BOLSHAKOV A GILANI proti Rusku

THIRD SECTION

DECISION

Application no. 25723/20
Aleksandr Yuryevich BOLSHAKOV against Russia
and 2 other applications
(see list appended)

The European Court of Human Rights (Third Section), sitting on 9 February 2021 as a Committee composed of:

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to the three applications allegedly lodged on the dates indicated in the appended table,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicants, two Russian nationals, Mr Aleksandr Yuryevich Bolshakov and Mr Yevgeniy Ruslanovich Gilani, born in 1982 and 1978 respectively, are detained in the Komi Republic (Mr Bolshakov) and the Arkhangelsk Region (Mr Gilani).

Mr Bolshakov lodged two applications with the Court. According to the postmarks on the envelopes, they were dispatched on 19 April and 12 October 2019 from the same post office in St Petersburg. These applications reached the Court on 9 July and 30 June 2020 respectively, and were registered under nos. 28213/20 and 25723/20.

The application form on behalf of Mr Gilani was also dispatched from St Petersburg. The postmark on the envelope was dated 31 August 2019. The Court received the application on 9 July 2020 and registered it under no. 28727/20 (for a summary of the details of dispatch of the applications, see the appended table below).

Applications nos. 28213/20 and 28727/20 were signed and dispatched by Ms Olga Andreyevna Stasyuk, a member of the Bar Association Severnaya Stolitsa (Северная столица) from St Petersburg, acting as the applicants’ representative. In application no. 25723/20 Ms Olga Andreyevna Arko was indicated as the representative. With the remaining personal and contact details of Ms O. Arko being the same as for Ms O. Stasyuk, it appeared that the representative was one and the same person. At that point the Registry did not contact the representative or the applicants.

The address of the Bar Association was indicated as the return address on the envelopes. None of the envelopes bore the barcode stickers used by the Russian post to track international correspondence.

Each of the application forms (in Section G dealing with the issue of exhaustion of domestic remedies and compliance with the six-month time‑limit) made explicit reference to the dates of dispatch of the application forms as confirmed by the postmark on the envelopes and pointed to the fact that the applicants had thus complied with the six-month admissibility requirement.

All three application forms were sent in A4 paper envelopes. Each envelope bore pre-printed information according to which an order to design and print them had been placed with the manufacturing company in 2020. It also indicated that the envelopes had been printed in 2020.

On 3 July 2020 Ms Stasyuk asked the Court for progress reports on applications nos. 25723/20 Bolshakov v. Russia and 28727/20 Gilani v. Russia. She submitted that she had dispatched the application forms on 12 October and 31 August 2019, respectively, and that the dates of dispatch were confirmed by the postmarks on the envelopes. A copy of the envelopes was enclosed. The letters asking for progress reports reached the Court on 30 July 2020.

By letter dated 15 September 2020, sent by regular post and email, the Court asked Ms Stasyuk to clarify whether she had changed her last name and to provide copies of documents certifying the change.

On 18 September 2020 the representative confirmed that she had changed her last name from Stasyuk to Arko in August 2019. She submitted a copy of her national passport, advocate’s credentials and a marriage certificate. The representative further noted that applications nos. 28213/20 and 25723/20 on behalf of Mr Bolshakov had been dispatched on 19 April and 12 October 2019, respectively.

On 21 October 2020 the Court asked the representative to explain the delay in the delivery of the letters allegedly posted in 2019, pointing also to the fact that the postmark on the envelopes indicated that the applications had been dispatched in 2019, while the envelopes had been manufactured in 2020. The representative’s attention was drawn to the provisions of Article 35 § 3 (a) of Convention, under which an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). The letter was sent both by registered mail and by email.

According to the tracking system of the Russian Post, Ms Stasyuk received the Court’s registered letter on 2 November 2020. However, she has not replied to the Court.

THE LAW

Having regard to the similar subject matter of the applications and the identical admissibility issues raised in them, the Court finds it appropriate to examine them jointly in a single decision.

The applicants complained of inadequate conditions of detention in remand prisons and their confinement in metal cages and glass compartments during trial, that is continuous situations of alleged violations of Article 3 which ended, according to them, on 17 April 2019 (application no. 25723/20 Bolshakov v. Russia), 3 March 2019 (application no. 28727/20 Gilani v. Russia) and 22 October 2018 (application no. 28213/20 Bolshakov v. Russia), following the applicants’ transfer from the remand prisons where they had been detained or the end of the trial. They also argued that they did not have an effective domestic remedy for their complaints.

The three applications contained identical paragraphs in which the applicants specifically mentioned the dates of the dispatch of their application forms and concluded that they had complied with the admissibility criteria, namely having lodged them within the six-month time-limit from the end of the situation of which they had complained.

The Court reiterates that the date of introduction of the application is the date of the postmark when the applicant dispatched a duly completed application form to the Court (Rule 47 § 6 (a) of the Rules of Court; see also Brežec v. Croatia, no. 7177/10, § 29, 18 July 2013, and Abdulrahman v. the Netherlands (dec.), no. 66994/12, 5 February 2013). Only special circumstances – such as an impossibility to establish when the communication has been posted – could justify a different approach (see Florică v. Romania (dec.), no. 49781/99, 29 June 2004, and Bulinwar OOD and Hrusanov v. Bulgaria, no. 66455/01, §§ 30-32, 12 April 2007). The Court further emphasises that the introduction date of an application is of crucial importance for the calculation of the six-month time-limit provided for in Article 35 § 1 of the Convention.

In the present case, according to the postmarks, the applications had been dispatched to the Court from a post office in St Petersburg on 19 April, 31 August and 12 October 2019 and reached the Court on 30 June and 9 July 2020, that is, between nine and fourteen months after the alleged date of dispatch.

The Court notes that the three envelopes in which the application forms were sent bore an identical imprint, giving technical data about the manufacturer, type of envelope, order, and so on. That information made it clear that the envelopes had been ordered and manufactured in 2020. It appears impossible to reconcile, without additional explanations, the discrepancy between the alleged dispatch dates in 2019 and the markings on the envelopes about their production in 2020. This discrepancy should also be seen, in view of the alleged extremely long delays in delivery for the three letters in question, in the context of the dates of dispatch being crucial for the calculation of the six-month time‑limits.

It can be presumed with certainty that the application forms could not have been dispatched in 2019, before the envelopes were manufactured. It is then difficult to avoid the conclusion that the postmarks on the envelopes do not reflect the real date of their dispatch. This would explain the rather extraordinary delays for the delivery of the three applications to the Court, while all other letters in the cases at hand were delivered within a reasonable time. The Court further observes that the applicants’ representative must have been aware of the problems with the dispatch dates, and her progress report requests of 3 July 2020 (see above) referred to dispatch dates that were obviously false. It does not lose sight of the fact that the representative did not respond to the Court’s letter of 21 October 2020 in which it sought an explanation for the discrepancies in the dates of the postmark and the envelope manufacturing dates. The Court sees this as an attempt to misguide the Court as regards the applicants’ compliance with the six-months admissibility criteria.

In this regard, the Court reiterates that under Article 35 § 3 (a) of the Convention an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with numerous further references), for instance, if there had been falsification of documents in the file (see, for example, Jian v. Romania (dec.), no. 46640/99, 30 March 2004).

Furthermore, any omissions on the part of an applicant’s representative are in principle attributable to the applicant himself or herself and may lead to the application being rejected for abuse of the right of application (see mutatis mutandis, Migliore and Others v. Italy (dec.), nos. 58511/13 and others, §§ 32-40, 12 November 2013, and Martins Alves v. Portugal (dec.), no. 56297/11, § 11-17, 21 January 2014).

The Court considers that this case contains sufficient elements to conclude that there has been an attempt to mislead the Court on an important issue concerning the introduction date of these applications. Having regard to the importance of that information for the proper determination of the present cases, the Court finds that such conduct was contrary to the purpose of the right of individual application as provided for in Article 34 of the Convention and amounted to an abuse of that right within the meaning of Article 35 § 3 (a) of the Convention. The applications should therefore be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 11 March 2021.

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Olga Chernishova Darian Pavli
Deputy Registrar President

Appendix