BAKIYEV v. RUSSIA

FIRST SECTION

DECISION

Application no. 9728/05
Batyrbek Bazarbiyevich BAKIYEV
against Russia

The European Court of Human Rights (First Section), sitting on 20 October 2015 as a Committee composed of:

Khanlar Hajiyev, President,
Linos-Alexandre Sicilianos,
Dmitry Dedov, judges,

and André Wampach, Deputy Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS AND PROCEDURE

1. The applicant, Mr Batyrbek Bazarbiyevich Bakiyev, is a Russian national, who was born in 1961 and lives in the village of Tukuy-Mekteb in the Stavropol region. He is currently serving his sentence in IK-7 in the village of Valuyki, the Belgorod region. He was represented before the Court by Ms O.V. Preobrazhenskaya, a lawyer practising in Strasbourg. The Russian Government (“the Government”) were represented initially by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by Mr A. Savenkov, Deputy Minister of Justice of the Russian Federation, and by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

2. The facts of the case, as submitted by the parties, may be summarised as follows.

I. CRIMINAL PROCEEDINGS AGAINST THE APPLICANT

3. On 15 October 2002 the applicant was arrested on suspicion of armed robbery.

4. On 27 October 2004 the Stavropol regional court delivered a first‑instance judgment in the criminal case against the applicant and his seven co-accused. The applicant was found guilty of banditry and of an act of engaging a minor in criminal activities and sentenced to fourteen years’ imprisonment.

5. On an unspecified date the applicant submitted a statement of appeal.

6. On 1 November 2004 the applicant prepared an additional statement of appeal in which he sought leave to be present at the appeal hearing. On 16 December 2004 the additional appeal statement was sent to the Stavropol regional court, which received it on 21 December 2004. On 22 December 2004 the regional court forwarded the additional appeal statement to the Supreme Court of Russia.

7. On 31 January 2005 the Supreme Court of Russia held an appeal hearing in the applicant’s absence. It heard the prosecutor and the applicant’s co-accused. The Supreme Court examined the initial appeal statement by the applicant and upheld his conviction in full; the additional appeal statement was not analysed. On an unspecified date the applicant was served with a copy of the appeal judgment.

8. In reply to the applicant’s complaint about his absence from the appeal hearing, on 18 May 2005 the prosecutor’s office of the Stavropol region stated that the applicant had not sought leave to appear before the appeal court.

9. On 13 October 2006 the presidium of the Supreme Court rejected the applicant’s supervisory review request.

10. On 30 July 2008 the presidium of the Supreme Court of Russia upon request by the Deputy Prosecutor General of Russia quashed the appeal judgment of 31 January 2005 by way of supervisory review on the grounds that the Supreme Court had failed to examine the applicant’s additional statement of appeal when upholding his conviction in the first instance and thus had breached the applicant’s rights. The case was remitted for a fresh examination on appeal.

11. On 31 October 2008 the Supreme Court of Russia re-examined the applicant’s case on appeal and upheld the judgment of 27 October 2004. The applicant participated in the appeal hearing by video link. The applicant did not request to be represented by a lawyer.

II. CORRESPONDENCE WITH THE COURT

12. On 19 February 2005 the applicant sent an introductory letter to the Court.

13. On 17 March 2005 the Registry of the Court acknowledged receipt of the introductory letter and sent the applicant a blank application form and the application pack. The cover letter read, in so far as relevant, as follows:

“You should return the application form together with all necessary additional documents to the Court with no undue delay, within six weeks from the date of receipt of this letter. Otherwise the Court may not accept the date of your first letter as an introduction date, which could adversely affect the Court’s findings regarding your compliance with the six-month limit for applying to the Court pursuant to Article 35 § 1 of the Convention.”

14. On 30 March 2005 the applicant received the Registry’s letter of 17 March 2005 together with the blank application form and application pack.

15. On 22 April 2005 the applicant was transferred to post‑conviction detention facility IK-7 in the village of Valuyki in the Belgorod region.

16. According to the applicant, upon arrival to IK-7, the administration of the facility took all his documents to the security unit. On an unspecified date, “by the time set for sending the application form [expired] my documents were returned to me, and I had enough time to fill them in and to dispatch them within a few days.”

17. On 23 June and 20 July 2005 the Registry of the Court received by fax the applicant’s letters of the same dates restating his introductory letter. The Registry acknowledged receipt of those on 24 June and 22 July 2005, respectively, and reminded the applicant that he should submit a completed application form avoiding undue delays.

18. On 16 March 2006 the applicant signed and dated a completed application form and sent it to the Court from IK-7. According to the postmark, the envelope was dispatched on the same day.

19. On 23 March 2006 an unsigned letter was sent to the Court by fax, which read as follows:

“Honourable Court,

The convicted B.B. Bakiyev is not given an opportunity to send File No. 9728/05 from the detention facility.

We request that you demand the file at the address: [the detention facility’s address].”

20. The application form dated 16 March 2006 was received by the Court on 27 April 2006.

COMPLAINTS

21. The applicant complained in substance under Article 6 §§ 1 and 3 (c) of the Convention that he had been absent from the appeal hearing of 31 January 2005 in breach of the fair trial guarantees.

22. The applicant also raised additional complaints with reference to various Articles of the Convention.

THE LAW

I. ARTICLE 34 OF THE CONVENTION

23. In light of the information contained in the faxed letter of 23 March 2006 (see paragraph 19 above), the Court has raised of its own motion the issue of a possible hindrance with the applicant’s right to individual petition under Article 34 of the Convention and requested the parties’ submissions. Article 34 reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

24. The Government submitted that the application form had been dispatched with no delay and that the authorities of the detention facilities in which the applicant had been kept had not precluded him from corresponding with the Court. They further submitted that on 27 February 2006 the applicant had requested a meeting with the head of the Belgorod regional department of the Federal Penitentiary Service (“FSIN”) to obtain information on lodging an application with the Court and that shortly after an officer of the FSIN had visited the applicant in IK-7 and provided him with a blank application form. On 16 March 2006 the applicant had given a sealed envelope to the authorities of IK-7 who then had dispatched it to Strasbourg. In sum, the Government stated that there had been no hindrance with the applicant’s right to individual petition.

25. In his observations on admissibility and merits the applicant submitted that although the blank application form had been kept for an unspecified period of time by the administration of IK-7 after his transfer to the facility, he had had an ample opportunity to fill it in “by the time set [by the Court] for dispatching the application form”. He further stated that there had been no other problems with correspondence with the Court.

26. The Court reiterates that the right of individual petition under Article 34 of the Convention will operate effectively only if an applicant can interact with the Court freely, without being subjected to any form of pressure from the authorities to withdraw or modify his or her complaints (see Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports of Judgments and Decisions 1996‑IV). 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 or having a “chilling effect” on the exercise of the right of individual petition by applicants and their representatives (see Mechenkov v. Russia, no. 35421/05, § 116, 7 February 2008).

27. Turning to the circumstances of the present case, the Court observes that the vague allegations of hindrance with the applicant’s correspondence with the Court were raised in the unsigned letter, which was sent by fax on 23 March 2006, that is, a week after the application form had been dispatched by post from the detention facility on 16 March 2006. Moreover, it does not follow from the text of the letter in question that the detention facility’s administration was in any way interfering with the applicant’s correspondence (see paragraph 19 above). In the application form the applicant did not refer to any difficulties that could have precluded him from dispatching it to the Court earlier. Furthermore, the applicant did not claim that there had been any undue hindrance of his right to individual petition in his observations on the admissibility and merits of the application (see paragraph 25 above). In such circumstances the Court has no grounds to conclude that there was any prejudice in the presentation of the application to the Court.

28. Having regard to the above, the Court is not persuaded that there is sufficient basis on which to find any hindrance of the right of individual petition in the present case and decides not to pursue the matter (see Charalambous and Others v. Turkey (dec.), nos. 46744/07, 16622/08, 29673/08, 37368/08, 45656/08, 4584/10, 4649/10, 4852/05, 5189/10, 5210/08, 5247/08, 5270/08, 5277/08, 5281/08, 59490/09, 60676/08, 60678/08, 60688/08, 60696/08, 60719/08, 60734/08, 60742/08, 60771/08, 6081/10, 7048/08, 7086/08, 7439/08, 7512/08, 7839/10, § 74, 3 April 2012, and Beçaj v. Albania (dec.), no. 1542/13, § 44, 24 June 2014).

II. ARTICLE 6 §§ 1 AND 3 (C) OF THE CONVENTION

29. The applicant complained in substance under Article 6 §§ 1 and 3 (c) of the Convention that he had been absent from the appeal hearing of 31 January 2005 before the Supreme Court of Russia. Article 6, in so far as relevant, reads 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 ...”

A. Loss of victim status

30. The Government submitted that on 30 July 2008 the presidium of the Supreme Court of Russia had expressly acknowledged a violation of the applicant’s rights under Article 6 §§ 1 and 3 (c) of the Convention and had afforded the applicant redress for the violation in question by quashing the appeal judgment of 31 January 2005. The Government further claimed that the new appeal hearing of 31 October 2008 before the Supreme Court of Russia had been fully compatible with Article 6 of the Convention. They concluded that the applicant could no longer claim to be a “victim” within the meaning of Article 34 of the Convention.

31. The applicant asserted that he had not been provided with appropriate and sufficient redress for the violation of his right to defend himself and thus had not lost his victim status.

32. The Court reiterates that under Article 34 of the Convention it 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. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, among others, Burdov v. Russia (no. 2), no. 33509/04, §§ 54-60 and 100, ECHR 2009). A decision or measure favourable to an 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). As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see Gäfgen v. Germany [GC], no. 22978/05, § 116 et seq., ECHR 2010, and Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 76-84, 2 November 2010).

33. In the circumstances of the present case the Court considers that it is not necessary for it to reach a conclusion on this point since the applicant’s complaint is inadmissible in any event for the reason given below (see Roffey and Others v. the United Kingdom (dec.), 1278/11, § 26, 21 May 2013).

B. Date of introduction and compliance with the six-month rule

34. The Government submitted that in their opinion the applicant had complied with the six-month rule having lodged the application on 19 February 2005.

35. The applicant stated, without providing any further details, that he had sent the application form as soon as it had become feasible.

36. The Court reiterates that it is not open to it to set aside the application of the six-month rule solely because a Government have not made a preliminary objection to that effect (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑III).

37. Article 35 § 1 of the Convention permits the Court to deal with a matter only if the application is lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002).

38. The Court further reiterates that, in accordance with its established practice and Rule 47 § 5 of the Rules of Court, it normally considers the date of the introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application. Such first communication, which may take the form of a letter sent by fax, will in principle interrupt the running of the six‑month period (see Kemevuako v. the Netherlands (dec.), no. 65938/09, § 19, 1 June 2010).

39. The purpose of the six-month rule is to promote security of the law, to ensure that cases raising Convention issues are dealt with within a reasonable time and to protect the authorities and other persons concerned from being under uncertainty for a prolonged period of time (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-42, 29 June 2012). As the Court has held, it would be contrary to the spirit and aim of the six-month rule if, by any initial communication, an applicant could set into motion the proceedings under the Convention and then remain inactive for an unexplained and unlimited length of time. Applicants must therefore pursue their applications with reasonable expedition, after any initial introductory contact (see P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004). A failure to do so may lead the Court to decide that the interruption of the six-month period is to be invalidated and that it is the date of the submission of the completed application which is to be considered as the date of its introduction (see Yartsev v. Russia (dec.), no. 13776/11, § 22, 26 March 2013).

40. The Court observes that – following receipt of the introductory letter of 19 February 2005 – the applicant was advised by the Registry that he had to return the completed application form to the Court within six weeks from the date of receipt of their letter of 17 March 2005. The applicant was further informed that if he failed to do so, the date of submission of the completed application form might be taken as the date of introduction of the application (see paragraph 13 above).

41. Having regard to its above findings concerning absence of the basis to find any hindrance with the applicant’s right to individual petition (see paragraph 28 above) and to the applicant’s failure to comply with the Registry’s instructions to fill the application form in within six weeks after its receipt, the Court finds that the date appearing on the completed application form and on which the envelope containing it was postmarked, namely 16 March 2006 (see paragraph 18 above), should be considered as the date of introduction of the present application.

42. The Court further observes that no ordinary appeal lay against the appeal judgment of 31 January 2005, which became final on the same date. It is clear from the contents of the introductory letter of 19 February 2005 that by that date the applicant had already taken cognisance of the fact that the appeal hearing of 31 January 2005 had been held in his absence. The Court reiterates that the applicant’s attempts to obtain a supervisory review (see paragraph 9 above) cannot bring the complaint within the six‑month time-limit laid down in Article 35 § 1 (see Berdzenishvili v. Russia (dec.), no. 31697/03, 29 January 2004). It further considers that the applicant’s complaint to the prosecutor’s office about the final judicial decision clearly lacked any prospects of success and thus the prosecutor’s office’s reply to it (see paragraph 8 above) could not be taken into account for the purposes of that provision. In such circumstances the Court finds accordingly that the applicant has failed to comply with the six‑month rule.

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

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

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

For these reasons, the Court, unanimously,

Decides not to pursue the issue under Article 34 of the Convention;

Declares the application inadmissible.

Done in English and notified in writing on 12 November 2015.

              André WampachKhanlar Hajiyev
              Deputy RegistrarPresident

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