CASE OF SHUGAYEV v. RUSSIA
Violation of Art. 6-1;Violation of Art. 6-3-c;Violation of Art. 34
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
7. The applicant was born in 1961 and is serving a prison sentence in Orenburg. 8. 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. 9. 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. 10. 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. 11. 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. 12. On 15 February 2002 the Kurgan Regional Court opened another trial. Lawyer V. was appointed to represent the applicant. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. Between 10 April 2003 and 16 December 2004 the applicant was detained at correctional institution IK-6 in Sol-Iletsk. 20. 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. 21. The letter which the applicant dated as of 13 January 2003 was dispatched by the administration of the correctional colony on 31 March 2004. 22. 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. 23. 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?»). 24. 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. 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. 33. It appears that the officer who was responsible for the opening of the applicant’s letter was subjected to disciplinary dismissal. 34. 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. 35. 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. 36. On 19 September 2008 the applicant received the Court’s letter of 3 September 2008, as per the registration log submitted by the Government. 37. 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. 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. ...” 39. 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. 40. 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. 41. 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.” 42. 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. 43. 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. 44. 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.” 45. 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.”