CEDH · CASELAW;CLIN;ENG — 7 juin 2007

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 98 June 2007 Nurmagomedov v. Russia - 30138/02 Judgment 7.6.2007 [Section I] Article 34 Hinder the exercise of the right of petition Refusal by penitentiary officials to send an application to the ECHR on the grounds of alleged non‑exhaustion of domestic remedies: failure to comply with obligations under Article 34   Facts : In 1991 the applicant was convicted of aggravated robbery and sentenced to imprisonment in a correctional colony. In 2002, a district court brought his sentence into conformity with the new Criminal Code which provided for more lenient punishment for this offence. The applicant alleged that these proceedings had not been fair or public. He submitted an application to the European Court to the correspondence office of the colony. The application was returned to him and he was told that he had no right to petition international institutions until he had exhausted all domestic remedies. He sent a copy of his application to the Court through an informal channel and complained about the actions of the colony administration to a prosecutor's office. The prosecutor confirmed the lawfulness of the actions of the colony administration. Law : Article   6 – The fact that the proceedings for bringing the sentence into conformity with the new Criminal Code had been conducted by a court did not, in itself, call for the conclusion that a “determination of the criminal charge” had been involved. As regards the issues for judicial determination in the instant proceedings, the relevant provisions expressly prohibited the court from making a fresh evaluation of the facts underlying the original conviction or attributing a different characterisation of the facts in law. Unlike the supervisory-review proceedings, the proceedings at issue had not empowered the court to quash or alter the final conviction. If the maximum sentence for the same offence was lighter in the new Code than that imposed under the previous legislation, the court had to reduce it to the maximum set out in the new Code. That had been a mathematical operation excluding any discretion on the part of the judge. The proceedings in question had neither involved a “determination of a criminal charge” against the applicant, nor concerned the lawfulness of his conviction. They had not been decisive for the applicant's right to liberty and therefore did not determine his “civil rights and obligations”. They had thus fallen outside the scope of the application of Article   6. Conclusion : no violation (unanimously). Article   34 – At the relevant time, Russia's Penal Code had not treated correspondence with the Court as privileged so that it was subject to censorship by penitentiary officials. Moreover, penitentiary officials had been formally directed not to send complaints addressed to bodies or organisations which, in their assessment, were not competent to deal with them. The Court could not see any other explanation why the applicant had sent his application through “informal channels”, thus risking detention in the disciplinary wing, unless he had been unable to send his application through the colony's correspondence office. Accordingly, the Russian authorities had attempted to discourage, even prevent, the applicant from pursuing a Convention remedy. Conclusion : violation (unanimously). Article   41 – EUR 500 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes