CASE OF NURMAGOMEDOV v. RUSSIA
No violation of Article 6 - Right to a fair trial;Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Christos Rozakis
6. The applicant was born 1961 and is now serving a custodial sentence in the town of Yemva in the Komi Republic. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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). 12. 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. 13. 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”. 14. 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. 15. 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”. 16. 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. 17. On 26 July 2002 the applicant received a copy of the ruling of 28 June 2002 from the prosecutor's office. 18. 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. 19. 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. 20. 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. 21. 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...'” 22. On 11 December 2003 the Knyazhpogostskiy District Court issued a new ruling similar to the ruling of 28 June 2002. 23. 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. 24. 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. 25. 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. 26. 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...” 27. 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. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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.” 35. 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. 36. 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. 37. 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. 38. 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. 39. 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.