FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30138/02 
by Tagir NURMAGOMEDOV 
against Russia

The European Court of Human Rights (First Section), sitting on 16 September 2004 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mr G. Bonello
 Mr A. Kovler
 Mr V. Zagrebelsky
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 28 May 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

The applicant, Mr Tagir Suleymanovich Nurmagomedov, is a Russian national, who was born in 1961 and is now serving his sentence in the town of Yemva in the Komi Republic. He is represented before the Court by Ms O. Shepeleva, a lawyer practising in Moscow. The respondent Government are 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.  Initial conviction of the applicant

On 11 April 1991 the Kochubeyevskiy People’s Court of the Stavropol Region (Кочубеевский народный суд Ставропольского края) convicted the applicant, along with two co-defendants, of violent robbery (Article 146 § 2 of the RSFSR* Criminal Code) and involvement of minors in criminal activities (Article 210 of the RSFSR Criminal Code). The court sentenced the applicant to eight years’ correctional colony.

On 29 May 1991 the Criminal Chamber of the Stavropol Regional Court upheld the applicant’s conviction.

The applicant was sent to correctional colony 350/1 (ИК ПЛ-350/1) to serve his sentence.

2.  The applicant’s non-return from home leave and arrest

On 14 March 1994 the colony administration granted the applicant a short-term home leave. The applicant went to his native village in the Dagestan Republic. He was due back in the colony on 1 April 1994.

According to the applicant, having found his wife and children in a precarious state of health and in a dire financial situation, he decided not to return to the colony and started working to support his family. Fearing military hostilities in the neighbouring Chechen Republic, on an unspecified date the applicant and his family moved to the town of Gubkinskiy in the Tyumen Region.

The applicant submits that in 1994 and on 25 August 1995 he lawfully obtained his identity documents from the police and the police then registered him as a resident of Gubkinskiy and an individual entrepreneur. He also obtained a taxpayer’s identification number and purchased a flat in his own name.

On 29 April 1999 the colony administration initiated a criminal investigation in connection with the applicant’s “escape” and the applicant was placed on the fugitives from justice list.

On 29 August 2000 the applicant was summoned to the local police station in Gubkinskiy and placed in custody for the failure to return from home leave.

3.  The applicant’s conviction for avoidance of punishment

On 16 November 2000 the Pechyora Town Court of the Komi Republic (Печерский городской суд Республики Коми) convicted the applicant of avoidance of punishment (Article 188.1 of the RSFSR Criminal Code). The applicant was sentenced to six months’ imprisonment plus the time not yet served under the judgment of 11 April 1991 (four years and seven months in total).

The applicant attempted to appeal against the judgment of 16 November 2000. His appeal was returned because he had failed to provide a duly certified copy of the judgment of 11 April 1991. According to the applicant, it was not until July 2001 that the Kochubeyevskiy District Court of the Stavropol Region responded to his third request and sent him a copy of the 1991 judgment. By that time the ten-days’ time-limit for lodging an appeal against the judgment of 16 November 2000 had already passed.

The applicant filed several requests for supervisory review. His requests were refused by the Supreme Court of the Komi Republic on 26 September 2001, by the Supreme Court of the Russian Federation on 30 November 2001, 11 April and 26 August 2002, and by the Komi Republic prosecutor’s office on 2 September 2002.

4.  Supervisory review of the 1991 conviction

The applicant subsequently filed a request for supervisory review of the judgment of 11 April 1991.

On 18 April 2002 the Prosecutor General’s office refused his request for review, but forwarded a copy of his complaint to the Stavropol Region prosecutor’s office “to bring the applicant’s conviction into conformity with the new Criminal Code” (on 1 January 1997 the RSFSR Criminal Code was replaced with the Criminal Code of the Russian Federation). On 30 May 2002 the Stavropol Region prosecutor’s office forwarded the request to the Komi Republic prosecutor’s office.

On an unspecified date a deputy prosecutor of the Komi Republic lodged a motion (представление) “to bring the applicant’s conviction into conformity with the Criminal Code of the Russian Federation”.

On 28 June 2002 the Knyazhpogostskiy District Court of the Komi Republic (Княжпогостский районный суд Республики Коми) granted the prosecutor’s motion and adopted a ruling (постановление). The court established that Article 162 § 2 of the Criminal Code of the Russian Federation provided for a more lenient punishment for violent robbery than Article 146 § 2 of the RSFSR Criminal Code. As the provisions providing for milder sentences could be applied retroactively to convicts, the court considered it necessary to recharacterise the offence committed by the applicant in accordance with the new Criminal Code. The court also struck out from the original judgment a reference to the applicant’s inebriated state at the time of the offence as the new Code did not classify it any longer as an aggravating circumstance. However, the recharacterisation did not result in a reduction of the applicant’s sentence because the original sentence remained within the limits of Article 146 § 2 of the new Code. The ruling indicated that it was amenable to an appeal or supervisory review before the Supreme Court of the Komi Republic during a period of seven days.

On 3 July 2002 the colony administration (спецчасть ИК 222-35/2) informed the applicant that a motion of the Komi Republic prosecutor “would be heard in the Knyazhpogostskiy District Court”.

On 4 July 2002 the applicant sent a request to the Knyazhpogostskiy District Court to obtain the case file from the Kochubeyevskiy District Court. The applicant also requested permission to study the case file, to be present at the hearing, to give explanations and to receive legal aid. According to the stamp on the request, the court received it on 18 July.

On 26 July 2002 the applicant received a copy of the ruling of 28 June 2002 from the prosecutor’s office.

On 2 August 2002 the judge of the Knyazhpogostskiy District Court who made the ruling of 28 June, advised the applicant that his court was not competent to obtain case files from other courts or to review final convictions and that the applicant could seek legal aid from the local bar.

The applicant applied for supervisory review of the ruling of 28 June 2002 to the Supreme Court of the Komi Republic.

On 21 August 2002 the Supreme Court of the Komi Republic refused the applicant’s request. The Supreme Court wrote that the ruling was not subject to appeal and, in any event, the District Court had not been competent to examine the merits of the conviction. The complaint concerning the merits of the case was to be directed to the Stavropol Regional Court.

The applicant sent another complaint to the Prosecutor General’s office which in turn forwarded it to the Komi Republic prosecutor’s office. On 11 December 2002 the Komi Republic prosecutor informed the applicant that there were no grounds to seek supervisory review as all judicial decisions had been “well-reasoned and lawful”.

5.  Alleged interference with the applicant’s correspondence with the Court

According to the applicant, on 23 May 2002 he submitted an application to the European Court to the administration of colony 222-35/2 (спецчасть ИК 222-35/2). Twenty-five days later the application was returned to him and he was told that he had no right to petition international institutions until he had exhausted all domestic remedies.

The applicant sent a copy of his application through an informal channel and complained about the actions of the colony administration to a prosecutor’s office.

On 12 July 2002 the Ust-Vymskiy prosecutor in charge of compliance with laws in correctional colonies (прокурор по надзору за соблюдением законов в ИУ) confirmed the lawfulness of the actions of the colony administration:

“An application to [i]nternational institutions is only possible after the issue has been resolved (or not resolved) inside the country because otherwise such complaint or application would immediately be returned for its resolution inside the country... This procedure also applies to convicts...

Therefore the actions of the administration of correctional colony no. 2 which had not sent your application to the Registry of the European Court of Human Rights were lawful...”

The applicant further submits that the first package sent by the Registry on 13 August 2002 was only given to him on 31 December 2002 without the envelope. The applicant alleges that the envelope was taken away so as to make verification of the date of receipt impossible.

6.  Conditions of detention in colony no. 222-35/2

Since 28 December 2000 the applicant has been serving his sentence in correctional colony no. 222-35/2 in the town of Yemva in the Komi Republic.

Between December 2000 and August 2001 the applicant was kept in the top-security wing.

On 20 August 2001 the applicant was transferred to the general regime. The parties provide the following accounts of the detention conditions.

The Government’s account

The applicant is held in dormitory no. 7 which is a two-storey wooden construction with centralised hot-water heating. No ventilation system is available.

There is no centralised water supply. Convicts get water from a water-pump located some 35 m away from the dormitory. In the dormitory there is a 30-litre receptacle for drinking water. There have been no failures of water supply.

The living premises have no sewage system. The toilet is a cesspool located in a self-standing structure.

The applicant’s room no. 4 measures 15 square metres and has four bunk beds, a wash-stand, a table, two buckets for drinking water with supports, two bedside-tables, four stools and a coat-hanger. The floor space per convict is 3.75 square metres. Windows have two sashes with a small opening window pane for natural ventilation. Sanitary conditions in the living premises are satisfactory.

Convicts take showers weekly “in accordance with the established schedule”.* The shower room features three water-pumps, shower heads, and a sufficient number of wash-basins.

As regards the convicts’ labour rights, there were no violations between September and December 2001. Due to the insufficiency of workplaces for convicts (430 workplaces for more than a thousand convicts), since 1 January 2002 the applicant has not worked and he has not applied to the colony administration for permission to work.

Convicts may make copies of documents at their own expense. The applicant has never asked for copies to be made.

The Government indicate that there were no delays in crediting money to convicts’ personal accounts.

The applicant’s account

The applicant submits that each convict has less than two square metres of living space, and in winter months the temperature inside the living premises is below the generally accepted norms. Convicts have to renovate the premises and provide bedding and linen at the expense of their relatives.

There are regular failures in the drinking water supply. The most recent interruption lasted from 23 to 26 January 2004. Convicts had to spend long hours in the frost to get a bucketful of water and the applicant had to melt snow.

The toilet is located 60 m away from the dormitory. It has no heating, lighting, ventilation or water supply.

The showering schedule only exists in theory. In practice, the showers are open from 9 to 12 a.m. on Saturdays and from 3 to 6 a.m. on Sundays.

The applicant also indicates excessive delays in crediting his personal account, processing his mail and payment of extremely a low wage for prison work (approximately EUR 6-7 for four months’ work). He also submits that his request to make copies of court documents was refused, even though he was prepared to pay for them.

7.  Subsequent developments

On 8 September 2003 the application was communicated to the respondent Government.

(a)  Review of the ruling of 28 June 2002

On 20 October 2003 the prosecutor of the Komi Republic lodged an application to quash the ruling of 28 June 2002 by way of supervisory review because it had been made in the applicant’s absence.

On 19 November 2003 the Presidium of the Supreme Court of the Komi Republic granted the prosecutor’s application. It quashed the ruling of 28 June 2002 and remitted the matter to the same court.

The applicant describes the subsequent events as follows:

“On 11 December 2003 I was called to the colony headquarters where I was told, in room no. 2, that the ruling of the Knyazhpogostskiy court of 28 June 2002 would now be reviewed... I was told right away that the new ruling would be identical to the ruling of 28 June 2002, the only difference being that it would be made in my presence. I asked to invite convict S. as my defendant and was told, ‘Convict S. is now restricted in his movement and cannot be present at the court hearing’. I asked to certify the refusal in writing, but was refused. I asked those present at the ‘court hearing’ to introduce themselves, I was told, ‘you will know from the ruling’.

I considered my further participation in this farce inappropriate and asked that my refusal to participate further in the hearing... be recorded in the minutes and left the room. On 24 December 2003 I received the ruling of 11 December 2003 containing the sentence, ‘... having heard the submissions by convict T.S. Nurmagomedov...’”

On 11 December 2003 Judge Trofimova of the Knyazhpogostskiy District Court of the Komi Republic, in the presence of prosecutor Korepanov, made a new ruling that was identical in content to the ruling of 28 June 2002.

The applicant lodged an appeal against it.

On 31 December 2003 the appeal was returned to him. In the cover letter Judge Trofimova informed him that his appeal could not be processed because he failed to specify what judgment he appealed against and because he indicated the appeal court’s name as “the Presidium of the Supreme Court of the Komi Republic”, whereas it should have been “the Supreme Court of the Komi Republic”.

The applicant does not indicate whether he re-submitted the appeal.

(b)  Attempts to secure the right of individual petition

On 10 October 2003 Colonel Urbanovskiy, an acting deputy head of facility no. M-222, approved the conclusions of an internal inquiry carried out by Colonel Neklyudov, a deputy head of facility no. M-222 in charge of prisoners’ human rights, into the circumstances surrounding the applicant’s request to despatch his application to the European Court. According to the inquiry’s findings, in May 2002 the applicant had asked Ms Babina, senior inspector of the special registration group, about the procedure for lodging applications with the European Court. Ms Babina had advised him to apply first to the competent domestic authorities. The applicant made no further demands to the colony administration concerning his application and he sent it to the Court via informal channels, in breach of the internal regulations. Colonel Neklyudov proposed to consider it established that the alleged hindrance had not taken place.

On the same date Colonel Urbanovskiy issued order no. 592-A on behalf of the Mikun directorate of correctional facilities (Микуньское управление лесных исправительных учреждений) for the attention of Colonel Neklyudov and heads of other correctional colonies in the region. The introductory part of the order related the circumstances of the applicant’s contacts with Ms Babina. Colonel Neklyudov was ordered to provide each facility with a set of educational materials concerning procedures for application to, inter alia, the Russian Ombudsman and the European Court and to prepare test questions on human rights for colonies’ officials. The colonies’ heads were instructed to ensure compliance with the order of the Ministry of Justice of 23 December 2001 whereby all hindrances to communication of convicts with the Court had been prohibited and to study the educational materials.

On 21 November 2003 Mr Yuri Kalinin, the deputy Minister of Justice, in a letter addressed to heads of regional departments of the Chief Penitentiary Directorate, recalled that the decision as to whether domestic remedies have been exhausted is made by the European Court itself and that administrations of penitentiary institutions had no competence to determine this issue and they shall not prevent convicts from lodging applications with international human rights’ organisations. The deputy minister called for rigorous compliance with the State obligations under Article 34 of the Convention.

B.  Relevant domestic law

1.  The RSFSR Criminal Code of 27 October 1960 (in force until 1 January 1997)

Pursuant to Article 146 § 2, qualified robbery was punishable with six to fifteen years’ imprisonment and confiscation of property. Article 210 provided that involving minors in criminal activities, loitering or prostitution was punishable with up to five years’ imprisonment.

2.  The Criminal Code of the Russian Federation of 13 June 1996 (in force from 1 January 1997)

Article 10 sets out that a criminal law providing for a more lenient penalty or otherwise improving the situation of an offender shall have retroactive application to those who had committed an offence before such law came into force, including convicts serving their sentence. If the law provides for a shorter sentence, then the sentence of the convict shall be adjusted accordingly.

Article 150 § 1 provides that involving a minor in the commission of an offence through promises, deception, threats or otherwise shall be punishable with up to five years’ imprisonment. Article 162 § 2 provides that qualified robbery shall be punishable with seven to twelve years’ imprisonment and confiscation of property.

3.  The RSFSR Code of Criminal Procedure of 27 October 1960 (in force until 1 July 2002)

Article 361.1 provided that a court, acting on an application of a convict or a presentment of a prosecutor in connection with the adoption of a law having retroactive application, could relieve the convict from serving the sentence, reduce his sentence or otherwise improve his situation. In these proceedings the court was to ground its interim decision (определение) only on the circumstances established in the final conviction and it could not disturb the interpretation of criminal law given by the court that had pronounced the original conviction.

Article 369 provided that the sentencing issues were to be determined in a court session. The convict was summoned to the hearing “as a rule”. The convict’s failure to appear did not require an adjournment of the hearing.

Article 331 provided that decisions made pursuant to Article 361.1 could not be appealed against by the convict, but a prosecutor could lodge a request for supervisory review of such decisions.

4.  The Code of Criminal Procedure of the Russian Federation of 18 December 2001 (in force from 1 July 2002)

Article 397 § 13 provides that a court shall decide on adjustment of a sentence in connection with the adoption of a law having retroactive effect. Article 401 specifies that any such decision shall be amenable to a cassation appeal (жалоба в кассационном порядке) in accordance with the general rules of appeal set out in the Code.

COMPLAINTS

1.  The applicant complains under Article 3 of the Convention about the conditions of his detention: (i) on 5 September 2000 in Tyumen; (ii) between 22 October and 24 December 2000 in Vorkuta; (iii) between 21 October and 16 November 2000* in Pechyora; (iv) since 28 December 2000 and to date in colony no. 222-35/2, first in the top-security wing (until 20 August 2001) and subsequently on general regime. He additionally submits that the decision of the colony administration to place him in the top-security wing upon his arrival at the colony in December 2000 amounted to a violation of Article 4 § 1 of Protocol No. 7. The applicant also complains that the authorities’ inattention to his lawful demands was also amounted to treatment contrary to Article 3 of the Convention.

2.  The applicant complains under Article 6 § 1 of the Convention about allegedly perverse court findings in the judgment of 16 November 2000. He refers, in particular, to a five-year “gap” between his “escape” in 1994 and the opening of criminal proceedings against him in 1999. The applicant also relies on Article 2 of Protocol No. 7 to the Convention alleging that he was unable to appeal against the judgment because the required copies had been provided to him too late.

3.  The applicant complains under Article 6 § 1 in conjunction with paragraphs  3 (b) and (c) of that Article about a violation of his right to defend himself and of his right to a public hearing, in respect of the ruling of 28 June 2002. He complains that he was notified of the hearing only after it had taken place.

4.  The applicant complains under Article 8 of the Convention about excessive delays in processing his correspondence by the colony administration and hindrance to his correspondence with the Court.

THE LAW

1.  The applicant complains under Article 3 of the Convention and Article 4 § 1 of Protocol No. 7 about the conditions of his detention in Tyumen, Vorkuta and Pechyora detention facilities and in the top-security wing of the correctional colony between December 2000 and August 2001, as well as about the general living conditions in colony no. 222-35/2 where he has been held to date. He also alleges that he was subjected to degrading treatment because the authorities failed to respond to his lawful requests. Article 3 provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

(a)  The Court notes, firstly, that, to the extent that the applicant’s complaints relate to the conditions of his detention before November 2001, they are introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b)  The Court further notes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII). It considers that the domestic authorities’ alleged failure to respond to the applicant’s complaints did not cause him suffering or humiliation of such intensity as to constitute “inhuman or degrading” treatment within the meaning of Article 3. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(c)  As regards the conditions of the applicant’s detention in colony no. 222-35/2 since August 2001, the Government submit that convicts there have adequate living conditions, sufficient space per convict and access to services and facilities. No breaches of the applicable regulations were established. They consider that the applicant’s complaints about the allegedly unsatisfactory conditions of detention are manifestly ill-founded.

The applicant disagrees. He points, in particular, to the frequent failures of the water supply system, the lack of sewage, the antiquated toilet, insufficient shower facilities, and delays in the processing of mail.

The Court recalls that, according to its constant case-law, measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. However, it is incumbent on the State to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Valašinas v. Lithuania, no. 44558/98, §§ 101-102, ECHR 2001-VIII).

The Court notes that, according to the Government, the applicant shares a dormitory measuring 15 square metres with three other persons. The applicant contends that each convict has less than 2 square metres. However, this allegation is not supported by, at the very least, an indication of the actual living surface or number of convicts. It appears therefore that the applicant is allocated 3.75 square metres. The Court observes that this figure is nearly twice as much as the domestic standard of 2 square metres for male convicts in correctional colonies (Article 99 § 1 of the Code on Execution of Criminal Penalties of 8 January 1997). Furthermore, it finds that this figure must be viewed in the context of the wide freedom of movement enjoyed by the applicant from the wake-up in the morning to the lock-in at night, when he can move about a substantial part of the correctional colony, including the dormitory, an open courtyard, and sanitation areas. It is not alleged that his dormitory room lacks natural lighting or fresh air. As regards allocation of space, the Court concludes that the freedom of movement allowed and unobstructed access to natural light and air compensate for the relatively small dimensions of the applicant’s room and the scarce space allocation per convict (cf. Valašinas v. Lithuania, cited above, §§ 103 and 107; see, by way of contrast, Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002-VI).

The Court further notes that the dormitory is equipped with a centralised system of hot-water heating. The applicant did not substantiate his submissions about insufficient temperature levels in the winter months by reference to specific dates or instances when the heating system was not functioning or failed to perform at required capacity.

As regards the sanitation facilities, the absence of the centralised supply of drinking water and sewage system are indeed regrettable, as is the placement of the toilet in a separate unheated and unlit structure built over a cesspool. However, it is to be noted that these conditions are no different from the sanitation facilities in many rural areas of Russia where villagers carry drinking water in buckets from water-pumps and have toilets in outhouses with sumps. The Court finds that this situation is not so unsatisfactory as to amount to a breach of Article 3. The applicant’s description of the water-supply failure in January 2004 is self-contradictory. If there was no water at all, then it was pointless to wait for hours outside. If water was there, but dripping slowly, a long wait would be equally pointless as a bucket could have been placed under the pump and then retrieved once it was full. Moreover, it is difficult to understand why the applicant had to melt snow whereas other convicts could still obtain water from the pump, albeit not very quickly.

It is not alleged that the living areas were unduly dirty or infested with insects (see, by way of contrast, Kalashnikov v. Russia, cited above, § 98). Even assuming that the bedding was provided by the applicant’s relatives and not by the administration, as the Government assert, and that the convicts were expected to do the cleaning themselves, it does appear that the sanitary condition of the premises can give rise to an issue under Article 3. It is true that access to the shower is restricted to a few hours each week. However, given the existence of wash-stands in the dormitory rooms, it has not been established that this limitation deprived the applicant of the opportunity to keep himself clean to a degree which might have been incompatible with Article 3 (cf. Valašinas v. Lithuania, cited above, § 108 in fine).

The allegedly low pay for work and delays in crediting personal accounts or in processing mail do not raise issues under Article 3.

In sum, having regard to the above considerations, the Court finds that this part of the complaint under Article 3 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The applicant complains under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 about the findings in the judgment of 16 November 2000 and about the lack of possibilities to appeal against that judgment.

The Court observes that the judgment was handed down on 16 November 2000 and the applicant, according to his own statement, received a copy of the required document in July 2001. However, his application to this Court was only lodged on 28 May 2002, i.e. more than six months later.

It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicant complains under Article 6 §§ 1 and 3 (b) and (c) that he was not notified in a timely manner of the hearing on 28 June 2002 and, as a result, he was deprived of an opportunity to defend himself. The relevant parts of Article 6 provide as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”

The Government indicate that on 19 November 2003 the ruling of 28 June 2002 was quashed by the Presidium of the Supreme Court of the Komi Republic. In their opinion, steps were taken to remedy the alleged violation. They make no comments on the merits of the complaint.

The applicant indicates that it was not until the European Court intervened in the matter that the prosecutor lodged an application for supervisory review of the ruling of 28 June 2002, whereas earlier (on 11 December 2002) the same prosecutor had dismissed a complaint about the applicant’s absence from the hearing on 28 June 2002 and declined his request to apply for supervisory review because that very ruling had been “well-reasoned and lawful”. The applicant contends that a new examination of the same matter (described in the Facts part) was a travesty of justice and that he was unlawfully denied his right to appeal against the new ruling.

The Court considers, in the light of the parties’ submissions, that the complaint 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 complaint 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.

4.  The applicant complains under Article 8 of the Convention that his correspondence was intentionally delayed by the colony administration and that he was prevented from communicating with the Court. Article 8, in the relevant part, provides as follows:

“1.  Everyone has the right to respect for 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.”

The Court considers that the alleged hindrances to the applicant’s communication with the Court fall to be examined under Article 34 of the Convention, which reads as follows:

“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.”

(a)  As regards the applicant’s complaint under Article 8, the Government indicate that all incoming and outgoing correspondence of convicts was routinely subjected to censorship, pursuant to Article 91 of the Code on Execution of Criminal Penalties. However, outgoing letters were despatched, and incoming letters were handed in to the applicant, within three working days. The Government submit that the applicant did not lodge any complaint about excessive delays with the colony administration.

The applicant disagrees. He challenges the Government’s assertions as not being supported by sufficient evidence. He provides copies of several letters with postage stamps indicating a significant delay in their handing in to the applicant. He submits that his oral complaints about processing delays were not recorded by the colony administration and he relies, in support of his statements, on copies of written complaints lodged by his fellow convicts.

The Court notes that written complaints provided by the applicant were lodged by other persons. It does not appear that the applicant was prevented from lodging a written complaint himself. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(b)  As regards the issues under Article 34, the Government accept that the explanation concerning the procedure for lodging applications with the European Court given to the applicant in May 2002 was erroneous. They emphasise that the officer who gave the explanation did not act with malicious intent, but simply erred in her appreciation of the applicable Russian laws and the case-law of the European Court. The applicant, however, never requested the colony administration to send his application to the Court. Finally, referring to the order of Colonel Urbanovskiy and the letter of the deputy Minister of Justice, the Government submit that measures have been taken to avoid the repetition of similar situations in the future. The Government make no comments as to the allegedly belated handing in of the Court’s package to the applicant.

The applicant contends that he never asked for an “explanation” and, as a matter of fact, he explicitly requested that his application be posted to the European Court. Having been met with a refusal, he had to use alternative ways for posting his application. Had he been able to communicate freely with the Court, he would not have resorted to informal channels of communication because such a flagrant breach of the colony regulations jeopardised his own well-being and that of people who helped him. Furthermore, the applicant submits that the absence of malicious intent in the acts of the colony official cannot exclude her liability.

The Court considers, in the light of the parties’ submissions, that the complaint 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 complaint 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

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the proceedings for bringing his conviction into conformity with the new Criminal Code and concerning the alleged hindrances to his communication with the Court;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 
Registrar President

* RSFSR – Russian Soviet Federalist Socialist Republic.


* A copy of the schedule is not provided.


* The dates are thus indicated by the applicant. The Government clarify that the applicant was held in Pechyora between 10 and 21 October 2000 and later in Vorkuta until 16 November 2000. On the latter date he was transferred back to Pechyora where he stayed until 20 November 2000 for participation in the court hearings. Thereafter he returned to Vorkuta.


NURMAGOMEDOV v. RUSSIA DECISION


NURMAGOMEDOV v. RUSSIA DECISION