THIRD SECTION
\nCASE OF MAKHLYAGIN AND BELYAYEV v. RUSSIA
\n(Applications nos. 14784\/09 and 51742\/11)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n9 January 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Makhlyagin and Belyayev v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Luis L\u00f3pez Guerra, President, Having deliberated in private on 12 December 2017,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in two applications (nos. 14784\/09 and 51742\/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Russian nationals, Mr Yuriy PetrovichMakhlyagin on 18 September 2008 and Mr AleksandrMikhaylovichBelyayev on 21 June 2011.<\/p>\n 2.\u00a0\u00a0Mr Makhlyagin was represented by Mr A. Obukhov, a lawyer practising in Nizhniy Tagil; Mr Belyayev was represented by Mr\u00a0E.\u00a0Markov, a lawyer practising in Vienna. The Russian Government (\u201cthe Government\u201d) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.<\/p>\n 3.\u00a0\u00a0On 13 May 2015 complaints concerning correspondence (in respect of both applications) and concerning access to court (in respect of the application lodged by Mr Makhlyagin) were communicated to the Government, and the remainder of both applications was declared inadmissible, pursuant to Rule\u00a054 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicants, Mr Makhlyagin and Mr Belyayev, were born in 1983 and 1979 respectively and were held in different detention facilities. The facilities\u2019 officials opened and\/or inspected letters that the applicants exchanged with the Court.<\/p>\n A.\u00a0\u00a0Application no.\u00a014784\/09<\/strong><\/p>\n 5.\u00a0\u00a0From September 2008 until October 2009 the applicant, detained in a correctional colony, lodged several letters with the Court. All of them were accompanied by cover letters from a chief officer of the colony summarising the content of the applicant\u2019s letters. Some letters also bore the colony\u2019s registration stamps.<\/p>\n 6.\u00a0\u00a0The applicant lodged a claim, alleging that the colony\u2019s staff had impeded his correspondence with the Court. On 22\u00a0January\u00a02009 the Tagilstroyevskiy District Court of Nizhniy Tagil dismissed his claim<\/p>\n 7.\u00a0\u00a0The applicant lodged an appeal with the Sverdlovskiy Regional Court. On 4 March 2009 the Sverdlovskiy Regional Court rejected his appeal, stating that it should be lodged through the first-instance court. The regional court also noted that the applicant could request that the time-limit in respect of the appeal be re-set.<\/p>\n 8.\u00a0\u00a0On 30 March 2009 the applicant lodged his appeal with the first\u2011instance court. Instead of requesting that the time-limit in respect of his appeal be re-set the applicant asked the court to restore his case to the list of pending cases. On 9\u00a0April 2009 the District Court refused to examine the appeal as belated.<\/p>\n 9.\u00a0\u00a0The applicant appealed against this decision. However, he once again lodged his appeal with the Regional Court instead of the first-instance court. His appeal statement did not contain a request for the missed time\u2011limit to be re-set. The Sverdlovskiy Regional Court dismissed the applicant\u2019s appeal.<\/p>\n B.\u00a0\u00a0Application no.\u00a051742\/11<\/strong><\/p>\n 10.\u00a0\u00a0On 2 November 2010 the applicant received a letter from the Court; the letter was opened by a member of the remand prison staff.<\/p>\n 11.\u00a0\u00a0The applicant lodged a claim for compensation. By a final decision of 7 June 2011 the Tver Regional Court dismissed his claim. The court stated that Russian law did not prohibit the opening of incoming correspondence from the Court.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 12.\u00a0\u00a0For a summary of the relevant domestic provisions in force at the material time, see the case of Boris Popov v. Russia (no. 23284\/04, \u00a7\u00a7\u00a035\u201139, 28 October 2010).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0JOINDER OF THE APPLICATIONS<\/p>\n 13.\u00a0\u00a0The Court decides to join the applications, given their similar factual and legal background.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATIONS CONCERNING THE CENSORSHIP OF CORRESPONDENCE<\/p>\n 14.\u00a0\u00a0The applicants complained of disruption to their correspondence with the Court. Both applicants relied on Article 8 of the Convention. Mr\u00a0Makhlyagin also invoked Article 34 of the Convention.<\/p>\n A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 15.\u00a0\u00a0Mr Makhlyagin argued that the presence of prison stamps on the letters, as well as the cover letters drafted by prison officials, confirmed that they had been inspected and possibly photocopied by prison stuff. He also alleged that the occasional lack of envelopes and postage stamps in the detention facility amounted to a risk that his correspondence would be inspected after being handed over to prison officials for posting.<\/p>\n 16.\u00a0\u00a0Mr Belyayev claimed that the opening of one letter from the Court amounted to a violation of his rights.<\/p>\n 17.\u00a0\u00a0The Government argued that Mr Makhlyagin had not exhausted the domestic remedies, referring to his failure to appeal against the judgment of the Tagilstroyevskiy District Court of Nizhniy Tagil of 22 January 2009.<\/p>\n 18.\u00a0\u00a0As regards Mr Belyayev\u2019s application, the Government submitted that the letter had been opened by mistake. They further argued that since no routine monitoring of the applicant\u2019s correspondence had taken place, the incident had not amounted to a violation of the applicant\u2019s rights.<\/p>\n 19.\u00a0\u00a0The applicants maintained their claims.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 20.\u00a0\u00a0The Court has examined complaints concerning the monitoring of correspondence between applicants and the Court under Article 8 of the Convention (see Alekseyenko v. Russia, no. 74266\/01, \u00a7\u00a068, 8 January 2009; Boris Popov v. Russia, no.\u00a023284\/04, \u00a7\u00a7\u00a093-94, 28 October 2010; and Idalov v. Russia [GC], no. 5826\/03, \u00a7\u00a0199, 22 May 2012), under Article 34 (see, among other authorities, Ponushkov v. Russia, no.\u00a030209\/04, \u00a7\u00a7\u00a079-85, 6\u00a0November 2008; Fetisov and Others v. Russia, nos. 43710\/07, 6023\/08, 11248\/08, 27668\/08, 31242\/08 and 52133\/08, 17 January 2012; and Trosin v. Ukraine, no. 39758\/05, \u00a7\u00a049, 23 February 2012), or under both provisions (see Belyaev and Digtyar v. Ukraine, nos. 16984\/04 and 9947\/05, \u00a7\u00a7\u00a050-63, 16 February 2012, and Shekhov v. Russia, no. 12440\/04, \u00a7\u00a7\u00a049-65, 19 June 2014).<\/p>\n 21.\u00a0\u00a0As the Court is master of the characterisation to be given to the facts of the case, and having regard to the nature of the interference and the contents of the applicant\u2019s submissions (see Scoppola v. Italy (no. 2) [GC], no. 10249\/03, \u00a7 54, 17 September 2009), it considers that cases should be examined under Article 34 of the Convention, which reads as follows:<\/p>\n \u201cThe 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.\u201d<\/p>\n 22.\u00a0\u00a0The Court observes at the outset that a complaint under Article 34 of the Convention is of a procedural nature and does not therefore give rise to any issue of admissibility under the Convention (see Juhas\u0110uri\u0107 v. Serbia, no. 48155\/06, \u00a7 72, 7 June 2011, with further references).\u00a0Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual to communicate freely with the Convention institutions without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. Therefore, the Government\u2019s objection of non-exhaustion of domestic remedies is misconceived.<\/p>\n 23.\u00a0\u00a0It is important to respect the confidentiality of the Court\u2019s correspondence with applicants since it may concern allegations against prison authorities or prison officials. The opening of letters from the Court or addressed to it undoubtedly gives rise to the possibility that they will be read and may conceivably, on occasion, also create the risk of reprisals by prison staff against the prisoner concerned. The opening of letters by prison authorities can therefore hinder applicants in bringing their cases to the Court (see, among others, Klyakhin v. Russia, no. 46082\/99, \u00a7\u00a7\u00a0118-19, 30\u00a0November 2004).<\/p>\n 24.\u00a0\u00a0In the present case it is not in dispute that staff at the detention facilities have opened and\/or read the letters that the applicants have exchanged with the Court.<\/p>\n 25.\u00a0\u00a0The Court considers that the opening of correspondence and its inspection, as well as a mere risk thereof, could have had an intimidating effect on the applicants, which is incompatible with the respondent State\u2019s obligation under Article 34 of the Convention.<\/p>\n 26.\u00a0\u00a0The Court therefore considers that the respondent State has failed to comply with its obligations under Article 34 of the Convention.<\/p>\n III.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n 27.\u00a0\u00a0Mr Makhlyagin further complained that he had been denied access to the appeal court in relation to the first-instance court judgment of 22\u00a0January 2009.<\/p>\n 28.\u00a0\u00a0The Court has examined this complaint, as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 29.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 30.\u00a0\u00a0Mr Makhlyagin claimed 25,000 euros (EUR) and Mr Belyayev claimed EUR 20,000 in respect of non-pecuniary damage.<\/p>\n 31.\u00a0\u00a0The Government contested these claims.<\/p>\n 32.\u00a0\u00a0The Court considers that the finding of a violation of Article 34 of the Convention constitutes in itself sufficient just satisfaction for the applicants. Accordingly, it rejects the applicants\u2019 claims in respect of non\u2011pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 33.\u00a0\u00a0Mr Belyayev claimed EUR 50 for postal and photocopying expenses. He further claimed EUR 1,730 for legal costs incurred before the Court, to be paid to the applicant\u2019s representative, Mr\u00a0E.\u00a0Markov.<\/p>\n 34.\u00a0\u00a0Mr Makhlyagin did not claim any costs or expenses.<\/p>\n 35.\u00a0\u00a0The Government contested Mr Belyayev\u2019s claims.<\/p>\n 36.\u00a0\u00a0Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 150 covering costs under all heads, to be paid into Mr E. Markov\u2019s bank account.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 37.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Decides to join the applications;<\/p>\n 2.\u00a0\u00a0Declares the complaints concerning monitoring of correspondence admissible and the remainder of the applications inadmissible;<\/p>\n 3.\u00a0\u00a0Holdsthat the respondent State has failed to comply with its obligations under Article 34 of the Convention in respect of both applicants;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay Mr Belyayev, within three months, EUR 150 (one hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the bank account of Mr Eduard Markov;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 5.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 9 January 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Luis L\u00f3pez Guerra
\nDmitry Dedov,
\nJolienSchukking, judges,
\nand Fato\u015fArac\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n