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24.09.2012

 

                               FIRST SECTION

                          Application no. 4493/07

                        Stanislav Emestovich ISARLOV

                               against Russia

                         lodged on 28 December 2006

                             STATEMENT OF FACTS

   The applicant, Mr Stanislav Emestovich Isarlov, is a Russian national,
   who  was  born  in  1972  and  lives  in the town of Revda, Sverdlovsk
   Region.  He  is  represented  before  the  Court by Ms N. Yermilova, a
   lawyer practising in Yekaterinburg.

   A. The circumstances of the case

   The  facts  of  the  case,  as  submitted  by  the  applicant,  may be
   summarised as follows.

   On  19 December 2005 the applicant was arrested on suspicion of having
   falsely  accused  a  number  of  persons  of  criminal  offences.  The
   prosecutor's  case was that on a number of occasions the applicant had
   sent  letters  to law-enforcement authorities having accused officials
   of a municipal hospital of a number of criminal offences.

   On  the  following day the Revda Town Court authorised the applicant's
   placement  in custody. The detention order was quashed upon his appeal
   on  15  February  2006 by the Sverdlovsk Regional Court with a finding
   that  the Town Court had failed to examine a possibility of applying a
   more lenient measure of restraint to the applicant. He was released.

   The  investigating authorities again applied to the Town Court seeking
   an authorisation of the applicant's detention on remand. They reasoned
   that the applicant was charged with a serious criminal offence and was
   liable  to  abscond, reoffend or pervert justice as he refused to take
   part  in  investigative  actions,  and  he  continued  his  disorderly
   behaviour  towards the hospital officials, having called them at least
   seventy  times  per  day.  That  application was dismissed by the Town
   Court  on  9 March 2006 with the finding that there was no evidence of
   the applicant's intention to go on a run or to tamper with witnesses.

   The  applicant learned that the Town Court scheduled the trial hearing
   for 11 July 2006. Neither the applicant nor his representatives, Mr G.
   and  Ms  Yermilova,  whom  the  applicant  had  issued with a power of
   authority,  were  summoned  to  the  hearing.  The  applicant  and his
   representatives  filed  written  requests  with the Town Court seeking
   leave to appear at the hearing.

   On 11 July 2006 the Revda Town Court found that the applicant had made
   false  accusation  of  criminal  acts  against hospital officials. It,
   however,  relieved the applicant from criminal responsibility, finding
   that  he  was  mentally  incapacitated.  The  Town  Court  ordered the
   application  of  compulsory  measures  of  a  medical  nature  to  the
   applicant  and  his  placement in a psychiatric hospital. The relevant
   part of the decision read as follows:

   "Having  regard  to  the factual circumstances of the present case and
   the  opinion  of  the legal representative of [the applicant] - Ms P.,
   and  despite  the fact that [the applicant] committed a petty criminal
   offence,  the  court  considers  it  possible  to  issue a decision on
   application  of  compulsory measures of medical nature to him, as [the
   applicant],  given  the  state  of  his mental health, poses danger to
   himself  and  others  around  him  which  is  confirmed  by a forensic
   psychiatric expert examination of 22 May 2006 which lawyer M. also did
   not dispute in the court hearing".

   The   applicant's   interests  at  the  hearing  were  defended  by  a
   court-appointed  lawyer,  Mr M., and the applicant's mother, Ms P. The
   applicant  and  his  two representatives, Ms G. and Ms Yermilova, were
   absent from the hearing. As it appears from the materials presented by
   the  applicant, lawyer M. entered the criminal proceedings not earlier
   than 6 July 2006. At the trial the mother asked to admit the applicant
   for  inpatient  treatment  in a psychiatric hospital as she "witnessed
   psychiatric  deviations  in  his  behaviour",  the  applicant  had  no
   intention  to  undergo  outpatient treatment, his grandmother had also
   been  writing  complaints,  similar  to those sent by the applicant to
   various  state  officials, the applicant was unemployed and his mother
   had to support him financially.

   The  judgment  of  11  July  2006  was  not  amenable to appeal by the
   applicant.  Nevertheless, the applicant lodged an appeal statement. He
   also  unsuccessfully  asked lawyer M. to appeal. However, according to
   the  applicant,  lawyer M. refused to take any part in the proceedings
   after  the  hearing on 11 July 2006. With no formal appeal against the
   judgment  having  been  made,  it  became  final  on 21 July 2006. The
   applicant was admitted to the hospital on 2 August 2006.

   The  applicant's  representatives,  Ms Yermilova and Mr G., applied to
   the  Town Court asking to serve them with a copy of the judgment of 11
   July 2006 and to inform them about the fate of the applicant's appeal.
   They  also  complained  to various judicial authorities about the Town
   Court's  refusal  to  afford  them and the applicant an opportunity to
   take part in the trial.

   On  25  October 2006 the Revda Town Court returned to Ms Yermilova the
   applicant's  and  her statements of appeal, having noted that they had
   had  no  standing  to appeal against the judgment by virtue of Article
   444  of  the  Russian Code of Criminal Procedure. The relevant part of
   the Town Court's letter read as follows:

   ''The  materials  of the case file do not contain any information that
   the  investigator of the Revda Town prosecutor's office... allowed you
   to  take  part [in the proceedings] as [the applicant's] defender, and
   not a representative of his interests, as that is not a civil case.

   By  a  decision  of  6  June  the investigator... accepted Ms P., [the
   applicant's]  mother,  as his legal representative in the case and she
   took part in the court hearing on 7 July 2006.

   Moreover,  by  virtue  of  Article 438 of the Russian Code of Criminal
   Procedure on 6 July 2006 the court appointed lawyer M.... to act as in
   the  [applicant's] interests and he took part in the hearing on 7 July
   2006  and  defended  [the applicant's] interests. During the pre-trial
   investigation  [the  applicant's]  defence  was  ensured  by legal aid
   lawyer O."

   On  5  April  2007  the  Revda  Town  Court dismissed a request by the
   applicant's  psychiatric  hospital  seeking the discontinuation of the
   compulsory measures of a medical nature and the applicant's release.

   The  applicant  and his representative Ms Yermilova only learned about
   that  decision  in  2008. On 14 February 2008 they applied to the Town
   Court  asking  to restore the time-limit for lodging an appeal against
   that  decision.  The  request  was granted and on 14 November 2008 the
   Sverdlovsk Regional Court, having examined the statement of appeal and
   having  heard the applicant and Ms Yermilova, upheld the decision of 5
   April 2007. The reasoning was as follows:

   "On 23 March 2007 [the psychiatric hospital] applied to the court with
   a request to
   annul  [the  applicant's]  compulsory hospitalisation as following the
   treatment [the
   applicant]  began  understanding  the  factual  character  and  social
   dangerousness of the
   acts  committed by him in the past; given his state of health [he] may
   be relieved of the compulsory treatment.

   By  a  court  decision of 5 April 2007 [the hospital's] request... was
   dismissed and [the applicant] was to continue his compulsory inpatient
   treatment in the psychiatric hospital of general care. The court based
   its  conclusions  on statements by the head of the medical commission,
   Mr  S.,  according  to whom, in view of the fact that the hospital had
   not  been  provided with necessary medicines, in the last month it had
   been  impossible  to  ensure  the  adequate medical treatment for [the
   applicant].  Improvements  in  his  state  of  health  which  had been
   observed  earlier  decreased, improvements of his mental state are not
   stable  and  there  are  no  guarantees  that [the applicant] will not
   reoffend   in   the   absence  of  control  and  treatment.  In  these
   circumstances,  the  court concluded that the grounds which led to the
   application  of the compulsory medical measures to [the applicant] did
   not cease to exist...

   Having  studied  the  case  file  materials  and  having discussed the
   statement of appeal, the court does not see any reasons to accept it.

   The  decision  of  5  April  2007  to  continue the compulsory medical
   treatment  of  [the  applicant] is well-founded and reasonable; it was
   based  on  the  explanations  by  the  head  of the medical commission
   concerning  the  failure  to  provide  [the  applicant]  with adequate
   treatment  in  the  last  month  resulting  in  the  decrease  of  the
   improvement  of  his  health  and  that improvement becoming unstable;
   therefore,  the  grounds for the application of the compulsory medical
   treatment  did  not  cease  to  exist.  The  court  does  not find any
   violations of the procedural law."

   The  Regional  Court  also  noted that the compulsory treatment of the
   applicant  had,  in  any  case, been discontinued on 3 September 2007,
   upon the hospital's new application.

   On  6  February  2009  the Revda Town Court dismissed a request by the
   psychiatric  hospital  to pronounce the applicant mentally and legally
   incapacitated  and to place him under a permanent guardianship. Having
   examined  a  number  of  forensic psychiatric opinions, the Town Court
   found  that the applicant's treatment in the hospital between 2 August
   2006  and  September 2007 had been a success and there was no evidence
   that  his  condition  had  deteriorated  after  his  release  from the
   hospital.  That  decision  became  final  on  12  March  2009  when  a
   prosecutor's office withdrew the appeal against it.

   B. Relevant domestic law

    2. For  relevant  domestic law provisions see the case of Proshkin v.
       Russia (no. 28869/03, S:S: 37-60, 7 February 2012).
    3. By decision no. 13-P issued on 20 November 2007 the Constitutional
       Court of the Russian Federation declared unconstitutional a number
       of provisions of the Russian Code of Criminal Procedure, including
       Article  444  of the Code, as long as authorities interpreted them
       as  grounds  to strip mentally ill defendants in criminal cases of
       their  procedural  rights,  including  a  right to study case file
       materials,  to  attend  court  hearings,  to  lodge  requests  and
       motions,  to  initiate  proceedings  concerning  the  amendment or
       annulment of the measures and to appeal against any

   decision impairing their rights.

   i

   COMPLAINTS

   1. The applicant complained under Article 5 S: 1 (e) of the Convention
   that his detention in the psychiatric hospital had been unlawful as he
   had not
   been  declared  legally  incapacitated  and  that,  in  any  case, his
   detention for
   two months between 2 February and 5 April 2007 had lacked any legal
   grounds,  as  the  court  should  have  reviewed  the  grounds for his
   detention no
   later than 2 February 2007.

    4. The  applicant  also complained under Articles 6, 13 and 14 of the
       Convention  that he had not been afforded an opportunity to attend
       the trial and had been unable to appeal against the conviction.
    5. The  applicant  further complained under Article 6 S: 3 (c) of the
       Convention  that  he  had  not been able to defend himself with an
       assistance  of  a representative of his choice, as the authorities
       had  not  allowed  Ms  Yermilova  or  Mr  G.  to  take part in the
       proceedings.

                          QUESTIONS TO THE PARTIES

    6. Did  the applicant have a fair hearing in the determination of the
       criminal  charge against him, in accordance with Article 6 S: 1 of
       the  Convention?  In  particular, having regard to the applicant's
       absence  at  the  trial  and  the authorities' refusal to allow Ms
       Yermilova  or/and Mr G. to act as the applicant's representatives,
       was the applicant able to defend himself in person or though legal
       assistance  of his own choosing, as required by Article 6 S: 3 (c)
       of the Convention?
    7. The  Government  are  asked  to  provide  detailed  answers to the
       following   questions   and  to  support  their  submissions  with
       evidence:

    8. Does  the Russian law on criminal procedure set out specific rules
       regulating  presence  of a mentally ill defendant at the trial and
       issues  of his legal representation, particularly those concerning
       his/her right to retain counsel?
    9. When  was  Mr  M.  appointed  to  act as the applicant's legal aid
       counsel  and did he have meetings with his client before the trial
       hearings?
   10. Is there any procedural guarantees for a mentally ill defendant if
       his/her  interests/position/line  of defence runs contrary to that
       of  his  legal  "defender"  (the applicant's mother in the present
       case)?

   11. Was  Article 2 of Protocol No. 7 applicable in the present case to
       the  proceedings  by  which  the  compulsory  measures  of medical
       character  were applied to the applicant? If so, was the applicant
       afforded  the  right  of  appeal  envisaged  by  Article 2 S: 1 of
       Protocol  No.  7? Did the absence of an appeal in the present case
       fall within the exceptions laid down by Article 2 S: 2 of Protocol
       No.  7? Has the applicant suffered discrimination in the enjoyment
       of his rights under Article 6 of the Convention and Article 2 S: 1
       of  Protocol No. 7 on the ground of his mental health, contrary to
       Article  14  of the Convention, given that the Russian law did not
       afford  him an opportunity, as a mentally ill defendant, to appeal
       against  the  judgment by which the compulsory measures of medical
       character   had  been  applied?  What  are  the  procedural  rules
       governing  representation of mentally ill-defendants at the appeal
       stage?  Was  the  applicant  represented  by  legal aid counsel on
       appeal?  If  so,  the Government are asked to produce documents in
       support  of  their  submissions.  What  procedural  rules govern a
       situation  when  a mentally ill defendant's wish to appeal against
       the  conviction  is  not  supported  by  his  legal aid lawyer and
       or/legal defender?
   12. Given that the applicant was unable to appeal against the judgment
       of 11 July 2006, did he have at his disposal an effective domestic
       remedy, as required by Article 13 of the Convention?


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