Professional Documents
Culture Documents
JUDGMENT
STRASBOURG
5 November 2015
This judgment will become final in the circumstances set out in Article 44
2 of the Convention. It may be subject to editorial revision.
PROCEDURE
1. The case originated in an application (no. 36814/06) 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 a Russian national, Mr Shaukhat Galimovich
Chukayev (the applicant), on 11 July 2006.
2. The applicant, who had been granted legal aid, was represented by
Mrs V.A. Bokareva, a lawyer practising in Moscow. The Russian
Government (the Government) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of Human
Rights.
3. The applicant alleged, in particular, that he (i) had been detained in
inhuman and degrading conditions on remand, (ii) had not been provided
with a lawyer after his arrest, (iii) had been ordered to pay legal aid fees,
and (iv) had not been able to question a witness against him. He also
maintained that the Russian authorities had hindered the exercise of his right
of individual petition to the Court.
4. On 10 February 2012 the application was communicated to the
Government.
THE FACTS
5. The applicant is a Russian national who was born in 1960 and lived
before his arrest in Vatazhnoe, a village in the Astrakhan region.
13. According to the arrest record, which he had signed, the applicant
had made no comments concerning its contents or any other matters, and his
wife had been notified of his arrest over the telephone.
14. Following the personal search, the investigator seized other money
found in his pockets along with his identity papers, mobile phone and some
other items. The personal search was photographed.
15. On the same day the investigator ordered fingerprint and palm print
chemical expert reports. The applicants fingerprints and palm prints were
taken. The applicant alleged that he had not been informed of the request for
these reports or their results. He had only learnt of the expert analyses while
reviewing the criminal case file in March 2005.
16. On 6 June 2004 the investigator started questioning the applicant as
a suspect. According to the interrogation report, lawyer Or. was present
during questioning. The applicant alleged that he had refused to give a
statement for health reasons, whereas the interrogation report stated that he
had invoked his right not to incriminate himself and refused to testify.
According to the interrogation report, which he had signed, the applicant
had no comments concerning its contents or any other matters.
3. The applicants placement in detention and the charges against him
17. On 6 June 2004 the Kirovskiy District Court of Astrakhan (the
District Court) remanded the applicant in custody. He alleged that counsel
Or. had not represented him properly at that hearing. His detention was
extended on several subsequent occasions. He remained in detention until
his conviction on 14 October 2005.
18. On 11 June 2004 the applicant was charged with drug offences and
questioned in the presence of counsel I. It is apparent from the record of that
interview duly signed by him that he had understood the charges against
him and denied all of them. He refused to make a statement.
19. On 16 August 2004 new charges were brought against the applicant
in the presence of his counsel. He was charged with two counts of drug
trafficking, namely unlawfully acquiring, transporting and possessing drugs
with intent to sell, and selling drugs to B. and O. in December 2003 and Sh.
on 5 June 2004.
4. Return of the case to the prosecution
20. On 17 February 2005 the District Court returned the criminal case to
the prosecutor because the applicant had not had sufficient time to review
the criminal case file. In March 2005 he finished doing so.
5. The trial and the applicants conviction for drug offences
21. The trial took place in the District Court between April and
October 2005. The applicant was represented by counsel M. and I. The
court heard him and several witnesses, and examined the pre-trial
statements of absent witnesses as well as physical evidence.
(a) The applicants testimony
22. The applicant denied all the charges against him. He testified, in
particular, that he had met B. in November 2003 and had helped him to buy
fish wholesale. On 5 June 2004 they had met because B. had brought some
money he had owed him and had wanted to arrange another purchase of fish
from him with Sh.
(b) Witness statements in court as to the first set of charges
23. During the examination of the first set of charges against the
applicant, namely unlawfully acquiring and possessing drugs and selling
drugs to B. and O. in December 2003, the District Court heard, and the
applicant questioned, O., Av., Le., Sv., Iv. and Yu. as witnesses.
(i) Statements by witness O.
27. Witness Av., a police officer, testified that he had taken part in the
planning of the covert operation in June 2004 and had been present at the
time of the applicants arrest and personal search. He had heard the
applicant say at the time of his arrest that he had made money from selling
drugs.
28. Witnesses Le. and Sv., police officers from the Voronezh police
department, submitted that they had taken part in B. and O.s arrest in
March 2004 after they had tried to sell drugs to an undercover police officer.
29. Witness Iv. submitted that in March 2004 police had asked him to be
an attesting witness during a search of B.s apartment in Voronezh.
30. Witness Yu. submitted that in March 2004 police had asked him to
be an attesting witness in the covert operation.
(c) Pre-trial witness statements as to the first set of charges
37. During the examination of the second set of charges against the
applicant the District Court questioned three police officers (Sh., K. and
Sha.) and two attesting witnesses.
38. Witness Sh. submitted that in June 2005 he had taken part in the test
purchase from the applicant. B. had identified the applicant as the dealer.
During the covert operation he and B. had met the applicant several times in
the hotel room. At their last meeting the applicant had sold Sh. about
50 grams of heroin.
39. Witness K. testified that he had been responsible for monitoring the
undercover operation in respect of the applicant in the summer of 2004.
40. Witness Sha. testified that he had arrested the applicant immediately
after the test purchase, and that he had said at the time of his arrest that he
had made money from selling drugs.
41. Witnesses Shi. and Ba. testified that the police had asked them to
serve as attesting witnesses in the undercover operation, during which they
had observed the manner in which the test purchase had been carried out in
respect of the applicant.
(e) Witness pre-trial statements as to the second set of charges
42. The District Court also read out a pre-trial statement of absent
witness B.
43. B. testified that he had agreed to take part in the test purchase from
the applicant. A police officer, Sh., had been designated as the buyer. In late
May B. had called the applicant to inform him that he had already sold the
drugs to a certain person, someone who was interested in buying more drugs
from him, but as wished to do so in person he would come to Astrakhan.
The applicant had agreed and said that he would arrange the deal.
44. B. then described in detail how the covert operation had been carried
out between 2 and 5 June 2004. In particular, he had called the applicant
several times over those days to arrange a meeting with him. On
3 June 2004 the applicant had come to their hotel and B. had introduced him
to Sh., who had asked the applicant to supply him with 2 kilograms of
heroin and discussed other terms of the deal. The applicant had said that he
could only get 1.2 kilograms of heroin and they had agreed to meet the
following day. On 4 June 2004 the applicant had come to their hotel and
said that he had contacted the dealers and that they would call him back.
They had all stayed in the hotel room until the applicant had received a
telephone call. The applicant told them that he would bring the heroin the
next day. On 5 June 2004 the applicant had come to their hotel with about
38 grams of heroin. When Sh. had asked him about the remaining amount,
the applicant had explained that he could bring more in two days. However,
he had 9 grams on him for personal use so Sh. had agreed to buy that too.
Sh. had handed money over to the applicant, who had said that he would go
downstairs to get change. When he had left the room he had been arrested
by the police.
(f) The applicants conviction
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THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
80. The applicant complained that the conditions of his detention in
IZ-30/1 in Astrakhan were incompatible with Article 3 of the Convention,
which reads as follows:
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
A. Admissibility
81. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
82. The applicants submissions regarding the conditions of his
detention on remand in IZ-30/1 are presented in paragraphs 62-64 above.
83. The Government acknowledged that the conditions of the applicants
detention in IZ-30/1 were incompatible with the requirements of Article 3 of
the Convention on account of the overcrowding.
84. The Court notes that it examined the conditions of detention in
IZ-30/1 between 2005 and 2008 and established that there was severe
overcrowding in the facility (see Ananyev and Others v. Russia,
nos. 42525/07 and 60800/08, 20-21, 134-38, 10 January 2012).
85. Having regard to the information submitted by the applicant and the
Governments acknowledgement that the conditions of his detention on
remand during the periods in question had been inadequate, and given its
own findings in the case of Ananyev and Others, cited above, the Court
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finds that the applicant was detained in cramped and inadequate conditions
in IZ-30/1. The Court therefore considers that the applicant was subjected to
inhuman and degrading treatment in breach of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 1 and 3 OF THE
CONVENTION (FAIR TRIAL)
86. The applicant complained under Article 6 1 and 3 (c) and (d) of
the Convention that the overall fairness of the criminal proceedings against
him was undermined because he had not been provided with a lawyer after
his arrest, had been ordered to pay legal aid fees for representation in
supervisory review proceedings, and because he had not been able to
question a witness against him.
A. Legal assistance
87. The applicant complained that the trial in his case had not been fair
because he had not been provided with a lawyer immediately after his arrest
and because the court had ordered him to reimburse the State for legal aid
fees incurred during the examination of his case in the third set of
supervisory review proceedings. He relied on Article 6 1 and 3 (c) of the
Convention which, in the relevant part, read as follows:
1. In the determination of ... any criminal charge against him, everyone is entitled
to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(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 ...
88. The Government claimed that the applicant had not raised his
complaint of a lack of legal assistance upon arrest with the domestic courts.
89. The applicant argued that he had raised complaints in this regard
with both the domestic courts and the Prosecutors Office.
90. Having examined the applicants case file, the Court finds that the
court records and grounds of appeal contain sufficiently clear and specific
allegations that the applicant had not been provided with a lawyer
immediately after his arrest. Moreover, it is clear from these documents and
the respective judgments that these complaints were understood by the
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92. The Government stated that on 5 June 2004 the applicant had been
informed, immediately after his arrest, of his right to a lawyer from the
moment of his arrest but that the applicant had not requested legal
assistance. In any event, Article 51 of the CCrP did not require a lawyer to
be present at the time of arrest. The applicant had also been informed of his
right to remain silent and his wife had been notified of his arrest. The
Government further claimed that, under Article 202 of the CCrP, the
presence of a lawyer had not been mandatory when the applicants
fingerprints and palm prints had been taken in order to promptly preserve
the traces of the crime, and that the applicant in any event had not requested
a lawyer at the time of his arrest and had subsequently used the results of
the forensic examination as exculpatory evidence during his trial. Lastly,
they contended that the applicant had been scheduled to be questioned on
6 June 2004 as a suspect but had invoked his right not to incriminate
himself and refused to answer questions even in the presence of lawyer
Or.
93. The applicant maintained that on 5 June 2004 he had requested a
lawyer immediately after his arrest but that the investigator had told him he
did not need a lawyer, as no investigative measures were being carried out
at that time. He further contended that his relatives had only learned of his
arrest some four days after his arrest, while they were trying to locate his
whereabouts. He stated that a lawyer who could have informed him of his
rights should have been present when the investigator had ordered the
expert examination of his fingerprints and palm prints. He also stated that he
had not been questioned on either 5 or 6 June 2006. He further submitted
that the original arrest record of 5 June 2004 had been lost from his criminal
case file, and that a copy of it, as well as the interrogation report of 6 June
2004 submitted by the Government with their observations, had been
forged. He maintained that on 6 June 2004 he had met his lawyer, Or., for
the first time during the hearing on his pre-trial detention.
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94. The Court notes at the outset that the requirements of Article 6 3
are to be seen as particular aspects of the right to a fair trial guaranteed by
Article 6 1. The applicants complaints under Article 6 1 and 3 should
therefore be examined together (see Van Geyseghem v. Belgium [GC],
no. 26103/95, 27, ECHR 1999-I).
95. The Court reiterates that, although not absolute, the right under
Article 6 3 (c) of everyone charged with a criminal offence to be
effectively defended by a lawyer, assigned officially if need be, is one of the
fundamental features of a fair trial (see Krombach v. France, no. 29731/96,
89, ECHR 2001-II). The question, in each case, is whether the restriction
on the right to benefit from the assistance of a lawyer, in the light of the
entirety of the proceedings, has deprived the accused of a fair hearing (see
John Murray v. the United Kingdom, 8 February 1996, 63, Reports of
Judgments and Decisions 1996-I).
96. The requirements of Article 6 3 (c) of the Convention may also be
relevant before a case is sent for trial if and in so far as the fairness of the
trial is likely to be seriously prejudiced by an initial failure to comply with
those requirements (see Imbrioscia v. Switzerland, 24 November 1993,
36, Series A no. 275).
97. In this respect, the Court emphasises the importance of the
investigation stage for the preparation of the criminal proceedings, as the
evidence obtained during this stage determines the framework in which the
offence charged will be considered at the trial. At the same time, an accused
often finds himself in a particularly vulnerable position at that stage of the
proceedings, the effect of which is amplified by the fact that legislation on
criminal procedure tends to become increasingly complex, notably with
respect to the rules governing the gathering and use of evidence. In most
cases, this particular vulnerability can only be properly compensated for by
the assistance of a lawyer, whose task is, among other things, to help to
ensure respect of the right of an accused not to incriminate himself. This
right indeed presupposes that the prosecution in a criminal case seek to
prove their case against the accused without resort to evidence obtained
through methods of coercion or oppression, in defiance of the will of the
accused (see Pishchalnikov v. Russia, no. 7025/04, 69,
24 September 2009, with references cited therein).
98. Against this background, the Court finds that in order for the right to
a fair trial to remain sufficiently practical and effective Article 6 1
requires that, as a rule, access to a lawyer should be provided from the first
interrogation of a suspect by the police, unless it is demonstrated in the light
of the particular circumstances of each case that there are compelling
reasons to restrict this right. Even where compelling reasons may
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99. The Court notes that the applicant was informed of his right to legal
counsel immediately after his arrest, in accordance with Article 49 3 (3) of
the CCrP (see paragraphs 11 and 70 above). According to the record of the
applicants arrest, he did not request counsel and made no other comments
at the time of his arrest (see paragraphs 13 and 59 above). In this regard the
Court notes that the applicants general allegations concerning the
falsification of the record of his arrest were duly examined and dismissed as
unsubstantiated by the Astrakhan Regional Court and the Court accepts
these findings (see paragraph 59 above).
100. The Court further notes that when the police proceeded to have the
applicants fingerprints and palm prints taken they confined themselves to
promptly recording the gathered material for the purposes of investigating a
criminal offence (see paragraphs 11, 14, 15 and 75 above). According to the
applicants own submissions, the police did not question him after his arrest
(see paragraphs 12 and 93 above).
101. In this regard, the Court observes that the record of arrest did
contain a statement made by the applicant at the time of his arrest (see
paragraph 11 above). However, it does not appear from the materials before
the Court that the applicant provided this statement in response to questions
by the police.
102. The Court further notes that when the applicant was scheduled to
be questioned on 6 June 2006, his lawyer, Or., was present but the applicant
refused to testify and made no other comments (see paragraph 16 above).
103. Furthermore, when the District Court was examining the
applicants case it took the record of the arrest into account as evidence that
the applicant had been caught after witnesses and eyewitnesses indicated
that the applicant had committed a criminal offence (see paragraph 11
above). The District Court did not regard the applicants statement
contained in the record of his arrest as a separate statement concerning the
charges (see, for similar reasoning, Blaj v. Romania, no. 36259/04, 96,
8 April 2014). Furthermore, the applicant did not allege, before either the
domestic courts or this Court, that he had given any statements either
immediately after his arrest or later without the benefit of legal advice or
under duress. Neither he nor his appointed counsel sought to have the
statement contained in the record of his arrest excluded from the evidence
and he did not explain in either his observations or his original application
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to the Court whether and how any such statements had been taken into
account by the District Court in finding him guilty or had impaired the
overall fairness of the proceedings against him.
104. The applicant only complained about his fingerprints and palm
prints having been taken in his lawyers absence. However, in any case, the
District Court did not admit as evidence the forensic examination report on
the applicants fingerprints, and the forensic reports on the applicants palm
prints served as exculpatory evidence at the trial (see paragraphs 45-47
above).
105. In view of the above, given the circumstances of the present case,
the Court concludes that the applicants right to counsel upon arrest was not
restricted and the absence of a lawyer at the time of the applicants arrest
did not prejudice the overall fairness of the proceedings against the
applicant.
106. Accordingly, there has been no violation of Article 6 3 (c) of the
Convention in conjunction with Article 6 1.
2. Recovery of legal fees for representation in the third set of
supervisory review proceedings
(a) Admissibility
107. The Government pleaded that the applicant had not appealed
against the court order for the recovery of legal aid fees.
108. The applicant maintained his claim.
109. The Court will first consider the Governments plea of
non-exhaustion of domestic remedies and notes that under Russian law at
the time, the applicant could have raised a supervisory review complaint
with the Supreme Court of Russia against the order to pay costs issued by
the Presidium of the Regional Court (see paragraph 78 above). However,
the Court reiterates that the supervisory review appeal available at the
relevant time in Russia was not regarded as an effective remedy to be
exhausted in criminal proceedings (see Berdzenishvili v. Russia, (dec.),
29 January 2004, no. 31697/03). Accordingly, the applicant was not
required to raise his complaint in such proceedings before bringing it to the
Court. The Court therefore dismisses the Governments objection as to
non-exhaustion of domestic remedies.
110. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
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(b) Merits
(i) The parties submissions
111. The Government submitted that the applicant had not applied to be
exempted from reimbursing legal aid fees.
112. The applicant maintained that he had had insufficient financial
means when the authorities had appointed a legal aid lawyer to represent
him in the supervisory review proceedings, and that they should not have
sought from him the reimbursement of his legal aid fees.
(ii) The Courts assessment
113. The Court notes that the CCrP regards counsels fees as litigation
costs to be borne, in general, by the party concerned. It thus appears that
even if a convicted defendant has been provided with free legal
assistance, he may still be required to pay for it after his trial (see
paragraph 76 above).
114. The Court observes that the applicant was represented by lawyers
Or., M. and I. before and during the first-instance trial and during the appeal
proceedings (see paragraphs 16, 18 and 21 above) and by lawyer K. in the
third round of supervisory review proceedings (see paragraph 56 above).
115. The Court further notes from the material before it that the State
covered the costs of the applicants legal assistance throughout the
proceedings. It only sought to recover legal fees paid to K. in respect of the
third set of supervisory review proceedings; the amount claimed (EUR 30)
does not appear excessive.
116. In any event, the applicant could have applied for a total or partial
waiver of legal fees on account of indigence (see paragraph 76 above and
Orlov v. Russia, no. 29652/04, 113, 21 June 2011). In this connection, the
Court considers it acceptable, under the Convention, that the burden of
proving insufficient means should be borne by the person who pleads such
insufficiency (see Orlov, cited above, 114, citing Croissant v. Germany,
25 September 1992, 33 and 34, Series A no. 237-B). However, the
applicant did not submit any financial or other documents to support his
claim for exemption on the grounds of indigence and did not cite any
impediment to his obtaining such documents.
117. Therefore, considering that the applicant had a benefit of free legal
assistance throughout the proceedings and that he did not apply to have
waived legal fees paid to K. and given the amount of legal fees, the
reimbursement order does not appear to have adversely affected the overall
fairness of the proceedings against the applicant.
118. There has accordingly been no violation of Article 6 1 and 3 (c)
on account of the recovery of legal fees from the applicant.
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B. Absence of witness
119. The applicant also complained that the trial in his case had not been
fair because the court had not obtained the attendance of witness B. for the
prosecution. He relied on Article 6 1 and 3 (d) of the Convention, which
reads as follows:
In the determination of ... any criminal charge against him, everyone is entitled to a
fair ... hearing ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him ...
1. Admissibility
120. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
(a) The parties submissions
121. The Government claimed that the proceedings against the applicant
had been fair. In particular, they submitted that witness B. had not
participated in the hearing of the applicants case because he was suffering
from a serious oncological condition (cancer) that had left him unable to
speak. They further alleged that they had taken all necessary steps to ensure
B.s participation in the proceedings against the applicant. Furthermore, the
courts had assessed B.s pre-trial testimony along with other evidence,
including statements of fourteen prosecution and defence witnesses
questioned in court, pre-trial statements of five more witnesses and twenty
pieces of documentary and physical evidence.
122. The applicant alleged that B.s condition did not prevent him from
appearing in court and if he could not speak, he could have responded to
questions in writing. Furthermore, the applicant contended that B.s pre-trial
testimony had been the sole basis for his conviction, and the District Court
had not taken into account the testimony of other witnesses when it had
found him guilty. Lastly, he alleged that the authorities should have
conducted a pre-trial confrontation between him and B.
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123. In the case of Al-Khawaja and Tahery v. the United Kingdom ([GC]
nos. 26766/05 and 22228/06, 118, ECHR 2011), the Court held that
Article 6 3 (d) enshrines the principle that, before an accused can be
convicted, all evidence against him must normally be produced in his
presence at a public hearing with a view to adversarial argument.
Exceptions to this principle are possible but must not infringe the rights of
the defence which, as a rule, require that the accused should be given an
adequate and proper opportunity to challenge and question a witness against
him, either when that witness makes his statement or at a later stage of the
proceedings.
124. Furthermore, as regards witnesses, the Court reiterates that there
are two requirements which follow from this principle. Firstly, there must
be a good reason for the non-attendance of a witness. Secondly, when a
conviction is based solely or to a decisive degree on statements that have
been made by a person whom the accused has had no opportunity to
examine or have examined, whether during the investigation or at trial, the
rights of the defence may be restricted to an extent that is incompatible with
the guarantees provided by Article 6 (the so-called sole or decisive rule)
(see Al-Khawaja, cited above, 119). Where the conviction is based solely
or decisively on the evidence of absent witnesses, the Court will inquire in
each case whether there are sufficient counterbalancing factors in place,
including measures that permit a fair and proper assessment of the reliability
of that evidence to take place (ibid., 147).
125. Turning to the facts of the present case, the Court observes that the
prosecution summoned B. as a witness to the hearing of the applicants case
twice. He did not appear because he was gravely ill and unable to speak (see
paragraphs 31 and 50 above). The Court accepts the illness as the reason for
the absence in accordance with the domestic law. In the light of the above
and on the basis of the material before it, the Court therefore considers that
B.s confirmed poor physical condition significantly impaired him and was
a good reason for his non-attendance of the trial.
126. The Court will also examine whether B.s pre-trial statements were
sole or decisive evidence of the applicants guilt. The applicant alleged that
in finding him guilty, the District Court had only relied on B.s pre-trial
testimony, without taking into account the testimony of other witnesses.
However, witness O. who bought drugs from the applicant together with B.
in December 2003, testified about the deal and the applicant questioned him
in court. Furthermore, according to the trial transcript, the accuracy of
which the applicant did not dispute, the applicant had no objections to the
admission of O.s pre-trial statement as evidence (see paragraph 25 above).
In this regard, the Court notes that O. and B.s pre-trial testimony was
identical. In particular, they both testified during the pre-trial investigation
that they had met the applicant in Astrakhan in November 2003, that he had
21
sold them heroin in December 2003, and that they had transported it to
Voronezh (see paragraphs 26 and 32 above). Furthermore, the District Court
also heard six police officers who had organised and participated in the
undercover operation themselves, and testified about the applicants
involvement in the sale of drugs (see paragraphs 27, 28 and 38 - 40 above).
The applicant was able to question all of them in court and did not repudiate
their testimony in his observations to the Court. The District Court also
admitted pre-trial statements of two absent police officers and three absent
attesting witnesses, as well as a significant amount of documentary and
physical evidence (see paragraphs 34 - 36 and 46 above).
127. Having regard to the above, the Court considers that the applicants
conviction cannot be said to have been based solely or to a decisive degree
on B.s pre-trial statement. The Court does not therefore find it necessary to
assess whether a pre-trial confrontation or other counterbalancing factors
should have been in place to compensate for B.s absence from the
applicants trial.
128. Accordingly, the Court finds that there was no violation of
Article 6 1 and 3 (d) of the Convention on account of the absence of
witness B. from the applicants trial.
III. ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE
CONVENTION
129. The applicant also complained that his correspondence with the
Court had been opened and read by the detention facilitys administration,
which had also refused to send some of his letters to the Court. He relied on
Articles 8 and 34 of the Convention, which read:
Article 8
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
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.
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Convention, under Article 34, or under both provisions (see, with further
references, Shekhov v. Russia, no. 12440/04, 53, 19 June 2014).
131. 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 applicants submissions, it considers that the matters relating
to the correspondence between the applicant and the Court should be
examined under Articles 8 of the Convention.
A. Admissibility
132. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions by the parties
133. The Government denied hindering the effective exercise of the
applicants right of petition. They claimed that some of the Courts letters
had been opened by prison employees, but maintained that they had not
been censored. They had been opened for registration purposes only and had
been handed over to the applicant in their entirety. One letter had been sent
to him after a four-day delay, but this was due to an omission by one of the
prison employees who had been duly reprimanded.
134. The applicant maintained his claims.
2. The Courts assessment
135. The Court observes that the applicant claimed that at least seven of
the Courts letters had been opened by the prison administration. The
Government stated that the letters had been opened for registration purposes
only, without being read. The Court considers that the opening of the letters
addressed to the applicant constituted an interference with his rights under
Article 8.
136. The Court reiterates that interference with Article 8 rights must be
applied in accordance with the law; it must pursue one or more of the
legitimate aims listed in paragraph 2; and, in addition, must be justified as
being necessary in a democratic society.
137. The Court notes that at the relevant time, Article 91 of the Code of
Execution of Sentences expressly prohibited the monitoring of
correspondence between a detainee and the Court (see paragraph 79 above).
The applicants correspondence with the Court was privileged and not
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A. Damage
142. The applicant claimed compensation in respect of pecuniary
damage, leaving the amount to be awarded to the Courts discretion. The
Government submitted that the applicant did not claim any at all. The Court
observes that the applicant failed to substantiate his claim of pecuniary
damage incurred and, for that reason, rejects it.
143. The applicant also claimed 100,000 euros (EUR) in respect of
non-pecuniary damage for a violation of Article 3 of the Convention and
EUR 100,000 for the interference with his correspondence.
144. The Government considered that the acknowledgment of a
violation, if found by the Court, would constitute sufficient just satisfaction
in the present case. They contested the claim for compensation for
non-pecuniary damage by the applicant as unsubstantiated, excessive and
out of line with the awards made by the Court in similar cases.
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145. The Court considers that the applicants suffering caused by the
conditions of detention on remand and his frustration with the monitoring of
his correspondence with the Court cannot be compensated for by the mere
finding of a violation; however, the sums claimed by him appear to be
excessive. Making its assessment on an equitable basis and having regard to
the nature of the violations found, the Court awards the applicant
EUR 9,800 in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
146. The applicant claimed, in general terms, compensation in respect of
legal costs and expenses incurred before the domestic courts and the Court,
leaving the amount to be awarded to the Courts discretion.
147. The Government submitted that the applicant did not claim any
compensation in respect of costs and expenses, and therefore no award
should be made.
148. According to the Courts case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and to the fact that the applicant has been granted legal aid, the
Court rejects the applicants additional claim for costs and expenses.
C. Default interest
149. 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.
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3. Holds that there has been no violation of Article 6 1 and 3 (c) the
Convention on account of the lack of legal assistance after arrest;
4. Holds that there has been no violation of Article 6 1 and 3 (c) on
account of recovery of legal fees paid for legal representation the third
set of supervisory review proceedings;
5. Holds that there has been no violation of Article 6 1 and 3 (d) on
account of absence of witness;
6. Holds that there has been a violation of Article 8 the Convention on
account of opening of the applicants correspondence with the Court by
the prison authorities;
7. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 2 of the Convention, EUR 9,800 (nine thousand eight
hundred euros), plus any tax that may be chargeable, in respect of nonpecuniary damage, to be converted into the currency of the respondent
State at the rate applicable at the date of settlement;
(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;
8. Dismisses the remainder of the applicants claim for just satisfaction.
Done in English, and notified in writing on 5 November 2015, pursuant
to Rule 77 2 and 3 of the Rules of Court.
Andr Wampach
Deputy Registrar
Andrs Saj
President