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OBSERVATIONS OF THE APPLICANTS IN REPLY TO THE MEMORANDUM OF THE REPRESENTATIVE OF THE RUSSIAN FEDERATION AT THE EUROPEAN COURT OF HUMAN RIGHTS (Application of Sharkunov and Mezentsev v. Russia N 75330/01) In reply to the Memorandum of the Representative of the Russian Federation at the European Court of Human Rights (hereinafter - "Representative") the applicants' party represents its observations on the questions of the European Court of Human Rights (hereinafter - "Court"). Arguments and observations in reply to the Government's observations cover both the circumstances of the case and the law. 1. As to the reply of the Representative on the first question concerning application of torture and inhuman and degrading treatment. The applicants disagree with description of the case's circumstances, represented by the Russian Federation Government (hereinafter - "Government"), on infliction of torture and inhuman and degrading treatment on the applicants. 1.1. In his explanation dated 17 June 2005 the ex-deputy of the head of department of Department on struggle against the organized crime of the Regional Department of internal affairs (hereinafter - "Department") Yakov A.V. noted that Sharkunov and Mezentsev complained several times about applying the physical violence to them in the course of investigation to the prosecutor's office. In explanation of Yakov dated May 1999 (a copy is attached) the time of taking of Sharkunov to the zonal department of the Department of the Shadrinsk Town Department of Internal Affairs in the second half of the day, 5 or 6 May 1999 where he was until 2 a.m. of the next day is fixed what comply with circumstances of the case represented by Sharkunov - it was the time when he was subjected to torture by using electrical live wires, threatens of shooting and other forms of inhuman and degrading treatment. 1.2. In its written observations the Government confirmed the fact that the applicant Sharkunov V.V. represented the complaints about the health. However the Russian government explained it by the drug withdrawal symptoms. This information does not comply with facts and contradicts to information of the document dated 17 September 1999 N 176 which established that Sharkunov is not a drug addiction (a copy is attached). Thus the fact of complaining of the applicant on the health is admitted by the Government but it gives non-adequate explanations which do not comply with reality. The European Court has found several times that where a person, known not to have been injured before being taken into custody by the police, has injuries or marks on his body after being in custody, the State is obliged to provide an explanation for these injuries (see Tomasi v. France, Ribitch v. Austria). The Government did not provide plausible explanations which do not comply with real circumstances of the case which the applicants claimed. As to the second applicant (Mezentsev) the Russian Government did not represent the evidence that a person was detained and taken into custody and was freed without injuries. 09.12.1999 and 15.12.1999 Mezentsev was not examined by doctors after interrogations Department in spite of numerous complaints and requests to be examined. The medical aid after being injured was provided in a casualty department of the city hospital. To conceal the fact of causing the injuries the forensic medical expertise was conducted only in 47 days after it (the date is fixed in the act which is attached). 1.3. As to procedural aspect of Article 3 of the European Convention on Human Rights - the state's obligation to carry out an effective investigation into an allegation of torture and inhuman and degrading treatment. In Assenov v. Bulgaria (28 October 1998) the European Court of Human Rights noted that that without proper investigation the general legal prohibition of torture and inhuman and degrading treatment and punishment despite its fundamental importance would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity. In this case it was also established that when an individual had an made a credible assertion that he had suffered treatment infringing Article 3 at the hands of state agents, such as the police, Article 3, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention", requires that there should be an effective official investigation. In circumstances where it cannot be proved "beyond reasonable doubt" that state agencies have substantially violated Article 3, the failure to carry out a independent, effective, prompt, transparent investigation into credible allegations can give rise to a procedural violation of Article 3. Turning to this case the investigation of treatment, mentioned in complaints of Sharkunov and Mezentsev and prohibited by Article 3, was not carried out by the Russian authorities. 1.3.1. The Government of Russia did not represent the evidence of timely medical examination of the applicants' health during the period of their being in custody. The explanations of the Government of the reasons of complaints of Sharkunov on the health are refuted by documents which prove that he does not suffer drug addiction and consequently he cannot suffer withdrawal symptoms. The examination of the Mezentsev's injuries was carried out only in 47 days, what certifies about deliberate concealment of injuries of the applicant and violates the procedural obligations of the State under Article 3. 1.3.2. The applicants sent complaints about inflicting torture, inhuman and degrading treatment on them to the General prosecutor's office, tried to start a criminal case. The applicants stated about applying the physical and mental violence. But the investigation carried out violated requirements established by the practice of the Court in relation to the standards of an effective investigation. Thus, the Russian Federation violated the procedural obligations of the State under Article 3. Therefore, there has been violation of Article 3 of the Convention. 1.4. As to the submission of the Russian Federation Government on failure to exhaust domestic remedies. The applicants addressed the prosecutor's office of Shadrinsk with a statement to start a criminal case on the facts of applying the unlawful methods of investigation. The criminal cases were rejected by the prosecutor of Shadrinsk on 28 January 2000 and 5 May 2000. The Russian Federation Government stated that the applicants did not use their right to court, therefore, they failed to exhaust domestic remedies. The applicant disagree with such statement on the following grounds: applying to court in the order of the Law On challenging actions and judgments violating rights and freedoms of citizens to the court was unavailable procedural means of the legal protection because under Article 3 of the Law courts consider complaints on any actions violating rights and freedoms of citizens except actions which should be challenged in another order prescribed by the legislation. In the Russian Federation there was the practice of refusal to accept complaints on application of unlawful methods of investigation in the order of the Law because courts noted that actions are connected with conduction of investigation, consequently, complaints should be considered in the order of criminal proceedings. This order was used by the applicants. Under article 218 of the Criminal Procedural Code of RSFSR, relevant at the material time, complaints on actions of investigators should be sent directly to a prosecutor or through a person who conducted an inquiry, or an investigator, whose actions are challenged. The complaints can be both in written and oral. The oral complaints are written down in the protocol which is signed by an applicant and a person who accepted a complaint. The person, who conducts an inquiry and an investigator must send a complaint with their explanations to a prosecutor for 24 hours. The complaint prior to its consideration does not suspend execution of the challenged action until a person conducted an inquiry, an investigator or a prosecutor finds it necessary. The applicants also had no possibility to challenge the decision by which a criminal case was rejected to court, but the texts of judgments were not sent to the applicants. Sharkunova Т.А., acting as a representative of an applicant, could get acquainted with this judgment only 30.05.2001 while she consulted the documents of the case in the Sverdlovsk regional court (copy of the statement is attached). Thus the applicants had no possibility to challenge this document as it was unavailable and the remedy before a national authority was not effective because of its unavailability for applicants. Thus the applicants exhaust domestic remedies in relation to the application of Article 3. 2. As to the second question about providing of possibilities of judicial protection of the prohibition of torture and inhuman and degrading treatment. As it was mentioned above, the applicants did not receive the decision by which a criminal case was rejected, consequently, they could not adequately realize their right to court. In replies of the prosecutor by which a criminal case was rejected the right to possibility of appealing in the court and arguments of refusal were not explained. In reply to the question of the European Court the Russian Government noted that the Supreme Court of the Russian Federation had only replies of the prosecutor's offices to complaints on severe treatment which were applied by the witnesses Tofanilo V.I. and Voronin A.V. But it is mentioned in the protocol of the hearing that the victim, Genke A.A., gave the evidence under pressure of witnesses (protocol of the hearing, p. 12), the witness Sychev A.V. stated that in the course of examination he was put on a gas musk, forced to smell antigidrit, forced to sign a blank list of paper (protocol of the hearing, p. 17). Thus, in spite of efforts to use the remedies and state in the court that the evidence was received unlawfully (including physical and mental violence), and mention of this fact in the protocol of the hearing, court protection was not effective and courts delivered the decision on the ground of witnesses' evidence obtained by using physical and mental pressure. 3. As to the third question about providing the applicants with necessary possibilities of protection under p. 3(b) of Article 6 of the European Convention and the answer of the Russian Federation to this question. The applicants does not deny that they got acquainted with the results of the examination but in p. 3(b) of Article 6 of the Convention it goes about the right "to have adequate time and facilities for the preparation of his defence". Formally the right was realized but regarding the term between the moment of acquaintance with documents and the moment of the hearing it can be stated that the given time was not adequate for realization of the possibility to raise a question on an expert to court and his examination. Sharkunov got acquainted with the expert's conclusion on 6 May 2000, Mezentsev - 10 May 2000. The hearing began on 19 July 2000. This period is also necessary to consider in the context of its comparison with the date when a defendant's party received the possibility to get acquainted with the results of ballistic examination 9 months earlier than the applicants. Thus, besides the right to have adequate time and facilities for the preparation of his defence the principle of arms in criminal cases. In Fitt v. The United Kingdom (16/02/2000) p. 44 the European Court of Human Rights noted the following: It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see the Brandstetter v. Austria judgment of 28 August 1991, Series A no. 211, pp. 27-28, 66-67). In addition Article 6 1 requires, as indeed does English law (see paragraph 18 above), that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (see the Edwards judgment cited above, p. 35, 36).. 4. As to the fourth question devoted to the legal aid of an advocate at the initial stage of investigation of the criminal case. The applicants insisted that refusal from legal aid at the initial stage set in the materials is the result of physical and mental violence. 5 May 1999 once after detention Sharkunov asked to invite advocates Toporkov A.B. or Ovchinikova T.N. The investigator of the prosecutor's office told his mother about it during conversation on 6 May 1999. This fact was mentioned in the complaint of Sharkunova dated 14 May 1999 about application of violence to her son in the course of investigation. 5. As to the reply of the Government concerning obtaining the attendance and examination of witnesses on applicants' behalf under the same conditions as witnesses against them. The applicants insisted that they were devoid of possibility to examine witnesses under the same conditions what is violation of p. 3(d) of Article 6 of the Convention. 5 July 2000 года the applicant (Mezentsev) sent a statement on serving summons on 8 witnesses to the Kurgan regional court. But 3 of them were not even included into the list of witnesses, and to the witness Orlova no measures were taken to provide his appearance in court. The lack of possibility to question a witness Vasiljyeva is proved by the fact that during the interrogation both the defendants and those present were removed from the hearing, and when the defendants returned the evidence of witnesses were read out partially. The evidence dated 17 February 2000 was omitted. In this case there has been violation of p. 3 (d) of Article 6 of the Convention. In Van Mechelen v. Netherlands от 23.04.1997 г. (p. 51) the European Court of Human Rights noted that In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see the Ludi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 21, para. 49). Besides, the applicants disagree with the statement of the Government that they did not object to complete the hearing without witnesses who were absent. The court clarified the prosecutor's opinion, but did not clarify the applicants' opinion what is proved by page 25 of the protocol of the hearing (a copy is attached). Taking into account above-mentioned, the applicants consider submissions of their application well-founded and proven. Attachment: 1. Copy of authority of Demeneva from Mezentsev. 2. Copy of authority of Demeneva from Sharkunov. 3. Copy of document dated 17 September 1999. 4. Copy of page 25 of the protocol of the hearing. Representative of Sharkunov and Mezentsev A.V. Demeneva ________________ Application N 75330/01 Sharkunov and Mezentsev v. Russia 8
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