CASE OF ALEKSEYENKO v. RUSSIA
Violation of Art. 6-1;No violation of Art. 8;Preliminary objections dismissed (non-exhaustion of domestic remedies);Violations of Art. 8;Preliminary objection allowed (non-exhaustion of domestic remedies);Remainder inadmissible;No violation of Art. 34;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1966 and lives in the village of Trudovoy, the Rostov Region. 7. In 1996 the applicant was arrested and charged with a number of serious offences, including possession of explosives, death threats, attempted murder and murder. 8. The Rostov Regional Court examined the applicant’s case and gave judgment on 18 February 1997 acquitting him on all charges. 9. On 30 April 1997 the Supreme Court of Russia examined the first-instance judgment on appeal. The court decided that the trial court had committed serious breaches of procedure, quashed the judgment of 18 February 1997 and remitted the case for a fresh examination at first instance. 10. On 23 July 1997 the Rostov Regional Court re-examined the applicant’s case and found him guilty on all charges. He was sentenced to fifteen years’ imprisonment. The court also ordered the forfeiture of the applicant’s property. 11. An appeal by the applicant against the judgment of 23 July 1997 was dismissed by the Supreme Court of Russia on 25 December 1997. 12. On an unspecified date the Deputy Prosecutor General of the Russian Federation lodged a special appeal against the judgment of 23 July and the decision of 25 December 1997. 13. On 18 October 2000 the Presidium of the Supreme Court of Russia examined the prosecutor’s appeal. The court reopened the proceedings and partly changed the decisions in the case. In particular, the court declared the prosecution in respect of the death threats to be time-barred and changed the legal characterisation of the applicant’s criminal conduct in relation to one of the other charges. The applicant’s sentence remained unchanged. 14. The applicant and his counsel were neither notified of the hearing nor summoned to it. The prosecution was present and made submissions. 15. In letters dated 13 April 2001, 1 December 2001, 25 November 2002, 15 April 2004 and 18 May 2004 the applicant complained that he had been unable to correspond freely with the Court, other domestic authorities and his lawyers; that the authorities had not accepted sealed envelopes for dispatch; and that there had been considerable delays in forwarding correspondence to him after its receipt by the prison and in actually sending letters out after their acceptance for dispatch. 16. In their observations, the Government submitted the register of correspondence which stated that the applicant had sent out letters to various destinations on various dates. There was a short description of the content of the letters dated between 1999 and March 2000. In respect of the letters dated March 2000, it was recorded that they had been “sealed”. 17. In a letter of 25 April 2005 the applicant informed the Court that its letters of 1 February, 8 and 9 March 2005 had been forwarded to him with considerable delay. In particular, the letter of 1 February had been received by the prison on 16 February 2005, registered under the incoming number 620, and had not been forwarded to him until 3 March 2005. 18. In a letter of 20 November 2005 the applicant informed the Court that the Court’s letter of 20 June 2005 had been received by the prison on 1 July 2005 and had not been served on him until 24 July 2005. He also stated that his understanding was that his letters dated 13 January 2005 and 1, 9 and 24 February 2005 (outgoing no. A-11 dated 19 January 2005, outgoing A19 dated 2 February 2005 and outgoing A-26 dated 16 February 2005) had not been received by the Court. 19. In reply, in a letter of 18 January 2006, the Government submitted that the competent authorities had carried out an additional verification and had established one occurrence of delayed forwarding of mail from the Court to the applicant. As a result, some officials had been reprimanded. The Government denied, however, that any letters had been sent by the applicant to the Court on 13 January, 9 February and 24 February 2005. 20. In their further observations, the parties responded to the Court’s factual questions concerning the applicant’s claims in this respect and provided the following information. 21. The Government submitted that between 23 September 1998 and 1 February 2003 the applicant had served his sentence of imprisonment in penitentiary establishment UCh-398/9, the Rostov Region. As of 11 February 2003 the applicant had been serving his sentence in penitentiary establishment UCh-398-1, the Rostov Region. 22. The applicant did not contest these dates. 23. In respect of the question concerning the total number of letters received by the applicant from the Court through the prison services, the Government submitted that between 22 January 2001 and 4 September 2007 the applicant had received ten letters. These letters had been received by the prison and served on the applicant on the following respective dates: 9 and 10 July and 15 and 16 December 2004, 13 and 14 (two letters) and 29 January, 3, 16 and 17 February, 26 and 27 March (two letters), 22 and 23 April and 1 and 24 July 2005. 24. They also submitted that all the letters had been handed to the applicant in sealed envelopes and had not been censored. 25. In his further observations, the applicant submitted that during this time he had received eleven letters from the Court through the prison authority. He also alleged that all of these letters had been served on him with substantial delays. He did not submit any concrete evidence in support of the latter point. 26. The Court’s database indicates that between 22 January 2001 and 4 September 2007 it dispatched a total of twenty-three letters to the applicant’s prison addresses, dated respectively 20 April, 2 August and 26 September 2001, 18 March, 6 September and 18 November 2002, 24 and 27 February, 19 March and 7 April 2003, 28 June and 5 July 2004, 2 September, 24 November and 1, 21 and 22 December 2004 and 18 January, 1 February, 8 and 9 March, 12 April and 20 June 2005. 27. In respect of the question concerning the total number of letters sent by the applicant to the Court through the prison services, the Government submitted that between 22 January 2001 and 4 September 2007 the applicant had sent out eleven letters. These letters had been sent by the applicant on the following dates: 7 September 2001, 20 August 2002, 14 January 2003, 30 September and 11 May 2004, and 15 and 19 January, 2 and 16 February, 12 May and 13 July 2005. 28. The Government admitted that the applicant’s letters sent out on 7 September 2001, 20 August 2002 and 14 January 2003 had been censored by the prison authorities under Article 91 of the Code of Execution of Sentences then in force. They stated, further, that there had been no censorship of the remaining letters as the relevant applicable legislation had been amended and the European Court of Human Rights had been added to the list of bodies with which a prisoner could correspond without censorship. 29. The applicant submitted that, contrary to the Government’s submission, during that period he had sent out 29 letters to the Court through the prison administration and that the prison administration had required him to hand these letters to them unsealed for censorship. The dates of dispatch were as follows: 22 January, 15 and 28 May, 26 June, 31 August, 6 October, 1 and 10 December 2001; 20 May, 15 August, 25 November 2002; 6 and 14 January, 3 March, 25 May, 20 October 2003; 13 and 23 April, 18 May, 30 September, 20 November and 29 December 2004; 15 January, 2 and 9 February, 26 July and 20 November 2005; 20 February 2006; and 15 March 2007. 30. The Court’s database indicates that between 22 January 2001 and 4 September 2007 it received a total of eighteen letters from the applicant, dated respectively 22 January, 15 May, 31 August, 1 and 10 December 2001; 15 August, 14 October and 25 November 2002; 6 January and 20 November 2003; 15 April, 28 May, 30 September, 20 November and 21 and 30 December 2004; 25 April, 10 May and 20 November 2005; and 20 August and 1 September 2007. It is unclear whether the applicant sent these letters out directly from his prisons or through his relatives or a lawyer. 31. On 28 August 2004 the Court gave notice of the application to the respondent Government. 32. On 21 December 2004 the Court received the applicant’s letter of 20 November 2004. The letter stated that in September 2004 some officials from the Prosecutor’s Office and the Main Directorate for the Execution of Sentences of the Ministry of Justice had visited him and had forced him to sign some papers. They had allegedly wanted the applicant to withdraw his application and had told him that he would not prove anything and only make things worse. 33. In their observations, the Government included the statement by the applicant dated 12 October 2004 and addressed to the Head of the Main Directorate of Execution of Sentences of the Ministry of Justice in charge of the Rostov Region, V.I. Khizhnyak, in which he stated that he had “no complaints, claims against the prison administration” and that he had no “claims concerning the receipt and dispatch of correspondence to and from the European Court of Human Rights”. The statement was written in the applicant’s own hand. In it the applicant also said that he had made his statement without physical or psychological coercion. The statement was collected and signed on the same date by two officials: the Assistant to the Head of the Main Directorate of Execution of Sentences of the Ministry of Justice in charge of the Rostov Region, Ch., and the Head of the Registry of the Main Directorate of Execution of Sentences of the Ministry of Justice in charge of the Rostov Region, B. 34. In respect of this letter the Government submitted that on 12 October 2004 the Assistant Chief of the Correctional Department of the Ministry of Justice, Mr Ch., had had an interview with the applicant. According to the Government, the purpose of the interview had been the “clarification of some facts with a view to submitting the position of the Russian Federation Ministry of Justice on the application lodged by Mr Alekseyenko”. Mr Ch.’s explanatory note to the interview stated that he had not requested the applicant to withdraw his application to the European Court of Human Rights, and that the interview had been conducted in the correct form, without any rough, rude or degrading treatment on his part. The applicant’s explanatory note stated that he had not made any complaints or critical remarks in respect of the prison administration and that he had not been subjected to any psychological or physical pressure. 35. The Government submitted a letter from the Rostov Regional Court dated 13 October 2004 in which the Deputy President of that court had certified that neither the applicant nor his counsel had made any complaints to the competent lower courts in respect of alleged interference with correspondence. 36. The Government submitted that on 14 October 2004 Mr K. from the Regional Prosecutor’s Office had had an interview with the applicant. The applicant had made the following statement to Mr K.: “... My correspondence with the European Court of Human Rights started in January 2001 during my detention in establishment UCh-398/9 in the town of Shakhty. From that prison I sent out eight letters (22 January 2001, 15 May 2001, 28 May 2001, 31 August 2001, 1 December 2001, 10 December 2001, 20 May 2002, 15 August 2002). All the above letters were received by the addressee and I retain proof of that. There were no instances of refusal to dispatch letters from prison IK-9. However, all letters were only accepted by the administration in an unsealed form and were dispatched with considerable delay. I made attempts to send out sealed envelopes but the head of the special department returned them to me with reference to the corresponding instructions from higher authorities. Since 11 February 2003 I have been serving my sentence in UCh 398/1 of the Main Directorate for the Execution of Sentences of the Ministry of Justice. From this correctional establishment I dispatched five letters to the European Court of Human Rights (3 March 2003, 25 May 2003, 20 October 2003, 13 April 2004 and 30 September 2004). I only know that my letter of 13 April 2004 was dispatched on 11 May 2004, whilst three previous letters never reached the Court. As to the letter of 30 September 2004, I am unaware of its fate. All these letters were not accepted from me in sealed form. The authority forced me to present them unsealed. As regards the answers from the European Court, I received three whilst serving the sentence in IK1, and all were sealed. The incoming numbers of IK-1 were: 5727 of 3 August 2004, 1751 of 6 April 2004. I do not know the number of the third answer, because I did not keep it. But I remember the date of receipt – 28 June 2004. With all confidence I can state that I signed the receipt in respect of one of the answers and don’t remember in respect of the others. Whilst serving the sentence in IK-1 I received copies of three answers from the European Court. They had been forwarded from IK-9 since I had not received them there. Apart from the foregoing, I don’t have any other complaints in respect of the conditions of detention ...” 37. On 20 January 2005 the applicant was interviewed by Mr Zh., the head of the Department responsible for supervising the lawfulness of the execution of sentences at the Regional Prosecutor’s Office. The applicant confirmed that on 12 October 2004 he had had a word with Mr Ch. from the Ministry of Justice and on 14 October with Mr K. from the Prosecutor’s Office. The applicant submitted that they had not put any pressure on him whatsoever and that all explanations had been given by him voluntarily. 38. On 21 January 2005 the applicant made the following statement to Mr Zh.: “In a supplementary application form I mentioned that I had been forced to sign some papers and this was formulated in such a way that it could be understood that I had signed the documents under pressure from the representative of the prosecutor’s office and the Main Directorate for the Execution of Sentences. In fact, this did not correspond to reality because in that case I was referring to the relations that I had previously had with the prison administration, when correspondence had been dispatched with delays and the administration had requested me to withdraw the complaints and had refused to send them out. At present the administration has been replaced and many officials fired, which is why I have normal relations with the administration and have no complaints. ... I have given no explanations against my will.” 39. In their statements of 20 January 2005, Mr Ch. and Mr K. explained that they had visited the applicant to check the facts outlined in his complaints to the European Court of Human Rights and interview the persons allegedly involved and that no coercion whatsoever had been put on the applicant in connection with his application to the Court. 40. In their further observations, the Government said that the above-mentioned interviews had taken place during the check carried out by the competent bodies of the Russian Federation in connection with the request of the European Court of Human Rights dated 2 September 2004 to the Representative of the Government to clarify the applicant’s allegations. They also submitted that the difference in the applicant’s position in his statements of 12 and 14 October 2004 did not prove the alleged coercion as the applicant could have changed his position for other reasons. 41. Section VI, Chapter 30 of the Code of Criminal Procedure of 1960, (Уголовно-процессуальный кодекс РСФСР), as in force at the material time, allowed certain officials to challenge a judgment which had become operative and to have the case reviewed. 42. Pursuant to Article 356 of the Code of Criminal Procedure of 1960, a judgment became operative and was subject to execution as of the day when the appeal (cassation) instance pronounced its judgment or, if it had not been appealed against, when the time-limit for appeal had expired. “The grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not become operative on cassation appeals].” “The grounds for quashing or changing a judgment on appeal are as follows: (i) prejudicial or incomplete inquest, investigation or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) grave violation of procedural law; (iv) misapplication of [substantive] law; (v) inadequacy of the sentence in relation to the gravity of the offence and the convicted person’s personality.” 43. Article 371 of the Code of Criminal Procedure of 1960 provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor General, the President of the Supreme Court of the Russian Federation and their respective Deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of such officials for a review. 44. Articles 374, 378 and 380 of the Code of Criminal Procedure of 1960 provided that a request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits, and was not bound by the scope and grounds of the extraordinary appeal. The Presidium could dismiss or uphold the request. If the request was dismissed, the earlier judgment remained in force. If it upheld the request, the Presidium could decide whether to quash the judgment and terminate the criminal proceedings, or remit the case for a new investigation or fresh court examination at any instance, or uphold a first-instance judgment reversed on appeal, or amend and uphold any of the earlier judgments. 45. Article 380 §§ 2 and 3 of the Code of Criminal Procedure of 1960 provided that the Presidium could in the same proceedings reduce a sentence or amend the legal classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification too lenient, it had to remit the case for a new examination. 46. In accordance with Article 377 § 3 of the Code of Criminal Procedure of 1960, a public prosecutor took part in hearings before a supervisory review instance. A convicted person and his or her counsel could be summoned if a supervisory review court found it necessary. If summoned, they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing. 47. On 14 February 2000 the Constitutional Court of the Russian Federation ruled that Article 377 § 3 of the Code was unconstitutional in so far as it allowed supervisory review proceedings to be conducted in the absence of the defence where a special appeal against the previous decisions would, if successful, result in the worsening of the convicted person’s situation. 48. Under Article 407 of the new Code of Criminal Procedure of 2001, which entered into force on 1 July 2002, a convicted person and his counsel are notified of the date, time and place of hearings before the supervisory review court. They may participate in the hearing provided that they have made a specific request to that effect. 49. Article 91(2) of the Code of Execution of Sentences of 8 January 1997 (Уголовно-исполнительный кодекс) provided for censorship of prisoners’ correspondence. 50. Law no. 26-FZ of 20 March 2001 amended this Article to provide for an exception from the rule in respect of correspondence with a court, a prosecutor’s office, higher officials of the penitentiary system and the Ombudsman of the Russian Federation. A prisoner’s correspondence with his lawyer or representative could be censored in certain cases upon a reasoned decision of the director or deputy director of the prison authority. 51. Law no. 161-FZ of 8 December 2003 introduced further amendments to the Article. The European Court of Human Rights was added to the list of bodies with which the prisoner could correspond without censorship. The Law entered into force as of the date of its first official publication on 16 December 2003.