""

" .. . 5, 6, 13 "


( .)

 

15.03.2013

 

                                                          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  -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 ).

   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 [1]--> 11.07.2009[2][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

      ? ?



   1. file://localhost/tmp/wv-p29277#comment0
   2. file://localhost/tmp/wv-p29277#comment0


, , :

.      


:

  Diaspora*

:

:

:

(? ? ? OpenID?)

e-mail ( , - ):

:

( -):

        

 

 

15.05.2015. "" .