Court recognised the refusal to admit a human rights activist into a colony as unlawful

The Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Mordovia (Russia) on 25 May 2010 left unchanged the decision of the Oktyabrsky District Court of the city of Saransk dated 24 March 2010 on the recognition as unlawful of the actions of the head of FBU IK-18 of the Federal Penitentiary Service of Russia for the Republic of Mordovia.

Civil Case No. 2-722/2010
Decision
In the Name of the Russian Federation
Oktyabrsky District Court of the city of Saransk, RM, composed of presiding judge V.A. Pykov,
considered solely in an open court session in the city of Saransk on 24.03.2010 the civil case upon the statement of Sergey Trofimovich Maryin on the recognition as unlawful of the action (inaction) of the head of the Federal Budgetary Institution (FBU) IK-18 of the Federal Penitentiary Service (UFSIN) of the Russian Federation for the Republic of Mordovia, Viktor Gennadyevich Lemyaskin, when resolving the issue of granting a meeting with convicts,

Determined:
S.T. Maryin appealed to the court with a statement challenging the actions (inactions) of the head of FBU IK-18 of the UFSIN of the Russian Federation for the Republic of Mordovia, V.G. Lemyaskin, indicating that on 22.12.2009 he applied to the said official with a request to grant him a meeting with a number of prisoners to prepare a complaint to the European Court of Human Rights. However, the head of the colony refused to consider his statement, asking him to submit the statement to the chancellery. By his letter dated 29.12.2009, he refused him a meeting with the prisoners, motivating his refusal by the absence of documents confirming the right to provide legal assistance. He considers this action unlawful, as the head of the colony did not consider his statement immediately; furthermore, no requirements to provide documents confirming his right to provide legal assistance were stated to him. At the same time, he is a member of the public organisation "Mordovian Republican Human Rights Centre", and according to international norms, any person who has received information about a violation of human rights has the right to appeal in defence of prisoners. In accordance with point 68 of the "Internal Regulations of Correctional Institutions", in the event of a refusal to grant a meeting, a note about the reasons for the refusal is made on the application of the person wishing to meet with the convict. Thus, as the applicant believes, the head of the colony, V.G. Lemyaskin, created obstacles to the performance of his public duties.
In the court session, the applicant S.T. Maryin supported the stated requirements, requesting they be satisfied, and in particular, requested to recognise as unlawful the action of the head of FBU IK-18 of the UFSIN of the Russian Federation for the Republic of Mordovia, V.G. Lemyaskin, expressed by the fact that he violated the procedure for considering the application for granting a meeting with convicts; at the same time, in violation of the Internal Regulations of Correctional Institutions, he did not place a resolution on the application regarding the reasons for the refusal to grant a meeting, thereby failing to consider it immediately and creating obstacles for the prisoners to appeal to the European Court of Human Rights. In his response dated 29.12.2009, it is indicated that a meeting with the prisoners was refused for the reason of the applicant not providing a list of documents giving the right to provide legal assistance, while such documents were not requested from him; the head of the colony refused to talk to him at all about granting a meeting with the prisoners, insisting that he submit the application to the institution's chancellery, which he did, where no one explained to him the necessity of presenting documents in confirmation of his right to provide legal assistance, although he had such documents with him. Waiting for the resolution of his application, he was forced to remain in the administrative building until the end of the working day, however, he never received an answer, in connection with which he went home. At the same time, he is a member of a public human rights organisation; the meeting with the convicts was necessary for him to obtain written powers of attorney for the presentation in the European Court of Human Rights of appeals in defence of the interests of the convicts. At the same time, any person can represent the interests of a person in the Court by a handwritten power of attorney, to which no internal state requirements for its registration are presented.
The representative of the interested party - FBU IK-18 of the UFSIN of the Russian Federation for the Republic of Mordovia, S.V. Shichkina, acting on the basis of a power of attorney, objected in the court session against the satisfaction of S.T. Maryin's statement on the grounds that the latter, when presenting the application for a meeting with the convicts, did not provide a package of documents confirming his right to provide legal assistance; moreover, his application was considered in accordance with the Federal Law of the Russian Federation dated 02.05.2006 No. 59-FZ "On the Procedure for Considering Appeals of Citizens", the application was registered, and a written response was given. Furthermore, she believes that S.T. Maryin cannot provide qualified legal assistance to convicts who have the right to this in accordance with Part 1 of Article 48 of the Constitution of the Russian Federation, as he does not have a legal education.
She presented the corresponding written objections to the court.
Having heard the participants in the process and examined the written materials of the case, the court considers the statement subject to satisfaction, basing its conclusion on the following.
According to the copy of certificate No. 12 dated 22.12.2004, S.T. Maryin is a member of the public organisation "Mordovian Republican Human Rights Centre" (OO "MRPC"). As follows from points 2.1, point 2 of the Charter of the public organisation "Mordovian Republican Human Rights Centre", the goals of this organisation, among others, include the effective protection of the rights of individuals, labour collectives, and shareholders. In accordance with point 3.4 of the Charter, members of the organisation are obliged to provide assistance to the Organisation in achieving its goals and tasks. As follows from the copy of the letter dated 21.12.2009, addressed to the head of FBU IK-18 of the UFSIN of the Russian Federation for the Republic of Mordovia, V.G. Lemyaskin, the Chairman of the Board of the aforementioned human rights organisation requests permission for S.T. Maryin to meet with the convicts (list attached) in connection with their appeal to OO "MRPC", for the preparation of complaints to the European Court of Human Rights.
From the explanations of the applicant, it follows, and this is not disputed by the representative of the interested party, that he applied with the specified request on 22.12.2009 to the head of FBU IK-18 of the UFSIN of the Russian Federation for the Republic of Mordovia, V.G. Lemyaskin, who refused to consider it and demanded that the request be submitted to the chancellery. At the same time, he did not motivate the refusal to consider the application and to grant a meeting with the convicts in any way, did not place any notes on the application about the reasons for the refusal, thereby violating the procedure for considering applications for granting meetings with convicts and creating an obstacle for their appeal for the protection of their rights to the European Court of Human Rights. In accordance with Part 1 of Article 3 of the Penal Enforcement Code of the Russian Federation (hereinafter the Penal Enforcement Code (UIK) RF), the penal enforcement legislation of the Russian Federation and the practice of its application are based on the Constitution of the Russian Federation, universally recognised principles and norms of international law, and international treaties of the Russian Federation, which are a constituent part of the legal system of the Russian Federation, including the strict observance of guarantees of protection from torture, violence, and other cruel or degrading treatment of convicts.
As provided for by Part 1 of Article 10 of the Penal Enforcement Code, the Russian Federation respects and protects the rights, freedoms, and legitimate interests of convicts, and ensures the legality of the application of the means of their correction, their legal protection, and personal safety during the execution of punishments. Part 4 of Article 12 of the Penal Enforcement Code defines that convicts have the right to appeal with proposals, statements, and complaints to the administration of the institution or body executing the punishment, to higher bodies of administration of institutions and bodies executing punishments (hereinafter – higher bodies), the court, the prosecutor's office, state power bodies, and local self-government bodies, public associations, as well as to interstate bodies for the protection of human rights and freedoms. As follows from the letter of the human rights organisation dated 21.12.2009, permission was requested for a meeting of the organisation's member, S.T. Maryin, with the specified list of convicts, in connection with their appeal to the human rights organisation regarding the violation of their rights, for the preparation of complaints to the European Court of Human Rights. In accordance with Part 8 of Article 12 of the Penal Enforcement Code, for the purpose of receiving legal assistance, convicts may use the services of lawyers, as well as other persons who have the right to provide such assistance.
As indisputably established in the court session, the applicant S.T. Maryin is a member of the human rights organisation "Mordovian Republican Human Rights Centre", and by virtue of the Charter, is obliged to provide assistance to the organisation in achieving its goals and tasks, including the protection of the rights of individuals, which is also directly provided for by the organisation's Charter.
Thus, despite the fact that S.T. Maryin is not a lawyer, he, by virtue of the Charter of the human rights organisation of which he is a member, is obliged to assist in providing legal assistance to individual categories of citizens, among whom are also the convicts whose names are specified in the request for granting a meeting.
At the same time, the court takes into account that despite the absence of the status of a lawyer for the applicant, when specifying the motive for granting a meeting with the convict in the request, namely for the preparation of complaints to the European Court of Human Rights, the applicant, in accordance with the Charter of the human rights organisation and international norms, was entitled to provide legal assistance to the convicts in the preparation of a complaint to the European Court of Human Rights on the following grounds. The right of a person to have any representative in the European Court of Human Rights is defined in point 22 of the Explanatory Note for those wishing to appeal to the European Court of Human Rights, in accordance with which, upon the submission of a primary complaint, the applicant's representative does not necessarily have to be a lawyer. A power of attorney must be attached to the complaint form, giving the representative the authority to act on behalf of the applicant.
In accordance with Rule 36 of the Rules of Procedure of the European Court of Human Rights, (natural persons), non-governmental organisations, or groups of private individuals are entitled to initially submit complaints on the basis of Article 34 of the Convention independently or through a representative. Thus, the specified international rules, at the stage of submitting a complaint, regulate the representation of a person's interests in the European Court of Human Rights by a power of attorney to any persons, even those who are not lawyers and do not have a legal specialty.
At the same time, the court takes into account the explanation of S.T. Maryin that the meeting with the convicts was necessary for him to obtain handwritten powers of attorney for the right to submit complaints to the European Court of Human Rights on behalf of the convicts and to represent their interests in the Court, about which he explained to the head of the colony when applying with the request. The specified circumstance was not disputed by the interested party; evidence of the contrary was not presented to the court. In connection with this, the court considers the argument of the representative of the interested party that S.T. Maryin, by virtue of the absence of the status of a lawyer and a legal education, could not provide qualified legal assistance to the convicts to be unconvincing. The argument of the representative of the interested party that the applicant was justifiably refused a meeting with the convicts for the reason of non-presentation of documents confirming his right to provide such assistance cannot form the basis of a decision to refuse to satisfy the statement for the following reasons.
In accordance with Part 4 of Article 89 of the Penal Enforcement Code, for the purpose of receiving legal assistance, convicts are granted meetings with lawyers or other persons who have the right to provide legal assistance, without limitation on their number, with a duration of up to four hours. In accordance with point 68 of the Internal Regulations of Correctional Institutions, approved by the Order of the Ministry of Justice of the Russian Federation No. 205 dated 03.11.2005 (in the edition dated 12.02.2009), permission for a meeting is given by the head of the correctional institution or the person replacing him, upon the application of the convict or the person who has arrived for a meeting with him. In the event of a refusal to grant a meeting, a note about the reasons for the refusal is made on the application of the person wishing to meet with the convicts.
At the same time, from the applicant's explanations, it follows that the head of the colony refused to accept from him the application for granting a meeting with the convicts, recommending him to appeal to the chancellery. The specified circumstances were not disputed by the representative of the interested party. At the same time, from the response dated 29.12.2009, it follows that a meeting with the convicts was refused for the reason of S.T. Maryin not providing documents confirming his right to provide qualified legal assistance to the convicts. Furthermore, from the explanations of S.T. Maryin, it follows that no one checked the specified documents from him, there were no official inquiries or oral demands to provide such documents, although he always has with him the certificate of a member of the human rights organisation and the Charter of the organisation; at the same time, he was refused a meeting with the convicts precisely for the reason of non-presentation of such documents. In the court session, the representative of the interested party also explained that documents certifying the applicant's right to provide legal assistance to the convicts were not requested from S.T. Maryin, were not checked, orders of the head of the colony for their check were not given, and the head of the colony did not place any notes on the application for granting a meeting with the convicts about the reasons for the refusal of the meeting, and finds it difficult to explain the reason for this.
The specified actions of the head of the correctional institution, in the opinion of the court, in violation of the current penal enforcement legislation and the norms of international law, artificially create obstacles to the realisation by the convicts of their rights, including for their defence in the European Court of Human Rights, since no measures to check the documents confirming his right to provide legal assistance from the applicant were taken; at the same time, a meeting with the convicts was refused precisely for the reason of non-presentation of such documents, without the corresponding note on the application about the reasons for the refusal.
In the current penal enforcement legislation, there are no requirements prescribing to persons who are not lawyers, but who have the right to provide legal assistance, to present documents in confirmation of such a right when applying with requests for granting meetings with convicts, however, it is implied that such a right of a person who is not a lawyer must be checked by the body executing the punishment itself, which follows from the meaning of Part 4 of Article 89 of the Penal Enforcement Code.
At the same time, from the explanations of the applicant and the interested party, it follows that none of the employees of the correctional institution demanded from S.T. Maryin documents in confirmation of the existence of the right to provide legal assistance to the convicts, nor explained the necessity of their presentation, in connection with which the grounds for the refusal to grant a meeting set forth in the official response are unfounded. Moreover, from the written objections of the interested party, it follows that S.T. Maryin did not present any documents, including powers of attorney for the right to represent the interests of the convicts. Under such circumstances, the argument of the applicant that the meeting with the convicts was necessary for him precisely for the obtaining of such powers of attorney deserves attention.
In accordance with the legal position set forth in the Ruling of the European Court of Human Rights dated 08.11.2007 "Case of Knyazev v. Russia", it is indicated that the Court may accept complaints from any natural person... who claims to be a victim of a violation by one of the High Contracting Parties of his rights recognised in the present Convention or in the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. The European Court repeats that for the effective functioning of the system of individual complaints established by Article 34 of the Convention, it is extremely important that applicants or potential applicants have the opportunity to communicate freely with the European Court, and are not subjected to any form of pressure from the authorities with the goal of forcing them (the applicants) to abandon their complaints or to change them. In this context, "pressure" includes not only direct influence and explicit intimidation, but also inappropriate indirect actions or contacts aimed at discouraging the applicant from using a convention-based remedy or hindering him in this.
Thus, in the case under consideration, the head of the correctional institution, by virtue of his conferred powers, created such obstacles by refusing the applicant a meeting with the convicts on formal grounds, and at the same time, violated the procedure established by law for considering the application of a person who has arrived for a meeting with a convict, not placing a note on the application about the reasons for the refusal of the meeting, thereby effectively not explaining the motive for the refusal to the applicant, which is confirmed by a copy of the application presented to the court. Under such circumstances, the argument of the representative of the interested party that S.T. Maryin's application was considered in accordance with the Federal Law No. 59-FZ dated 02.05.2006 "On the Procedure for Considering Appeals of Citizens of the Russian Federation" and a written response was sent to him dated 29.12.2009, cannot serve as a basis for the recognition as lawful of the actions of the head of the correctional institution when considering this application, because by motivating his response, the said official did not verify the presence of documents from the applicant giving the right to provide legal assistance, by which he created an obstacle, by virtue of his conferred powers, to the appeal of the convicts for the protection of their rights.
On the basis of the above, guided by Articles 194–199 of the Civil Procedure Code of the Russian Federation, the court decided:

To recognise as unlawful the actions of the head of the Federal Budgetary Institution IK-18 of the UFSIN of the Russian Federation for the Republic of Mordovia, Viktor Gennadyevich Lemyaskin, when considering the application for granting S.T. Maryin a meeting with the convicts.
The decision may be appealed to the Supreme Court of the Republic of Mordovia through the Oktyabrsky District Court of the city of Saransk within 10 days from the day of its issuance in its final form.

Presiding Judge V.A. Pykov