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EUROPEAN COURT OF HUMAN RIGHTS Council of Europe Strasbourg Application No. 4493/07 Isarlov v. Russia WRITTEN OBSERVATIONS BY THE APPLICANT ON THE MEMORANDUM OF 10 JANUARY 2013 BY THE GOVERNMENT OF THE RUSSIAN FEDERATION, ANSWERS TO THE ECHR'S QUESTIONS, OPINION REGARDING JUST SATISFACTION We do not agree with the arguments by the Russian authorities for the following reasons. 1. Regarding admissibility of the application 1.1. The Government considers that the application is not consistent ratione materiae with the provisions of Article 6 of the Convention and Article 2 of Protocol 7 to the Convention, arguing that, "Compulsory medical treatment and corresponding proceedings on the matter its application... are not connected with criminal punishment and do not substitute it, therefore cannot be considered as "criminal change". 1.1.1. It is necessary to note that having evaluated circumstances of the case of the applicant in regard to the criteria developed in Engel and Others v. Netherlands, the Government, nevertheless, refers to provisions of criminal and criminal procedure law of the Russian Federation. Pre-trial and trial proceedings of the applicant's case were conducted in the framework of criminal prosecution. Investigators charged the applicant with committing criminal offence under Article 306 part. 3 and Article 306 part 1 of the Criminal Code of the Russian Federation (as mentioned in the decision of Revdinskiy city court of Sverdlovsk oblast of 11 July 2006. The proceedings were criminal under the criminal procedure provisions. Procedure of application of forced medical treatment is regulated by Chapter 51 of Criminal Procedure Code (CPC) and considered to be special procedure of court criminal proceedings (Part 4 of CPC). In the decision of Revdinskiy city court of Sverdlovsk oblast of 11 July 2006 (page 5) there is a conclusion that the applicant committed a crime under Article 306 part 1 of Criminal Code. Thus, point 6 of the memorandum of the Government is disproved by criminal case of the applicant, particularly by the decision of the Revdinskiy city court of 11 July 2006. Release of a person from criminal responsibility does not mean that the person is rehabilitated and is not considered to be non guilty as it would have been in the case of non guilty judgement. 1.1.2. We do not agree with the government position in part 16 of the memorandum. Under the decision of the court the applicant underwent forced medical treatment in the form of forced treatment in the psychiatric hospital of general type (part 2 of resolute part of the judgment of Redvinskiy city court of 11 July 2006. Thus the applicant was sentenced to deprivation of liberty (imprisonment) for unlimited time (sine die). The court decision was executed - the applicant was apprehended on 02 August 2006, delivered to the psychiatric hospital and deprived his liberty until 14 September 2007 (the date of decision of the Revdinskiy city court 03 September 2007 to end forced medical treatment entered into forces). The applicant was not able to get out of the hospital, manage his time, to challenge his placement in a psychiatric hospital, he was deprived of objects and documents and he was prohibited to write letters and make phone calls to anyone, including his representative. Position of the applicant in the hospital is equivalent to the convicted to imprisonment. Moreover, under Article 446 of CPC (as amended by 11 July 2006, the date of the court decision) there is an option to restart criminal case proceedings in regard to the person who is under forced medical treatment. Article 98 of the Criminal Code. The Purposes of the Application of Compulsory Measures of a Medical Nature. The purposes of the application of compulsory measures of a medical nature include the medical treatment of persons referred to in the first part of Article 97 of this Code, or the improvement of their mental state, and also the prevention of the commission by them of new crimes, as stipulated by the Articles of the Special Part of this Code. Thus, the criminal law of the Russian Federation provides that a person who has been subjected to compulsory medical measures has committed a criminal act and may commit new criminal acts and therefore the Criminal law also aims to prevent possible new acts. The fact that "the investigating authorities have taken the position of the insanity of the applicant and the inability to bring him to justice" (Article 4 of the Memorandum), from the point of view of the applicant, only exacerbates the violations committed by the state as evidence of intentional behaviour of government agents, who must have known the practice of examining such criminal cases, that the applicant will not be able to represent his interests and protect himself, that the course of the trial will lead the applicant to a psychiatric hospital. Thus, arguments by the Government in points 11-16 of the memorandum are false. We would like to highlight it to the European Court of Human Rights that no civil or administrative laws of the Russian Federation provide measures such as compulsory medical treatment as responsibility for illegal actions. We also would like to draw attention of this Court that in Proshkin v. Russia (No. 28869/03, judgment of this Court of 07.02.2012), where Proshkin was also criminally charged and he was forced to undergo medical psychiatric treatment. We consider that in this judgment the ECHR comprehensively considered the issue of admissibility ratione materiae regarding the case of Proshkin similar to the applicant's cases. Therefore the application of Isarlov is admissible and it is compatible ratione materiae with the provisions of Article 6 of the Convention and Article 2 Protocol 7 to the Convention. 1. Regarding points 17-23 of the Memorandum. 1. The applicant was detained on 19 February 2005. He was released on 21 February 2006 only because the Revdinskiy city court's decision was quashed by Sverdlovsk oblast court on 15 February 2006 (copy of the document No. 005442 ФГУ ИЗ-66/1 of 21.02.2006 - enclosed). Two months term is the maximum term for detention under part of 1 Article 109 of CPC: Two months is the considerable period of time for the applicant taking into account that the applicant took care of his sick grandmother Korotkikh Elisaveta Petrovna. She died on 05 February 2006, when the applicant was detained. Moreover on 07 February 2006 Revdinsky city court prolonged the term of retention for two months more. This decision was appealed by the applicant, but the complaint was withdrawn from the Appellate Sverdlovsk Regional Court in connection with the fact that previously, 02/15/2006 Sverdlovsk Regional Court has already considered the issue and found the detention unlawful. 2. The applicant on the basis of a court decision of 11.07.2006 was placed in a psychiatric hospital, in fact as a punishment the applicant was placed to psychiatric hospital for an indefinite period. In the psychiatric hospital the applicant was from 02.08.2006 till 14.09.2007, i.e. more than 1 year and 1 month. The applicant was not able to influence the situation; the applicant was totally dependent on the discretion of the administration and will of psychiatric hospital, including the abolition of compulsory medical treatment. We would like to emphasize once again that the position of the applicant in the hospital was the equivalent of the convicted to imprisonment. 3. According to Article 446 of CPC "Resumption of the Criminal Case with Respect to the Person, Towards Whom a Coercive Measure of Medical Nature Is Applied", the applicant is under threat of renewal of criminal proceedings. 1. If the person who has become mentally deranged after committing the crime and towards whom was applied a coercive measure of medical nature, is recognized as having recovered, the court shall pass the resolution, on the ground of the medical conclusion and in conformity with Item 12 of Article 397 and with the third part of Article 396 of the present Code, on terminating the application towards this person of the coercive measure of medical nature, and shall resolve the question about forwarding the criminal case to the chief of an investigatory agency or the chief of an inquiry agency for conducting a preliminary inquisition in the general order. Once again we would like to draw this Court's attention to the provisions of Part 2 of the Article 446 of CPC: 2. The time spent in a stationary mental hospital, shall be offset against the term of serving the sentence. Thus, we believe that Article 6 of the Convention and Article 2 of Protocol No. 7 of the Convention shall apply to the circumstances of the applicant. 1.2. The Russian government considers that the applicant's claim is inadmissible for failure to exhaust domestic remedies. The Russian government believes that in light of the ruling of the Constitutional Court on November 20, 2007 No. 13-P, the applicant should apply to the Chairman of the Supreme Court with a request to initiate a reconsideration of the judgment of Revdinskogo City Court of 11.07.2006 due to a new circumstance as well as to turn to supervisory review. We consider these measures as not effective remedies, because they depend on discretion of the officer who receives the complaint (Tumilovich v. Russia, 22 June 1999). However, the applicant and his representative Yermilova N.P. asked for a supervisory review and application for commencement of proceedings due to the new circumstances in connection with the adoption of the Constitutional Court of the Russian Federation Decree of November 20, 2007 No. 13-P. Complaints and petitions have been returned to the applicant and his representative for various reasons (letter to the Supreme Court from 16.01.2008, letter of the Prosecutor's Office of Revda dated 30.01.2008, letter of Sverdlovsk regional court of 01.02.2008, the decision to dismiss the supervisory review of the Sverdlovsk regional Court on 11.04.2008 - all are attached). Thus, the arguments of the Government of the Russian Federation on the inadmissibility of the applicant in accordance with paragraph 4 of Article 35 of the Convention, are unfounded and cannot be taken into account by this Court. Answers to the questions of the European Court of Human Rights Question No. 1. The applicant considers that the proceedings against him had been unfair in the determination of guilt in a criminal case, in understanding the requirements of part 1 of Article 6 of the Convention, as he was not present in court, had no opportunity to defend himself in person and or by a representative of his choice, as required in accordance with clause (c) of part 3 Article 6 of the Convention (see Proshkin v. Russia, paragraphs 100, 101) The authorities did not allow the participation of the applicant and his chosen representatives at the hearing (a bailiff did not allow to enter the court room), opposed the implementation of the rights of the applicant. The applicant insisted to be before the court and to be presented by his chosen representative, to conduct the preliminary hearing, his acquaintance with the case materials, and conduct the necessary proceedings. The applicant requested this to the assistant of the judge, because neither he nor his representatives were allowed to the court hearing. In this application the applicant stated that he disagreed that his mother is to be his representative and requested that she is to be removed from participation in the case, had asked to question witnesses, members of psychiatric expertise, admission of documents, etc. As follows from the case materials, "lawful representative", the mother of the applicant Pavlova L.A. and the court-appointed defense lawyer Butchers A.P., acted in contradiction to the interests of the applicant, none of them had tried to challenge the results of the forensic examination, the court ordered the application of compulsory medical treatment. (see page 3, 6 of court decision of 11.07.2006 г). We believe that the national court should first consider the opinion of the applicant - the defendant in the case, and not contrary to the interests of the applicant's opinion of the appointed legal representative. The court was obliged to invite to the hearing the applicant and his representatives, whom he asks to be admitted to the case. Questions No. 2. The status of the advocate is not required to present the position of the applicant. General requirements of CPC regarding legal representative. Article 49 of CPC. The Counsel for the Defence 1. Seen as the counsel for the defence shall be the person, carrying out the defence of the rights and the interests of the suspects and of the accused in conformity with the procedure, established by the present Code, and rendering to them legal advice during the court proceedings on the criminal case. 2. Admitted to coming out as counsels for the defence shall be lawyers. Under the ruling or decision of the court, admitted in the capacity of the counsel for the defence may also be, alongside the lawyer, one of the close relatives of the accused, or another person for whose admittance the accused has applied. If the proceedings are carried out by a justice of the peace, the said person may also be admitted instead of the lawyer. Article 247. Participation of the Defendant 1. Judicial proceedings on a criminal case shall be conducted with an obligatory participation of the defendant, except for the cases set out in Parts 4 and 5 of the present Article. 2. If the defendant does not appear, the examination of the criminal case shall be put off. 3. The court shall have the right to subject the defendant, who has not come without any serious reasons, to a forcible bringing, and to apply towards him or change for him a measure of restriction. 4. Judicial proceedings in the absence of the defendant may be permitted, if the defendant files a petition on a crime of a minor or a medium gravity for an examination of the given criminal case in his absence. 5. In exceptional cases a court hearing on criminal cases of grave and especially-grave crimes may be conducted without the attendance of an accused person who is outside the territory of the Russian Federation and/or declines to appear in court, unless that person has been held accountable on the territory of a foreign state in this criminal case. 6. The participation of a defence lawyer in a court hearing conducted in accordance with Part 5 of the present Article is compulsory. A defence lawyer is invited by the accused. The accused is entitled to invite several defence lawyers. If there is no defence lawyer invited by the accused, the court shall make sure a defence lawyer is appointed. Thus, the arguments of the Russian Government's that Ermilova lacks authority to represent the applicant are not substantiated. There is also the judgment by the Constitutional Court of the Russian Federation of 08.06.2004 N 194-O "On the complaint of a citizen Kapustyan Vladimir Nikolaevich regarding violation of his constitutional rights by Articles 165 and 203 of the Criminal Procedure Code of the Russian Federation" on the right of citizens to participate in the trial, when considering his confinement in a psychiatric hospital. The applicant's representative Yermilova N.P. referred to this Constitutional Court's ruling in the appeal against the decision of the Revdinskiy City Court 11.07.2006. Mr. M., the counsel, did not meet with the applicant prior to the hearing. Question No. 3 We believe that the applicant's right to appeal a court ruling in light of the guarantees of Article 2 of Protocol No. 7 of the European Convention had been violated by the state, because he was not given the opportunity to appeal, he was not given the text of the judgment, his petition to prolong term for appeal after reading the text of the judgment, was not granted without sufficient justification (decision by Revdinskogo city Court of 16 June 2008). Same happened to the appeal by the representative of the applicant. Cassation appeal by his chosen representative was not accepted. Neither legal representative nor appointed counsel M., appealed the decision, that is to act contrary to the interests of the applicant. Russian law does not regulate the situation where a person with mental health problems has a desire to challenge the decision of the court, and his lawyer / representative does not support it. Decision by Revdinskogo City Court of 16 June 2008 on the refusal to restore procedural deadline to appeal the judgment of 11.07.2006 was not granted without proper justification and motivation. The applicant indicated in the application of 28.02.2006, that the decision of 11.06.2006, he obtained only on 26.02.2008 but Revdinskiy City Court did not give a proper evaluation of this circumstance. (petition and decision by Revdinskiy City Court of June 16, 2008 also presented by the Government of the Russian Federation). Review proceedings, as stated above, are not an effective remedy. The applicant was discriminated to use his rights under Article 6 of the Convention and Article 2 of Protocol No. 7 to the European Convention because he personally, compared with persons who were convicted in the general procedural order, did not have the opportunity to appeal the decision of the court. All the laws, decisions of the higher courts relied upon by the Russian government in its memorandum, were adopted after the decision of Revdinskiy City Court of --> 11.07.2009[Author:Burkov A.] . We believe that Article 6 S: 1 of the Convention and Article 2 of Protocol No. 7 of the European Convention is applicable in the present case. Question No. 4 We believe that there were no effective national remedies available to the applicant due to the fact that he was not able to appeal the decision of Revdinskiy City Court of 11.07.2006. Once again the Russian government's memorandum points to the decision by the Constitutional Court of the Russian Federation of 08.02.2007, which did not exist on the date of the applicant to compulsory medical treatment, and therefore was not applied by national courts. Refusal to reinstate the term for cassation was not properly motivated by a national court. On 25 July 2008 Sverdlovsk Regional Court having considered a complaint against the decision, did not restore the term to appeal - no motivated reasoning were given. The courts did not take into account the date of receipt of a court decision (26.02.2008). The opinion of the applicant regarding just satisfaction We ask the European Court of Human Rights to collect from the Russian Federation in favor of the applicant in respect of non-pecuniary damage caused by the violation of the rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, 30 000 (thirty thousand) Euros. Appendix: 1. copy of the certificate of 21.02.2006 2. copy of the letter of the Supreme Court of 16.01.2008 in the name of N.P. Ermilova 3. copy of the letter of the Supreme Court of 16.01.2008 to the S.E. Isarlova 4. copy of the letter by Prosecutor's Office dated 30.01.2008 5. copy of the letter of the Sverdlovsk Regional Court on 01.02.2008 6. copy of the decision to dismiss the supervisory review of the Sverdlovsk Regional Court of 11.04.2008 7. copy of the appeal of 14.10.2006 8. copy of the appeal decision of the Sverdlovsk Regional Court of 25.07.2008 N.P. Ermilova 14 March 2013 6 Это что за дата? Опечатка? Ссылки 1. file://localhost/tmp/wv-p29277#comment0 2. file://localhost/tmp/wv-p29277#comment0
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