Судебное дело "Шаркунов и Мезенцев против Российской Федерации"
20.11.2005
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
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