MAKHLYAGIN AND BELYAYEV v. RUSSIA - 14784/09 (Judgment : Violation of Individual applications - Hinder the exercise of the right of application)) [2018] ECHR 10 (09 January 2018)

In the case of Makhlyagin and Belyayev v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Luis López Guerra, President,
          Dmitry Dedov,
          Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 12 December 2017,

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

PROCEDURE

1. The case originated in two applications (nos. 14784/09 and 51742/11) 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 two Russian nationals, Mr Yuriy Petrovich Makhlyagin on 18 September 2008 and Mr Aleksandr Mikhaylovich Belyayev on 21 June 2011.

2. Mr Makhlyagin was represented by Mr A. Obukhov, a lawyer practising in Nizhniy Tagil; Mr Belyayev was represented by Mr E. Markov, a lawyer practising in Vienna. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 13 May 2015 complaints concerning correspondence (in respect of both applications) and concerning access to court (in respect of the application lodged by Mr Makhlyagin) were communicated to the Government, and the remainder of both applications was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants, Mr Makhlyagin and Mr Belyayev, were born in 1983 and 1979 respectively and were held in different detention facilities. The facilities’ officials opened and/or inspected letters that the applicants exchanged with the Court.

A. Application no. 14784/09

5. From September 2008 until October 2009 the applicant, detained in a correctional colony, lodged several letters with the Court. All of them were accompanied by cover letters from a chief officer of the colony summarising the content of the applicant’s letters. Some letters also bore the colony’s registration stamps.

6. The applicant lodged a claim, alleging that the colony’s staff had impeded his correspondence with the Court. On 22 January 2009 the Tagilstroyevskiy District Court of Nizhniy Tagil dismissed his claim

7. The applicant lodged an appeal with the Sverdlovskiy Regional Court. On 4 March 2009 the Sverdlovskiy Regional Court rejected his appeal, stating that it should be lodged through the first-instance court. The regional court also noted that the applicant could request that the time-limit in respect of the appeal be re-set.

8. On 30 March 2009 the applicant lodged his appeal with the first-instance court. Instead of requesting that the time-limit in respect of his appeal be re-set the applicant asked the court to restore his case to the list of pending cases. On 9 April 2009 the District Court refused to examine the appeal as belated.

9. The applicant appealed against this decision. However, he once again lodged his appeal with the Regional Court instead of the first-instance court. His appeal statement did not contain a request for the missed time-limit to be re-set. The Sverdlovskiy Regional Court dismissed the applicant’s appeal.

B. Application no. 51742/11

10. On 2 November 2010 the applicant received a letter from the Court; the letter was opened by a member of the remand prison staff.

11. The applicant lodged a claim for compensation. By a final decision of 7 June 2011 the Tver Regional Court dismissed his claim. The court stated that Russian law did not prohibit the opening of incoming correspondence from the Court.

II. RELEVANT DOMESTIC LAW

12. For a summary of the relevant domestic provisions in force at the material time, see the case of Boris Popov v. Russia (no. 23284/04, §§ 35-39, 28 October 2010).

THE LAW

I. JOINDER OF THE APPLICATIONS

13. The Court decides to join the applications, given their similar factual and legal background.

II. ALLEGED VIOLATIONS CONCERNING THE CENSORSHIP OF CORRESPONDENCE

14. The applicants complained of disruption to their correspondence with the Court. Both applicants relied on Article 8 of the Convention. Mr Makhlyagin also invoked Article 34 of the Convention.

A. The parties’ submissions

15. Mr Makhlyagin argued that the presence of prison stamps on the letters, as well as the cover letters drafted by prison officials, confirmed that they had been inspected and possibly photocopied by prison stuff. He also alleged that the occasional lack of envelopes and postage stamps in the detention facility amounted to a risk that his correspondence would be inspected after being handed over to prison officials for posting.

16. Mr Belyayev claimed that the opening of one letter from the Court amounted to a violation of his rights.

17. The Government argued that Mr Makhlyagin had not exhausted the domestic remedies, referring to his failure to appeal against the judgment of the Tagilstroyevskiy District Court of Nizhniy Tagil of 22 January 2009.

18. As regards Mr Belyayev’s application, the Government submitted that the letter had been opened by mistake. They further argued that since no routine monitoring of the applicant’s correspondence had taken place, the incident had not amounted to a violation of the applicant’s rights.

19. The applicants maintained their claims.

B. The Court’s assessment

20. The Court has examined complaints concerning the monitoring of correspondence between applicants and the Court under Article 8 of the Convention (see Alekseyenko v. Russia, no. 74266/01, § 68, 8 January 2009; Boris Popov v. Russia, no. 23284/04, §§ 93-94, 28 October 2010; and Idalov v. Russia [GC], no. 5826/03, § 199, 22 May 2012), under Article 34 (see, among other authorities, Ponushkov v. Russia, no. 30209/04, §§ 79-85, 6 November 2008; Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, 17 January 2012; and Trosin v. Ukraine, no. 39758/05, § 49, 23 February 2012), or under both provisions (see Belyaev and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, §§ 50-63, 16 February 2012, and Shekhov v. Russia, no. 12440/04, §§ 49-65, 19 June 2014).

21. As the Court is master of the characterisation to be given to the facts of the case, and having regard to the nature of the interference and the contents of the applicant’s submissions (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009), it considers that cases should be examined under Article 34 of the Convention, which reads as follows:

“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.”

22. The Court observes at the outset that a complaint under Article 34 of the Convention is of a procedural nature and does not therefore give rise to any issue of admissibility under the Convention (see Juhas Đurić v. Serbia, no. 48155/06, § 72, 7 June 2011, with further references). Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual to communicate freely with the Convention institutions without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. Therefore, the Government’s objection of non-exhaustion of domestic remedies is misconceived.

23. 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 (see, among others, Klyakhin v. Russia, no. 46082/99, §§ 118-19, 30 November 2004).

24. In the present case it is not in dispute that staff at the detention facilities have opened and/or read the letters that the applicants have exchanged with the Court.

25. The Court considers that the opening of correspondence and its inspection, as well as a mere risk thereof, could have had an intimidating effect on the applicants, which is incompatible with the respondent State’s obligation under Article 34 of the Convention.

26. The Court therefore considers that the respondent State has failed to comply with its obligations under Article 34 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

27. Mr Makhlyagin further complained that he had been denied access to the appeal court in relation to the first-instance court judgment of 22 January 2009.

28. The Court has examined this complaint, as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

29. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

30. Mr Makhlyagin claimed 25,000 euros (EUR) and Mr Belyayev claimed EUR 20,000 in respect of non-pecuniary damage.

31. The Government contested these claims.

32. The Court considers that the finding of a violation of Article 34 of the Convention constitutes in itself sufficient just satisfaction for the applicants. Accordingly, it rejects the applicants’ claims in respect of non-pecuniary damage.

B. Costs and expenses

33. Mr Belyayev claimed EUR 50 for postal and photocopying expenses. He further claimed EUR 1,730 for legal costs incurred before the Court, to be paid to the applicant’s representative, Mr E. Markov.

34. Mr Makhlyagin did not claim any costs or expenses.

35. The Government contested Mr Belyayev’s claims.

36. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 150 covering costs under all heads, to be paid into Mr E. Markov’s bank account.

C. Default interest

37. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints concerning monitoring of correspondence admissible and the remainder of the applications inadmissible;

3. Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention in respect of both applicants;

4. Holds

(a) that the respondent State is to pay Mr Belyayev, within three months, EUR 150 (one hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the bank account of Mr Eduard Markov;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 9 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Luis López Guerra
Deputy Registrar President

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