16 October 2005 the applicant was held in colony
LIU-2 in the Udmurtiya Republic.
On
5 May 2005 the Court decided to give notice of the application to the
Government of the Russian Federation.
By
a letter dated 20 May 2005 and sent through informal channels, the
applicant informed the Court that on 16 May 2005 wardens Ch., Ya. and
O. had had a conversation with him. According to the applicant, they
told him that the Court had started its examination of the
application lodged by Messrs Khyzhiny and that they did not want the
applicant to complain about conditions of detention in Russian
correctional colonies to the Strasbourg Court. They ordered him to
write statements addressed to Mr Zheludov, head of the Federal
Service of the Execution of Sentences in the Republic of Udmurtiya,
and to Mr Mardanshin, a prosecutor. The applicant was to affirm
that he had no complaints about the conditions of detention. The
applicant refused and allegedly endured beatings for three days and
received death threats. According to the applicant, there was no
physical evidence of ill-treatment because he had been refused access
to a doctor. On 19 May 2005 the applicant gave up and signed the
declarations.
In
his letter of 20 May 2005 he requested the Court not to accept any
statement similar to the above, should the Government produce one.
E. The alleged opening of the Court’s letter and
seizure of its enclosures
By
a letter of 10 May 2005 the Registry of the Court informed the
applicant that notice of his application had been given to the
Russian Government. The applicant was invited to designate a
representative in the proceedings before the Court. The letter
contained several enclosures, such as a statement of facts, questions
to the parties, an information note to applicants on the proceedings
after communication of an application, an authority form and a list
of Russian bar associations to which the applicant could apply for
representation before the Court.
By letter dated 30 May 2005 the applicant informed the
Court that on 26 May 2005 a co-detainee had handed him the Registry’s
letter of 10 May 2005. The envelope had been unsealed. It
contained the letter and the questions to the parties. Considering
that certain documents were missing, the applicant requested the
prison administration to explain why the letter had been opened.
According to the applicant, on 26 May 2006 he had been placed for
four months in so-called “PKT cell-type premises”
[помещение
камерного
типа]
with a stricter prison regime because of his questions.
F. Inquiries into the events of 16 and 26 May 2005
1. Internal Inquiry
On
27 June 2005 the applicant complained of censorship to the head of
the colony who initiated an inquiry.
(a) Explanations by Z., Kh. and V.
On 27 June 2005 officer Z. submitted to the head of
the colony an explanation which, in its relevant parts, read as
follows:
“I hereby notify you that on 25 May 2005 a letter
(incoming no. 1324) in a foreign language for convict Tarasov
[the applicant] was received. I examined [the letter]. The documents
in the envelope were inspected and put back into the envelope; they
were not withheld. Other persons did not have access to the above
letter and on the same day it was handed over against receipt to Kh.,
head of the brigade...”
The explanation compiled on 1 July 2005 by Kh., head
of the applicant’s brigade, went on as follows:
“On 25 May 2005 at around 3 p.m. officer Z. handed
over to me a big envelope addressed to [the applicant]. The envelope
was opened, I examined [рассмотрел]
the documents contained therein and put them back. There were no
documents in Russian there. I gave the envelope to V., the inmate on
duty, for him to pass it to [the applicant]. I did not remove any
documents from the envelope and did not give them to persons other
than V.”
On
29 June 2005 inmate V. submitted to the head of the colony an
explanation worded in the following terms:
“I ... handed over to [the applicant] a big
envelope which had been given to me by Kh., head of the brigade. Some
fifteen minutes after the envelope was given to me I handed it over
to [the applicant]. I did not look into the envelope and did not take
any documents out of it, I did not give the envelope to anybody.”
(b) Report by the head of the colony
On 4 July 2005 the acting head of the colony delivered
a report [заключение].
It stated that in course of the inquiry it had been established that
on 25 May 2005 the colony had received an envelope for the applicant
with documents from the European Court. Officer Z. in charge of
censoring the inmates’ correspondence had automatically opened
the envelope, not noticing the logo of the European Court of Human
Rights. After the inspection [осмотр]
of the documents she had put them back into the envelope and had
passed it over to Kh., head of the applicant’s brigade, who was
supposed to hand it over to the applicant. The report concluded that
Z. had breached Article 91 § 2 of the Penal Code prohibiting
censorship of convicts’ correspondence with the European Court
of Human Rights. The report went on suggesting, among other things,
reprimanding Z. for negligence and conducting study courses on
Article 91 of the Penal Code with the colony officers, followed by
obligatory tests.
2. Inquiry by the Federal Service for Execution of
Sentences
On
2 September 2005 the Court requested the Government to submit further
observations in connection with the censorship of the Registry’s
letter and the alleged intimidation of the applicant.
On
an unspecified date the regional office of the Federal Service for
the Execution of Sentences in the Republic of Udmurtiya opened an
inquiry in connection with the Court’s communication of the
applicant’s complaints to the Government.
(a) Explanation by the applicant
On 25 October 2005 the regional prosecutor questioned
the applicant. His explanation, in so far as relevant, read:
“On 26 May 2005 at around 12.10 on duty inmate V.
handed over to me an opened envelope with the logo of the ECHR; there
were three sheets of paper with a text in English. He told me that he
had received the envelope from Kh.. At lunch I asked Kh. why the
envelope had been opened. He answered that he had been given the
opened envelope by the censor...
From the text of the documents I understood that not all
documents had been given to me; in particular, some documents which I
was supposed to fill in and to return to the ECHR were missing...
I think that the missing documents... had been withheld
by the representatives of the administration of LIU-2. I cannot name
specific persons because I don’t know who they were. My
suspicions in respect of the administration are based on the fact
that directly after my complaint to Ya., deputy head of the colony,
the administration acted in a strange way. Instead of attempting to
find out what had happened to the missing documents, they placed me
in a PKT. I think that if the administration had had nothing to do
with the loss of the documents they would not be acting like that...
...In LIU-2 I was not pressurised directly. However it
looks suspicious to me that I have suddenly become a persistent
regime breaker. It is also alarming that measures are taken with a
view to delaying my incoming correspondence from the ECHR and my
outgoing correspondence. The attachments to the ECHR letter opened in
May 2005 may have been withheld with this aim.”
(b) Report of 1 November 2005
On 1 November 2005 the regional office of the Federal
Service for Execution of Sentences issued a report in which they
acknowledged a breach of the rules concerning the confidentiality of
the applicant’s correspondence with the Court. At the same time
it was noted that it had not been confirmed that documents had been
removed from the Registry’s envelope. It was further stated,
with reference to the explanations of Z., the then acting head of the
colony, and Kh., that Z. had automatically opened the envelope, that
she had not read the documents and that, in any event, she did not
speak English. Had she noticed the European Court’s logo, she
would not have unsealed the envelope. Neither she nor other persons
had removed the documents from the envelope; no such directions had
ever been given to anybody. It had been impossible to reprimand Z.
because by the relevant time her employment had already been
terminated because of general measures to reduce the workforce.
As
regards the applicant’s allegation of pressure with a view to
making him withdraw some of his complaints to the Court, the report
noted that, according to his own explanation, he had only raised the
issue of interference with his communication with the Court in
connection with the opening of the Registry’s letter. He had
not referred to any other instances of intimidation or interference.
Lastly, during his detention before his conviction had
become final he had been reprimanded fourteen times for various
breaches of the detention regime. After the conviction had become
final the applicant breached the prison regime on twenty-seven
occasions: he was placed in a punishment cell, nine times, in
a PKT twice, and was reprimanded seventeen times.
By
a final judgment of 15 December 2006 the applicant was convicted of
having publicly assaulted a public official.
On
an unspecified date he was transferred to serve his prison sentence
to correctional colony IK-3 in the Republic of Bashkortostan.
G. Alleged censorship of the applicant’s
correspondence
On
12 September 2005 the Court, while giving notice of the applicant’s
complaints about the opening of its letter and the applicant’s
alleged intimidation under Article 34, of its own motion, raised the
issue of whether the prison authorities censored the applicant’s
correspondence, in breach of Article 8 of the Convention.
According
to the applicant, during his stay in LIU-2 the prison administration
routinely censored his incoming mail from the domestic authorities
that was not subject to censorship by virtue of the domestic law.
In particular, the applicant referred to the incoming
mail from the following authorities: the Ombudsman of the Russian
Federation (letters of 6 June and 14 October 2004), the
Constitutional Court of the Russian Federation (letter of 26 August
1999), the Commission on Human Rights with the President of the
Russian Federation (letter of 15 April 2004), the Prosecutor
General’s Office (letters of 11 November 2002 and 27 October
2005), the prosecutor’s office of the Udmurtiya Republic
(letters of 3 December 2002 and 11 May 2004), the Ministry of
Justice of the Russian Federation (letter of 31 October 2002),
the Supreme Court of the Russian Federation (letter of 20 November
2002), the department of the Federal Service for Execution of
Sentences in the Udmurtiya Republic (letters of 26 April, 3 and
10 June and 10 August 2004), the Mozhgi District court (letter of 13
January 2004).
The
letter of the Prosecutor General’s Office dated 27 October
2005 was addressed to the head of LIU-2. He was requested to notify
the applicant that the Prosecutor General’s Office had examined
the applicant’s complaint, forwarded to them by the Office of
the President of the Russian Federation, and dismissed it as
unfounded.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Supervisory review proceedings
Under Article 377 § 3 of the 1960 Code of
Criminal Procedure, in force at the material time, a prosecutor took
part in a hearing before a supervisory review court. A convict and
his or her counsel could be summoned if the court found it necessary.
If summoned, they were to be afforded an opportunity to take
cognisance of the application for supervisory review and to make oral
submissions at the hearing. By its ruling of 14 February 2000,
the Constitutional Court declared Article 377 § 3 of the
Code unconstitutional in so far as it allowed a supervisory instance
court to examine the case without providing the convicted or
acquitted person and their counsel with an opportunity to know the
contents of the request for supervisory review lodged by the
prosecutor, if the latter sought annulment of the final judgment on
grounds unfavourable to that person. The Constitutional Court made
the same findings in respect of the lack of a legal requirement to
notify the convicted or acquitted person and their counsel of the
time when and place where the supervisory review hearing would take
place. Failing that, the above persons would be unable to state their
position to the court.
A supervisory review court was not bound by the scope
of the application for supervisory review and was under an obligation
to review the criminal case in its entirety (Article 380). It could
uphold, amend or quash any of the earlier judgments, vary the
sentence, discontinue the criminal proceedings or remit the matter
for new consideration by the trial or appeal court. It could not,
however, increase the sentence or re-categorise the defendant’s
actions as a more serious offence (ibid.).
B. Prisoners’ correspondence
Article 91 § 2 of the Penal Code, as amended on 8
December 2003, as well as Rule 53 of the Internal Regulations of
Correctional Facilities adopted on 3 November 2005 by Decree no. 205
of the Russian Ministry of Justice, provide that all detainees’
incoming and outgoing correspondence is subject to censorship by the
administration of the correctional facility. Correspondence with
courts, prosecutors, penitentiary officials, the Ombudsman, the
public monitoring board and the European Court of Human Rights is not
subject to censorship.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 § 3 (b)-(d) of the
Convention that the decision of the Presidium of the Supreme Court of
the Russian Federation, taken in his absence, had violated his right
to fair trial. The Court will examine the applicant’s complaint
under Article 6 §§ 1 and 3 (b) and (c), the relevant
parts of which read as follows:
“1.In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ... .
3.Everyone charged with a criminal offence has the
following minimum rights:...
(b) to have adequate time and facilities for the
preparation of his defence;
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to
pay for legal assistance, to be given it free when the interests of
justice so require...”
A. Submissions by the parties
The
Government submitted that the applicant had been duly notified of a
scheduled hearing on 8 August 2001 and adjournment, as well as
provided in due time with a copy of the application of 16 April 2001.
Hence, he should have been aware of the fact and the aim of the
re-examination of his conviction. By contrast to the case of
Pelissier and Sassi, the examination of the case by the
Presidium court should not be considered as levelling a new charge
against the applicant because the relevant facts remained the same;
they had only been given a different legal classification. Moreover,
the reclassification had been favourable to the applicant because his
sentence had been reduced. It had been up to the Presidium to decide
whether or not to summon the applicant to the hearing; his presence
had not been necessary, given that all facts had been correctly
established at the court of first instance. The prosecutor’s
intervention at the hearing was confined to a mere reading out of the
application for review.
The
applicant stressed that he had not requested a reclassification of
his offence. The reduction of his sentence had not negated the fact
that he had not been afforded an opportunity to participate
effectively in the supervisory review hearing. Thus, he had not had
sufficient time to prepare his comments on the prosecutor’s
application; in any event, although he had submitted them both to the
prosecutor’s office and the Presidium court, they had
disregarded them which had been evident from the decision of
3 October 2001, which had not referred to any of his arguments.
In the same vein, all his requests to attend the hearing had been
disregarded, which had deprived him of an opportunity to attend the
hearing and to defend his position. In his opinion, the decision,
delivered after a hearing where he had not been able to present his
arguments in person or through some form of legal representation, had
breached his right to a fair trial and the principle of equality of
arms.
B. The Court’s assessment
1. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
The
Court has already found a violation of the fairness requirement of
Article 6 § 1 of the Convention in the cases where the
supervisory review courts adopted a different legal classification of
the applicants’ offence without summoning them to supervisory
review hearings or affording them an opportunity to comment on the
applications for supervisory review (see Vanyan v. Russia,
no. 53203/99, §§ 63-68, 15 December 2005;
Aldoshkina v. Russia, no. 66041/01, §§ 23-25,
12 October 2006; and Stanislav Zhukov v. Russia, no. 54632/00,
§§ 23-25, 12 October 2006). As regards the
Government’s submission that the reclassification was not to
the applicant’s detriment, the Court observes that it has
already examined and rejected similar arguments in the
above-mentioned Vanyan and Stanislav Zhukov cases (both
cited above, §§ 53 and 24, respectively; see also Sharomov
v. Russia, no. 8927/02, §
44, 15 January 2009)
Having
regard to its case-law on the subject and the material submitted by
the parties, the Court notes that the Government have not put forward
any fact or argument capable of persuading it to reach a different
conclusion in the present case. The Presidium of the Supreme Court
amended the applicant’s sentence and adopted a different legal
classification of his actions, thereby re-determining the criminal
charge against him (see Stanislav Zhukov and Aldoshkina,
both cited above, § 24 and § 24 respectively).
The prosecution was present at the supervisory review hearing and
made oral submissions in support of the reclassification. The
Presidium court was under an obligation to exercise a full review of
the case and could dismiss the application for supervisory review,
quash the conviction and/or the previous judgments, discontinue the
criminal proceedings, or amend any of the earlier decisions (see
paragraph 40 above). In such circumstances the applicant should have
been afforded an effective opportunity to have knowledge of and
comment on the authorities’ application for supervisory review
and their oral submissions to the Presidium court and to plead his
case in adversarial proceedings (see Vanyan, Aldoshkina and
Stanislav Zhukov, all cited above, §§ 24, 24
and 67 respectively). However, nothing suggests that he was afforded
such an opportunity. Firstly, the Government failed to substantiate
their submission that the applicant had been apprised of the hearing
on 8 August 2001 and of its adjournment until 3 October 2001.
Furthermore, the authorities disregarded the applicant’s
requests for leave to appear before the Presidium court and thus he
was absent from the hearing. Lastly, although the applicant submitted
his written comments on the prosecution application, it does not
transpire from the text of the judgment of 3 October 2001 that they
were considered by the Presidium court.
In
view of the above considerations the Court finds that the proceedings
before the Presidium of the Supreme Court of the Russian Federation
did not comply with the requirements of fairness. There has therefore
been a breach of Article 6 § 1 of the Convention.
In
light of this finding it is not necessary to examine separately
whether the provisions of Article 6 § 3 have been complied with
(see Stanislav Zhukov and Aldoshkina, both cited above,
§§ 25 and 25 respectively).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the authorities had opened and inspected
the Court’s letter of 10 May 2005 and had seized documents
enclosed there. The Court considers will examine the applicant’s
complaint under Article 8 of the Convention which reads as follows:
Article 8
“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. Submissions by the parties
The Government acknowledged that the censorship of the
Court’s letter to the applicant constituted a breach of Article
8 of the Convention. They stressed, however, that the measures taken
by the authorities had remedied the situation. In particular, the
responsible persons had been identified and the need for them to be
made aware and to avoid similar incidents in future had been
acknowledged. The acknowledgment of that “insignificant”
breach of the applicant’s rights had constituted, in their
view, an adequate redress and thus, he was no longer a victim of the
alleged violation. On the merits, they argued, with reference to a
certificate issued by colony LIU-2, that throughout his detention
before and after conviction the applicant had sent 296 letters and
complaints to various public authorities and had received 204
replies, including his correspondence with the Court. In the
Government’s view, that fact refuted his allegation that LIU-2
had interfered with his correspondence with the Court. Relying on the
results of the domestic inquiries, they submitted that Z. had
automatically unsealed the Court’s letter. Having seen that the
letter and the enclosed documents were in the English language, she
had immediately passed the envelope and all enclosed documents on to
Kh., head of the applicant’s brigade. She had never withheld
any documents. The Government stressed that Z. had had no command of
English and could not have grasped the contents of the documents. Had
she seen the European Court’s logo, she would not have unsealed
it. Kh. and V. also submitted that they had immediately passed the
envelope on and had never removed any documents from it.
The
applicant retorted that the certificate issued by the colony
contained inaccurate information. Thus, whilst it mentioned in total
eight letters received by the applicant from the Court, in reality he
had received seventeen letters from it. He further submitted that two
of the Court’s letters had colony stamps disclosing that the
correspondence had been routinely opened and inspected. His letters
to and from the domestic authorities which should not have been
censored by virtue of Article 91 of the Penal Code had also been
stamped. There had been a month’s delay in handing one of the
Court’s letters over to him; there were persistent delays in
posting his letters to various authorities.
As
regards the opening of the Court’s letter, the applicant
maintained that, for some unspecified reasons, it had been brought to
the censorship unit and that Kh. had passed it to a co-inmate instead
of handing it over directly to him. Furthermore, while the letter had
been received on 25 May 2005, it had been handed over to the
applicant only a day later, there had been no explanation for that
delay and several enclosures were missing from the envelope. From the
statements of Z. and Kh. it was obvious that they had examined the
contents of the envelope and thus the Government’s argument
about their negligence did not stand. The breach of his rights had
never been remedied at the domestic level. The authorities had
carried out a proper inquiry only after the Court had given notice of
the application to the Government. Nobody had been punished for the
breach of his rights and no adequate redress had been provided. On
the contrary, he had been put in PKT for his attempt to find out what
had happened to the documents.
B. The Court’s assessment
1. Admissibility
The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Amuur v. France,
25 June 1996, § 36, Reports of Judgments and Decisions
1996 III, and Dalban v. Romania
[GC], no. 28114/95, § 44, ECHR 1999 VI). In this
connection the Court accepts the Government’s argument that the
breach of the applicant’s right to respect for his
correspondence had been, at least in substance, acknowledged by the
domestic authorities and in the proceedings before it (see paragraphs
26, 30 and 51 above). As to the issue of redress, the Court does not
exclude that in a situation like the one in the present case adequate
redress would not necessarily imply monetary compensation but might
take other forms, the adequacy of such redress being assessed with
regard to the particular circumstances of each case. However, in the
present case the Court finds nothing to suggest that there was any
decision or measure on the part of the domestic authorities which
could be regarded as adequate redress for the alleged breach of the
applicant’s rights under Article 8 of the Convention. In this
connection the Court takes note of the applicant’s submission,
uncontested by the Government, that a proper inquiry had only been
initiated after the Court had given notice of the applicant’s
complaints, that no measures had been taken in respect of the
officials identified during the inquiry as responsible for the
opening of the Court’s letter and that no one had apologised to
the applicant.
In
view of the foregoing the Court concludes that the applicant has not
lost victim status in relation to the alleged violation of Article 8
of the Convention. It further notes that the complaint is not
manifestly ill-founded and not inadmissible on any other grounds and
should be declared admissible.
2. Merits
The
Court reiterates that “interference by a public authority”
with the exercise of the right to respect for his correspondence will
contravene Article 8 unless it is “in accordance with the law”,
pursues one or more of the legitimate aims referred to in paragraph 2
and furthermore is “necessary in a democratic society” to
achieve them (see, among many other authorities, Labita
v. Italy [GC], no. 26772/95, §
179, ECHR 2000 IV).
(a) Existence
of an interference
The
Court reiterates that the opening of one letter is sufficient to
disclose an interference with the applicant’s right to respect
for his correspondence (see Narinen v. Finland, no. 45027/98,
§ 32, 1 June 2004).
The
Court observes, and it was not disputed by the parties, that on
25 May 2005 colony official Z. had unsealed the Court’s
letter to the applicant dated 10 May 2005. In their explanations
Z. and Kh. explicitly stated that they had taken the documents out of
the envelope and had “examined” or “inspected”
them (see paragraphs 23 and 24 above). In this connection the
Government’s argument that Z. and Kh. were unable to read the
enclosures in English is without relevance for the Court. It is
further not disputed by the parties that Z. had been the first to
open the envelope and examine its contents, that Kh. had subsequently
also examined them and had passed them on to V. before it had reached
the applicant a day later, some documents being missing. In this
connection it is to be noted that several days after the incident the
applicant had written to the Court and put it on notice that he had
received an opened envelope and that several documents were missing
(see paragraph 21 above). In the ensuing correspondence and his
observations he consistently confirmed his description of the events.
Having
regard to the foregoing, the Court considers that the censorship of
the letter amounted to an “interference” by a public
authority, within the meaning of Article 8 § 2, with the
exercise of the applicant’s right to respect for his
correspondence.
(b) Whether the interference was” in
accordance with the law”
The
Court notes that Article 91 § 2 of the Penal Code, as in force
at the material time, expressly prohibited censoring of detainees’
correspondence with the European Court of Human Rights. It takes into
account that the Government acknowledged that the interference with
the applicant’s correspondence had been in breach of Article 8.
It follows that censoring of the above letter was not “in
accordance with the law”.
There
has therefore been a breach of Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
The
applicant also complained that on 19 May 2005 wardens had forced him
to write a statement to the effect that he had no complaints about
the conditions of his detention. He did not refer to any Convention
provision. The Court will examine the complaint under Article 34 of
the Convention which provides as follows:
Article 34
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. Submissions by the parties
The
Government stated that the applicant had not been subjected to any
pressure because no statement, as described by him, had been received
by the Court or the Representative of the Russian Federation at the
Court. Furthermore, in his statement of 25 October 2005 the
applicant himself submitted that no one in colony LIU-2 had told him
that he should withdraw his application to the Court. He had also
stated that he had not been subjected to direct pressure in that
colony. Moreover, the applicant was able to write and send to the
Court a letter describing the incident with the Court’s letter.
His submissions were refuted by the results of the inquiries showing
that the administration of the colony had not tolerated breaches of
detainees’ Convention rights and had not interfered with their
correspondence with the Court. According to statements of the
applicant’s co-detainees, the colony administration had always
been polite to them and they had been able to resolve all issues in
close contact with it. The Government produced statements from four
detainees and stressed that they had, in particular, emphasised that
the colony officials had never pressurised the applicant. In their
statements the detainees had also expressed a negative attitude
towards the applicant because he had been constantly trying to find
occasions to complain about something.
The applicant claimed that he had been obliged to
transfer his letter about the pressurising though informal channels
because he had feared persecution by the colony administration. It
was hardly thinkable that the authorities would send his statements,
obtained under duress, to the Court after he had requested it not to
accept them. While questioned about the alleged pressure he had not
wanted to give any further information because he had not trusted the
officials. Furthermore, on 26 May 2005 he had been placed in a
PKT for four months for his attempts to find out what had happened to
the missing documents and who had opened the Registry’s
envelope. In the PKT he had been refused an English-Russian
dictionary and law books and had received them only after a six-day
hunger strike. That unjustified punishment was a further proof that
he had been pressurised. As regards the written statements by four
detainees produced by the Government, other detainees to whom the
applicant had read them had been appalled by the lies contained
therein and the hypocrisy of their authors. In support of his
position the applicant produced an “opinion” signed by
twenty inmates who had confirmed his submissions concerning the
untrustworthiness of the detainees’ statements submitted by the
Government.
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 of
Judgments and Decisions 1996 IV, and Aksoy v. Turkey,
18 December 1996, § 105, Reports of Judgments and Decisions
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 of Judgments and Decisions
1998 III).
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).
Turning
to the circumstances of the present case, the Court observes that the
parties produced little or no evidence in connection with the above
complaint. At the same time they furnished numerous opposing
statements from detainees of the colony suggesting, on the one hand,
that the administration respected the inmates and, on the other, that
it was not true. However, in the present case the Court is not
dealing with the general situation in the above colony but with a
specific complaint concerning the alleged breach of the obligations
under Article 34 on account of pressure being put on the applicant
with a view to having him sign a specific statement. Hence, it will
focus on the applicant’s specific allegations in this respect
and examine whether they can be found to be well-founded.
The
Court notes that the applicant alleged that on 16 May 2005 colony
officials had ordered him to sign a statement addressed to a
prosecutor and the regional department of the Federal Service of
Execution of Sentences to the effect that he had no complaints about
the conditions of his detention and, when he refused, had allegedly
beaten him. They had allegedly prevented him from seeing doctors to
record his injuries and he had finally signed the declarations to
avoid further beatings.
It
observes that in the course of an inquiry into the opening of the
Court’s letter, while questioned by the prosecutor about the
alleged pressure, the applicant explicitly stated that he had not
been directly pressurised in LIU-2. He further explained that he had
considered as pressure the fact of having suddenly become a
persistent regime breaker, the delays in posting his correspondence
to the Court and the opening of the Court’s letter. Nowhere in
his explanation did he refer to statements he had been allegedly
forced to sign, the beatings which had allegedly accompanied them or
the related refusals of access to a doctor (see paragraph 29 above).
In this connection, the Court reiterates that it is fully aware of
the vulnerability of the applicant, as a prisoner who sought to
accuse officials of his own colony of putting him under pressure (see
Cotleţ,
cited above, § 71). However, it cannot but observe
that in the same conversation with the prosecutor the applicant
complained vigorously and raised all his considerations and
suspicions in connection with the censorship of the Court’s
letter. The Court does not find convincing the applicant’s
explanation that he “did not want” to raise the issue
before the prosecutor because he did not trust him (see paragraph 64
above). Lastly, even being mindful of the problems the applicant
might have encountered in getting access to doctors after his alleged
intimidation, the Court cannot but observe that he produced
statements by twenty inmates contesting the credibility of the
witnesses whose statements had been furnished by the Government (see
ibid.).
As
regards the applicant’s submission that he had “suddenly”
and arbitrarily been classified as a “regime breaker”,
although the Court will not look in depth at this matter, it
nonetheless cannot disregard the findings of the inquiry, uncontested
by the applicant, to the effect that he had had a long record of
breaches of regime before as well as after his conviction (see
paragraph 32 above). In the same vein, the Court finds
unsubstantiated his submission that he had been placed in a PKT in
connection with his complaints about the opening of the Court’s
letter.
In
the light of the above facts and considerations the Court considers
that an alleged breach of the State’s obligation under Article
34 of the Convention has not been established.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant alleged violation of his rights under Articles 2, 3, 4,
5, 6, 7, 8, 13 and 17 of the Convention, Article 1 of Protocol No. 1
and Article 4 of Protocol No. 7 on various grounds.
73. However,
having regard to all the material in its possession, and
in so far as these complaints fall within the Court’s
competence, it finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that this part of
the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed compensation in respect of pecuniary and
non-pecuniary damage, without specifying its amount.
The
Government submitted that the applicant’s claims should be
dismissed because he had failed to indicate either the grounds for
the compensation sought or the particular amount under each head of
his claims. They also stressed that his claims in respect of
non-pecuniary damage had apparently related to his mental and
emotional suffering as a result of his criminal prosecution as such,
and invited the Court to dismiss them. Lastly, they considered that,
should the Court find a violation of any Convention provision, a
finding of a violation would constitute sufficient just satisfaction.
Having
regard to the applicant’s observations, the Court does not
agree with the Government that his claims in respect of non-pecuniary
damage relate solely to the fact of his criminal prosecution. It
accepts that the applicant must have suffered distress and
frustration resulting from the violation of his right to a fair trial
and the right to respect for the correspondence and considers that
they cannot be compensated for by a mere finding of violation of the
relevant Convention provisions. Making its assessment on an equitable
basis, the Court awards the applicant 2,500 euros (EUR), plus
any tax that may be chargeable to the applicant.
B. Costs and expenses
The
applicant also claimed EUR 250 for photocopying of the documents for
the proceedings before the Court.
The
Government contested the claim as unsubstantiated.
According
to the Court’s 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
finds that the applicant failed to substantiate his claims and
therefore dismisses them.
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 complaints under Articles 6 and 8
of the Convention concerning, respectively, the unfairness of the
supervisory review proceedings and the censorship of the Court’s
letter admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the unfairness of the
supervisory review proceedings;
Holds that there has been a violation of Article
8 of the Convention on account of the censorship of the Court’s
letter;
Holds that the respondent State has not failed
to comply with their obligation under Article 34 of the Convention in
respect of the applicant’s alleged intimidation;
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 2,500 (two
thousand and five hundred euros) in respect of non-pecuniary damage,
to be converted into Russian roubles at the rate applicable at the
date of the 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 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
