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FIRST SECTION

CASE OF CHUKAYEV v. RUSSIA


(Application no. 36814/06)

JUDGMENT

STRASBOURG
5 November 2015

This judgment will become final in the circumstances set out in Article 44
2 of the Convention. It may be subject to editorial revision.

CHUKAYEV v. RUSSIA JUDGMENT

In the case of Chukayev v. Russia,


The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Andrs Saj, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Mse,
Dmitry Dedov, judges,
and Andr Wampach, Deputy Section Registrar,
Having deliberated in private on 13 October 2015,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 36814/06) against the
Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(the Convention) by a Russian national, Mr Shaukhat Galimovich
Chukayev (the applicant), on 11 July 2006.
2. The applicant, who had been granted legal aid, was represented by
Mrs V.A. Bokareva, a lawyer practising in Moscow. The Russian
Government (the Government) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of Human
Rights.
3. The applicant alleged, in particular, that he (i) had been detained in
inhuman and degrading conditions on remand, (ii) had not been provided
with a lawyer after his arrest, (iii) had been ordered to pay legal aid fees,
and (iv) had not been able to question a witness against him. He also
maintained that the Russian authorities had hindered the exercise of his right
of individual petition to the Court.
4. On 10 February 2012 the application was communicated to the
Government.

THE FACTS
5. The applicant is a Russian national who was born in 1960 and lived
before his arrest in Vatazhnoe, a village in the Astrakhan region.

CHUKAYEV v. RUSSIA JUDGMENT

I. THE CIRCUMSTANCES OF THE CASE


A. Criminal proceedings against the applicant
1. Covert operation
6. On or around 22 December 2003 the applicant sold drugs to B. and O.
7. On 1 March 2004 B. and O. sold a quantity of those drugs to Su., a
police officer taking part in an undercover operation.
8. In March 2004 the Voronezh branch of the Federal Drug Control
Service (FSKN) instituted criminal proceedings against B. and O. When
questioned they submitted that they had purchased drugs from the applicant,
who lived in Astrakhan.
9. On 20 May 2004 the FSKN instituted criminal proceedings against
the applicant and ordered a test purchase from him, to be carried out with
the help of B. and two undercover police officers, Sh. and P.
10. The covert operation took place between 3 and 5 June 2004 in a
hotel in Astrakhan, where Sh. had booked a room. Audio recording devices
were installed in the room and the hotel was placed under surveillance. The
applicant alleged that during the operation the police had poisoned him with
an unknown substance, which had resulted in him being admitted to a prison
hospital.
2. The applicants arrest, personal search and questioning as a suspect
11. According to the arrest record drafted at 3.30 p.m. on 5 June 2004,
police arrested the applicant in the hallway of the eighth floor of the hotel
on the grounds that witnesses and eyewitnesses indicated that the applicant
had committed a criminal offence. The record also indicated that
immediately after his arrest the applicant had been apprised of his right to
be assisted by counsel and that he had been searched. The search and its
results were described as follows:
... Mr Chukayev was asked to hand over of his own free will any powerful narcotic
substances ... he had been keeping on himself unlawfully, money acquired illegally...
In reply to the investigators request, Mr Chukayev explained that he had none of
those things except money, which he had made illegally from selling a narcotic
substance, heroin, in a quantity of approximately 38-50 grams. He also explained that
the money he had made illegally was in his bag, and submitted that he wished to give
it [to the investigator] of his own free will. As a result of the personal search,
Mr Chukayev took the money out of his bag voluntarily ...

12. According to the applicant, investigator L. refused to provide him


with a lawyer immediately after his arrest on the grounds that no
investigating activities were being carried out in respect of him, therefore he
did not need a lawyer. The applicant also stated that he had not been
questioned on the day of his arrest.

CHUKAYEV v. RUSSIA JUDGMENT

13. According to the arrest record, which he had signed, the applicant
had made no comments concerning its contents or any other matters, and his
wife had been notified of his arrest over the telephone.
14. Following the personal search, the investigator seized other money
found in his pockets along with his identity papers, mobile phone and some
other items. The personal search was photographed.
15. On the same day the investigator ordered fingerprint and palm print
chemical expert reports. The applicants fingerprints and palm prints were
taken. The applicant alleged that he had not been informed of the request for
these reports or their results. He had only learnt of the expert analyses while
reviewing the criminal case file in March 2005.
16. On 6 June 2004 the investigator started questioning the applicant as
a suspect. According to the interrogation report, lawyer Or. was present
during questioning. The applicant alleged that he had refused to give a
statement for health reasons, whereas the interrogation report stated that he
had invoked his right not to incriminate himself and refused to testify.
According to the interrogation report, which he had signed, the applicant
had no comments concerning its contents or any other matters.
3. The applicants placement in detention and the charges against him
17. On 6 June 2004 the Kirovskiy District Court of Astrakhan (the
District Court) remanded the applicant in custody. He alleged that counsel
Or. had not represented him properly at that hearing. His detention was
extended on several subsequent occasions. He remained in detention until
his conviction on 14 October 2005.
18. On 11 June 2004 the applicant was charged with drug offences and
questioned in the presence of counsel I. It is apparent from the record of that
interview duly signed by him that he had understood the charges against
him and denied all of them. He refused to make a statement.
19. On 16 August 2004 new charges were brought against the applicant
in the presence of his counsel. He was charged with two counts of drug
trafficking, namely unlawfully acquiring, transporting and possessing drugs
with intent to sell, and selling drugs to B. and O. in December 2003 and Sh.
on 5 June 2004.
4. Return of the case to the prosecution
20. On 17 February 2005 the District Court returned the criminal case to
the prosecutor because the applicant had not had sufficient time to review
the criminal case file. In March 2005 he finished doing so.
5. The trial and the applicants conviction for drug offences
21. The trial took place in the District Court between April and
October 2005. The applicant was represented by counsel M. and I. The

CHUKAYEV v. RUSSIA JUDGMENT

court heard him and several witnesses, and examined the pre-trial
statements of absent witnesses as well as physical evidence.
(a) The applicants testimony

22. The applicant denied all the charges against him. He testified, in
particular, that he had met B. in November 2003 and had helped him to buy
fish wholesale. On 5 June 2004 they had met because B. had brought some
money he had owed him and had wanted to arrange another purchase of fish
from him with Sh.
(b) Witness statements in court as to the first set of charges

23. During the examination of the first set of charges against the
applicant, namely unlawfully acquiring and possessing drugs and selling
drugs to B. and O. in December 2003, the District Court heard, and the
applicant questioned, O., Av., Le., Sv., Iv. and Yu. as witnesses.
(i) Statements by witness O.

24. Witness O. testified that in November 2003 he and B. had gone to


Astrakhan from Voronezh and had bought fish from the applicant. Later, the
applicant had contacted them and said that he could supply more fish. They
had gone to Astrakhan again, where B. had bought drugs from someone. At
the end of the investigation of the criminal case against him and B., the
police had asked them, in exchange for a more lenient sentence, to go to
Astrakhan again and incite the applicant to sell them drugs. He had refused,
whereas B. had agreed.
25. O.s testimony in court contradicted his earlier statements made
during the pre-trial investigation and the prosecutor asked to have his
pre-trial statement read out in court. The applicant did not object to this
request and it was granted.
26. It was apparent from O.s pre-trial statement that he and his business
partner B. had been buying fish in Astrakhan and selling it in Voronezh. In
November 2003, during their stay in Astrakhan, B. had met the applicant,
who had promised to help them purchase some fish. In December 2003 they
had again been in Astrakhan, where they had bought heroin from the
applicant and transported it to Voronezh.
(ii) Statements by police officers Av., Le., Sv. and attesting witnesses Iv. and Yu.

27. Witness Av., a police officer, testified that he had taken part in the
planning of the covert operation in June 2004 and had been present at the
time of the applicants arrest and personal search. He had heard the
applicant say at the time of his arrest that he had made money from selling
drugs.

CHUKAYEV v. RUSSIA JUDGMENT

28. Witnesses Le. and Sv., police officers from the Voronezh police
department, submitted that they had taken part in B. and O.s arrest in
March 2004 after they had tried to sell drugs to an undercover police officer.
29. Witness Iv. submitted that in March 2004 police had asked him to be
an attesting witness during a search of B.s apartment in Voronezh.
30. Witness Yu. submitted that in March 2004 police had asked him to
be an attesting witness in the covert operation.
(c) Pre-trial witness statements as to the first set of charges

31. The prosecutor submitted two requests to have B. summoned as a


witness; however, according to medical documents submitted to the District
Court, B. could not attend the hearing because he had a serious oncological
condition (cancer) and accompanying speech problems. The District Court
then granted the prosecutors request, despite the applicants objections, to
have B.s pre-trial statement read out and admitted as evidence.
32. Witness B. testified in his pre-trial statement that his business
partner O. had introduced him to the applicant in November 2003. The
applicant had agreed to be an intermediary in his business, which involved
supplying fish in Voronezh. On or around 15 December 2003 B. and O. had
come to Astrakhan to buy fish. The applicant, however, had not had enough
fish for them. B. had serious financial difficulties so O. had suggested
buying drugs from the applicant. O. had assured B. that he had an
established drug distribution network in Voronezh and that he would help
B. to sell drugs within three days to resolve his financial troubles. That had
been the first time B. had learnt that the applicant sold drugs. On or around
18 December 2003 the applicant had sold 1.5 kilograms of heroin to B. and
O. They had then transported it to Voronezh. The police had arrested them
there when they had been trying to sell heroin.
33. The District Court also read out and admitted pre-trial statements of
five prosecution witnesses as evidence.
34. Witness R. testified in his statement that in March 2004 he had
organised and supervised the covert operation during which B. and O. had
sold drugs to undercover officer Su.
35. Witness Su. testified that he had gone undercover to buy drugs from
B. and O. during the covert operation in March 2004. He described the
manner in which it had been carried out.
36. Attesting witnesses M., D. and Z. testified in their statements that in
March 2004 the police had asked them to serve as attesting witnesses in the
undercover operation, during which they had observed the manner in which
the test purchase had been carried out in respect of B. and O.

CHUKAYEV v. RUSSIA JUDGMENT

(d) Witness statements in court as to the second set of charges

37. During the examination of the second set of charges against the
applicant the District Court questioned three police officers (Sh., K. and
Sha.) and two attesting witnesses.
38. Witness Sh. submitted that in June 2005 he had taken part in the test
purchase from the applicant. B. had identified the applicant as the dealer.
During the covert operation he and B. had met the applicant several times in
the hotel room. At their last meeting the applicant had sold Sh. about
50 grams of heroin.
39. Witness K. testified that he had been responsible for monitoring the
undercover operation in respect of the applicant in the summer of 2004.
40. Witness Sha. testified that he had arrested the applicant immediately
after the test purchase, and that he had said at the time of his arrest that he
had made money from selling drugs.
41. Witnesses Shi. and Ba. testified that the police had asked them to
serve as attesting witnesses in the undercover operation, during which they
had observed the manner in which the test purchase had been carried out in
respect of the applicant.
(e) Witness pre-trial statements as to the second set of charges

42. The District Court also read out a pre-trial statement of absent
witness B.
43. B. testified that he had agreed to take part in the test purchase from
the applicant. A police officer, Sh., had been designated as the buyer. In late
May B. had called the applicant to inform him that he had already sold the
drugs to a certain person, someone who was interested in buying more drugs
from him, but as wished to do so in person he would come to Astrakhan.
The applicant had agreed and said that he would arrange the deal.
44. B. then described in detail how the covert operation had been carried
out between 2 and 5 June 2004. In particular, he had called the applicant
several times over those days to arrange a meeting with him. On
3 June 2004 the applicant had come to their hotel and B. had introduced him
to Sh., who had asked the applicant to supply him with 2 kilograms of
heroin and discussed other terms of the deal. The applicant had said that he
could only get 1.2 kilograms of heroin and they had agreed to meet the
following day. On 4 June 2004 the applicant had come to their hotel and
said that he had contacted the dealers and that they would call him back.
They had all stayed in the hotel room until the applicant had received a
telephone call. The applicant told them that he would bring the heroin the
next day. On 5 June 2004 the applicant had come to their hotel with about
38 grams of heroin. When Sh. had asked him about the remaining amount,
the applicant had explained that he could bring more in two days. However,
he had 9 grams on him for personal use so Sh. had agreed to buy that too.
Sh. had handed money over to the applicant, who had said that he would go

CHUKAYEV v. RUSSIA JUDGMENT

downstairs to get change. When he had left the room he had been arrested
by the police.
(f) The applicants conviction

45. On 14 October 2005 the District Court sentenced the applicant to


nine years imprisonment, after finding him guilty of drug offences, in
particular the sale of drugs to B. and O. in December 2003 and Sh. on
5 June 2004. The court admitted the following material as evidence:
(i) the statements made during trial by O., Av., Le., Sv., Iv. and Yu. and
the pre-trial statements of B., R., Su., M., D. and Z;
(ii) the statements made during trial by Sh., K., Sha., Shi. and Ba. and
the pre-trial statement of B.
(iii) a record of the examination of the banknotes used to buy drugs from
the applicant;
(iv) the test purchase record;
(v) the arrest record of 5 June 2004;
(vi) a transcript of the audio recording made in the course of the test
purchase;
(vii) forensic chemical examination reports of substances seized at the
crime scene;
(viii) a forensic examination report of the applicants palm prints.
46. The court did not examine the forensic report of the applicants
fingerprints or admit it as evidence.
47. The forensic examination report of the applicants palm prints
showed that the applicant had had no drug residue on his palms.
48. The District Court did not use the applicants interrogation report of
6 June 2004 as evidence.
49. In his appeal against the conviction the applicant complained, among
other things, that the trial court had not ensured the presence of a key
prosecution witness, B.
50. On 2 March 2006 the Astrakhan Regional Court (the Regional
Court) upheld the applicants conviction. It held that according to medical
certificates, B. was suffering from cancer and could not speak. The trial
court had therefore lawfully decided that his situation could be considered
to be other exceptional circumstances which had prevented him from
appearing at the hearing, and that his testimony could be read out in
accordance with Article 281 of the Code of Criminal Procedure (see
paragraph 77 below).
6. Supervisory review proceedings
(a) First set of supervisory review proceedings

51. On an unspecified date in 2006 the applicant applied to the


Presidium of the Regional Court for a supervisory review of his conviction.

CHUKAYEV v. RUSSIA JUDGMENT

52. On 29 August 2006 it examined the applicants case by way of


supervisory review. Neither the applicant nor his counsel were present at
that hearing. The Presidium amended the judgment of 14 October 2005 as
upheld on 2 March 2006 in so far as the applicants actions on 5 June 2004
had been classed as a drug offence, and held that his actions should have
been classed as an attempt to commit a drug offence. It upheld the
remainder of the judgment of 14 October 2005.
(b) Second set of supervisory review proceedings

53. On 6 March 2009 a judge of the Supreme Court of the Russian


Federation (the Supreme Court) referred the case to the Presidium of the
Supreme Court for examination on the merits, at the request of the
Prosecutor General of the Russian Federation.
54. On 2 April 2009 the Supreme Court quashed the decision of
29 August 2006 by way of supervisory review, on the grounds that the
applicant had not been duly informed of the date of the hearing, and had
therefore been unable to attend. It remitted the case to the Presidium of the
Regional Court for fresh examination.
(c) Third set of supervisory review proceedings

55. On 19 May 2009 the applicant requested the Presidium of the


Regional Court (the Presidium) to provide him with legal aid counsel for
the hearing before it. He claimed that he had insufficient means to pay for a
lawyer.
56. On 2 June 2009 the Presidium examined the criminal case against
the applicant by way of supervisory review. He was present at the hearing
and was assisted by legal aid counsel K.
57. The applicant objected to the panel of the Presidium on the grounds
that it had already examined his case by way of supervisory review on
29 August 2006. The Presidium dismissed this objection, finding that the
decision of 29 August 2006 had been quashed on procedural grounds. There
was therefore no reason to exclude these judges from the new examination
of the case.
58. The applicant submitted on the merits of the case that at the time of
his arrest he had not been informed of his rights or provided with a lawyer
and that the record of his arrest had been forged. He also had not received a
copy of the arrest record or been able to question key prosecution witness B.
at the trial.
59. Having examined the case file, the Presidium found that the
applicants grounds of appeal were unsubstantiated. In particular, it held that
the arrest record of 5 June 2004 had been duly authenticated and signed by
the applicant, who had been informed of his rights, including the right to be
represented by counsel. He did not however request that counsel be
instructed or make any comments in the record. The Presidium also noted

CHUKAYEV v. RUSSIA JUDGMENT

that statements by prosecution witnesses had been read out at trial in


accordance with the law.
60. The Presidium amended the judgment of 14 October 2005 as upheld
on 2 March 2006, held that the applicants actions on 5 June 2004 should
have been classed as an attempt to commit a drug offence, and upheld the
remainder of the judgment of 14 October 2005.
61. By a decision issued on the same day the Presidium ordered the
recovery of counsels fees in the amount of 1,485.85 Russian roubles (RUB)
(about 30 euros (EUR)) from the applicant for the representation in the
supervisory review proceedings.
B. Conditions of detention
62. In the course of the criminal proceedings the applicant was detained
in remand prison IZ-30/1 in Astrakhan during the following periods:
(a) between 6 and 9 June 2004;
(b) between 9 July and 16 December 2004;
(c) between 28 December 2004 and 11 April 2006; and
(d) between 27 February and 26 March 2008.
63. During the first three periods the applicant was detained in different
cells. All of them were overcrowded and infested with insects. They
measured about 25 square metres each and contained six bunk beds. He did
not have an individual sleeping place and inmates had to take turns to sleep.
Some cells were not equipped with ventilation system, while in others it was
not working. The electric lighting was always on. The toilet was not
separated from the rest of the cells.
64. During his last period of detention the applicant was detained in
cell 5 located in the basement. He was not provided with any bedding or
cooking utensils. Remand prison officers told him that he should have
brought his own bedding. The cell was very cold and damp. Since he did
not have any bedding he was obliged to sleep in his clothes. The windows
were closed all the time and let in no daylight. The cell was never
ventilated. The toilet was in the corner of the cell and offered no privacy.
The dining table was very close to the toilet. The cell was infested with
insects. Detainees could take a fifteen-minute shower once a week.
C. The applicants correspondence with the Court
65. On an unspecified date the applicant was transferred to correctional
colony IK-2 in the Astrakhan region to serve his sentence. It appears that in
2010 he was transferred to correctional colony IK-6, also in the Astrakhan
region.
66. The applicant submitted that the authorities of IK-2 and IK-6 had
opened and read a number of the Courts letters to him, in particular one

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dated 13 September 2006 acknowledging receipt of his application and


giving him further information on the conduct of the proceedings before the
Court, and others dated 21 November 2006, 15 January, 20 February,
22 and 29 May 2007, and 26 February 2008. The applicant provided the
Court with copies of these letters. All of them had been stamped by the
colony authorities.
67. The applicant also submitted that the colony authorities had delayed
in sending the Courts letters to him.
68. The Government claimed that during his detention in IK-2 and IK-6
the applicant had sent one letter to the Court and had received 11 letters
from the Court. The receipt and dispatch of letters had been properly
recorded in the prison log book. Some letters addressed to the applicant had
been opened for registration purposes only. They had not been censored and
had been handed over to the applicant in their entirety. One letter had been
forwarded to the applicant after a four-day delay due to an omission by one
of the prison employees who had been duly reprimanded in the intervening
period.
II. RELEVANT DOMESTIC LAW
A. Pre-trial Detention Act (Federal Law no. 103-FZ of 15 July 1995)
69. Section 22 of the Detention of Suspects Act of 15 July 1995 provides
that detainees should have at least 4 square metres of personal space in their
cell. Section 23 provides that they should be kept in conditions which
satisfy sanitary and hygiene requirements, provided with an individual
sleeping place and given bedding, tableware and toiletries.
B. Criminal Procedure Code of 18 December 2001, in force since
1 July 2002 (the CCrP)
1. Legal representation
70. Article 49 3 (3) provides that defence counsel participates in
criminal proceedings from the moment of the persons arrest in accordance
with Article 91 or 92 of the CCrP.
71. Article 50 1 provides that defence counsel should be called by a
suspect or an accused, his legal representative or other persons upon his
request or with the consent of the suspect or the accused.
72. Article 50 2, as in force at the material time, provided that an
investigator, prosecutor or court should provide a suspect or an accused with
counsel upon his request.

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11

73. Article 51 1 of the CCrP provides for mandatory legal


representation in criminal judicial proceedings if, inter alia, the defendant
has not waived his right to legal representation in writing.
2. Grounds for arrest
74. Article 91 2 provides that a person can be arrested on suspicion of
having committed an offence punishable by a term of imprisonment if, inter
alia, victims and eyewitnesses have indicated that that person has
committed a criminal offence.
3. Taking of samples for comparative analysis
75. Article 202 1 as in force at the material time, provided that an
investigator could obtain handwriting or other samples for comparative
analysis from a suspect as evidence if it was necessary to determine whether
any traces had been left at a particular place.
4. Litigation costs
76. Article 131 of the CCrP provides that litigation costs are to be borne
by the parties to the proceedings or the State. This includes lawyers fees if
the lawyer has been appointed by the State. Article 132 provides that
litigation costs have to be paid by the convicted person or the State. The
courts have the power to order the convicted person to pay costs, with the
exception of lawyers fees if the court had previously rejected the
defendants waiver of counsel and the lawyer has been appointed by the
State. The State is liable for costs if the person concerned is indigent. The
court can also absolve the person concerned from the liability for costs or
reduce their amount.
5. Absence of witness
77. Article 281 of the CCrP, as in force at the material time, provided
that where a victim or witness did not appear at the hearing, the court could
decide, at the request of a party to the proceedings or on its own initiative,
to read out the testimony previously given by the victim or witness during
the preliminary investigation. It could do so if the victim or witness had
died or could not appear at the hearing because of serious illness, if he or
she was a foreign national and refused to appear before the court, and in
cases of natural disaster or if other exceptional circumstances prevented him
or her from appearing.
6. Appeals against orders by the Presidium of the highest regional
court
78. Article 403 2, as in force at the material time, provided that an
appeal against an order issued by the Presidium of the highest regional court

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could be lodged with the Supreme Court of Russia in supervisory review


proceedings.
C. Code of Execution of Sentences (CES)
79. Article 91 of CES as in force at the material time, expressly
prohibited the monitoring of correspondence between an inmate and the
Court.

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
80. The applicant complained that the conditions of his detention in
IZ-30/1 in Astrakhan were incompatible with Article 3 of the Convention,
which reads as follows:
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.

A. Admissibility
81. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
82. The applicants submissions regarding the conditions of his
detention on remand in IZ-30/1 are presented in paragraphs 62-64 above.
83. The Government acknowledged that the conditions of the applicants
detention in IZ-30/1 were incompatible with the requirements of Article 3 of
the Convention on account of the overcrowding.
84. The Court notes that it examined the conditions of detention in
IZ-30/1 between 2005 and 2008 and established that there was severe
overcrowding in the facility (see Ananyev and Others v. Russia,
nos. 42525/07 and 60800/08, 20-21, 134-38, 10 January 2012).
85. Having regard to the information submitted by the applicant and the
Governments acknowledgement that the conditions of his detention on
remand during the periods in question had been inadequate, and given its
own findings in the case of Ananyev and Others, cited above, the Court

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13

finds that the applicant was detained in cramped and inadequate conditions
in IZ-30/1. The Court therefore considers that the applicant was subjected to
inhuman and degrading treatment in breach of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 1 and 3 OF THE
CONVENTION (FAIR TRIAL)
86. The applicant complained under Article 6 1 and 3 (c) and (d) of
the Convention that the overall fairness of the criminal proceedings against
him was undermined because he had not been provided with a lawyer after
his arrest, had been ordered to pay legal aid fees for representation in
supervisory review proceedings, and because he had not been able to
question a witness against him.
A. Legal assistance
87. The applicant complained that the trial in his case had not been fair
because he had not been provided with a lawyer immediately after his arrest
and because the court had ordered him to reimburse the State for legal aid
fees incurred during the examination of his case in the third set of
supervisory review proceedings. He relied on Article 6 1 and 3 (c) of the
Convention which, in the relevant part, read as follows:
1. In the determination of ... any criminal charge against him, everyone is entitled
to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or,
if he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require ...

1. Lack of legal assistance after arrest


(a) Admissibility

88. The Government claimed that the applicant had not raised his
complaint of a lack of legal assistance upon arrest with the domestic courts.
89. The applicant argued that he had raised complaints in this regard
with both the domestic courts and the Prosecutors Office.
90. Having examined the applicants case file, the Court finds that the
court records and grounds of appeal contain sufficiently clear and specific
allegations that the applicant had not been provided with a lawyer
immediately after his arrest. Moreover, it is clear from these documents and
the respective judgments that these complaints were understood by the

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domestic courts as such, but were dismissed. Consequently, the Court


concludes that the applicants complaint was brought to the attention of the
domestic courts competent to deal with it. Accordingly, the Court dismisses
the Governments objection as to non-exhaustion of domestic remedies.
91. 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
(i) The parties submissions

92. The Government stated that on 5 June 2004 the applicant had been
informed, immediately after his arrest, of his right to a lawyer from the
moment of his arrest but that the applicant had not requested legal
assistance. In any event, Article 51 of the CCrP did not require a lawyer to
be present at the time of arrest. The applicant had also been informed of his
right to remain silent and his wife had been notified of his arrest. The
Government further claimed that, under Article 202 of the CCrP, the
presence of a lawyer had not been mandatory when the applicants
fingerprints and palm prints had been taken in order to promptly preserve
the traces of the crime, and that the applicant in any event had not requested
a lawyer at the time of his arrest and had subsequently used the results of
the forensic examination as exculpatory evidence during his trial. Lastly,
they contended that the applicant had been scheduled to be questioned on
6 June 2004 as a suspect but had invoked his right not to incriminate
himself and refused to answer questions even in the presence of lawyer
Or.
93. The applicant maintained that on 5 June 2004 he had requested a
lawyer immediately after his arrest but that the investigator had told him he
did not need a lawyer, as no investigative measures were being carried out
at that time. He further contended that his relatives had only learned of his
arrest some four days after his arrest, while they were trying to locate his
whereabouts. He stated that a lawyer who could have informed him of his
rights should have been present when the investigator had ordered the
expert examination of his fingerprints and palm prints. He also stated that he
had not been questioned on either 5 or 6 June 2006. He further submitted
that the original arrest record of 5 June 2004 had been lost from his criminal
case file, and that a copy of it, as well as the interrogation report of 6 June
2004 submitted by the Government with their observations, had been
forged. He maintained that on 6 June 2004 he had met his lawyer, Or., for
the first time during the hearing on his pre-trial detention.

CHUKAYEV v. RUSSIA JUDGMENT

15

(ii) The Courts assessment


() General principles

94. The Court notes at the outset that the requirements of Article 6 3
are to be seen as particular aspects of the right to a fair trial guaranteed by
Article 6 1. The applicants complaints under Article 6 1 and 3 should
therefore be examined together (see Van Geyseghem v. Belgium [GC],
no. 26103/95, 27, ECHR 1999-I).
95. The Court reiterates that, although not absolute, the right under
Article 6 3 (c) of everyone charged with a criminal offence to be
effectively defended by a lawyer, assigned officially if need be, is one of the
fundamental features of a fair trial (see Krombach v. France, no. 29731/96,
89, ECHR 2001-II). The question, in each case, is whether the restriction
on the right to benefit from the assistance of a lawyer, in the light of the
entirety of the proceedings, has deprived the accused of a fair hearing (see
John Murray v. the United Kingdom, 8 February 1996, 63, Reports of
Judgments and Decisions 1996-I).
96. The requirements of Article 6 3 (c) of the Convention may also be
relevant before a case is sent for trial if and in so far as the fairness of the
trial is likely to be seriously prejudiced by an initial failure to comply with
those requirements (see Imbrioscia v. Switzerland, 24 November 1993,
36, Series A no. 275).
97. In this respect, the Court emphasises the importance of the
investigation stage for the preparation of the criminal proceedings, as the
evidence obtained during this stage determines the framework in which the
offence charged will be considered at the trial. At the same time, an accused
often finds himself in a particularly vulnerable position at that stage of the
proceedings, the effect of which is amplified by the fact that legislation on
criminal procedure tends to become increasingly complex, notably with
respect to the rules governing the gathering and use of evidence. In most
cases, this particular vulnerability can only be properly compensated for by
the assistance of a lawyer, whose task is, among other things, to help to
ensure respect of the right of an accused not to incriminate himself. This
right indeed presupposes that the prosecution in a criminal case seek to
prove their case against the accused without resort to evidence obtained
through methods of coercion or oppression, in defiance of the will of the
accused (see Pishchalnikov v. Russia, no. 7025/04, 69,
24 September 2009, with references cited therein).
98. Against this background, the Court finds that in order for the right to
a fair trial to remain sufficiently practical and effective Article 6 1
requires that, as a rule, access to a lawyer should be provided from the first
interrogation of a suspect by the police, unless it is demonstrated in the light
of the particular circumstances of each case that there are compelling
reasons to restrict this right. Even where compelling reasons may

16

CHUKAYEV v. RUSSIA JUDGMENT

exceptionally justify the denial of access to a lawyer, such restriction


whatever its justification - must not unduly prejudice the rights of the
accused under Article 6. The rights of the defence will in principle be
irretrievably prejudiced when incriminating statements made during police
interrogation without access to a lawyer are used to secure a conviction (see
Salduz v. Turkey [GC], no. 36391/02, 55, 27 November 2008).
() Application of these principles to the present case

99. The Court notes that the applicant was informed of his right to legal
counsel immediately after his arrest, in accordance with Article 49 3 (3) of
the CCrP (see paragraphs 11 and 70 above). According to the record of the
applicants arrest, he did not request counsel and made no other comments
at the time of his arrest (see paragraphs 13 and 59 above). In this regard the
Court notes that the applicants general allegations concerning the
falsification of the record of his arrest were duly examined and dismissed as
unsubstantiated by the Astrakhan Regional Court and the Court accepts
these findings (see paragraph 59 above).
100. The Court further notes that when the police proceeded to have the
applicants fingerprints and palm prints taken they confined themselves to
promptly recording the gathered material for the purposes of investigating a
criminal offence (see paragraphs 11, 14, 15 and 75 above). According to the
applicants own submissions, the police did not question him after his arrest
(see paragraphs 12 and 93 above).
101. In this regard, the Court observes that the record of arrest did
contain a statement made by the applicant at the time of his arrest (see
paragraph 11 above). However, it does not appear from the materials before
the Court that the applicant provided this statement in response to questions
by the police.
102. The Court further notes that when the applicant was scheduled to
be questioned on 6 June 2006, his lawyer, Or., was present but the applicant
refused to testify and made no other comments (see paragraph 16 above).
103. Furthermore, when the District Court was examining the
applicants case it took the record of the arrest into account as evidence that
the applicant had been caught after witnesses and eyewitnesses indicated
that the applicant had committed a criminal offence (see paragraph 11
above). The District Court did not regard the applicants statement
contained in the record of his arrest as a separate statement concerning the
charges (see, for similar reasoning, Blaj v. Romania, no. 36259/04, 96,
8 April 2014). Furthermore, the applicant did not allege, before either the
domestic courts or this Court, that he had given any statements either
immediately after his arrest or later without the benefit of legal advice or
under duress. Neither he nor his appointed counsel sought to have the
statement contained in the record of his arrest excluded from the evidence
and he did not explain in either his observations or his original application

CHUKAYEV v. RUSSIA JUDGMENT

17

to the Court whether and how any such statements had been taken into
account by the District Court in finding him guilty or had impaired the
overall fairness of the proceedings against him.
104. The applicant only complained about his fingerprints and palm
prints having been taken in his lawyers absence. However, in any case, the
District Court did not admit as evidence the forensic examination report on
the applicants fingerprints, and the forensic reports on the applicants palm
prints served as exculpatory evidence at the trial (see paragraphs 45-47
above).
105. In view of the above, given the circumstances of the present case,
the Court concludes that the applicants right to counsel upon arrest was not
restricted and the absence of a lawyer at the time of the applicants arrest
did not prejudice the overall fairness of the proceedings against the
applicant.
106. Accordingly, there has been no violation of Article 6 3 (c) of the
Convention in conjunction with Article 6 1.
2. Recovery of legal fees for representation in the third set of
supervisory review proceedings
(a) Admissibility

107. The Government pleaded that the applicant had not appealed
against the court order for the recovery of legal aid fees.
108. The applicant maintained his claim.
109. The Court will first consider the Governments plea of
non-exhaustion of domestic remedies and notes that under Russian law at
the time, the applicant could have raised a supervisory review complaint
with the Supreme Court of Russia against the order to pay costs issued by
the Presidium of the Regional Court (see paragraph 78 above). However,
the Court reiterates that the supervisory review appeal available at the
relevant time in Russia was not regarded as an effective remedy to be
exhausted in criminal proceedings (see Berdzenishvili v. Russia, (dec.),
29 January 2004, no. 31697/03). Accordingly, the applicant was not
required to raise his complaint in such proceedings before bringing it to the
Court. The Court therefore dismisses the Governments objection as to
non-exhaustion of domestic remedies.
110. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.

18

CHUKAYEV v. RUSSIA JUDGMENT

(b) Merits
(i) The parties submissions

111. The Government submitted that the applicant had not applied to be
exempted from reimbursing legal aid fees.
112. The applicant maintained that he had had insufficient financial
means when the authorities had appointed a legal aid lawyer to represent
him in the supervisory review proceedings, and that they should not have
sought from him the reimbursement of his legal aid fees.
(ii) The Courts assessment

113. The Court notes that the CCrP regards counsels fees as litigation
costs to be borne, in general, by the party concerned. It thus appears that
even if a convicted defendant has been provided with free legal
assistance, he may still be required to pay for it after his trial (see
paragraph 76 above).
114. The Court observes that the applicant was represented by lawyers
Or., M. and I. before and during the first-instance trial and during the appeal
proceedings (see paragraphs 16, 18 and 21 above) and by lawyer K. in the
third round of supervisory review proceedings (see paragraph 56 above).
115. The Court further notes from the material before it that the State
covered the costs of the applicants legal assistance throughout the
proceedings. It only sought to recover legal fees paid to K. in respect of the
third set of supervisory review proceedings; the amount claimed (EUR 30)
does not appear excessive.
116. In any event, the applicant could have applied for a total or partial
waiver of legal fees on account of indigence (see paragraph 76 above and
Orlov v. Russia, no. 29652/04, 113, 21 June 2011). In this connection, the
Court considers it acceptable, under the Convention, that the burden of
proving insufficient means should be borne by the person who pleads such
insufficiency (see Orlov, cited above, 114, citing Croissant v. Germany,
25 September 1992, 33 and 34, Series A no. 237-B). However, the
applicant did not submit any financial or other documents to support his
claim for exemption on the grounds of indigence and did not cite any
impediment to his obtaining such documents.
117. Therefore, considering that the applicant had a benefit of free legal
assistance throughout the proceedings and that he did not apply to have
waived legal fees paid to K. and given the amount of legal fees, the
reimbursement order does not appear to have adversely affected the overall
fairness of the proceedings against the applicant.
118. There has accordingly been no violation of Article 6 1 and 3 (c)
on account of the recovery of legal fees from the applicant.

CHUKAYEV v. RUSSIA JUDGMENT

19

B. Absence of witness
119. The applicant also complained that the trial in his case had not been
fair because the court had not obtained the attendance of witness B. for the
prosecution. He relied on Article 6 1 and 3 (d) of the Convention, which
reads as follows:
In the determination of ... any criminal charge against him, everyone is entitled to a
fair ... hearing ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him ...

1. Admissibility
120. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
(a) The parties submissions

121. The Government claimed that the proceedings against the applicant
had been fair. In particular, they submitted that witness B. had not
participated in the hearing of the applicants case because he was suffering
from a serious oncological condition (cancer) that had left him unable to
speak. They further alleged that they had taken all necessary steps to ensure
B.s participation in the proceedings against the applicant. Furthermore, the
courts had assessed B.s pre-trial testimony along with other evidence,
including statements of fourteen prosecution and defence witnesses
questioned in court, pre-trial statements of five more witnesses and twenty
pieces of documentary and physical evidence.
122. The applicant alleged that B.s condition did not prevent him from
appearing in court and if he could not speak, he could have responded to
questions in writing. Furthermore, the applicant contended that B.s pre-trial
testimony had been the sole basis for his conviction, and the District Court
had not taken into account the testimony of other witnesses when it had
found him guilty. Lastly, he alleged that the authorities should have
conducted a pre-trial confrontation between him and B.

20

CHUKAYEV v. RUSSIA JUDGMENT

(b) The Courts assessment

123. In the case of Al-Khawaja and Tahery v. the United Kingdom ([GC]
nos. 26766/05 and 22228/06, 118, ECHR 2011), the Court held that
Article 6 3 (d) enshrines the principle that, before an accused can be
convicted, all evidence against him must normally be produced in his
presence at a public hearing with a view to adversarial argument.
Exceptions to this principle are possible but must not infringe the rights of
the defence which, as a rule, require that the accused should be given an
adequate and proper opportunity to challenge and question a witness against
him, either when that witness makes his statement or at a later stage of the
proceedings.
124. Furthermore, as regards witnesses, the Court reiterates that there
are two requirements which follow from this principle. Firstly, there must
be a good reason for the non-attendance of a witness. Secondly, when a
conviction is based solely or to a decisive degree on statements that have
been made by a person whom the accused has had no opportunity to
examine or have examined, whether during the investigation or at trial, the
rights of the defence may be restricted to an extent that is incompatible with
the guarantees provided by Article 6 (the so-called sole or decisive rule)
(see Al-Khawaja, cited above, 119). Where the conviction is based solely
or decisively on the evidence of absent witnesses, the Court will inquire in
each case whether there are sufficient counterbalancing factors in place,
including measures that permit a fair and proper assessment of the reliability
of that evidence to take place (ibid., 147).
125. Turning to the facts of the present case, the Court observes that the
prosecution summoned B. as a witness to the hearing of the applicants case
twice. He did not appear because he was gravely ill and unable to speak (see
paragraphs 31 and 50 above). The Court accepts the illness as the reason for
the absence in accordance with the domestic law. In the light of the above
and on the basis of the material before it, the Court therefore considers that
B.s confirmed poor physical condition significantly impaired him and was
a good reason for his non-attendance of the trial.
126. The Court will also examine whether B.s pre-trial statements were
sole or decisive evidence of the applicants guilt. The applicant alleged that
in finding him guilty, the District Court had only relied on B.s pre-trial
testimony, without taking into account the testimony of other witnesses.
However, witness O. who bought drugs from the applicant together with B.
in December 2003, testified about the deal and the applicant questioned him
in court. Furthermore, according to the trial transcript, the accuracy of
which the applicant did not dispute, the applicant had no objections to the
admission of O.s pre-trial statement as evidence (see paragraph 25 above).
In this regard, the Court notes that O. and B.s pre-trial testimony was
identical. In particular, they both testified during the pre-trial investigation
that they had met the applicant in Astrakhan in November 2003, that he had

CHUKAYEV v. RUSSIA JUDGMENT

21

sold them heroin in December 2003, and that they had transported it to
Voronezh (see paragraphs 26 and 32 above). Furthermore, the District Court
also heard six police officers who had organised and participated in the
undercover operation themselves, and testified about the applicants
involvement in the sale of drugs (see paragraphs 27, 28 and 38 - 40 above).
The applicant was able to question all of them in court and did not repudiate
their testimony in his observations to the Court. The District Court also
admitted pre-trial statements of two absent police officers and three absent
attesting witnesses, as well as a significant amount of documentary and
physical evidence (see paragraphs 34 - 36 and 46 above).
127. Having regard to the above, the Court considers that the applicants
conviction cannot be said to have been based solely or to a decisive degree
on B.s pre-trial statement. The Court does not therefore find it necessary to
assess whether a pre-trial confrontation or other counterbalancing factors
should have been in place to compensate for B.s absence from the
applicants trial.
128. Accordingly, the Court finds that there was no violation of
Article 6 1 and 3 (d) of the Convention on account of the absence of
witness B. from the applicants trial.
III. ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE
CONVENTION
129. The applicant also complained that his correspondence with the
Court had been opened and read by the detention facilitys administration,
which had also refused to send some of his letters to the Court. He relied on
Articles 8 and 34 of the Convention, which read:
Article 8
1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.
Article 34
The Court may receive applications from any person, non-governmental
organisation or group of individuals claiming to be the victim of a violation by one of
the High Contracting Parties of the rights set forth in the Convention or the Protocols
thereto. The High Contracting Parties undertake not to hinder in any way the effective
exercise of this right.

130. The Court has examined complaints concerning the monitoring of


correspondence between applicants and the Court under Article 8 of the

22

CHUKAYEV v. RUSSIA JUDGMENT

Convention, under Article 34, or under both provisions (see, with further
references, Shekhov v. Russia, no. 12440/04, 53, 19 June 2014).
131. As the Court is master of the characterisation to be given to the
facts of the case, and having regard to the nature of the interference and the
contents of the applicants submissions, it considers that the matters relating
to the correspondence between the applicant and the Court should be
examined under Articles 8 of the Convention.
A. Admissibility
132. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions by the parties
133. The Government denied hindering the effective exercise of the
applicants right of petition. They claimed that some of the Courts letters
had been opened by prison employees, but maintained that they had not
been censored. They had been opened for registration purposes only and had
been handed over to the applicant in their entirety. One letter had been sent
to him after a four-day delay, but this was due to an omission by one of the
prison employees who had been duly reprimanded.
134. The applicant maintained his claims.
2. The Courts assessment
135. The Court observes that the applicant claimed that at least seven of
the Courts letters had been opened by the prison administration. The
Government stated that the letters had been opened for registration purposes
only, without being read. The Court considers that the opening of the letters
addressed to the applicant constituted an interference with his rights under
Article 8.
136. The Court reiterates that interference with Article 8 rights must be
applied in accordance with the law; it must pursue one or more of the
legitimate aims listed in paragraph 2; and, in addition, must be justified as
being necessary in a democratic society.
137. The Court notes that at the relevant time, Article 91 of the Code of
Execution of Sentences expressly prohibited the monitoring of
correspondence between a detainee and the Court (see paragraph 79 above).
The applicants correspondence with the Court was privileged and not

CHUKAYEV v. RUSSIA JUDGMENT

23

subject to monitoring. Thus, the Courts letters were opened in breach of


domestic law, which provided for no exception to the regulation in question.
138. In the light of the above finding, it is not necessary to ascertain
whether the other requirements of paragraph 2 of Article 8 were complied
with.
139. Accordingly, the Court considers that in the present case there has
been a violation of Article 8 of the Convention on account of the opening of
the applicants correspondence with the Court.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
140. Lastly, the Court has examined the other complaints submitted by
the applicant under Article 2, Article 3, Article 5, Article 6, Article 7,
Article 8 and Article 14 of the Convention. Having regard to all the material
in its possession and in so far as these complaints fall within the Courts
competence, it 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 must be rejected as manifestly
ill-founded, pursuant to Article 35 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
141. 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.

A. Damage
142. The applicant claimed compensation in respect of pecuniary
damage, leaving the amount to be awarded to the Courts discretion. The
Government submitted that the applicant did not claim any at all. The Court
observes that the applicant failed to substantiate his claim of pecuniary
damage incurred and, for that reason, rejects it.
143. The applicant also claimed 100,000 euros (EUR) in respect of
non-pecuniary damage for a violation of Article 3 of the Convention and
EUR 100,000 for the interference with his correspondence.
144. The Government considered that the acknowledgment of a
violation, if found by the Court, would constitute sufficient just satisfaction
in the present case. They contested the claim for compensation for
non-pecuniary damage by the applicant as unsubstantiated, excessive and
out of line with the awards made by the Court in similar cases.

24

CHUKAYEV v. RUSSIA JUDGMENT

145. The Court considers that the applicants suffering caused by the
conditions of detention on remand and his frustration with the monitoring of
his correspondence with the Court cannot be compensated for by the mere
finding of a violation; however, the sums claimed by him appear to be
excessive. Making its assessment on an equitable basis and having regard to
the nature of the violations found, the Court awards the applicant
EUR 9,800 in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
146. The applicant claimed, in general terms, compensation in respect of
legal costs and expenses incurred before the domestic courts and the Court,
leaving the amount to be awarded to the Courts discretion.
147. The Government submitted that the applicant did not claim any
compensation in respect of costs and expenses, and therefore no award
should be made.
148. According to the Courts case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and to the fact that the applicant has been granted legal aid, the
Court rejects the applicants additional claim for costs and expenses.
C. Default interest
149. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,


1. Declares the complaints concerning the conditions of detention on
remand, the absence of legal representation after arrest, recovery of legal
fees, absence of witness from trial and monitoring of the applicants
correspondence with the Court admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention on
account of the applicants conditions of detention on remand in IZ-30/1
in Astrakhan;

CHUKAYEV v. RUSSIA JUDGMENT

25

3. Holds that there has been no violation of Article 6 1 and 3 (c) the
Convention on account of the lack of legal assistance after arrest;
4. Holds that there has been no violation of Article 6 1 and 3 (c) on
account of recovery of legal fees paid for legal representation the third
set of supervisory review proceedings;
5. Holds that there has been no violation of Article 6 1 and 3 (d) on
account of absence of witness;
6. Holds that there has been a violation of Article 8 the Convention on
account of opening of the applicants correspondence with the Court by
the prison authorities;
7. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 2 of the Convention, EUR 9,800 (nine thousand eight
hundred euros), plus any tax that may be chargeable, in respect of nonpecuniary damage, to be converted into the currency of the respondent
State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
8. Dismisses the remainder of the applicants claim for just satisfaction.
Done in English, and notified in writing on 5 November 2015, pursuant
to Rule 77 2 and 3 of the Rules of Court.

Andr Wampach
Deputy Registrar

Andrs Saj
President