FIRST SECTION

DECISION

Application no . 923/03 Leonid Ivanovich YELISEYEV against Russia

The European Court of Human Rights (First Section), sitting on 20 October 2015 as a Committee composed of:

Khanlar Hajiyev, President, Linos-Alexandre Sicilianos, Dmitry Dedov, judges, and André Wampach, Deputy Section Registrar ,

Having regard to the above application lodged on 25 November 2002 ,

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

1. The applicant, Mr Leonid Ivanovich Yeliseyev, is a Russian national, who was born in 1958 and is detained in Voronezh. His application was lodged on 25 November 2002. He was represented before the Court by Mr A. Gromov, a lawyer practising in Voronezh, and then by lawyers of the International Protection Centre.

2. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

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

A. Criminal proceedings against the applicant

4. By judgment of 28 July 1999 the Voronezh Regional Court convicted the applicant of aggravated murder and sentenced him to 14 years of imprisonment. The conviction was based on oral evidence of the victim and three witnesses, the crime scene record, the seizure record and three expert examinations. On 3 April 2000 the Supreme Court with slight modifications upheld the judgment on appeal.

5. On 28 June 2000 the Presidium of the Supreme Court quashed the decisions of the lower courts as erroneous and remitted the case for a fresh examination at first instance.

6. On 15 November 2000 the Regional Court yet again convicted the applicant, sentencing him to 14 years of imprisonment.

7. This judgment was upheld by the Supreme Court on appeal on 1 October 2001.

8. On 9 March 2004 the Paninskiy District Court, having re-examined the applicant ’ s criminal case in the light of amendments introduced in the Criminal Code in the meantime, reduced the sentence to 13 years imprisonment.

B. The applicant ’ s correspondence with the Court

9. The applicant submitted that on 19 October 2001 he had dispatched his application and supporting documents to the Court through the prison administration authorities of SIZO no. 1 in Voronezh. It appears that on 22 October 2001 these documents were returned to him. He submitted that there was a mark on the first page made with a pencil: “strictly within Russia”. No copy of this letter has been submitted.

10. The Government disputed this allegation. They submitted affidavits collected from two officers of the SIZO in February 2008 who stated that they had received no correspondence from the applicant, and had not returned anything to him, on 19 and 22 October 2001. The Government also submitted documents attesting to the destruction of the relevant prison correspondence logs in 2007, upon expiry of storage terms.

11. Thereafter the applicant was transferred to prison OZh-118/3-18. According to him, he had resubmitted the application and the documents to the authorities for dispatch on 17 December 2001. On 21 December 2001 he allegedly signed sheet no. 3/441 to certify that his application was dispatched.

12. The Government in their submissions disputed the date of this complaint. According to the affidavits of the officers of prison OZh ‑ 118/3 ‑ 18, the complaint has been submitted on 24 January 2002 to Senior Leutenant S.L., who had registered it in the correspondence log under number 3/441 on the same date.

13. On 7 February 2002 the applicant received the application back from the Regional Department of Execution of Penalties of the Ministry of Justice (UFSIN) with a cover letter dated 31 January 2002, signed by colonel N.I. Ye. It read in its relevant parts as follows:

“... Your complaint about the judgment of the Voronezh Regional Court directed to the European Court of Human Right (France, Strasbourg) is received and examined by the [Regional Department].

I would inform you that in Federal Law no. 30 March 1998 ‘ On ratification of the European Convention on Human Rights and Fundamental Freedoms ’ there is provision which [enables Russian nationals to apply to the Court for the protection] only after all domestic remedies are exhausted.

I would inform you that after the decision of the Supreme Court of 1 October 2001 upholding the first instance judgment of the Regional Court of 15 November 2000 the domestic remedies are not yet exhausted.

Under Article 374 of the Criminal Procedure Code ... you may apply to the Presidium of the Supreme Court which examines the cases [by way of supervisory review]...”

14. It appears that on 25 January 2002 the applicant complained to the UFSIN about the failure to dispatch his complaints to the European Court. On 8 February 2002 the head of the Voronezh UFSIN acknowledged the complaint pertaining to the letter dated 31 January 2002 and issued act no. 92. By this act, Senior Leutenant S.L. from prison OZh-118/3-18 had been severely reprimanded for the failure to comply with the relevant instructions concerning immediate and uncensored dispatch of letters and documents addressed to the European Court. The same order had reprimanded Colonel T., the head of the moral and welfare department of the Voronezh UFSIN, for failure to arrange for immediate and uncensored correspondence of the inmates with the European Court. Colonel Ye. had been personally reminded of the inappropriateness of signing letters in response to a complaint addressed to the European Court. Finally, the service has been instructed to recall the terms of correspondence with the Court to all the penitentiary institutions in the region.

15. It is unclear when the applicant was made aware of this document.

16. In the meantime, the applicant took account of this letter and raised his grievances before the supervisory review instance court.

17. In the beginning of September 2002 the applicant received an information note from the International Protection Centre from which it followed that he had had to apply to the Court within six months from the Supreme Court decision of 1 October 2001.

18. On 5 November 2002 the applicant applied for assistance to the International Protection Centre which on 25 November 2002 arranged for the dispatch of his application.

COMPLAINTS

19. The applicant alleged that his right to individual petition guaranteed by Article 34 was breached as a result of the authorities ’ refusal to dispatch his application form and their requirement to apply to the supervisory review instance prior to his application to this Court .

20. He also submitted a number of complaints relating to the fairness of his criminal trial and the lawfulness of detention, referring to Articles 5, 6, 7 and 13 of the Convention.

THE LAW

I. ALLEGED BREACH OF ARTICLE 34 OF THE CONVENTION

21. The applicant complained that the authorities had interfered with his correspondence with the Court. The Court decided to examine his complaint from the standpoint of the right of individual petition guaranteed by 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.”

22. The Government disputed the applicants ’ allegation in part, and in part, considered that the breach committed by the officers of the Voronezh UFSIN had been corrected by the actions of that service (see paragraph 14 above). They also asked the Court to declare the complaint inadmissible, for a number of reasons, including non-exhaustion and failure to comply with the six months ’ time-limit.

23. The applicant, in response to the Government ’ s observations, disputed the accurateness of the officers ’ recollection in 2008 of his complaints lodged in October 2001. In so far as the second episode was concerned, he acknowledged the act no. 92 of the Voronezh UFSIN although he did not specify when he had been made aware of it.

24. The Court first reiterates that a complaint under Article 34 of the Convention normally does not give rise to admissibility issues under the Convention (see Juhas Đurić v. Serbia , no. 48155/06, § 72, 7 June 2011, with further references).

25. The Court then 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 being subjected to any form of pressure from the authorities to withdraw or modify his or her complaints (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 Tanrıkulu v. Turkey [GC], no. 23763/94, § 130, ECHR 1999-IV; McShane v. the United Kingdom , no. 43290/98, § 151, 28 May 2002; and Fedotova v. Russia , no. 73225/01, §§ 48-51, 13 April 2006). T he Court considers that detainees may find themselves in a vulnerable position when they are dependent, as in the present case, in their communication with the Court, on the staff of the detention facility. It is important to respect the confidentiality of the Court ’ s correspondence with applicants since it may concern allegations against prison authorities or prison officials. The opening of letters from the Court or addressed to it undoubtedly gives rise to the possibility that they will be read and may conceivably, on occasion, also create the risk of reprisals by prison staff against the prisoner concerned. The opening of letters by prison authorities can therefore hinder applicants in bringing their cases to the Court, precisely by producing this “chilling effect” (see Klyakhin v. Russia , no. 46082/99, §§ 118 and 119, 30 November 2004; Belyaev and Digtyar v. Ukraine , nos. 16984/04 and 9947/05, § 61, 16 February 2012; and Kopanitsyn v. Russia , no. 43231/04 , § 43, 1 2 March 2015 ).

26. Turning to the circumstances of the present case, the Court first notes that the applicant ’ s allegations about the failure to dispatch his first letter in October 2001 are not sufficiently substantiated. They are furthermore directly contested by the arguments and evidence submitted by the Government, including affidavits by the prison staff. In such circumstances, the Court considers that there is an insufficient factual basis for a conclusion that there has been any unjustified interference by State authorities with the applicant ’ s exercise of the right of petition in the proceedings before the Court in relation to the alleged failure to dispatch his complaint in October 2001.

27. In so far as the applicant complains about the forwarding of his letter to the Voronezh UFSIN in January 2002, the Court notes that even though the Government haven ’ t claimed directly that the applicant had lost victim status, they acknowledged that the actions of the relevant officers had been in breach of the obligation to maintain confidentiality of the correspondence with the Court and referred to act no. 92. In such circumstances, the Court is satisfied that there has been an unequivocal acknowledgement by the domestic authorities of this breach.

28. The question remains whether sufficient redress was afforded to the applicant in respect of the breach. It appears from the document issued by the head of the Voronezh UFSIN on 8 February 2002 that not only three officers concerned had been reprimanded for their actions, but the service had also been instructed to carry out an exercise in disseminating the applicable legislation among the officers of penitentiary institutions in the region. The applicant was made aware of that decision. In such circumstances the Court finds that the national authorities made the necessary steps in order not only to discipline the persons responsible for the breach of the applicants ’ right, but also to put in place a framework for avoiding in the future any unjustified “chilling” effect on the effective exercise of a right of individual application before the Court (see, by contrast, Nurmagomedov v. Russia , no. 30138/02, § 61, 7 June 2007; and Yefimenko v. Russia , no. 152/04 , § 164, 12 February 2013) .

29. In view of the above, the Court finds that there are no reasons to pursue the examination of the applicant ’ s complaint about Russia ’ s breach of its obligation under Article 34 not to hinder his right of individual petition (see, for example, Charalambous and Others v. Turkey (dec.), nos. 46744/07, 16622/08, 29673/08, 37368/08, 45656/08, 4584/10, 4649/10, 4852/05, 5189/10, 5210/08, 5247/08, 5270/08, 5277/08, 5281/08, 59490/09, 60676/08, 60678/08, 60688/08, 60696/08, 60719/08, 60734/08, 60742/08, 60771/08, 6081/10, 7048/08, 7086/08, 7439/08, 7512/08, 7839/10, § 74, 3 April 2012).

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

30. The applicant also raised additional complaints with reference to various Articles of the Convention and its Protocols.

31. Having regard to all the material in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols in that part of the application.

32. It follows that the application in this part must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously:

Decides not to pursue the complaints raised under Article 34 of the Convention;

Declares the remaining complaints inadmissible.

Done in English and notified in writing on 12 November 2015.

             André Wampach Khanlar Hajiyev              Deputy Registrar President