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Судебное дело "Шаркунов и Мезенцев против Российской Федерации"

Меморандум заявителей в ответ на меморандум правительства по жалобе Шаркунова и Мезенцева по жалобе в Европейском суде по правам человека на нарушение статей 3, 6 ЕКПЧ (на английском языке)




      HUMAN RIGHTS (Application of Sharkunov and Mezentsev v. Russia N

   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 -

   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

   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

   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

   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.


   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


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