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]
FIFTH
SECTION
CASE OF DOVZHENKO v. UKRAINE
(Application
no. 36650/03)
JUDGMENT
STRASBOURG
12
January 2012
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 Dovzhenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Ann Power-Forde,
Angelika
Nußberger,
André Potocki,
judges,
Mykhaylo Buromenskiy, ad hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36650/03) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Sergey Ivanovich
Dovzhenko (“the applicant”), on 11 October 2003.
- The
applicant was represented by Mr V. Dovzhenko, a lawyer
practising in Mariupol. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev.
- The
applicant complained under Article 6 § 2 of the Convention that
his right to be presumed innocent was not respected; under Article
6 §§ 1 and 3 (c) of the Convention that the
proceedings before the Supreme Court had been held without the
applicant’s lawyer; under Article 6 §§ 1
and 3 (b) of the Convention that he had not had sufficient
time to study the materials of the case file for the proceedings
before the Supreme Court; and under Article 8 of the Convention
that the authorities had refused to dispatch his correspondence
during his detention.
- On
22 September 2009 the Court declared the application partly
inadmissible and decided to communicate the above complaints to the
Government. It also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1). Due to the
absence of a national Judge at the relevant time, Mr M. Buromenskiy
was appointed to sit as ad hoc judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and is currently serving a life sentence
in prison.
A. Criminal proceedings against the applicant and related issues
- On
19 May 2002 the applicant was arrested on suspicion of having
committed a series of murders.
- On
22 October 2002 the investigation was completed and the applicant
started to study the case file. During the pre-trial investigation
and the examination of the case file the applicant was assisted by a
legal-aid lawyer.
- On
7 November 2002 the applicant and the
lawyer finished examining the case file in full.
- On
8 September 2003 the Donetsk Court of Appeal, acting as a
first-instance court (“the first-instance court”), found
the applicant guilty of seventeen murders and other less serious
crimes committed by him between 1999 and 2002 and sentenced him to
life imprisonment with confiscation of property. During the trial the
applicant was represented by the lawyer.
- According
to the applicant, following the judgment of 8 September 2003, he was
not assisted by any lawyer despite his complaints to the
first-instance court on this account.
- On
2 October 2003 the applicant lodged with the Supreme Court a
cassation appeal against the judgment of 8 September 2003.
- On
17 September 2003, in the course of preparation to the proceedings
before the Supreme Court, the applicant requested the first-instance
court to familiarise him with the minutes of the hearings.
- On
23 January 2004 the applicant started to examine the minutes of the
hearings held by the first-instance court.
- On
26 January 2004 the applicant submitted that he would continue
examination of the minutes only after he had studied the case file
one more time. He therefore requested that the case file be provided
to him for examination.
- On
2 February 2004 the first-instance court, having regard to the
applicant’s statements, set a five-day period for him to
examine the minutes of the hearings. Despite the fact that the
applicant was invited on several occasions to continue studying the
minutes of the hearings, he refused to do so, insisting that he
needed to examine the case file first.
- On
28 April 2004 the first-instance court found that the applicant had
refused to familiarise himself with the minutes of the hearings for
no valid reason and allowed no further time to do so. The applicant
was then provided with the case file.
- On
16 July 2004 the first-instance court found that, despite having been
provided with the case file on several occasions, the applicant had
examined only two volumes of the file. As the file consisted of
twenty-five volumes, the court concluded that the applicant’s
actions suggested that he had deliberately sought to draw out the
time allowed for examining the case file. It set therefore a
thirty-five-day time-limit for him to complete his examination of the
case file.
- During
fifty-three days between July and September 2004 the applicant was
provided with the case file. He managed to examine twelve volumes of
the file.
- On
28 September 2004 the first-instance court decided to allow no
further time for the applicant to study the case file, as the
relevant time-limit had expired.
- On
7 April 2005 the Supreme Court held a hearing in the applicant’s
case. In his further submissions before the Supreme Court the
applicant complained, inter alia, that there had been a lack
of legal assistance and lack of time to study the case file.
- The
same day the Supreme Court, in the presence of the prosecutor
and the applicant, who had not been represented by a lawyer, found
that the applicant’s guilt had been well founded and dismissed
the applicant’s appeal in cassation as unsubstantiated.
B. The reporting of the criminal proceedings against the applicant
in the media
- On
25 May 2002 a local newspaper, Priazovskiy Rabochiy,
reported that the police had arrested the applicant on suspicion of a
number of murders. It read, in particular:
“But the most sensational is the fact that the
arrestee turned out to be former police lieutenant of the criminal
investigation department, Sergey Dovzhenko. ...”
- On
28 May 2002 another newspaper, Salon Dona i Basa, reported on
a press conference held by K., the Head of the Mariupol Police
Department. According to the newspaper, with respect to the progress
of the investigation of series of murders K. announced that the
police had arrested “a person who was reasonably suspected of
having committed crimes with the use of a firearm” and then
emphasised that it would be inappropriate to divulge any other
information about the investigation.
- On
8 June 2002 Priazovskiy Rabochiy provided a summary of
another press conference given by K. on the subject of the
applicant’s arrest. The journalist reporting on the press
conference referred to the detainee by his real name and provided
some extracts from K.’s speech. In particular, when opining as
to who might have been the next victims of the detainee, K. was
quoted as noting as follows:
“Those would be the police officers ... and
others... But in this respect we can only trust in the words of the
criminal ... And I have doubts about many of his statements...”
- On
11 December 2002 the same journalist reported in Priazovskiy
Rabochiy that the first hearing in the applicant’s case was
to commence on that day. He noted that the police had always insisted
that the applicant had acted without any accomplices, while in the
latest press release M., the Head of the Donetsk Regional Police
Department, expressed a different opinion. The journalist reported as
follows:
“In the beginning of July [M.] stated in the
official press release that Dovzhenko is just – quoting him
word for word – ‘one member of a criminal group which
committed a series of murders’...”.
- The
criminal proceedings against the applicant were further extensively
reported on by the same journalist in a number of his publications,
some of which contained pictures of the applicant.
- On
4 June 2004 that journalist published an interview with the
prosecutor, who commented on the procedural actions taken by the
applicant after the judgment of the first-instance court.
- In
his submissions before the Supreme Court the applicant complained
that his right to be presumed innocent had been affected by multiple
newspaper articles reporting on the proceedings in his case,
specifying further that in some of the articles State officials had
clearly indicated that he had committed the murders, despite the fact
that the proceedings were pending.
C. The applicant’s correspondence
- On
5 November 2004 the first-instance court referred the case file
to the Supreme Court, following which the applicant was refused
permission by the officials of the detention facilities to send
correspondence. The refusals were based on the fact that the written
permit for the applicant’s correspondence, issued by the
first-instance court, was no longer valid, while a new one had not
been issued by the Supreme Court, which had become responsible for
his case. The authorities acted on the basis of section 13 of the
Pre-Trial Detention Act (see paragraph 33 below).
- On
2 February 2005 and 1 March 2005 the applicant lodged two
applications with the Supreme Court asking for such a permit to be
issued, but to no avail. On 28 June 2005 the applicant could still
not dispatch any correspondence.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure, 28 December 1960 (“the CCP”)
as worded at the relevant time
- The
relevant provisions of the CCP read as follows:
Article 45. Compulsory participation of a defence
lawyer
“Participation of a defence lawyer in the inquiry,
pre-trial investigations and trial by the first-instance court shall
be compulsory:
...(4) from the moment of the person’s arrest or
when he or she is charged with a criminal offence carrying a penalty
of life imprisonment ...
The participation of a defence lawyer in the proceedings
before the court of appeal shall be compulsory in cases as provided
by the first paragraph of this Article if the appeal raises issues
capable of worsening the position of the convicted or acquitted
person.”
Article 47. The procedure for selecting and
appointing a defence lawyer
“A defence lawyer shall be selected by a suspect,
an accused, a defendant or a convicted person ...
A defence lawyer shall be appointed [by the authorities]
in the following cases:
(1) when, in accordance with Article 45 §§ 1
and 2, the participation of the defence lawyer is compulsory but the
suspect, accused or defendant does not wish to or cannot appoint a
defence lawyer;
(2) when a suspect, an accused or a defendant
wishes to appoint a defence lawyer but cannot do so for lack of means
or other objective reason. ...”
- Article
395 of the CCP provides, inter alia, that the court of
cassation shall review whether the challenged court decision is
lawful and substantiated based on the case file and additionally
submitted material. The scope of the review shall be limited by the
arguments of the cassation appeal(s). The court shall be empowered to
review the case beyond the arguments of the cassation appeal(s)
provided that this does not worsen the position of the convicted or
acquitted person.
B. The Pre-Trial Detention Act of 30 June 1993
- Section
13 of the Act provides, inter alia, that a person held in
custody may correspond with their relatives, other individuals and
legal entities upon obtaining a written permit from the authority
dealing with the criminal case against the detainee concerned.
THE LAW
I. THE GOVERNMENT’S OBJECTION REGARDING LOCUS
STANDI
- In
their further observations on the application the Government
submitted that they had not received any documents confirming the
authority of the applicant’s lawyer. They maintained therefore
that no submissions made by the applicant’s lawyer could be
accepted by the Court.
- The
Court notes that the applicant’s lawyer was admitted to the
proceedings on the basis of the power of attorney of 24 October
2009 which is available in the case file. On 5 November 2009 the
Registry sent a copy of that power of attorney to the Government. The
Court further notes that no submissions were made by the applicant’s
lawyer before the date of the power of attorney. In these
circumstances the Government’s
objection must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF
THE CONVENTION
- The
applicant complained that the numerous newspaper articles outlining
the proceedings against him amounted to a vicious media campaign,
which was contrary to Article 6 § 2 of the Convention.
Besides, the public statements of the law enforcement officers
contained statements which were incommensurate with his right to be
presumed innocent.
- Article
6 § 2 of the Convention reads as follows:
“2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
domestic remedies in so far as he had not applied to the editorial
boards of the relevant newspapers requesting rebuttal of the divulged
information. Neither had he lodged a civil suit claiming a violation
of his honour and dignity by the impugned publications and seeking
redress on this account.
- The
applicant claimed that the remedies invoked by the Government were
not effective and therefore he had had no obligation to exhaust them.
- At
the outset, the Court notes that in so far as the applicant alleged
that the journalists breached his right provided by Article 6 § 2
of the Convention by their numerous publications and expressions of
opinion concerning the applicant’s guilt, the Court notes that
this complaint is inadmissible ratione personae since these
actions were carried out by private persons and there is no
indication that they should be attributable to the State. Moreover,
the applicant has not availed himself of any domestic remedy in this
respect (see Bochev v. Bulgaria (dec.), no. 73481/01,
20 March 2007).
- As
to the applicant’s allegation that his right to be presumed
innocent was breached by the public statements of the law enforcement
officers, which were also quoted in the newspaper articles referred
to by the applicant, the Court considers that this complaint falls
within the scope of Article 6 § 2 of the Convention.
- The
Court has previously held that a complaint under Article 6 § 2
of the Convention cannot be rejected for the reason of non-exhaustion
if an applicant raised that issue in the course of criminal
proceedings against him (see Shagin v.
Ukraine, no. 20437/05, §§ 71-73,
10 December 2009). As the applicant raised the matter before the
Supreme Court (see paragraph 28 above), the complaint cannot be
rejected on the grounds claimed by the Government.
- The
Court notes that this part of application 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
- The
Government submitted that the public officials were very cautious in
their statements when informing the public as to the proceedings
against the applicant. This cautiousness was evidenced by the first
press conference held by K., during which he merely disclosed that
the detainee was “a person who was reasonably suspected of
having committed crimes with the use of a firearm” (see
paragraph 23 above).
- As
to the articles of 8 June and 11 December 2002, the statements
of high-ranking police officers’ contained therein could not be
linked to the applicant in themselves as his name was not mentioned
in the quotations. His name was mentioned outside the quotations by
the journalist and not by the public officials. The Government also
added that the interview with the prosecutor of 4 June 2004 did not
contain any expressions encroaching upon the applicant’s right
to be presumed innocence.
- The
applicant disagreed.
- The Court reiterates that Article 6 § 2, in its
relevant aspect, is aimed at preventing the undermining of a fair
criminal trial by prejudicial statements made in close connection
with those proceedings. The right to presumption of innocence
enshrined in paragraph 2 of Article 6 is one of the elements of a
fair criminal trial that is required by paragraph 1 (see Allenet
de Ribemont v. France, 10 February 1995, § 35, Series A
no. 308). It prohibits the premature expression by the tribunal
itself of the opinion that the person “charged with a criminal
offence” is guilty before he has been so proved according to
law (see Minelli v. Switzerland, 25 March 1983, § 37,
Series A no. 62) but also covers statements made by other public
officials about pending criminal investigations which encourage the
public to consider the suspect guilty and prejudge the assessment of
the facts by the competent judicial authority (see Allenet de
Ribemont, cited above, § 41; Daktaras v. Lithuania,
no. 42095/98, §§ 41-43, ECHR 2000-X; and
Butkevičius v. Lithuania, no. 48297/99, § 49,
ECHR 2002-II).
- It has been the Court’s consistent approach that
the right to the presumption of innocence will be violated if a
judicial decision or a statement by a public official concerning a
person charged with a criminal offence reflects the opinion that he
is guilty before he has been proved guilty according to law. It
suffices, even in the absence of any formal finding, that there is
some reasoning suggesting that the court or the official regards the
accused as guilty. A fundamental distinction must be made between a
statement that someone is merely suspected of having committed a
crime and a clear declaration, in the absence of a final conviction,
that an individual has committed the crime in question. The Court has
consistently emphasised the importance of the choice of words by
public officials in their statements before a person has been tried
and found guilty of a particular criminal offence (see Böhmer
v. Germany, no. 37568/97, §§ 54 and 56, 3
October 2002, and Nešťák v. Slovakia,
no. 65559/01, §§ 88 and 89, 27 February
2007). Whether a statement of a public official is in breach of the
principle of the presumption of innocence must be determined in the
context of the particular circumstances in which the impugned
statement was made (see Karakaş and Yeşilırmak v.
Turkey, no. 43925/985, § 51, 28 June 2005).
- Turning
to the present case, the Court takes note of the Government’s
contention that the quotations in the articles of 8 June and
11 December 2002 did not suggest that the high-ranking police
officers called the applicant by his name. This, however, does not
resolve the issue under Article 6 § 2 of the
Convention, as the person concerned by a statement may be capable of
being identified without his or her name having been mentioned (see
Peša v. Croatia, no. 40523/08, § 146, 8
April 2010).
- The
Court notes that as early as 25 May 2002 the applicant’s name
and other personal information about him had been disclosed by the
press and had thus become known to the public (see paragraph 22
above). Moreover, given the gravity of the crimes of which he had
been suspected and the particular interest of the media in the case,
the applicant’s name must have been well-known to the public.
- The
Court therefore considers that the statement of the high-ranking
police officers, as quoted in the articles of 28 May, 8 June and
11 December 2002, clearly concerned the applicant even without
them having mentioned his name. Explicit references by the speakers
to the name of the applicant in this case were not necessary to
attract the guarantees of Article 6 § 2 of the
Convention.
- In
assessing the contents of the expressions in question, it is
sufficient for the Court to note that in the article of 8 June
2002 the detainee was referred to as a “criminal” without
any reservation (see paragraph 24 above). Such a qualification,
coming from a high-ranking police officer, came across as an
established fact and amounted to a declaration of the applicant’s
guilt of the crimes in respect of which he was suspected. That
statement prejudged the assessment of the relevant facts by the
competent judicial authority and encouraged the public to consider
the applicant guilty before he had been proved guilty according to
law.
- The
foregoing considerations enable the Court to conclude that there has
been a breach of the applicant’s right to be presumed innocent.
It therefore does not find it necessary to examine the other
expressions in question and holds that there has been a violation of
Article 6 § 2 of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1
AND 3 OF THE CONVENTION
-
The applicant complained that he had not been represented by a lawyer
before the Supreme Court. He further complained that he had not had
an opportunity to study all the materials in the case file to prepare
for the hearing before the Supreme Court. The applicant relied on
Article 6 §§ 1 and 3 (b) and (c) of the Convention which
provide, in so far as relevant, 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 ... 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; ...”
A. Admissibility
- The
Court notes that this part of application 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. Legal assistance to the applicant in the proceedings before the
second-instance court
- The
applicant contended that his right to be legally represented before
the Supreme Court had not been ensured by the domestic authorities.
- The
Government submitted that the first-instance court had sentenced the
applicant to the severest punishment – life imprisonment with
confiscation of property – and therefore the consideration of
the case by the Supreme Court could not have resulted in an
aggravation of his situation. Accordingly, by virtue of
Article 45 § 2 of the Code of Criminal
Procedure, the legal representation of the applicant before the
Supreme Court (acting as a court of appeal in that case) was not
compulsory. The Government further contended that the applicant was a
former police officer and must have been able to present his defence
by himself.
- The Court notes that the requirements of paragraph
3 of Article 6 represent particular aspects of the right to a
fair trial guaranteed in paragraph 1. It will examine the applicant’s
complaint under both provisions taken together (see, among many other
authorities, Van Geyseghem v. Belgium [GC], no. 26103/95,
§ 27, ECHR 1999-I).
- The
sub-paragraph (c) of paragraph 3 of Article 6 attaches two conditions
to a defendant’s right to receive legal aid. The first, “lack
of sufficient means to pay for legal assistance”, is not in
dispute in the present case. The only issue before the Court is
therefore whether the “interests of justice” required
that the applicant be granted such assistance free.
- The
Court reiterates that the manner in which Article 6 §§ 1
and 3 (c) is to be applied in relation to appellate or
cassation courts depends upon the particular features of the
proceedings involved; account must be taken of the entirety of the
proceedings conducted in the domestic legal order and the role of the
appellate or cassation court therein (see Twalib v. Greece,
9 June 1998, § 46, Reports of Judgments and Decisions
1998-IV , and Granger v. the United Kingdom, 28 March 1990,
§ 44, Series A no. 174).
- The
Court has already held that the situation in a case involving a heavy
penalty where an appellant was left to present his own defence
unassisted before the highest instance of appeal was not in
conformity with the requirements of Article 6 (see Maxwell v. the
United Kingdom, 28 October 1994, § 40, Series A
no. 300-C).
- In
the present case there is nothing to suggest that the applicant was
assisted by any lawyer following his conviction by the first-instance
court. It is undisputed that the hearing before the Supreme Court was
held without any lawyer representing the applicant. However, the
applicant’s submissions before the domestic courts suggested
that he wished to be legally represented at that stage of the
proceedings.
- The
Government, relying on Article 45 § 2 of the CCP,
contended that the applicant had not been entitled to compulsory
legal representation at that stage of proceedings as he had been
convicted to the heaviest penalty and his position could not be
aggravated. This argument is immaterial for the Court, as even
assuming that the applicant was not entitled to free legal assistance
under the domestic law, the question is whether he was entitled to
that assistance under the Convention.
- According
to the rules of criminal procedure (see paragraph 32 above), where a
court of appeal acted as a first-instance court in criminal
proceedings, the jurisdiction of the Supreme Court reviewing the case
in cassation proceedings extended both to legal and factual issues.
The Supreme Court also had the power to consider additional arguments
which had not been examined in the first-instance proceedings. Given
the seriousness of the charges against the applicant and the severity
of the sentence imposed on him by the trial court, the Court
considers that the assistance of a lawyer at this stage was essential
for the applicant.
- In
these circumstances the Court finds that the interests of justice
required that the applicant be legally represented before the Supreme
Court. It holds, therefore, that there has been a violation of
Article 6 § 3 (c) taken together with
Article 6 § 1 of the Convention.
2. Access to the case file with a view to preparation for the
proceedings before the second-instance court
- The
applicant claimed that he was not given sufficient time to examine
the case file in order to prepare for the proceedings before the
Supreme Court. Given that he was not assisted by any lawyer, the
exercise of his right to examine the case file was ineffective and
time-consuming.
- The
Government maintained that the applicant had been provided with
sufficient time to study the case file. After the authorities found
that the applicant was abusing his procedural rights, they set a
thirty-five day time-limit for examining the case file, which was
reasonable taking into account the fact that the applicant had
earlier examined the case file in full when preparing for the trial,
and the only new material at the stage of appeal was the minutes of
the hearings held by the trial court. In the Government’s
opinion the applicant had been abusing his procedural rights and had
attempted to delay the proceedings against him.
- The
Court notes that at the pre-trial stage the sixteen-day period was
sufficient for the applicant to study the whole case file with the
assistance of a lawyer (see paragraphs 7 and 8 above). However, at
the stage of appeal more than fifty-three days turned out to be
insufficient for the applicant to study even half of the same
material without a lawyer (see paragraphs 17-19 above).
- The
Court therefore considers that in the circumstances of the present
case the real issue is not about the insufficiency of time in
studying the case file but about the lack of legal aid at that stage
of the proceedings. This point has been emphasised by the applicant
himself in his submissions under this head. Indeed, even a very
generous time-limit for analysing the complicated legal material
contained in the case file might not have counterbalanced the lack of
legal assistance in examining that material by the applicant.
- Given
that the matter of absence of legal assistance at that stage of
proceedings has been examined above under Article 6 §§ 1
and 3 (c) of the Convention, the Court does not discern any separate
issue under Article 6 §§ 1 and 3 (b) of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that he had not been allowed to dispatch any
correspondence in the period when his case had been referred to and
considered by the Supreme Court. He relied on Article 10 of the
Convention.
- The
Court decided to examine the complaint under Article 8 of the
Convention which provides the following:
“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.”
A. Admissibility
- 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
- The
Government submitted that on 10 February 2005 the Supreme Court
received one of the applicant’s requests for a permit for
correspondence. They did not provide any further comments on the
matter.
- The
applicant maintained his complaint.
- The
Court notes that the officials of the detention facilities refused to
dispatch the applicant’s correspondence for at least six
months. The refusal amounted to an interference with the applicant’s
right to respect for his correspondence, which is guaranteed by
paragraph 1 of Article 8 of the Convention.
- The
Court further notes that such an interference will contravene Article
8 of the Convention unless it is “in accordance with the law”,
pursues one or more of the legitimate aims referred to in paragraph 2
and furthermore is “necessary in a democratic society” in
order to achieve them. The expression “in accordance with the
law” does not only necessitate compliance with domestic law,
but also relates to the quality of that law. The domestic law must
indicate with reasonable clarity the scope and manner of exercise of
the relevant discretion conferred on the public authorities so as to
ensure to individuals the minimum degree of protection to which
citizens are entitled under the rule of law in a democratic society
(see Sergey Volosyuk v. Ukraine, no. 1291/03, §§
81 and 82, 12 March 2009).
- In
the present case the refusal to dispatch the applicant’s
correspondence was based on the fact that the Supreme Court had not
issued a relevant permit to the applicant, as provided by section 13
of the Pre-Trial Detention Act (see paragraph 33 above). The Court
notes that the applicable provision of the domestic law does not
oblige the competent authority to adopt a formal decision on the
request, give reasons for such a decision or provide a copy thereof
to the detainee concerned. Nor does that provision lay down a
specific remedy enabling the detainee to contest the action or
omission by the relevant authority. It appears therefore that due to
the lack of these important procedural safeguards the applicant’s
requests for a correspondence permit could remain unanswered or
refused for no valid reason. The lack of the abovementioned
guarantees is all the more disconcerting given that the domestic law,
as a general rule, prohibits correspondence and obliges pre-trial
detainees to seek a permit as an exception thereto, rather than
respecting, in principle, a detainee’s right to correspondence
and ensuring that any interference therewith is provided by and is in
accordance with law.
- In
the light of the foregoing considerations, the Court concludes that
the applicable domestic law did not indicate with reasonable clarity
the scope and manner of exercise of the discretion conferred on the
public authorities in issuing permits for correspondence to
detainees. It follows that the interference complained of was not “in
accordance with the law”. The Court therefore does not consider
it necessary in the instant case to ascertain whether the other
requirements of paragraph 2 of Article 8 were complied with and holds
that there has been a violation of that provision.
V. 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 did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account (see, for example, Haidn v. Germany, no. 6587/04,
§115, 13 January 2011).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 2 of the Convention;
- Holds that there has been a violation of
Article 6 §§ 1 and 3 (c) of the Convention;
- Holds that there is no need to examine the
applicant’s complaint under Article 6 §§ 1
and 3 (b) of the Convention;
- Holds that there has been a violation of
Article 8 of the Convention.
Done in English, and notified in writing on 12 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President