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SHUGAYEV v. RUSSIA - 11020/03 [2010] ECHR 36 (14 January 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/36.html
Cite as:
[2010] ECHR 36
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FIRST
SECTION
CASE OF SHUGAYEV v. RUSSIA
(Application
no. 11020/03)
JUDGMENT
STRASBOURG
14 January
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 Shugayev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 11020/03) 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 Mr Gennadiy Yuryevich Shugayev (“the
applicant”), on 23 February 2003.
The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Ms V. Milinchuk, former Representatives of the
Russian Federation at the European Court of Human Rights, and
subsequently by Mr G. Matyushkin, Representative of the
Russian Federation at the European Court of Human Rights.
The
applicant alleged, in particular, that he had not been provided with
legal assistance in the course of the criminal proceedings against
him and that the Russian authorities had interfered with his
correspondence with the Court.
On
6 September 2006 the President of the First 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
22 April 2008 the President of the First Section invited the
Government to submit further written observations on the
admissibility and merits of the application under Rule 54 § 2 (c)
of the Rules of the Court.
The
Government objected to the joint examination of the admissibility and
merits of the application. The Court examined and dismissed their
objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1961 and is serving a prison sentence in
Orenburg.
A. Criminal proceedings against the applicant
1. Preliminary investigation
On
6 May 2001 the applicant was arrested on suspicion of murder. On
7 June 2001 he was released on an undertaking not to leave town.
The
applicant was subsequently apprehended on suspicion of another
murder. According to him, the arrest took place on 18 October
2001. The Government submitted that he was arrested on 19 October
2001. It appears that the applicant was not provided with any legal
assistance when questioned by the investigator. A lawyer was
appointed to represent him on 13 January 2002. It appears that
the applicant was dissatisfied with the quality of the lawyer’s
services and dismissed him.
2. Criminal proceedings concerning the first charge of
murder
On
17 January 2002 the Shadrinsk Town Court found the applicant
guilty of murder and sentenced him to fourteen years’
imprisonment. On 26 February 2002 the Kurgan Regional Court
quashed the applicant’s conviction on appeal and remitted the
matter for fresh consideration.
On
6 May 2002 the Shadrinsk Town Court found the applicant guilty
of murder and sentenced him to twelve years’ imprisonment. On
28 May 2002 the Kurgan Regional Court upheld the conviction on
appeal.
3. Criminal proceedings concerning the second charge of
murder
On
15 February 2002 the Kurgan Regional Court opened another trial.
Lawyer V. was appointed to represent the applicant.
On
26 February 2002 the applicant asked the court to dismiss the
lawyer, alleging that he was not performing his duties properly. His
request was denied.
On
13 June 2002 the Kurgan Regional Court found the applicant
guilty of murder and sentenced him to life imprisonment. On
10 January 2003 the Supreme Court of the Russian Federation
upheld his conviction on appeal. The applicant, who was not
represented, made oral submissions to the court by means of a video
teleconference. The prosecutor was present and argued in favour of
dismissing the applicant’s appeal.
On
21 September 2004 the Sol-Iletskiy District Court of the
Orenburg Region commuted the applicant’s sentence to twenty-two
and a half years’ imprisonment.
B. The applicant’s correspondence with the Court
1. Alleged seizure of the documents at transit prison
IZ-56/1 in Orenburg
Between
8 and 10 April 2003 the applicant was detained at transit prison
IZ-56/1 in Orenburg. According to the Government, the relevant
internal regulations required that, for the time of the applicant’s
stay there, his personal property was withheld from him for security
reasons. His personal belongings were duly logged and then returned
to him at the end of his stay. According to the applicant, neither
the documents nor many of his personal belongings were returned to
him.
The
applicant lodged a complaint with the General Prosecutor’s
Office on 16 April 2003 alleging that his documents had been
unlawfully seized and his personal property had been stolen. The
complaint was transferred to the regional department of corrections.
They questioned one of the guards and the applicant. The guard
claimed that all the applicant’s belongings had been returned
to him against a signed receipt. According to the Government, the
applicant withdrew his allegations. They submitted a copy of a
statement by the applicant dated 22 September 2003 where he
confirmed in writing that he did not have any claims against the
administration of the transit prison.
On
an unspecified date the applicant lodged a complaint with the
Leninskiy District Court of Orenburg in respect of the loss of his
personal effects. On 31 August 2005 the court dismissed it
without consideration on the merits due to the applicant’s
failure to comply with certain procedural requirements. It appears
that the applicant did not appeal.
2. Alleged failure of correctional institution IK-6 to
dispatch the applicant’s letters to the Court
Between
10 April 2003 and 16 December 2004 the applicant was
detained at correctional institution IK-6 in Sol-Iletsk.
According
to the applicant, he sent out two letters to the Court on 5 May
and 9 July 2003. The letters never reached the Court. Nor were
they registered in the outgoing correspondence log of the
correctional institution submitted by the Government. The applicant’s
next letter of 27 October 2003 reached the Court. That letter
was not registered in the log either.
The
letter which the applicant dated as of 13 January 2003 was
dispatched by the administration of the correctional colony on 31
March 2004.
The
applicant allegedly tried to send another letter to the Court on
14 September 2004. He claimed that his letter was not accepted
for dispatch and the guards beat him up for persisting in his
correspondence with the Court.
The
applicant further alleged that on 21 October 2004 the
administration of the correctional institution refused to dispatch
his letter of 12 October 2004 addressed to the Court. The letter
was returned to the applicant with a handwritten note on the envelope
which read “what kind of news is that?” («Что
за новости?»).
According
to the copies of the logs of outgoing correspondence submitted by the
Government, the applicant asked the administration of the
correctional institution to send out three letters in 2003 and seven
letters in 2004 respectively. Two of the letters sent out in 2004
were addressed to the Court. Both of them reached their destination.
2. Alleged loss of the applicant’s letters
addressed to the Court and non-delivery of the communication mail
It
appears that the applicant was repeatedly transferred from one
correctional institution to another. Between 12 April 2005 and 1
March 2006 he served his sentence at correctional institution IK-4 in
Nyrob in the Perm Region. Then he was taken to transit prison IZ-56/1
in Orenburg where he arrived on 6 April 2006. According to the
applicant, he sent a letter to the Court notifying it of the change
of his address. The letter never reached the Court.
On
26 May 2006 the applicant was transferred back to correctional
institution IK-6 in Sol-Iletsk. On 27 June 2006 he arrived and
stayed there for a month. On 5 September 2006 he arrived at
correctional institution IK-8 in Orenburg where he has been detained
to date. According to the applicant, on 7 and 9 September
2006 he sent two letters to the Court notifying it of the change of
his address. The letters did not reach the Court.
On
6 September 2006 the Court decided to give notice of the application
to the Government. The relevant letter addressed to the applicant did
not reach him. The Court further sent two more letters to the
applicant on 3 January and 12 February 2007. The applicant did not
receive the letters. Once the time-limit established by the Court for
the submission by the applicant of his observations had expired, on
22 November 2007 the Court requested the Government to submit
further information confirming the receipt by the applicant of the
Court’s correspondence. A copy of the letter addressed to the
applicant did not reach him. All the correspondence was forwarded to
correctional institution IK-4 in Nyrob.
According
to the copies of the incoming correspondence registration logs
submitted by the Government, the above-mentioned letters from the
Court did not reach the correctional institution to which they were
addressed.
The
Government also submitted copies of the outgoing correspondence
registration log of IK-8, which indicated that the applicant sent out
two letters to the Court on 10 April and 19 July 2007. The
said letters did not reach the Court.
3. Opening of the Court’s letter of 28 June 2007
On
28 June 2007 the Court sent another letter to the applicant by
registered mail. It appears that correctional institution IK-4, to
which the letter was addressed, forwarded it to correctional
institution IK-8, where the applicant was actually detained. On
5 August 2008 the administration of IK-8 registered the letter
in the incoming correspondence log as received for the applicant from
the Federal Service of Corrections (UFSIN). The letter was opened by
an officer on duty and the applicant refused to accept it. The
administration of the penitentiary establishment interpreted his
refusal as a decision not to pursue further his application lodged
before the Court and informed the Government accordingly.
On
22 and 28 August and 5 September 2007 the administration of the
correctional institution summoned the applicant in order to deliver
the Court’s letter to him. The applicant did not show up.
On
5 December 2007 the applicant had a meeting with one of the
officers of the correctional institution concerning the updating of
his personal file. The officer tried again to deliver the Court’s
letter to the applicant, who refused to take it. He agreed to accept
the letter only on 1 February 2008.
It
appears that the officer who was responsible for the opening of the
applicant’s letter was subjected to disciplinary dismissal.
4. Subsequent correspondence with the Court
The
Court’s letter of 8 January 2008 sent to correctional
institution IK-4 by registered mail was returned to the Court by the
post office with a note that the applicant had not been found at the
address indicated.
According
to the Government, the letters sent by the Court to the applicant on
25 April and 6 June 2008 did not reach correctional institution
IK-8.
On
19 September 2008 the applicant received the Court’s
letter of 3 September 2008, as per the registration log
submitted by the Government.
On
29 October 2008 the applicant submitted another letter to be
dispatched to the Court. The letter was returned to him. The post
office had allegedly refused to mail it because the envelope was
covered with adhesive tape. The applicant resubmitted the letter in a
new envelope without adhesive tape on 24 November 2008. It was
duly sent to the Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Legal assistance in criminal proceedings
1. The Code of Criminal Procedure
38. The Code of Criminal
Procedure of the Russian Federation (in force from 1
July 2002) provides:
Article
51
“1. Participation of legal counsel in
criminal proceedings is mandatory if:
1) the suspect or the accused has not waived
legal representation in accordance with Article 52 of this Code;
...
5) the suspect or the accused faces serious
charges carrying a term of imprisonment exceeding fifteen years, life
imprisonment or the death penalty;
...
2. ...
3. In the circumstances as set forth in
paragraph 1 above, unless counsel is retained by the suspect or the
accused, or his lawful representative, or other persons on the
request of, or with the consent of, the suspect or the accused, it is
incumbent on the investigator, prosecutor or the court to ensure
participation of legal counsel in the proceedings.”
Article
52
“1. The suspect or the accused may
refuse legal assistance at any stage of criminal proceedings. Such a
waiver may only be accepted if made on the suspect or accused’s
own initiative. The waiver must be filed in writing and must be
recorded in the official minutes of the relevant procedural act.
...”
Pursuant
to Article 373, the appeal court examines appeals with a view to
verifying the lawfulness, validity and fairness of judgments. Under
Article 377 §§ 4 and 5 of the Code, the appeal court may
directly examine evidence, including additional material submitted by
the parties.
In
accordance with Article 376, upon receipt of the criminal case and
the statements of appeal, the judge fixes the date, time and place
for a hearing. The parties shall be notified of the date, time and
place of the hearing no later than fourteen days before the scheduled
hearing. The court determines whether the detained convict should be
summoned to the hearing. If the convict has expressed the wish to be
present at the examination of his appeal, he has the right to
participate in person or to state his case via video link. The manner
of his participation in the hearing is to be determined by the court.
2. Case-law of the Constitutional Court
Examining the compatibility of Article 51 of the Code
of Criminal Procedure with the Constitution, the Constitutional Court
of the Russian Federation ruled as follows (decision no. 497-O of 18
December 2003):
“Article 51 § 1 of the Code of Criminal
Procedure, which describes the circumstances in which the
participation of defence counsel is mandatory, does not contain any
indication that its requirements are not applicable in appeal
proceedings or that the convict’s right to legal assistance in
such proceedings may be restricted.”
That position was subsequently confirmed and developed
in seven decisions delivered by the Constitutional Court on 8
February 2007. It found that free legal assistance for the purpose of
appellate proceedings should be provided on the same conditions as
during the earlier stages in the proceedings and is mandatory in
situations listed in Article 51. It further underlined the obligation
of courts to secure the participation of defence counsel in appeal
proceedings.
3. Case-law
of the Supreme Court
In
a number of cases (decisions of 13 October 2004 and 26 January, 6
April, 15 June and 21 December 2005) the Presidium of the Supreme
Court of the Russian Federation quashed judgments of appeal courts
and remitted cases for fresh consideration on the ground that the
courts had failed to secure the participation of defence counsel in
the appeal proceedings, although it was obligatory for the accused to
be legally represented.
B. Correspondence of the persons serving a prison
sentence with the Court
1. The Code of Corrections
The
Code of Corrections of the Russian Federation (in force from 1997)
provides:
Article
91
“2. The incoming and outgoing
correspondence of persons serving a prison sentence is subject to
censorship by the administration of the correctional institution. The
correspondence maintained with a court, a prosecutor’s office,
a supervising body of corrections, as well as with the Ombudsman of
the Russian Federation, a public monitoring commission established in
accordance with applicable legislation of the Russian Federation, and
the European Court of Human Rights shall be free of censorship.”
2. Internal Regulations of Correctional Institutions
The Internal Regulations of Correctional Institutions
(in force from 3 November 2005) provides:
“53. The letters addressed to a person
serving a prison sentence and received after his departure from a
correctional institution shall be forwarded to his new address within
three days of their receipt.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE STATE’S FAILURE TO PROVIDE LEGAL ASSISTANCE TO
THE APPLICANT IN THE APPEAL PROCEEDINGS
The
applicant complained that he was not provided with legal assistance
in the appeal proceedings. He relied on Article 6 §§ 2
and 3 (b), (c) and (d) and Article 2 § 1
of Protocol No. 7. The Court considers that the complaint falls
to be examined under Article 6 §§ 1
and 3 (c) of the Convention, which, in so far as relevant,
reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by [a] ... tribunal ... .
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself ... 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. 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.
B. Merits
1. The parties’ submissions
The
applicant submitted that he had asked the Supreme Court of Russia in
writing to appoint him a lawyer. However, his letter never reached
the court. His similar request made orally at the appeal hearing was
simply ignored.
The
Government contested the applicant’s argument. They submitted
that on 15 August 2002 the applicant had lodged an additional
statement of appeal and asked the court to ensure his participation
in the appeal hearing. He was duly informed of the date and time of
the appeal hearing on 26 December 2002 and his effective
participation in the appeal hearing was ensured. On 10 January
2003 the applicant was able to make oral submissions to the appeal
court. At no time did he ask the judicial authorities to provide
legal assistance.
3. The Court’s assessment
The
Court notes at the outset that the requirements of paragraph 3 (c) of
Article 6 of the Convention constitute specific aspects of the right
to a fair trial, guaranteed under paragraph 1. Accordingly it will
examine the applicant’s complaint under those provisions taken
together (see Vacher v. France, 17 December 1996, §
22, Reports 1996-VI).
The
Court reiterates that the manner in which Article 6 §§ 1
and 3 (c) is to be applied in relation to appellate or
cassation courts depends upon the particular features of the
proceedings involved; account must be taken of the entirety of the
proceedings conducted in the domestic legal order and the role of the
appellate or cassation court therein (see Twalib v. Greece,
judgment of 9 June 1998, Reports of Judgments and Decisions
1998-IV, § 46, and Granger v. the United Kingdom,
judgment of 28 March 1990, Series A no. 174, p. 17,
§ 44).
The
Court further reiterates that neither the letter nor the spirit of
Article 6 of the Convention prevents a person from waiving of his own
free will, either expressly or tacitly, the entitlement to the
guarantees of a fair trial. However, such a waiver must, if it is to
be effective for Convention purposes, be established in an
unequivocal manner and be attended by minimum safeguards commensurate
with its importance. In addition, it must not run counter to any
important public interest (see Hermi v. Italy [GC], no.
18114/02, § 73 in fine, ECHR 2006 XII).
The Court observes that, in Russia, the jurisdiction
of appeal courts extends both to legal and factual issues. The
Supreme Court of Russia thus had the power to fully review the case
and to consider additional arguments which had not been examined in
the first-instance proceedings. Given the seriousness of the charges
against the applicant and severity of the sentence imposed on him by
the trial court, the Court considers that the assistance of a lawyer
at this stage was essential for the applicant.
Moreover,
the applicant appeared before the appeal court by videoconference
from the prison facility and the prosecutor appeared in the courtroom
in person, hence the fact that the applicant communicated with the
court without any representation in the courtroom put him at a
certain disadvantage (see Shulepov v. Russia, no. 15435/03,
§ 35, 26 June 2008).
Having
regard to the above, the Court considers that, in the circumstances
of the case, the interests of justice demanded that, in order to
receive a fair hearing, the applicant should have benefited from
legal representation at the appeal hearing.
The
Court further notes that according to the Russian Code of Criminal
Procedure, as interpreted by the Russian Constitutional Court, the
onus of ensuring legal representation of a defendant rested with the
relevant authority at each stage of the proceedings (see paragraphs
38, 41 and 42 above).
Turning
to the Government’s argument that it was for the applicant to
ask the court to appoint a lawyer to represent him before the appeal
court, the Court considers that this cannot be taken into account. On
the contrary, the effectiveness of the guarantee of legal
representation by default (“unless waived”) contained in
Article 51 of the Russian Code of Criminal Procedure would be
undermined without a corresponding obligation on the part of the
court to verify in each individual case whether it is lawful to
proceed with the hearing in the absence of legal counsel for the
accused. Indeed, persons incapable of conducting their own defence
before the court (such as those listed in subparagraphs 2-4 of
Article 51 § 1 of the Russian Code of Criminal Procedure) may
also be unable to draw the court’s attention to the lack of
legal assistance unless the question is raised by the court itself.
The
Court therefore concludes that it was incumbent on the appeal court
to verify whether there had been a valid waiver of legal assistance
by the applicant and, if there had not, to appoint a lawyer as
required by Article 51 §§ 1(1) and 3 of the Russian
Code of Criminal Procedure. However, as it follows from the appeal
decision of 10 January 2003, the appeal court did not verify
whether the applicant had indeed chosen not to be represented at the
hearing. In such circumstances, the Court considers that it cannot be
said that the applicant had waived his right to legal assistance in
an unequivocal manner.
The
Court has already held that the situation in a case involving a heavy
penalty where an appellant was left to present his own defence
unassisted before the highest instance of appeal was not in
conformity with the requirements of Article 6 (see Maxwell v. the
United Kingdom, judgment of 28 October 1994, Series A
no. 300-C, § 40). It discerns nothing in the material
in its possession, to find otherwise in the present case.
In
view of the aforementioned considerations the Court concludes that
there has been a violation of Article 6 §§ 1 and
3 (c) of the Convention.
II. ALLEGATION OF HINDRANCE IN THE EXERCISE OF THE RIGHT
OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION
The
applicant complained that on many occasions the authorities had
interfered with his correspondence with the Court. In particular, he
alleged that his copies of documents concerning the criminal
proceedings against him had been unlawfully confiscated by the prison
administration, that the authorities had refused to send some of his
letters, that the Court’s letter of 28 June 2007 had been
opened by an officer of the correctional institution and that he had
not received many of the Court’s letters. The Court decided to
examine his complaint from the standpoint of the right of individual
petition guaranteed by Article 34 of the Convention, which
reads:
“The Court may receive applications from any
person... claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. The parties’ submissions
1. The applicant
The
applicant submitted that on 8 April 2003 the guards at transit
prison IZ-56/1 took all the documents he had prepared to submit as
part of his application to the Court. The documents included
witnesses’ statements, minutes of the courts’ hearings
and courts’ rulings. He further submitted that on several
occasions the administration of correctional institution IK-6 refused
to dispatch his letters addressed to the Court on different pretexts.
For example, once a letter was returned because the envelope was
dirty.
As regards the Court’s letter of 28 June 2007, the
applicant refused to accept it because it had been presented to him
in an open envelope. The administration made a photocopy of the
letter and tried to make him accept it on 5 December 2007.
As
regards the alleged refusal of the post office to send his letter in
an envelope covered with adhesive tape on 29 October 2008, the
applicant considered that explanation to be the authorities’
conjecture. In his opinion, the administration of the correctional
facility had intended to open his letter to read its content.
However, it had not been possible for them to do so as the envelope
had been covered with adhesive tape. Accordingly, they had asked him
to resubmit the letter in another envelope which they could have
opened without any difficulty.
Lastly,
he observed that many of the Court’s letters concerning the
communication of his application had not been delivered to him. He
noted that all of them had been addressed to his previous address
since his notifications of the change of address had never reached
the Court on account of the authorities’ failure to dispatch
his letters.
2. The Government
The
Government contested the applicant’s arguments. In their
opinion, the applicant had fully exercised his right to apply to the
Court. They relied on the copies of the incoming and outgoing
correspondence logs submitted and the certificates prepared by the
correctional institutions where the applicant had been serving his
sentence.
As
regards the events of 8 April 2003, they submitted that all the
personal effects and documents had been duly returned to the
applicant against a signed receipt. In response to the applicant’s
complaint, the regional department of corrections carried out an
inquiry. When questioned, one of the guards reported that the
applicant had received all his property and signed the log and the
receipt accordingly. The Government submitted a copy of the guard’s
report of 17 September 2003 (his name is illegible). No copy of
the log or the receipt signed by the applicant was provided. The
Government further submitted a copy of the applicant’s
statement of 22 September 2003 that he did not have any claims
against the administration of transit prison IZ-56/1.
The
Government denied that the applicant tried to send any letters to the
Court on 5 May and 9 July 2003 or 14 September 2004.
According to the outgoing correspondence log, the applicant sent out
twelve letters in 2003-2004. However, the log did not contain any
entry confirming that the applicant sent out any of the three letters
in question. Nor were the applicant’s allegations true with
regard to the authorities’ failure to send his letter of
13 January 2003 to the Court promptly. The letter in question
was submitted for dispatch only on 30 March 2004 and it went out
on the next day. In any event, the applicant’s allegations were
untrue given that he was not detained at correctional institution
IK-6 on 13 January 2003. He arrived there only on 10 April
2003 and could not, therefore, have asked the administration of the
institution to send his letter in January 2003.
As
regards the non-delivery of the Court’s letters of 7 September
2006, 3 January and 12 February 2007, the Government
conceded that they did not reach the applicant. However, this fact
alone could not be regarded as the hindrance of the applicant’s
right to individual petition. Besides, there is no proof, such as a
DHL receipt, confirming that the letters had actually been delivered
to the correctional institution indicated in the address. The
applicant had been in part responsible for their loss since he had
failed to inform the Court of the change in his address. The
Government also noted that the Court’s letter of 28 June
2007 had been duly received by correctional institution IK-4 and
forwarded to correctional institution IK-8 where the applicant was
serving his sentence at the time.
As
regards the opening of the Court’s letter of 28 June 2007,
in the Government’s view it had been an honest mistake on
behalf of the officer in charge who, incidentally, had no knowledge
of English and could not have read the letter. For her failure to
carry out her duties, she was subjected to a disciplinary action and
subsequently dismissed. The applicant refused to accept the opened
letter and the subsequent attempts of the administration to meet with
him to deliver the letter were to no avail. The administration’s
actions should not be construed as attempts to intimidate the
applicant or put undue pressure on him with regard to his application
before the Court. When the applicant failed to respond to the
summonses, no action was taken against him. The purpose of the
meeting held on 5 December 2007 was to add certain information
to the applicant’s personal file. Since the file also contained
the Court’s letter addressed to the applicant who had earlier
refused to accept it, the officer tried to deliver the letter to the
applicant one more time.
Referring
to the refusal of the post office to dispatch the applicant’s
letter of 28 October 2008 to the Court, the Government submitted
that the envelope had not been in compliance with applicable
standards since it had been covered with adhesive tape. Once the
applicant resubmitted the letter in a standard envelope, it was duly
sent to the Court.
In
sum, the Government opined that the facts complained of by the
applicant did not support his allegations of the hindrance of his
right of individual petition. Nor was any undue physical or
psychological pressure put on him by the authorities with regard to
his application to the Court.
B. The Court’s assessment
The
Court notes that the applicant referred to many acts and omissions on
the part of the authorities which had allegedly amounted to the
hindrance of his right of individual petition. Having regard to the
arguments of the parties, the Court does not consider it necessary to
examine all of them. Instead, the Court will concentrate on the
non-delivery of the Court’s correspondence to the applicant.
The Court reiterates that the right of individual
petition under Article 34 of the Convention will operate
effectively only if an applicant can interact with the Court freely,
without being subjected to any form of pressure from the authorities
to withdraw or modify his or her complaints
(see Akdivar and Others v. Turkey, no. 21893/93, §
105, ECHR 1996-IV). 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 contacts 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, §§ 48-51,
13 April 2006; McShane v. the United Kingdom, no. 43290/98,
§ 151, 28 May 2002; and Tanrıkulu v. Turkey
[GC], no. 23763/94, § 130, ECHR 1999-IV).
The
Court observes that in 2006-2008 seven of the Court’s letters
never reached the applicant. It is true that the applicant was
transferred from one correctional institution to another on several
occasions and the Court was not informed accordingly of the change of
his address. Admittedly, the dispatch of the letters to the
applicant’s previous address contributed to the risk of their
non-delivery. Even though, under the domestic regulations, it was
incumbent on the correctional institutions to forward the letters to
the applicant after the change of his address (see paragraph 45), the
Court is prepared to accept that some of these letters might have
been lost through malfunctioning of the postal service. However, the
total number of the letters lost is too high to be viewed as merely
accidental. Furthermore, the Court notes that the two letters that
had been sent by registered mail were not lost. The first letter of
28 June 2007 arrived at correctional institution IK-4 when the
applicant was no longer detained there. Nevertheless, the authorities
made sufficient efforts to forward the letter to his new place of
detention. The other letter of 8 January 2008 was returned to
the Court with a postal note stating that the applicant could not be
found at the address indicated. In this respect the Court notes that
the Government did not provide any explanation as to why the
administration of IK-4 had failed to comply with their obligation to
forward the letter to another correctional institution where the
applicant was detained at the time.
The
Court further observes that the non-delivery of the Court’s
letters to the applicant caused serious delays in the examination of
his case. In 2006-2007 the four letters concerning the communication
of the case to the Government did not reach the applicant at all,
which resulted in a delay of over a year in the proceedings pending
before the Court. Another delay of approximately nine months occurred
on account of the authorities’ failure to deliver the Court’s
letters to the applicant in 2008.
In
view of the foregoing, the Court finds that, by causing, through
their acts and omissions, the non-delivery of the Court’s
correspondence to the applicant, the Russian authorities failed to
ensure his effective and open access to the Court. The Court
therefore concludes that the respondent State has failed to comply
with its obligations under Article 34 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained under Article 6 § 3 (c)
that he had been denied legal assistance during the preliminary
investigation, that the legal assistance of a state-appointed lawyer
during the trial had not been effective and under Article 1 of
Protocol No. 1 that his personal property had been stolen in
April 2003.
Having
regard to all the material in its possession and in so far as it
falls within its competence, the Court finds that the evidence
discloses no 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.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed that he had incurred pecuniary and non-pecuniary
damage as a result of the infringement of his rights set out in the
Convention. He did not indicate any specific amount asking the Court
to determine it.
The
Government noted that the applicant had failed to submit any document
to substantiate his claims for pecuniary damage. As regards his
claims for non-pecuniary damage, the Government submitted that the
applicant’s allegations should not give rise to an award of any
compensation under this head. In any event, they considered that the
finding of a violation would constitute sufficient just satisfaction.
The
Court considers that the applicant has failed to substantiate his
claim of pecuniary damage incurred and, therefore, rejects it. On the
other hand, the Court considers that the applicant must have suffered
non-pecuniary damage as a result of the authorities’ failure to
provide him with legal assistance during the appeal proceedings and
to comply with their obligations under Article 34 of the
Convention, and that this would not be adequately compensated by the
finding of a violation alone. Making its assessment on an equitable
basis, it awards him EUR 1,500 under that head, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
The
applicant did not submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
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 complaint concerning lack of legal
assistance in the appeal proceedings admissible and the remainder of
the application inadmissible;
Holds that there has been a violation of
Article 6 §§ 1 and 3 (c) of the
Convention;
Holds that the State has failed to meet its
obligation under Article 34 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand and five hundred euros), in respect of non-pecuniary damage,
plus any tax that may be chargeable, to be converted into Russian
roubles 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 January 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
