FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74266/01 by Aleksandr Borisovich ALEKSEYENKO against Russia

The European Court of Human Rights (First Section), sitting on 31 May 2007 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mr A. Kovler , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , Mr G. Malinverni , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 22 January 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Borisovich Alekseyenko , is a Russian national who was born in 1966 and lives in the Rostov Region . He wa s represented before the Court by Mr A. Artemov and Mrs A. Koreshkova , lawyers practising in Moscow . The Russian Government (“the Government”) we re represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Events before 5 May 1998

In 1996 the applicant was arrested and charged with a number of serious offences, including possession of explosives, death threats, attempted murder and murder.

In a judgment of 18 February 1997 the Rostov Regional Court examined the applicant ’ s case and acquitted him on all charges.

On 30 April 1997 the Supreme Court of Russia examined appeals by the parties against the first-instance judgment. 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.

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.

The applicant ’ s appeal against the judgment of 23 July 1997 was dismissed by the Supreme Court of Russia on 25 December 1997.

2. Events after 5 May 1998

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.

On 18 October 2000 the Presidium of the Supreme Court of Russia examined the prosecutor ’ s appeal. The court re-opened 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. The applicant and his counsel were neither notified of the hearing nor summoned to it. The prosecution was present and made submissions.

3. Alleged censorship of the applicant ’ s letters by the prison authorities

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 out letters after their acceptance for dispatch.

The Government presented 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 marked that they had been “sealed”.

The Government presented the statement by the applicant dated 12 October 2004 in which he stated that he had no complaints or claims in respect of the prison administration or the dispatch of correspondence to the European Court of Human Rights. The statement was written in the applicant ’ s own hand. The applicant also wrote that he made his statement without physical or psychological coercion.

The Government presented a letter from the Rostov Regional Court dated 13 October 2004 in which the Deputy President of the Court had certified that neither the applicant nor his counsel had made any complaints to competent lower courts in respect of alleged interference with correspondence.

4. Alleged interference by the authorities with the applicant ’ s right of individual petition

On 28 August 2004 the Court gave notice of the application to the respondent Government.

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.

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 the necessity to submit the position of the Russian Federation Ministry of Justice on the application lodged by Mr Alekseyenko ”. Mr Ch. ’ s explanatory note on 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.

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 200 1, 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 IK ‑ 1, 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 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 ...”

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 were given by him voluntarily.

On 21 January 2005 the applicant stated to Mr Zh . as follows:

“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.”

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.

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 a 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.

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 A ‑ 19 dated 2 February 2005 and outgoing A-26 dated 16 February 2005) had not been received by the Court.

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.

B. Relevant domestic law

1. Supervisory review proceedings under the Code of Criminal Procedure of 1960

Section VI, Chapter 30 of the Code of Criminal Procedure of 1960, ( Уголовно - процессуальный кодекс РСФСÐ ), in force at the material time, allowed certain officials to challenge a judgment which had entered into force and to have the case reviewed.

Pursuant to Article 356 of the Code of Criminal Procedure of 1960, a judgment enter ed into force and wa s subject to execution as of the day when the appeal (cassation) instance pronounce d its judgment or, if it ha d not been appealed against, when the time-limit for appeal ha d been reached .

Article 379 . Grounds for setting aside judgments which have entered into force

“T he grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not entered into forc e on cassation appeals].”

Article 342. Grounds for quashing or changing judgments [on cassation appeal]

“ 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.”

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.

According to Articles 374, 378 and 380 of the Code of Criminal Procedure of 1960, the 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, to remit the case for a new investigation, or for a fresh court examination at any instance, to uphold a first - instance judgment reversed on appeal, or to amend and uphold any of the earlier judgments.

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 benefit. If it found a sentence or legal classification too lenient, it had to remit the case for a new examination.

Under Article 377 § 3 of the Code of Criminal Procedure of 1960, a public prosecutor took part in a hearing 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.

2. The ruling of the Constitutional Court of 14 February 2000

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.

3. Supervisory review proceedings under the Code of Criminal Procedure of 2001

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.

4. Control of correspondence in prison

Article 91 (2) of the Code of Execution of Punishments of 8 January 1997 ( Уголовно - исполнительный кодекс ) provided for censorship of prisoners ’ correspondence.

Law no. 26-FZ of 20 March 2001 amended this Article, having provided for an exception from the rule in respect of correspondence with a court, prosecutor ’ s office, higher officials of the penitentiary system as well as 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.

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 the bodies with which the prisoner could correspond without censorship.

COMPLAINTS

1. The applicant complained under Article 6 of the Convention that the Supreme Court had failed to serve him and his defence counsel with any notification or summons for the hearing of 18 October 2000. He also alleged that the Deputy Prosecutor General had failed to communicate to him the arguments of his special appeal.

2. The applicant also brought a number of Article 6 complaints that related to the period prior to 5 May 1998. He further alleged under Article 3 of the Convention that during the arrest the authorities had put pressure on him to force him to confess. Under Article 5 of the Convention the applicant claimed that his pre-trial detention in 1997 had been unlawful and generally irregular.

3. Relying on Article 8 of the Convention, the applicant was dissatisfied with the fact that the prison authorities had required him to post the envelopes of his letters unsealed. He submitted that this requirement had been imposed to allow the censorship of prisoners ’ correspondence. According to the applicant, incoming mail was handed to prisoners unsealed, whilst some of the letters were delivered with considerable delay or remained undelivered. On some occasions the prison administration allegedly delivered photocopies of original letters. The applicant also complained of interference with his right of individual petition, in that the authorities had allegedly tried to put pressure on him to withdraw the case from the Court and in that they had interfered with his correspondence with the Court.

THE LAW

1. The applicant complained that the supervisory review proceedings before the Supreme Court had been unfair. He relied on Article 6 which, in so far as relevant, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government submitted that, at the relevant time, the summoning of a defendant in supervisory review proceedings had been the court ’ s right but not its duty. In the present case, there had been no need to summon either the applicant or his counsel and their absence from the hearing was not unlawful. In addition, domestic law only required the applicant or his counsel to be summoned if the applicant ’ s personal situation would have been worsened as a result of the supervisory review proceedings.

The applicant disagreed and maintained his complaint.

In the light of the parties ’ submissions, the Court finds that th is part of the application raise s serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant raised a number of complaints under Articles 3, 5 and 6 of the Convention in respect of the period prior to 5 May 1998, which is the date of entry into force of the Convention in respect of Russia . The Court notes that the case file contains no indication of any circumstances which would be decisive for the applicant ’ s grievances such as to create a continuing situation or otherwise bring the events complained of by the applicant within the Court ’ s jurisdiction.

It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. Under Article 8 of the Convention the applicant complained of arbitrary control of his correspondence by the prison authorities. He also complained that on a few occasions the authorities had tried to force him to withdraw the case from the Court. This latter complaint falls to be examined under Article 34 of the Convention. Articles 8 and 34 provide, in so far as relevant, as follows:

Article 8 of the Convention

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 34 of the Convention

“The Court may receive applications from any person, non-governmental organisation or group of individuals 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 Government submitted that the applicant ’ s allegations had been inaccurate, that his correspondence had not been censored, and that in any event the applicant should have brought proceedings against the prison administration in this connection but had clearly failed to do so. As regards the alleged pressure by the authority to withdraw the case, the Government denied it and submitted explanatory notes by the officials allegedly involved.

The applicant disagreed and maintained his complaints. He insisted that the prison administration had systematically required him to send the letters in unsealed envelopes, that only on one occasion, on 30 September 2004, the letter had been dispatched in a sealed envelope and that many letters had been lost or remained undelivered, that the mentioning of “sealed” in the letter log had related to the state in which the letters had been sent out and not the state in which they had been accepted for posting. He referred to the example of the letter of 15 May 2001 which he had handed to the prison administration on the same date and which was not dispatched until 26 June 2001. On 13 April 2004 the applicant allegedly received a letter from the Court and immediately answered it, but his reply was not dispatched by the authority until 11 May 2004. As regards the statement of 12 October 2004, the applicant submitted that he had not authored it. As to the Government ’ s non-exhaustion argument, the applicant submitted that it had been impossible to fulfil the requirement in a situation where his entire correspondence was controlled by the authority.

The Court first notes that the Government have raised an argument of non-exhaustion. The Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this objection to the merits. Furthermore, the Court considers, in the light of the parties ’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Joins to the merits the Government ’ s objection concerning the exhaustion of domestic remedies in respect of the control of correspondence complaint;

Declares admissible , without prejudging the merits, the applicant ’ s complaint under Article 6 of the Convention concerning the alleged unfairness of the supervisory review proceedings and his complaints under Articles 8 and 34 of the Convention about control of correspondence and the alleged interference with his right of individual petition ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President