BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF RYABOV v. RUSSIA
(Application
no. 3896/04)
JUDGMENT
STRASBOURG
31
January 2008
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 Ryabov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoli
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 10 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3896/04) 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 Andrei
Yuryevich Ryabov (“the applicant”), on 8 November
2003.
- The
applicant, who had been granted legal aid, was represented before the
Court by Mrs K. Moskalenko and Mrs M. Arutyunyan, lawyers of the
Centre for Assistance to International Protection. The Russian
Government (“the Government”) were represented by
Mr P. Laptev, the Representative of the Russian Federation
at the European Court of Human Rights.
- The
applicant alleged, in particular, a violation of Article 6 § 3
(d) of the Convention on account of his inability to examine the
witnesses for the prosecution.
- On
27 April 2005 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- On
2 February 2006 the Court decided, under Rule 54 § 2 (c) of the
Rules of Court, to invite the Government to submit written comments
concerning the alleged interference with the applicant's right of
individual petition guaranteed under Article 34 of the Convention.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in the Vologda Region.
A. Criminal proceedings against the applicant
- On
9 December 2002 the applicant was charged with the rape of T., aged
seven at the time of the offence in summer 2000. The charge was based
on the investigator's interviews with the girl (T.), the girl's
mother Mrs K. and a neighbour Mrs G., as well as on the findings of
the medical examination carried out on the victim on 4 October
2002. The applicant asked the investigator to arrange for a
confrontation with the prosecution witnesses and the medical expert.
On 10 December 2002 the investigator refused his request. On 9
January 2003 the Vologda Regional Court upheld that decision as
lawful, in the final instance.
- At
the beginning of the trial, once the applicant learned that the
witness Mrs G. and the medical expert were not present, he asked the
court to secure their attendance. The judge replied “Where
shall I get them?” and refused his request.
- The
applicant pleaded not guilty. He admitted that in late July 2000 he
had gone with T. to the village of Volodino where they had spent a
night at his ex-wife's house but he denied having raped the girl.
- Before
the court Mrs K. testified that in October 2002 she had found a note
written by T. In the note the girl wrote that the applicant had raped
her in summer 2000 in the village of Volodino. She questioned the
girl about the note and T. confirmed its contents.
- At
the trial T. confirmed that the applicant had raped her.
- On
21 January 2003 the Vologda Regional Court convicted the applicant of
aggravated rape, an offence under Article 131 § 3 (v) of the
Russian Criminal Code, and sentenced him to twelve years and six
months' imprisonment.
- The
Regional Court considered that the applicant's guilt had been
sufficiently established on the basis of the victim's statements,
which were corroborated by the following evidence:
the findings of the
medical examination carried out on 4 October 2002 which described
scars on T.'s hymen. The scars might have been caused by impact of a
hard object. It was not possible to establish when they had been
caused;
the written
statement by the neighbour Mrs G. made during the pre-trial
investigation. One summer night in 2000, Mrs G. – whose flat
was separated from that of the applicant's ex-wife by a partition –
heard a girl shrieking and imploring her father to stop. The girl
sobbed for a while. G. shouted at the applicant and told him to stop
harassing the girl. At that time she thought that the girl was a
daughter of the applicant, V. The sobs subsided but then the girl
started crying again and begging her father to stop. The following
day G. met the applicant and asked him what had happened. He replied
that it was none of her business;
the note written in
a child's handwriting which stated that the author had been raped by
“Andryukha” (a diminutive of the applicant's first
name). T. confirmed that she had written the note.
- In
his statement of appeal the applicant complained, in particular, that
the trial court had not secured the attendance of Mrs G. and the
medical expert.
- On
7 July 2003 the Supreme Court of the Russian Federation upheld the
judgment of 21 January 2003 on appeal. It held that the court's
conclusions had had a substantial basis in the statements by the
victim which had been corroborated by other evidence, in particular,
the child's note, Mrs G.'s testimony “before the court”
[sic] and the findings of the medical examination.
- On
25 July 2005 a deputy Prosecutor General lodged an application for
supervisory review with the Presidium of the Supreme Court. He
submitted that the Vologda Regional Court and the Supreme Court had
infringed the applicant's right to have the witness Mrs G. and the
medical expert examined.
- On
1 March 2006 the Presidium of the Supreme Court granted the
prosecutor's application in part. It found that the appeal court had
not given any consideration to the applicant's argument that his
request for examination of the witnesses for the prosecution had been
groundlessly rejected. It also found that the appeal court had
wrongly stated that Mrs G. had been heard in court. The Presidium
quashed the appeal judgment of 7 July 2003 and remitted the case
for a new appeal hearing.
- On
19 July 2006 the Supreme Court held a new appeal hearing. It noted
that the applicant had not been able to confront Mrs G. and the
medical expert during the pre-trial investigation or in court. It
found that the applicant's rights under Article 6 § 3 (d) had
been infringed, quashed the conviction and ordered a new trial.
- It
appears that on 11 September 2006 the Vologda Regional Court issued a
new judgment in the applicant's case. However, a copy was not made
available to the Court. Although the applicant indicated his
intention to lodge an appeal against it, he did not submit a copy of
his statement of appeal. No further information about these
proceedings was received.
B. Alleged interference with the applicant's right of
individual petition
- On
21 October 2005 the applicant's representatives, Mrs Moskalenko
and Mrs Arutyunyan, submitted observations in reply to the
Government's memorandum and claims for just satisfaction. They
enclosed, in particular, the following documents:
(a)
legal-assistance agreement no. 032 of 28 September 2005, according to
which the advocate Mrs Arutyunyan undertook to represent the
applicant before the European Court for a fee of 21,000 Russian
roubles (RUB). The field for the applicant's signature contained the
note “in accordance with the authority form for the European
Court” but no signature;
(b) legal-assistance
agreement no. 2384 of 28 September 2005, under which Mrs Moskalenko
undertook to represent the applicant before the European Court for a
fee of RUB 42,000. The field for the applicant's signature contained
the note “in accordance with the authority form for the
European Court” but no signature.
- On
23 November 2005 the Government submitted their comments on the
applicant's claim for just satisfaction. They alleged, in particular,
that the above documents were “legally void and issued contrary
to fundamental rules of preparation of legal documents” because
there was no signature by the applicant or a person authorised to
sign on his behalf. In their view, a power of attorney issued for
representation of the applicant before courts did not allow Mrs
Moskalenko to sign, acting as the agent of the applicant, the
legal-assistance agreement which bound the applicant to pay for her
services.
- On 25 November 2005 the Representative before the
European Court Mr Laptev (“the Representative”) sent a
letter to the director of the Federal Registration Service of the
Ministry of Justice, which enclosed a copy of legal-assistance
agreement no. 2384 and contained the following request:
“...The said agreement is not signed by either
Mr Ryabov or a person authorised by him... In this connection I
request [you] to comment on the lawfulness of the actions by the
advocate Mrs K. Moskalenko who had compiled on behalf of her client
(Mr Ryabov) and apparently without his knowledge, a
legal-assistance agreement which imposed on Mr Ryabov, also
without his knowledge, the obligation to pay a large amount
(42,000 roubles).
On the basis of the Regulations on the Representative of
the Russian Federation before the European Court of Human Rights,
approved by President's Decree no. 310 of 29 March 1998, I request
[you] to prepare and send the above information to my address by
23 December 2005”. (bold-facing in the original letter)
- On 9 December 2005 the acting first deputy director of
the Economic Security Department of the Ministry of Internal Affairs
Major-General S. sent a letter to the director of Advocates Office
no. 10 where Mrs Moskalenko worked. He wrote that on 25 November
2005 the Ministry of Internal Affairs had received a request from the
Representative, who had asked the Ministry to verify whether Mrs
Moskalenko had lawfully listed as taxable income the proceeds from
legal-assistance agreement no. 2384 of 28 September 2005
concerning representation of Mr Ryabov before the Court.
Referring to section 11 paragraph 1 (4) and (30) of the Police Act,
Major-General S. requested the director to produce, within five days,
a copy of the legal-assistance agreement, a copy of the power of
attorney issued by Mr Ryabov and copies of all the existing documents
concerning the implementation of that agreement and payments effected
in its pursuance.
- On
13 December 2005 Mrs Moskalenko replied to Major-General S. that the
requested documents were covered by lawyer-client privilege and could
not be made available to the police unless a criminal case had been
formally instituted.
- On
19 December 2005 Mr K., a senior operational officer of the Economic
Security Department of the Ministry of Internal Affairs, and his
superior Mrs P., deputy head of the department, contacted Mrs
Moskalenko by telephone and asked her to provide the documents in
connection with the inquiry conducted at the request of the
Representative.
- According
to the applicant, in late December 2005 he was visited in prison by
Mr V., an employee of the Economic Security Department of the
Ministry of Internal Affairs, who asked him to reply to the following
questions:
“1. How did [the applicant] meet Mrs
Moskalenko and Mrs Arutyunyan?
2. Who gave [him] the address of the Centre
for Assistance to International Protection and when did it happen?
3. Where and how was the legal-assistance
agreement compiled?”
The
applicant refused to answer the questions or give any statements in
the absence of his lawyers. The meeting lasted approximately one
hour.
- On 20 December 2005 the applicant gave a written
statement to the director of Advocates Office no. 10. He stated that
he had never made any complaint or inquiries either to the Ministry
of Internal Affairs or any other State authorities in connection with
his representation by Mrs Moskalenko and Mrs Arutyunyan in the
supervisory review and Strasbourg proceedings.
- On
the same date the applicant submitted a new power of attorney for his
representation by Mrs Arutyunyan. In the covering letter he asked the
Court not to believe the Government's allegation that the previous
power of attorney had been forged.
- Also on 20 December 2005, the head of the Ministry of
Justice's Department for Inspection and Supervision of Advocates and
Notaries Public sent a copy of legal-assistance agreement no. 2384 to
the President of the Moscow City Bar. He claimed that the agreement
had been entered into in breach of the Civil Code and the Advocates'
Act, as it had not been signed by either Mr Ryabov or a person
authorised to act on his behalf. The President of the Moscow City Bar
was told to carry out an inquiry into the situation and report to the
Ministry of Justice as soon as possible. In reply, the President of
the Moscow City Bar informed the Ministry of Justice that “Mrs
Moskalenko represented Mr Ryabov before the European Court on the
basis of a duly completed form of authority” and that “her
actions in the framework of the legal-assistance agreement had been
approved by the applicant”. He pointed out that financial
aspects of the legal-assistance agreement were covered by
lawyer-client privilege.
- On
9 January 2006 Mrs Moskalenko complained to the Court of a harassment
campaign against her in connection with her representation of the
applicant in the Strasbourg proceedings. She alleged a hindrance to
the applicant's right of individual petition in breach of Article 34
of the Convention.
- On
2 February 2006 the Court examined the matter and decided to obtain
comments from the Government.
- According
to the applicant, on 23 February 2006 he was taken into the office of
a prison operational officer, who did not introduce himself or
indicate his rank. He insisted on obtaining a written statement about
the applicant's relationship with Mrs Moskalenko and Mrs Arutyunyan.
On the officer's table the applicant saw documents with the
letterhead of the Federal Registration Service with a note: “obtain
a statement from the convict Mr Ryabov”. The officer had
refused the applicant's request to see these documents. He had put
the following questions to the applicant:
“1. Which amounts did [the applicant]
pay to Mrs Moskalenko and Mrs Arutyunyan for his representation?
2. Were these amounts mentioned in any
written agreement?
3. When and where was such an agreement
prepared?
4. Did [the applicant] agree to pay any
amount in addition to that?
5. When and where did [the applicant] first
meet his representatives?”
- On 28 March 2006 the Government submitted their
comments on their compliance with Article 34 of the Convention. They
also asked the Court to stay the proceedings so as the applicant
could choose another representative, and offered their assistance in
this matter.
- On 27 April 2006 the applicant submitted the following
handwritten statement to the Court:
“I inform you as follows: on 27 April 2006 I was
visited in remand centre no. 3, Moscow, by my lawyer Mrs Moskalenko.
She gave me the text and translation of the Government's comments of
27 March 2006. I am exasperated by Mr Laptev's letter of 27 March
2006 and would like to state the following:
1. I am well aware of the amounts indicated
in the agreements with Mrs Moskalenko and Mrs Arutyunyan. I
would be happy to pay double or triple those amounts but I regret
that I do not have that much money.
2. I have confirmed on many occasions, orally
and in writing, and now confirm again, that I have been satisfied
with the work by Mrs Moskalenko and Mrs Arutyunyan. Statements
by Mr Laptev are merely an attempt to mar the relationship between me
and my lawyers.
3. I assure you that I fully trust my lawyers
Mrs Moskalenko and Mrs Arutyunyan as regards my representation before
the European Court and other issues. I am categorically opposed to
introducing other lawyers into the case, especially those suggested
by Mr Laptev.”
II. RELEVANT DOMESTIC LAW
A. The Police Act (no. 1026-I of 18 April 1991)
- The
relevant parts of section 11 § 1 read as follows:
“For the performance of their duties, the police
shall have the following rights:
...
(4) to obtain from citizens and State
officials necessary statements, information, certificates, documents
and copies thereof;
...
(30) to receive from citizens and organisations
information free of charge, except for situations where the law
establishes a different procedure for obtaining information.”
B. Regulation on the Representative of the Russian
Federation before the European Court of Human Rights
- According
to the Regulation on the Representative before the European Court
approved by President's Decree no. 310 of 29 March 1998, the
Representative may obtain from federal, regional and municipal bodies
the information on legal and factual aspects of the case which is
required for effective representation of the Russian Federation
before the European Court (section II.5).
C. Regulation on the Economic Security Department of
the Ministry of Internal Affairs
- The Economic Security Department has the following
functions:
identification of
economic threats to the State;
participation in
defining the federal funding priorities;
identification, prevention and detention of most dangerous
inter-regional or international tax crimes or crimes against the
State;
identification,
prevention and detention of most dangerous economic and tax crimes
which have attracted public attention;
taking preventive
and operational measures for the protection of property against
crimes;
organisation of
documentary inspections and revisions for detecting inter-regional
or international economic or tax crimes;
fighting against
money laundering;
fighting against
funding of terrorist or extremist activities.
THE LAW
I. PROCEDURAL OBJECTIONS RAISED BY THE GOVERNMENT
A. Validity of the power of attorney issued to Mrs
Moskalenko
- The
Government objected to the power of attorney issued by the applicant
for his representation by Mrs Moskalenko on the ground that it had
not been certified by the head of the penitentiary institution where
the applicant was held. In their view, this amounted to a breach of
the Russian Code of Civil Procedure.
- The
Court reiterates that, pursuant to Rule 45 of the Rules of Court, a
written authority is valid for the purposes of proceedings before the
Court. Neither the Convention nor the Rules of the Court require any
form of certification of that document by any national authority. A
similar objection by the Russian Government has been previously
examined and rejected by the Court (see, among others, Nosov v.
Russia (dec.), no. 30877/02, 20 October 2005; Moiseyev
v. Russia (dec.), no. 62936/00, 9 December 2004;
and Isayeva and Others v. Russia (dec.), nos. 57947/00,
57948/00 and 57949/00, 19 December 2002).
- The
Court is satisfied that Mrs Moskalenko has been duly authorised to
represent the applicant. The Government's objection on this point
must therefore be dismissed.
B. Validity of the power of attorney issued to
Mrs Arutyunyan
- The
Government claimed that the power of attorney issued for the
applicant's representation by Mrs Arutyunyan was void because “the
name of Mrs Arutyunyan [had been] clearly written not by the
applicant but evidently by Mrs Arutyunyan herself” and because
the applicant had designated as his representative the Centre for
Assistance to International Protection rather than a specific
individual.
- The
Court notes that neither the Convention nor the Rules impose any
specific requirements on the manner in which the authority form must
be drafted. The form may be filled in by typing or by hand, by the
applicant, by his representative or by any third person. What is
important for the Court is that the form of authority should clearly
indicate that the applicant has entrusted his or her representation
before the Court to a representative and that the representative has
accepted that commission. In the instant case this condition was met
since the standard authority form distributed by the Court's Registry
was signed by both the applicant and Mrs Arutyunyan as his
representative.
- Furthermore,
as regards the second limb of the Government's objection, the Court
observes that it is not uncommon for applicants before the Court to
be represented by a non-governmental organisation (see, for example,
D.H. and Others v. the Czech Republic [GC], no. 57325/00,
§ 2, ECHR 2007 ..., Chitayev and Chitayev v.
Russia, no. 59334/00, §§ 2 and 216,
18 January 2007, and Bitiyeva and X v. Russia,
nos. 57953/00 and 37392/03, §§ 2 and 176 ,
21 June 2007). In the instant case the applicant entrusted his
representation to the Centre for Assistance to International
Protection, a Russian non-governmental organisation. It was not
disputed that Mrs Arutyunyan was a member of that organisation at the
material time. She could therefore represent the applicant in the
Strasbourg proceedings.
- The
Government's objection on this point is thus without merit and must
also be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE
CONVENTION
- The
applicant complained under Article 6 § 3 (d) of the Convention
that at no stage of the proceedings he had been given an opportunity
to examine the witness Mrs G. and the expert who had conducted the
medical examination. The relevant parts of Article 6 read as follows:
“1. 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...”
- Referring
to the deputy Prosecutor General's application for supervisory review
of the applicant's conviction, the Government claimed that steps had
been taken to remedy the alleged violation of the applicant's rights
at the domestic level.
- The applicant maintained that a new examination of his
case would not be capable of remedying the alleged violation of his
rights. He feared that pressure would be exerted on the witnesses
with a view to obtaining a new conviction.
- The
Court reiterates that “a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a 'victim' unless the national authorities have acknowledged,
either expressly or in substance, and then afforded redress for, the
breach of the Convention” (see Dalban v. Romania [GC],
no. 28114/95, § 44, ECHR 1999 VI, and
Constantinescu v. Romania, no. 28871/95, § 40, ECHR
2000-VIII).
- In
the instant case, the Presidium of the Supreme Court and subsequently
the Supreme Court in the appeal proceedings explicitly acknowledged
that the applicant's right to examine the witnesses guaranteed under
domestic law and the Convention had been infringed, and quashed the
conviction. The effect of the proceedings which formed the basis for
the applicant's complaints has thus been annulled.
- Therefore,
having regard to the contents of the Presidium's decision of 1 March
2006 and the appeal judgment of 19 July 2006 which indicated that a
new trial should be held, the Court finds that the national
authorities have acknowledged, and then afforded redress for, the
alleged breach of the Convention (compare Babunidze
v. Russia (dec.), no.
3040/03, 15 May 2007;
Fedosov v. Russia
(dec.), no. 42237/02, 5
January 2007; Nikishina
v. Russia (dec.),
no. 45665/99, 12 September 2000; and Wong v. Luxembourg
(dec.), no. 38871/02, 30 August 2005).
- It follows that the applicant can no longer claim to
be a “victim” of the alleged violation of Article 6 §
3 (d) of the Convention within the meaning of Article 34 of the
Convention and that this complaint must be rejected pursuant to
Articles 34 and 35 §§ 3 and 4.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- The
applicant complained that the measures taken by the Government
against his representatives had been in breach of 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.”
- The
Government claimed that there had been no interference with the
applicant's right of individual petition because he had not been
prevented from corresponding with the Court either directly or
through his representative. They alleged that Mrs Moskalenko had
“evidently abused” her status as the applicant's
representative and had unlawfully attempted to obtain a “special
status for herself and for [the] organisation where she work[ed]”,
seeking immunity from tax-related and other inquiries carried out in
full compliance with Russian laws. The Government maintained that
legal-assistance agreements signed by Mrs Moskalenko and
Mrs Arutyunyan were void because they contradicted the
imperative provision of the Civil Code prohibiting an agent from
making a private profit from the agency relationship. The Government
expressed doubt that the applicant was aware of his obligation to
disburse a considerable amount of money to his representatives. They
insisted that the sole purpose of their inquiries had been to obtain
an official opinion from the competent national authorities as to the
validity of the legal-assistance agreement with Mrs Moskalenko. They
denied that the Representative had attempted to initiate an
investigation, because neither the Representative nor the authorities
he had contacted had the right to institute criminal proceedings.
- In
addition to his statements cited in paragraphs 28 and 35 above, the
applicant pointed out that the Representative had requested the
Ministry of Internal Affairs and the Ministry of Justice to carry out
inquiries into the financial arrangements between him and his
representatives. The Government had not explained the purpose of
these inquiries, given that they had obviously encroached on
lawyer-client privilege. Furthermore, Mr Laptev's request had
contained factually untrue information, such as the allegation that
the applicant had not been aware of the legal-assistance agreements
with his lawyers. The applicant also pointed out that in December
2005 and February 2006 State officials had compelled him to give
statements concerning his relationship with his representatives
before the Court. The applicant insisted that harassment of his
representatives amounted to hindrance to his right of individual
petition under Article 34 of the Convention.
- The
Court reiterates at the outset that a complaint under Article 34 of
the Convention is of a procedural nature and therefore does not give
rise to any issue of admissibility under the Convention (see Cooke
v. Austria, no. 25878/94, § 46, 8 February 2000,
and Ergi v. Turkey, judgment of 28 July 1998, Reports
of Judgments and Decisions 1998 IV, § 105).
- The
Court further reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
by Article 34 that applicants should be able to communicate
freely with the Convention organs without being subjected to any form
of pressure from the authorities to withdraw or modify their
complaints. The expression “any form of pressure” must be
taken to cover not only direct coercion and flagrant acts of
intimidation of applicants or their legal representatives but also
other improper indirect acts or contacts designed to dissuade or
discourage them from pursuing a Convention remedy (see Kurt v.
Turkey, judgment of 25 May 1998, Reports of Judgments and
Decisions 1998 III, § 160, and Tanrıkulu
v. Turkey [GC], no. 23763/94, § 130, ECHR 1999 IV, with
further references). The threat of criminal or disciplinary
proceedings invoked against an applicant's lawyer concerning the
contents of a statement submitted to the Court has previously been
found to interfere with the applicant's right of petition (see Kurt,
cited above, §§ 160 and 164, and McShane v. the United
Kingdom, no. 43290/98, § 151, 28 May 2002) as has the
institution of criminal proceedings against a lawyer involved in the
preparation of an application to the Commission (see Şarli v.
Turkey, no. 24490/94, §§ 85-86, 22 May 2001). The
Russian Government was found to be in breach of their obligations
under Article 34 of the Convention in a case where the applicant's
representative and translator had been summoned by the local police
for an interview in connection with the applicant's claims for just
satisfaction (see Fedotova v. Russia, no. 73225/01, §§
49-52, 13 April 2006).
-
In the instant case the documents at the Court's disposal reveal that
on 25 November 2005 the Representative of the Russian Government at
the European Court, following the submission of the comments on the
applicant's claims for just satisfaction, asked the Economic Security
Department of the Ministry of Internal Affairs and the Federal
Registration Service of the Ministry of Justice to verify the
lawfulness of the legal-assistance agreement between the applicant
and his representative before the Court, Mrs Moskalenko. The request
contained the assertion that Mrs Moskalenko had imposed a financial
obligation on the applicant without his knowledge (see paragraphs 23
and 24 above). In fulfilment of the above request the police officers
required the director of Mrs Moskalenko's office and subsequently Mrs
Moskalenko herself to produce documents concerning her legal
relationship with the applicant. They also visited the applicant in
prison and attempted to compel him to give a written statement about
his contacts with Mrs Moskalenko. The Federal Registration Service,
for its part, determined that the legal-assistance agreement between
the applicant and Mrs Moskalenko had been in breach of the Civil Code
and the Advocates Act and requested the President of the Moscow City
Bar to take measures against Mrs Moskalenko and to report back.
- The
Court would emphasise at the outset that it is not appropriate for
the authorities of a respondent State to enter into direct contact
with an applicant on the pretext that “forged documents have
been submitted in other cases” (see Fedotova, § 51,
and Tanrıkulu, § 131, both cited above). If the
Government had reason to believe that in a particular case the right
of individual petition had been abused, the appropriate course of
action was for that Government to alert the Court and to inform it of
its misgivings (ibid.). The Russian Government, however, did not
confine themselves to mentioning the alleged invalidity of
legal-assistance agreements in their comments on the applicant's
claim for just satisfaction but, following the submission of their
comments, they asked two domestic authorities to carry out certain
inquiries into the applicant's arrangements with his representative
Mrs Moskalenko.
- That
those requests were sent out after the submission of the
Government's comments on the claim for just satisfaction obviously
undermines the credibility of the Government's claim that their sole
purpose was to obtain the official view of competent domestic bodies
on the validity of the agreements. The Court observes that the
applicant consistently maintained that he was satisfied with the work
of his representatives before the Court and that he was fully aware
of the legal-assistance agreements and the amounts indicated therein.
This also was confirmed by the President of the Moscow City Bar (see
paragraph 30 above). The Representative's allegations that the
agreements had been signed without the applicant's knowledge were
thus mere personal conjecture without any basis in fact.
- The
Court considers it unacceptable from the standpoint of the protection
of the right of individual petition that the Economic Security
Department of the Russian police attempted to obtain privileged
material from the law office of which Mrs Moskalenko was a member.
Their request did not refer to any ongoing criminal inquiry or
investigation or any judicial decision authorising such a course of
action. Furthermore, given that the jurisdiction of the Economic
Security Department only extended to inter-regional or international
tax and economic crimes or highly publicised criminal offences (see
paragraph 38 above), apparently the Department was not competent to
carry out such an inquiry but nevertheless did so on obviously
spurious legal grounds. In any event, the Court sees no plausible
reason as to why, in the absence of any apparent indication of a
criminal offence or criminal-law complaint, any inquiry should have
been conducted by the police (compare Ergi, § 105, and
Fedotova, § 50, both cited above). As noted above,
the applicant never stated that the legal-assistance agreements had
been signed fraudulently or without his knowledge. In these
circumstances, even assuming there was a legal defect in the
agreements, this would be a matter inter partes and it would
not justify the involvement of the police.
- Furthermore,
it is of particular concern for the Court that the applicant was
visited in prison by State officials who attempted to obtain written
statements from him concerning his representation in the Strasbourg
proceedings. It also transpires that the questions asked were not
confined to financial matters but probed into all aspects of his
relationship with his counsel, with a particular emphasis on how he
had first got in contact with them. In the Court's view, such a
contact was grossly inappropriate and could very well have been
interpreted by the applicant as an attempt to intimidate him.
- Finally,
the Court observes that the inquiries launched at the initiative of
the Representative only concerned the agreement signed by
Mrs Moskalenko, whereas a similar document signed by Mrs
Arutyunyan was not subject to any such scrutiny. Furthermore, it is
noteworthy that the Government specifically asked the Court to remove
Mrs Moskalenko from the proceedings before it (see paragraph 34
above).
- Having
regard to the above, the Court finds that the moves made by the
Russian Government lacked a basis in law or fact, that they
specifically targeted the applicant's representative Mrs Moskalenko
and were calculated to prevent her from effectively participating in
the Strasbourg proceedings. They must therefore be considered an
interference with the exercise of the applicant's right of individual
petition and incompatible with the respondent State's obligation
under Article 34 of the Convention (compare Kurt, § 164,
and Fedotova, § 51, both cited above).
- In
view of the foregoing, the Court considers that the respondent State
has failed to comply with its obligations under Article 34 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant only made a claim for just satisfaction in connection with
his complaint under Article 6 of the Convention. Since this complaint
was declared inadmissible and the applicant has received legal aid
for his representation before the Court, the Court rejects the claim.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
examination of witnesses inadmissible;
- Holds that the respondent State has failed to
comply with its obligations under Article 34 of the Convention;
- Decides not to make an award under Article 41 of
the Convention.
Done in English, and notified in writing on 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy
Registrar President
