Постановление Европейского суда по правам человека от 14.01.2010 «Дело Шугаев (shugayev) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SHUGAYEV v. RUSSIA
(Application No. 11020/03)
JUDGMENT*
(Strasbourg, 14.I.2010)
____________________________
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Shugayev v. Russia,

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

Christos Rozakis, President,

Nina {Vajic}*,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 15 December 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 11020/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by Mr Gennadiy Yuryevich Shugayev ("the applicant"), on 23 February 2003.

2. The Russian Government ("the Government") were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives 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 applicant alleged, in particular, that he had not been provided with legal assistance in the course of the criminal proceedings against him and that the Russian authorities had interfered with his correspondence with the Court.

4. On 6 September 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

5. On 22 April 2008 the President of the First Section invited the Government to submit further written observations on the admissibility and merits of the application under Rule 54 § 2 (c) of the Rules of the Court.

6. The Government objected to the joint examination of the admissibility and merits of the application. The Court examined and dismissed their objection.

THE FACTS
I. The circumstances of the case
7. The applicant was born in 1961 and is serving a prison sentence in Orenburg.

A. Criminal proceedings against the applicant
1. Preliminary investigation
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.

2. Criminal proceedings concerning the first
charge of murder
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.

3. Criminal proceedings concerning the second
charge of murder
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.

B. The applicant's correspondence with the Court
1. Alleged seizure of the documents at transit
prison IZ-56/1 in Orenburg
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.

2. Alleged failure of correctional institution IK-6
to dispatch the applicant's letters to the Court
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.



2. Alleged loss of the applicant's letters addressed
to the Court and non-delivery of the communication mail
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.

3. Opening of the Court's letter of 28 June 2007
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.

4. Subsequent correspondence with the Court
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.

II. Relevant domestic law and practice
A. Legal assistance in criminal proceedings
1. The Code of Criminal Procedure
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