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FIRST
SECTION
CASE OF NURMAGOMEDOV v. RUSSIA
(Application
no. 30138/02)
JUDGMENT
STRASBOURG
7 June
2007
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 Nurmagomedov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30138/02) 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 Tagir
Suleymanovich Nurmagomedov (“the applicant”), on
28 May 2002.
- The
applicant was represented before the Court by Ms O. Shepeleva,
a lawyer practising in Moscow. The Russian Government (“the
Government”) were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, that the proceedings for bringing
his sentence into conformity with the new law were not fair or public
and that officials at the correctional colony where he was held had
hindered the submission of his application to the Court.
- By
a decision of 16 September 2004 the Court declared the application
partly admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born 1961 and is now serving a custodial
sentence in the town of Yemva in the Komi Republic.
A. Bringing the applicant's sentence into conformity
with the new Criminal Code
- On 11 April 1991 the Kochubeyevskiy People's Court of
the Stavropol Region convicted the applicant of aggravated robbery
(Article 146 § 2 of the RSFSR Criminal Code) and the
involvement of minors in criminal activities (Article 210 of the
RSFSR Criminal Code). It sentenced him to eight years' imprisonment
in a correctional colony. On 29 May 1991 the Stavropol Regional Court
upheld the judgment on appeal.
- The
applicant was sent to a correctional colony to serve his sentence. On
14 March 1994 the colony director granted him home leave and he
travelled to his native village in the Dagestan Republic. He was due
back at the colony on 1 April 1994.
- According
to the applicant, he found his wife and children in a precarious
situation and decided not to return to the colony but to start
working to support his family. The applicant and his family moved to
the town of Gubkinskiy in the Tyumen Region.
- On
29 April 1999 the colony officials launched a criminal investigation
in connection with the applicant's failure to return from home leave.
On 29 August 2000 the applicant was summoned to a police station in
Gubkinskiy and taken into custody.
- On
16 November 2000 the Pechora Town Court of the Komi Republic
convicted the applicant of evading punishment (Article 188.1 of the
RSFSR Criminal Code) and sentenced him to six months' imprisonment to
run consecutively to the time left to serve under the judgment of 11
April 1991 (four years and seven months in total).
- The applicant filed an application for supervisory
review of the judgment of 11 April 1991. On 18 April 2002 the
Prosecutor General's office refused his application but forwarded a
copy of it to the Stavropol prosecutor “to bring the
applicant's sentence into conformity with the new Criminal Code [of 1
January 1997]”. The Stavropol prosecutor forwarded the request
to the Komi prosecutor.
- On
an unspecified date a deputy prosecutor of the Komi Republic lodged
an application “for [an order] bringing the applicant's
sentence into conformity with the Criminal Code of the Russian
Federation”.
- On
28 June 2002 the Knyazhpogostskiy District Court of the Komi Republic
granted the prosecutor's motion. It established that Article 162 §
2 of the Criminal Code of the Russian Federation provided for a more
lenient punishment for aggravated robbery than Article 146 § 2
of the RSFSR Criminal Code. As the provisions providing for lighter
sentences could be applied retrospectively to convicted prisoners,
the court considered it necessary to recharacterise the offence
committed by the applicant in accordance with the new Criminal Code.
It also deleted from the original judgment a reference to the
applicant's inebriated state at the time of the offence as the new
Code no longer classified inebriated as an aggravating circumstance.
However, that did not result in a reduction of the applicant's
sentence because the original sentence remained within the limits of
Article 146 § 2 of the new Code.
- On
3 July 2002 the colony correspondence office informed the applicant
that the application by the Komi prosecutor “would be heard in
the Knyazhpogostskiy District Court”.
- On
4 July 2002 the applicant asked the Knyazhpogostskiy District Court
to obtain the case file from the Kochubeyevskiy People's Court to
enable him to study the file, attend the hearing, make
representations and apply for legal aid. According to the stamp on
the applicant's letter, the District Court received it on 18 July.
- On
26 July 2002 the applicant received a copy of the ruling of 28 June
2002 from the prosecutor's office.
- On
2 August 2002 the judge of the Knyazhpogostskiy District Court who
had made the ruling of 28 June, advised the applicant that that court
had no power to obtain case files from other courts or to review
final convictions and that the applicant could seek legal aid from
the local bar council.
- On
20 October 2003 the prosecutor of the Komi Republic lodged an
application for supervisory review of the ruling of 28 June 2002 on
the ground that it had been made in the applicant's absence.
- On
19 November 2003 the Presidium of the Supreme Court of the Komi
Republic granted the prosecutor's application. It quashed the ruling
of 28 June 2002 and remitted the matter to the same court.
- The
applicant described the subsequent events as follows:
“On 11 December 2003 I was called to the colony
headquarters where I was told, in room no. 2, that the ruling of the
Knyazhpogostskiy court of 28 June 2002 would now be reviewed... I was
told right away that the new ruling would be identical to the ruling
of 28 June 2002, the only difference being that it would be made in
my presence. I asked to appoint prisoner S. as my representative but
was told, 'Prisoner S. is now restricted in his movements and cannot
attend the court hearing'. I asked for the refusal to be certified in
writing, but this was refused. I asked those present at the 'court
hearing' to give their names, but was told, 'you will find out from
the ruling'.
I considered my further participation in this farce
inappropriate and asked that my refusal to participate further in the
hearing ... be entered in the record and left the room. On 24
December 2003 I received the ruling of 11 December 2003 containing
the phrase, '... having heard the submissions by convict T.S.
Nurmagomedov...'”
- On
11 December 2003 the Knyazhpogostskiy District Court issued a new
ruling similar to the ruling of 28 June 2002.
- The
applicant lodged an appeal. On 31 December 2003 the judge informed
him that his appeal could not be processed because of certain formal
defects. The applicant did not re-submit his appeal.
B. Alleged hindrance to the applicant's correspondence
with the Court
- According
to the applicant, on 23 May 2002 he submitted an application to the
European Court to the correspondence office of colony 222-35/2
(спецчасть
ИК 222-35/2). Twenty-five days later the application
was returned to him and he was told that he had no right to petition
international institutions until he had exhausted all domestic
remedies.
- He
sent a copy of his application to the Court through an informal
channel and complained about the actions of the colony administration
to a prosecutor's office.
- On 12 July 2002 the Ust-Vymskiy prosecutor in charge
of compliance with laws in correctional colonies (прокурор
по надзору за
соблюдением
законов в ИУ)
confirmed the lawfulness of the actions of the colony administration,
finding as follows:
“An application to [i]nternational institutions is
only possible after the issue has been resolved (or has not proved
possible to resolve) within the country because otherwise the
complaint or application would immediately be returned for resolution
in the country... This procedure also applies to convicted
prisoners...
Therefore the actions of the administration of
correctional colony no. 2 declining to send your application to the
Registry of the European Court of Human Rights were lawful...”
- The
applicant further submitted that the first package sent by the Court
on 13 August 2002 had not been given to him until 31 December
2002. The envelope had been removed to make verification of the date
of receipt impossible.
- On
10 October 2003 the acting deputy colony director approved the
findings of an internal inquiry that had been carried out by the
deputy colony director in charge of prisoners' human rights into the
circumstances surrounding the applicant's request to dispatch his
application to the European Court. According to the inquiry's
findings, in May 2002 the applicant had asked a senior inspector of
the special registration group about the procedure for lodging
applications with the European Court. The inspector had advised him
to apply first to the competent domestic authorities. The applicant
had made no further demands to the colony administration concerning
his application and had sent it to the Court through informal
channels, in breach of the internal regulations. The human-rights
deputy director proposed to consider it established that the alleged
hindrance had not taken place.
- On
the same date the acting deputy director issued order no. 592-A on
behalf of the Mikun directorate of correctional facilities
(Микуньское
управление
лесных исправительных
учреждений)
for the attention of the human-rights deputy director and the
directors of other correctional colonies in the region. The
introductory part of the order related the exchange that had taken
place between the applicant and the colony inspector. The
human-rights deputy director was ordered to provide each colony with
a set of educational materials on the procedures for applying to,
inter alia, the Russian Ombudsman and the European Court and
to prepare test questions on human rights for colony officials. The
colony directors were instructed to study the educational materials
and to ensure compliance with the order of the Ministry of Justice of
23 December 2001 prohibiting all hindrances to the communication
between convicted prisoners and the Court.
- On
21 November 2003 the deputy Minister of Justice – the authority
in charge of the penitentiary system – sent a circular to the
heads of regional departments of the Chief
Penitentiary Directorate, reminding them that the decision as to
whether domestic remedies had been exhausted was made by the European
Court itself and that the administration of a penal institution was
not competent to determine this issue and were not to prevent
prisoners from lodging applications with international human rights'
organisations. The deputy minister called for rigorous
compliance with the State's obligations under Article 34 of the
Convention.
II. RELEVANT DOMESTIC LAW
A. Relevant criminal law
- Pursuant
to Article 146 § 2 of the RSFSR Criminal Code (in force until 1
January 1997), aggravated robbery was punishable by between six and
fifteen years' imprisonment and the confiscation of property. Article
210 provided that involving minors in criminal activities, loitering
or prostitution was punishable by up to five years' imprisonment.
- Article
150 § 1 of the Criminal Code of the Russian Federation (in force
since 1 January 1997) provides that involving a minor in the
commission of a criminal offence through promises, deception, threats
or otherwise is punishable by up to five years' imprisonment. Article
162 § 2 provides that aggravated robbery is punishable by
between seven and twelve years' imprisonment and the confiscation of
property.
B. Procedure for reviewing sentences in connection with
the entry into force of the new Criminal Code
- Article 10 of the Criminal Code (“Retrospective
effect of criminal law”) provides that where a new criminal law
decriminalises an offence, provides for more lenient punishment or
otherwise improves the situation of the offender it shall apply with
retrospective effect to offences committed before it came into force,
even where the offender is already serving sentence. If the new law
provides for a shorter sentence, then the offender's sentence must be
reduced accordingly. Laws providing for a heavier sentence or
otherwise aggravating the situation of the offender have no
retrospective effect.
- Section
3 of the Criminal Code (Entry into Force) Act (no. 64-FZ of 13
June 1996) provided as follows:
“Where a convicted prisoner who was sentenced
under the previous Criminal Code has not yet served his sentence, the
sentence shall be brought into conformity with the Criminal Code of
the Russian Federation if the sentence imposed by the court was more
severe than the maximum sentence laid down by the relevant provision
of the Criminal Code of the Russian Federation.
If the criminal law otherwise improves the situation of
offenders or convicted prisoners..., convictions and judicial acts
concerning other criminal-law measures must be reviewed by the
convicting court or the court with jurisdiction for the locality
where the sentence is being served.
Relief from punishment, a reduction in sentence or any
other improvement in the situation of the offender ... shall be
decided upon in accordance with Articles 361.1, 368 and 369 of the
RSFSR Code of Criminal Procedure.”
- Article 361.1 in Chapter 29 (“Execution of
Sentences”) of the RSFSR Code of Criminal Procedure (in force
until 1 July 2002) provided that a court, acting on an application by
a convict or prosecutor in connection with the enactment of a law
with retrospective effect, could exempt the convicted prisoner from
serving the sentence, reduce his sentence or otherwise improve his
situation. In such proceedings the court was required to base its
ruling (определение)
solely on the circumstances that were established in the final
conviction and could not overrule the interpretation of the criminal
law by the convicting court.
- Article
368 determined the territorial jurisdiction of the courts. Article
369 provided that these issues were to be decided at a hearing. “As
a rule”, the convict was to be summoned to the hearing.
- Article
397 § 13 in Chapter 47 (“Proceedings for Examination and
Determination of Issues Relating to the Execution of Sentences”)
of the Code of Criminal Procedure of the Russian Federation of
18 December 2001 (in force since 1 July 2002) provides that
decisions on a reduction of sentence following the enactment of a law
with retrospective effect shall be made in accordance with Article 10
of the Criminal Code.
C. Handling of correspondence in penitentiary
institutions
- As worded at the material time, Article 91 of the
Penal Code and paragraph 12 of the Internal Regulations of
Correctional Institutions (Order no. 224 of the Ministry of Justice
of 30 July 2001) provided that all incoming and outgoing
correspondence of detainees, other than correspondence with courts,
prosecutors, penitentiary officials, the Ombudsman and counsel, was
subject to censorship by the colony officials. Letters were to be put
in mailboxes or given to the officials in an unsealed envelope.
Paragraph 13 required detainees to submit all complaints through the
colony officials.
- By Order no. 393 of 26 June 1997, the Ministry of the
Interior approved the Directive on the Functioning of Special
Departments in Correctional Colonies. Paragraph 5.2 established that
complaints addressed to authorities, organisations or officials who
were not competent to deal with the matter concerned should not be
forwarded to the addressees. The complainant was to be informed of
that decision in writing and advised where to send his complaint. If
the complainant disagreed with the decision not to forward his
complaint, he could contest it by applying to the supervising
prosecutor.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the proceedings for bringing his sentence
into conformity with the new Criminal Code fell short of the
requirements of Article 6 §§ 1 and 3 (b) and (c) of the
Convention, which provide 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:
...
(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...”
- The
Court must determine at the outset whether Article 6 applied to the
proceedings to which the applicant's complaints related.
- The
Government submitted that the proceedings at issue did not determine
any criminal charge against the applicant within the meaning of
Article 6 of the Convention. The proceedings were conducted in
accordance with the chapter of the Code of Criminal Procedure
governing issues relating to the execution of sentences. No new
charge was brought against the applicant and the proceedings did not
affect the substance of the charge that had been previously
determined by the Kochubeyevskiy People's Court. The Knyazhpogostskiy
District Court founded its ruling on the factual circumstances that
had been established by the Kochubeyevskiy People's Court and did not
question the legal characterisation attributed to those facts. The
sole purpose of the proceedings was to bring the applicant's sentence
into conformity with the new Criminal Code.
- The
applicant acknowledged that the provisions of the Code of Criminal
Procedure governing the proceedings at issue did not allow the court
to review the factual basis or the legal characterisation of the
offence. However, they allowed the interested party, including the
convict, to make submissions to the court. The applicant inferred
that the proceedings were not a mere formality but a trial requiring
full guarantees under Article 6 of the Convention. He pointed out
that the removal of the reference to his inebriated state from the
original judgment called for a discussion on the effect of that
measure on his sentence and that he should therefore have been
allowed to present his arguments on that issue.
- The
Court reiterates that a criminal charge is “determined”
when the conviction has become final and the sentence has been
definitively fixed (see, among other authorities, Delcourt v.
Belgium, judgment of 17 January 1970, Series A no. 11,
§ 25; Eckle v. Germany, judgment of 15 July 1982,
Series A no. 51, § 77; and T. v. the
United Kingdom [GC], no. 24724/94, § 108, 16
December 1999). According to the established case-law of the
Convention organs, Article 6 does not apply to proceedings concerning
a failed request to re-open a case. Only the new proceedings, after
the re-opening has been granted, can be regarded as concerning the
determination of a criminal charge (see Nikitin v. Russia,
no. 50178/99, § 60, ECHR 2004 VIII, with further
references).
- In
the instant case the applicant's conviction by the Kochubeyevskiy
People's Court became final and enforceable on 29 May 1991 when the
Regional Court upheld the judgment on appeal (see paragraph 7 above).
The applicant's sentence was fixed at eight years' imprisonment. In
determining the sentence, the People's Court had taken account of
various circumstances liable to affect the punishment, such as the
fact that the applicant had committed the offence in a drunken state.
The criminal charge against the applicant was thus “determined”
within the meaning of Article 6 of the Convention.
- In
2000 the applicant's request for supervisory review of the judgment
of 11 April 1991 was rejected. The prosecutor, however, noted that
the applicant had been convicted under the “old” RSFSR
Criminal Code. Since the new Criminal Code provided for the
retrospective application of more lenient criminal-law provisions,
there existed a possibility that his sentence might be reduced in the
proceedings for bringing the sentence into conformity with the new
Criminal Code. These proceedings were instituted and conducted before
the Knyazhpogostskiy District Court.
- The
fact that the proceedings were conducted by a court does not, in
itself, call for the conclusion that a “determination of the
criminal charge” was involved. The Court has to take into
account the nature of the issues the court had to decide in the
proceedings and its powers with regard to the final conviction.
- As
regards the issues for judicial determination in the instant
proceedings, the relevant provisions expressly prohibited the court
from making a fresh evaluation of the facts underlying the original
conviction or attributing a different characterisation of the facts
in law (see paragraph 35 above). The court was solely called upon to
match the constituent elements of a crime as established in the
original conviction with the definitions of offences contained in the
new Criminal Code and replace the old references with the new. It
also had power to remove the reference to circumstances which were no
longer considered aggravating under the new law.
- Unlike
the supervisory-review proceedings, the proceedings for bringing the
sentence into conformity with the new law did not empower the court
to quash or alter the final conviction. If the new law provided for a
heavier sentence for the same offence, the court was required to do
nothing because the new law could not be applied retrospectively to
the detriment of the offender (see paragraph 33 above). If, however,
the maximum sentence for the same offence was lighter in the new Code
than that imposed under the previous legislation, the court had to
reduce it to the maximum set out in the new Code. That was a
mathematical operation excluding any discretion on the part of the
judge. Contrary to the applicant's submission, Article 10 of the
Criminal Code did not list the deletion of a reference to aggravating
circumstances as a ground for reviewing sentence.
- In
these circumstances, the Court considers that the proceedings for
bringing the applicant's sentence into conformity with the new
criminal law did not involve a “determination of a criminal
charge” against the applicant. Furthermore, these proceedings
did not concern the lawfulness of the applicant's conviction. They
were not decisive for the applicant's right to liberty and therefore
did not determine his “civil rights and obligations”
(see, by contrast, Aerts v. Belgium, judgment of 30 July 1998,
Reports of Judgments and Decisions 1998 V, § 59).
- It
follows that the proceedings which the applicant complained about
fell outside the scope of the application of Article 6 of the
Convention. There has therefore been no violation of that provision.
II. ALLEGATION OF HINDRANCE TO THE RIGHT OF INDIVIDUAL
PETITION UNDER ARTICLE 34 OF THE CONVENTION
- The
applicant complained that he had been prevented by the colony
officials from sending his application to the Court. The Court
decided to examine his complaint from the standpoint of the right of
individual petition guaranteed under 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.”
- The
applicant submitted that the colony inspector had refused to send his
application to the Court, compelling him to resort to “informal
channels” for dispatching it. The absence of malicious intent
in her actions could not exclude her liability. The legislative
framework as it existed at the material time permitted the censorship
of correspondence with the European Court and allowed prison officers
to decide whether the intended recipient of the complaint was
competent to deal with it. The inspector had thus acted in accordance
with the legal regulations then in force and the lawfulness of her
decision was upheld by the supervising prosecutor. The investigation
into the incident had taken place some fifteen months later and had
been conducted by the same colony administration. Even though certain
general measures had subsequently been taken for securing detainees'
right of individual petition, the hindrance the applicant complained
of had not been acknowledged.
- Relying
on the findings of the investigation that had been conducted by the
colony administration in October 2003, the Government maintained that
the applicant had not asked the colony officials to dispatch his
application form but had merely sought an explanation of the
procedure for lodging applications. They emphasised that the colony
inspector had given an erroneous explanation to the applicant but had
not acted in bad faith and had merely erred in her understanding of
the applicable Russian laws and the case-law of the European Court.
The Court's letters had been handed over to the applicant within the
statutory time-limits and the applicant had lodged no complaints
either with the colony administration or with the supervising
prosecutor during his visit in August 2004. Finally, the Government
pointed out that on 8 December 2003 the Penal Code had been amended
so as to discontinue the censorship of correspondence with the Court.
Furthermore, by circulars of 23 October 2001 and 21 November 2003,
colony officials had been reminded of their duty to ensure compliance
with the right of detainees to lodge applications with the Court.
- The
Court welcomes the legislative amendments and administrative
regulations aimed at exempting correspondence with the Court from
censorship and securing the uninhibited exercise of the right of
individual petition by applicants and prospective applicants held in
penitentiary institutions. It notes, however, that these developments
occurred after – and partly, in response to – the
interference with the right of individual petition that is the
subject of the applicant's complaint. It must therefore examine
whether at the material time the applicant's right of individual
petition was interfered with in a manner incompatible with the
respondent State's obligations under Article 34.
- 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 any pressure from the authorities (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, with further references).
- It
is in dispute between the parties whether the applicant asked the
colony official to dispatch his application to the Court. The
applicant said that he had but the administration had refused, while
the Government claimed that he had merely asked for an explanation of
the procedure. The Court notes that there are elements that support
the applicant's version of events.
- Firstly,
at the material time the Penal Code and the implementing regulations
did not treat correspondence with the Court as privileged, so that it
was subject to censorship by penitentiary officials (see paragraph 38
above). Moreover, penitentiary officials were formally directed not
to send complaints addressed to bodies or organisations which, in
their assessment, were not competent to deal with them (see paragraph
39 above). Such complaints were returned to the complainant and this
the applicant claimed happened in his case, once the colony inspector
had decided that the Court would not be competent to deal with his
application because domestic remedies had not been exhausted.
- Secondly,
the Court observes that the applicant availed himself of the right to
contest the refusal to send his application before a supervising
prosecutor. The prosecutor confirmed that the colony administration
had acted lawfully (see paragraph 26 above). The prosecutor's
response expressly referred to the refusal to send the
application to the Court, upholding it as lawful. The Court lends
more credence to the prosecutor's letter, which was written as a
result of an examination of the issue by an independent official
shortly after the events, than to the findings of the inquiry which
was conducted by the colony administration more than one year later.
- Thirdly,
if the applicant had been able to send his application to the Court
in the ordinary way, through the colony correspondence office, as the
Government claimed, it would have been irrational for him to take the
dangerous course of circumventing the colony regulations by sending
the application through “informal channels”. Failing to
comply with the official rules on correspondence amounted to a
serious breach of penitentiary regulations and could have resulted in
detention in the disciplinary wing. The Government offered no
explanation as to why the applicant would have taken such a risk if
there were no restrictions on his correspondence with the Court.
- The
Court finds that by acting as they did, the domestic authorities
attempted to discourage, or even prevent, the applicant from pursuing
a Convention remedy. Even if there was no fault on the part of the
penitentiary officials, whose actions were apparently guided by the
regulations then in force, it should be stressed that Governments are
answerable under the Convention for the acts of any State agency
since what is in issue in all cases before the Court is the
international responsibility of the State (see Fedotov v. Russia,
no. 5140/02, § 75, 25 October 2005; and Lukanov
v. Bulgaria, judgment of 20 March 1997, Reports of
Judgments and Decisions 1997-II, § 40).
- In
view of the foregoing, the Court considers that the respondent State
failed to comply with its obligations under Article 34 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 6,000 euros (“EUR”) for the alleged
violation of Article 6 of the Convention and a further EUR 8,000 for
the hindrance to his correspondence with the Court in breach of
Article 34 of the Convention.
- The
Government submitted that the claim was “unjust and manifestly
excessive” and that a finding of a violation would constitute a
sufficient just satisfaction.
- The
Court notes that it has found no violation of Article 6 in the
present case. As regards the interference with the applicant's right
of individual petition under Article 34 of the Convention, it awards
the applicant EUR 500 in respect of compensation for non-pecuniary
damage and rejects the remainder of the applicant's claim.
B. Costs and expenses
- The
applicant claimed EUR 300 for the work of his representative before
the Court and EUR 50 for postal and copying expenses.
- The
Government pointed out that while the legal-assistance contract
between the applicant and his representative had established his
obligation to pay EUR 300 to Mrs Shepeleva, the applicant had not
produced evidence of payment and Mrs Shepeleva had not “prove[d]
the purposes and the amount of the relevant expenses”.
- The
Court is satisfied that a legal-assistance contract between the
applicant and his lawyer created a legally enforceable obligation to
pay the amounts indicated therein. However, a certain reduction must
be applied since one of the applicant's complaints failed. Having
regard to the material in its possession, the Court awards the
applicant EUR 250 in respect of costs and expenses, plus any tax that
may be chargeable.
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
- Holds that there has been no violation of
Article 6 of the Convention;
- Holds that there has been a hindrance to the
applicant's right of individual petition 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 500 (five
hundred) in respect of compensation for non-pecuniary damage and EUR
250 (two hundred and fifty euros) in respect of costs and expenses,
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 amounts 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 7 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
