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Memorandum Borisov v. Russia

 

26.03.2010

 

   EUROPEAN COURT OF HUMAN RIGHTS

   MEMORANDUM application no. 12543/09

   On 4 December 2009, the European Court of Human .Rights (hereinafter -
   "the  European  Court"),  pursuant  to  Rule 54 S: 2 (b) of its Rules,
   informed  the authorities of the Russian Federation of application no.
   12543/09   Borisov  v.  Russia  lodged  with  the  European  Court  in
   accordance  with  Article  34  of  the  European  Convention  for  the
   Protection  of  Human  Rights  and Fundamental Freedoms (hereinafter -
   "the  Convention")  by  a  Russian  national,  Vyacheslav  Viktorovich
   Borisov,  and  invited  to  submit  their  observations and answer the
   following questions.

   1. In respect of each cell in which the applicant was held in IZ-66/1:

   a. Indicate the cell number and the dates of me applicant's stay.

   b. What was the floor surface of the cell (in square metres)?

   c.  How  many  bunk  beds and/bf sleeping places were available in the
   cell?

   d.  How  many  detainees  were  held in the cell7 Indicate the maximum
   number of detainees, not the average.

   e. Was the cell equipped with functioning mandatory ventilation?

   f  .What  kind  of lighting was available in the cell? If the lighting
   was  natural,  indicate the dimensions of the window(s) and the number
   and  thickness of metal bars; if the lighting was artificial, indicate
   the number of bulbs and their power.

   g.  Indicate  the  placement  of  the toilet pan (comer, wall-mounted,
   etc.)  and the distances between (i) the pan and the dining table; and
   (ii) the pan and the nearest sleeping place.

   (h)  Was there a partition separating the toilet pan. from the rest of
   the cell? Indicate its height and the material it was made of.

   (i)  Indicate  the  frequency  of outdoor exercise, the surface of the
   exercise  yard  (in  square metres) and the type of the roof above the
   yard (metal bars, solid roof, netting, etc.).

   2.  in  the  light  of  the  replies  to the above questions, were the
   conditions  of  the applicant's detention compatible with Article 3 of
   the Convention?

   3.  Having  regard to the requirement of Article 376 S: 3 in fine that
   an  accused  who was brought to the courthouse be allowed to take part
   in  the  appeal  hearing  and to the allegation that the applicant was
   present  at  the  courthouse  of  the  Sverdlovsk Regional Court on 21
   November 2008 but not permitted to enter the hearing room, was there a
   violation of Article б S:S: 1 and 3 (c) of the Convention?

   Answers to the questions posed by the European Court

   Answer to question no. 1 " a "

   1.  The  applicant has been detained in IZ-667/1 from 1 September 2008
   up  to  present  day.  During  the  stated  period, he was kept in the
   following cells:

   no. 327 from 1 September 2008 till 9 December 2008;

   no. 413 from 9 December 2008 till 22 December 2008;

   no. 327 from 22 December 2008 till 29 April 2009;

   no. 424 from 29 April 2009 till 2 September 2009;

   no. 425 from 2 September 2009 till 3 September 2009;

   no. 424 from 3 September 2009 until present (see Annex no. 1),

   Answer to question no. 1 "b "

   2. The area of the cell no. 327 is 31 square meters;
   the area of the cell no. 413 is 9 square meters;

   the area of the cell no. 424 is 27 square meters;

   the area of the cell no. 425 is 15 square meters, (see Annex no. 2).

   Answer to question no. I "c "

   3.  There  was  the  following  quantity of the sleeping berths in the
   cells of
   IZ-66/1, in which the applicant was kept:

   no. 327 -12;

   no. 413-2;

   no. 424 -10;

   no. 425 - 4.

   4. The authorities of the Russian Federation submit that, during the
   whole  period of the applicant's detention in IZ-66/1, he was provided
   and is
   still  being  provided at the present time with an individual sleeping
   berth in
   accordance  with  the  requirements  of  Article 23 of Federal Law no.
   103-FZ of
   15  June  1995  On  Detention  of  Persons  Suspected  or  Accused  of
   Committing
   Crimes,  which  can be confirmed by the testimonies of the officers of
   IZ-66/1
   responsible for compliance with that rule of law (see Annex no.3).

   Answer to question no. 1 "d"

   5. From 1 September 2008 till 9 December 2008, there were from 13 to
   29 persons kept together with the applicant in cell no. 327;

   from  9 December 2008 till 22 December 2008, there were 2 persons kept
   together with the applicant in cell no. 413;

   from  22  December  2008  till  29 April 2009, there were from 8 to 20
   persons kept together with the applicant in cell no. 327;

   from  29  April  2009  till  2 September 2009, there were from 3 to 12
   persons kept together with the applicant in cell no. 424;

   there  were 2 persons kept together with the applicant in cell no. 425
   from 2 September 2009 till 3 September 2009;

   starting  from  3  September  2009, there were from 5 to 11 persons in
   cell  no. 424, together with the applicant, and, at present, there are
   7 persons, including the applicant there (see Annex no. 4).

   6.However, it should be taken into account that, during the detention
   period in the remand prison, the suspected and accused persons spend
   significant   time   outside   the   cell:  they  participate  in  the
   investigative  actions,  for  that  purpose  they axe taken out of the
   cells in order to conduct the investigative and procedural actions.

   7.During  the  applicant's  detention  in IZ-6671, he took part in the
   investigative actions eleven times (see Annex no. 5).

   8.For the purposes of exercising the constitutional right of detainees
   to  legal  assistance,  they  are provided with an opportunity to have
   meetings  wim  their lawyers. Pursuant to Article 18 of Federal Law of
   15  June  1995 no. 103-FZ On Detention of Persons Suspected or Accused
   of Committing Crimes, the number and the duration of such meetings are
   not limited

   9.During  the  whole period of detention in IZ-66/1, the applicant was
   granted 108 meetings with his counsels (see Annex no. 5).

   10.Detained  persons  also  have  a  right to short-term meetings with
   their  relatives or other persons, if permitted by the relevant person
   or  the  body  who  conducts  proceedings  in  the criminal case. Such
   meetings  take  place  in  specially equipped rooms outside the secure
   facilities.

   11.During  the whole period of detention in IZ-66/1, the applicant was
   granted 5 meetings with his relatives (see Annex no. 5).

   12.  In  accordance  with  Article  17  of  Federal  Law no. 103-FZ On
   Detention  of  Persons  Suspected  or  Accused  of  Committing Crimes,
   suspected  and accused persons, including those detained in punishment
   cells, are entitled to have daily walks during at least one hour.

   13.The  suspected  and  accused  persons  detained  in  SIZO  have the
   possibility  to  perform  rites  in rooms specially-equipped for these
   purposes.

   14.Besides,  the  detained  persons  are  taken out of cells to take a
   shower; their clothes and bedding are subjected to sanitary processing
   and hygienic disinfection.

   15.According  to  a  written application of the detained person, he is
   taken   out   of   the   cell  to  meet  the  representatives  of  the
   administration of SIZO.

   16.Suspected  and accused persons held in custody are allowed to work,
   if  appropriate  conditions are observed For this purpose, manufactory
   shops are created in the territory of the detention facilities.

   17.For  the purpose of psychological adaptation of the detainees, they
   are  provided  with  psychological  aid  in  appropriate psychological
   rooms.  The  detainees  of SIZO are brought to the medical unit of the
   facility  in  order  to  be  examined by the doctors and receive their
   consultations.

   Answer to question по. 1 "e"

   18.All  cells  of  IZ-66/1,  in  which  the  applicant  was kept, were
   equipped   with   forced-air   supply  and  exhaust  ventilation  with
   mechanical   drive.   Forced   ventilation  technical  characteristics
   provided sufficient air circulation in the cells.

   19.The authorities of the Russian Federation draw the attention of the
   European  Court to the fact that technical condition of the forced-air
   supply  and  exhaust ventilation is checked during the daily technical
   inspections. In the course of such examinations, it was confirmed that
   the  cells,  in  which  the  applicant was held, had technically sound
   forced ventilation (see Annex no. 6).

   %

   Answer to question no. 1 "f

   20.  All  cells of IZ-66/1 facility, where the applicant was detained,
   had
   artificial  lighting  pursuant  to  the established sanitary rules and
   regulations;
   the cells were lit by daylight and nightlight lamps.

   21. The information concerning the number and capacity of the
   daylight  and  nighthght  lamps  in  each  cell  of IZ-6671> where the
   applicant was
   kept, is contained in Annex no. 7.

   22.At  night (from 10.00 pjn. to 6.00 a.m.), the cells were lit with a
   low  power  (40-60 W) stand-by opaque dome lamp, designed for lighting
   lavatory  area  and  monitoring  the  behavior  of the inmates for the
   purposes of security that did not incommode their sleep.

   23.Natural  lighting  in the cells of IZ-66/1, where the applicant was
   kept,  was  provided  by means of the window openings. The information
   concerning  the quantity and size of the window openings in each cell,
   where the applicant was kept, is contained in Annex no. 7.

   24.Window  openings  of  the cells, where the applicant was kept, were
   equipped  with  the  fixed  iron  bars  with the diameter of 20 mm and
   Cross-bands with the section of 60 mm x 12 mm, and the mesh size - 100
   mm  x  200  mm.  However, it is necessary to draw the attention to the
   fact  that  the presence of the fixed bars on the window openings does
   not impede the lighting in the cells (see Annex no.7).

   Answer to question no. 1 "g"

   25.  Lavatory  facilities  were  located  in  the corner of cells nos.
   327,413,
   424,  near  the  entrance door and in the corner of cell no. 425 under
   the
   window, they were far enough from the sleeping and meal places.

   26. Accurate information on the distance between die lavatory facility
   and  the  dining  table  and  the  lavatory  facility  and the nearest
   sleeping place in
   each cell of IZ-66/1, where the applicant was kept, is submitted in
   Annex no. 8.

   Answer to question no. 1 "h"

   27.  There is a brick partition, which separates the lavatory facility
   from
   the living area in all cells of IZ-66/1, where the applicant was kept,
   which
   provides adequate privacy when using the toilet.

   The height of the partitions is:

   1.2 meters - in cell no. 327;

   1.8 meters - in cell no. 413;

   1.4 meters - in cell no. 424;

   1.2 meters - in cell no. 425 (see Annex no. 9).

   Answer to question no. 1 "i"

   28.Pursuant  to  the requirements of Federal Law no. 103-FZ of 15 June
   1995 On Detention of Persons Suspected or Accused of Committing Crimes
   and  Order of the Ministry of Justice of Russia of 14 October 2005 no.
   189 On Approval of Internal Regulations on Detention Facilities of the
   Correctional  Systemt  suspects  and  convicts  in  IZ-66/1  facility,
   mcluding  the applicant, were brought to walks daily, each cell in its
   turn.

   29.The  duration of each daily walk in the specially equipped exercise
   yards  lasts,  at least, one hour. During each walk, the applicant had
   an opportunity to do exercises. During the walks, the detained persons
   are   provided   with   the  following  sports  equipment:  footballs,
   basketballs.  The yards are equipped with the basketball hoop in order
   to play basketball (photographs attached).

   30..The  area of the yards of IZ-66/1 in a separate building block no.
   3 is:

   no.  17  -  29.5 square meters; no. 18 - 29.8 square meters; no. 19-30
   square meters.

   31. The area of the yards of IZ-66/1 in a separate building block
   no. 4 is:

   no.  14 - 29.9 square meters; no. 16 - 30 square meters; no. 18 - 29.7
   square meters.

   7

   32. The yards are equipped with the roofs made of metal shaped steel
   on   me  wooden  construction,  rolled  roofing  material  (above  the
   stairwells),
   metal bars (above the exercise cells) (see Annex no. 10).

   Answer to question no. 2

   33.  In  view  of  the  foregoing,  the  authorities  of  the  Russian
   Federation  consider the conditions of the applicant's detention to be
   compliant with the requirements of Article 3 of the Convention.

   34.  Moreover,  in order to confirm this statement, the authorities of
   the Russian Federation would like to note the following.

   35. During the whole period of detention in IZ-66/1, the applicant was
   provided  with  all  necessary  bedding  and  dinnerware, which can be
   verified  by the copy of the cell card with the personal signatures of
   the  applicant,  which  confirm  the  receipt,  and testimonies of the
   officers of IZ-66/L

   All  bedding  handed  out  to  the  applicant  is  in  good condition.
   Bedclothes  are changed every week during the sanitary processing (see
   Annex no. 11).

   36.  During  the  applicant's  detention  in  IZ-66/1,  the meals Were
   provided  to  him according to the established standards and organized
   under  Order of the Ministry of Justice of the Russian Federation of 2
   August 2005 no. 125 On the Approval of Food Standards and Provision of
   Material  Needs  for Convicted Inmates, as well as Persons Accused and
   Charged  with Crimes, Who Are Kept at Detention Centers of the Federal
   Penitentiary  Service  during  Peace-Time. During the entire period of
   his  detention  in  IZ-66/1,  in accordance with the stated Order, the
   applicant  was  provided  and  is  still being provided with hot meals
   three  times  a  day. Monthly food reserve is maintained constantly in
   the  facility.  Nutritive value of food is observed. Daily food ration
   contains both meat and vegetables.

   37.  The  level of sanitation of the nutrition unit and the quality of
   the prepared meals in IZ-66/1 is monitored on a daily basis, and so is
   the  compliance  with  the nutritive value, certified by a note of the
   medical  officer  in  the  "Book of monitoring the quality of prepared
   food" with the obligatory sampling of every dish for every meal.

   38.  In  witness  whereof, Annex no. 13 contains the food standards of
   the  applicant's  nutrition, copies of the bacteriological analysis of
   the  food,  copies  of  the Book of monitoring the quality of prepared
   food.

   39.  According to the legislation of the Russian Federation, suspects,
   defendants  and  convicts  in  12^66/1,  including the applicant, were
   allowed  to  take  a  shower 15-20 minutes long and change the bedding
   weekly,  which  is  confirmed  by  the  testimonies  of  the detention
   fecility  officers  and  copies  of  the  special  contingent  bathing
   schedules for 2008, 2009 and January 2010 (see Annex no. 13).

   40. During the entire period of the applicant's detention in IZ-66/1
   facility, he was provided with the necessary medical assistance of the
   qualified medical officers in accordance with his state of health.

   IZ-66/1  fecility has the license which entitles it to perform medical
   activities  as  well  as  the  medical  support in accordance with the
   citizens' healm protection legislation.

   Upon  his  arrival  at  IZ-66/1 on 1 September 2008, the applicant was
   examined  by  the  medical  officers  of  the  fecility, all necessary
   laboratory exarninations were conducted, including the X-ray,

   41.  During the whole period of detention, the applicant was regularly
   examined  and  had consultations with medical specialists and received
   Outpatient treatment courses (see Annex no. 14).

   42.  In addition, the authorities of the Russian Federation would like
   to  note  that,  in  2006,  the  Government  of the Russian Federation
   developed and approved the federal special purpose program Development
   of  the Detention Facilities System for 2007-2016. Stated value of the
   program is RUR 54.6 billions.

   Within  two years of its implementation, 3.6 thousands places were put
   into commission in the detention facilities. According to the program,
   starting  from  2010, the construction of 26 detention facilities will
   be  started  in  24 constituent entities of the Russian Federation, in
   which  the  standard  area  per  one  detained person will be 7 square
   meters  and the detention facilities themselves will fully comply with
   the international standards.

   43.  In  the beginning of this year, in comparison with 1999, i.e. the
   period  subjected  to  the  examination  of ihe European Court in case
   Kalashnikov  v.  Russia,  the number of detention facilities increased
   from  187  to 225 and the population limit - from 112 to 150 thousands
   places.  At this, the average area of the cell per one detained person
   in SIZO increased from 1.6 to 4.9 square meters.

   44.  Tht  authorities  of  the  Russian Federation draw the particular
   attention  of  the  European  Court  to  the  existing remedies in the
   Russian Federation concerning protection from the violations connected
   with  improper  detention  conditions.  First  of  all,  there are the
   judicial remedies.

   The  suspect  and the accused person subjected to ill-treatment due to
   action  or  omission with the elements of the penal act is entitled to
   lodge  an application to initiate a criminal case and bring the guilty
   to   the   criminal  responsibility.  Actions  and  decisions  of  the
   investigating  authorities  arid  prosecutors, including the ruling on
   refusal  to initiate the criminal case, may be appealed against in the
   court   in  accordance  with  the  rules  of  the  criminal  procedure
   legislation.  The  European  Court  repeatedly  recognized  the stated
   remedy as an effective one.

   Moreover,  if  the  actions  of  the  administration  of the detention
   facilities  in  respect of improper conditions of detention are not of
   criminal nature they can also be appealed judicially.

   Articles  45,  53 and 56 of the Constitution of the Russian Federation
   and  provisions  of  Chapter  25 of the Code of Civil Procedure of the
   Russian Federation are considered to be me legal ground for that.

   45.  Pursuant  to  Article  254  of the Code of Civil Procedure of the
   Russian  Federation,  a  national  is  entitled  to appeal against the
   decision,  action  (omission) of the public authorities, officials and
   officers  if  he  or  she considers his/her rights to be violated. The
   terms   and   procedure   for  lodgmg  the  relevant  application  for
   consideration  are  clearly and comprehensibly stipulated in the Code.
   As  it  is  stated  in  Article  258, the court, having recognized the
   application   to  be  well-founded,  delivers  the  decision  oil  the
   obligation  of  the  relevant  authority, official or state officer to
   completely eliminate the committed violation or the restriction of the
   rights  and  freedoms  within  the  established  period of time and to
   notify the court about the measures being taken.

   46.  The  ruling  of  the  Plenum  of the Supreme Court of the Russian
   Federation  of  10  February  2009,  which  emphasizes that complaints
   regarding  the cases lodged by the persons serving 1he sentence in the
   remand  prisons  against  the  actions  of  the  administration of the
   detention facilities are examined according to the rules of Chapter 25
   of  the  Code of Civil Procedure of the Russian Federation appeared to
   be  very  important for the development of the practice of application
   of these statutory provisions.

   The  judicial  procedure  for  the  damage compensation inflicted ой a
   national as a result of the unlawful actions or omissions of the state
   authorities  and  their  officials is also stipulated by the effective
   legislation  of  the  Russian Federation. Articles 16, 151 and 1069 of
   the  Civil  Code  of  the  Russian Federation are considered to be the
   legal  ground  for  lodgmg such claims. The authorities of the Russian
   Federation  have  examples of the compensation for damage inflicted on
   the persons detained in improper conditions.

   Thus, the compensation for non-pecuniary damage was recovered from the
   treasury  of  the  Russian  Federation  represented by the Ministry of
   Finance  in  favour  of  V.M.  Buzychkin  under  the  decision  of the
   Sovetskiy  Court of Nizhny Novgorod of 14 October 2009- The ground for
   the  recovery  was  the  unsatisfactory  conditions of the applicant's
   detention  in  the remand prison, including the lack of personal space
   and lighting, absence of ventilation and fresh air in the cell as well
   as failure to provide medical assistance.

   47.  In  addition  to the remedies regarding violations connected With
   unsatisfactory  detention  conditions, there are other effective human
   rights  mechanisms  which  are widely used and proved themselves to be
   practical in the Russian Federation.

   For instance, there is the opportunity to request the personal meeting
   with  the  head of the detention facility as well as with the persons,
   who  control the actions of the relevant detention facility and those,
   who  arrive there, which is Stipulated in the Federal Law On Detention
   of  Persons  Suspected  or Accused of Committing Crimes. In accordance
   With   the   effective  legislation,  the  direct  control  over  tfie
   activities  of  the  administration of detention facilities is carried
   out   by   the   Federal  Penitentiary  Service  and  its  territorial
   authorities.

   Besides,  there  is  another  effective Federal Law of 10 June 2008 On
   Public  Control over Provision of Human Rights in Detention Facilities
   and  Assistance to Persons Kept in Detention Facilities to the Russian
   Federation.  In  accordance  with  the mentioned law, there are public
   supervision  commissions being created and functioning, the members of
   which are provided with the right to attend facilities of penitentiary
   service and detention facilities without a special permit.

   Meanwhile,  as  it follows from the submitted materials, the applicant
   failed  to use the above mentioned remedies and never appealed neither
   to  the  courts  nor  to other authorities which implement supervision
   over the detention facilities.

   Answer to question no, 3

   48.  The  European  Court  reiterated  that  a  person  charged with a
   crirninal  offence  should, as a general principle based on the notion
   of a fair trial, be entitled to be present at the first-instance trial
   hearing.  However,  the attendance of the defendant in person does not
   necessarily  take  on  the  same  significance for the appeal hearing.
   Indeed,  even where an appellate court has full jurisdiction to review
   the  case on questions of both fact and law, Article б does not always
   entail  a  right  to  be  present  in  person.  Regard  must be had in
   assessing  this  question  to, inter alia, the special features of the
   proceedings  involved and the manner, in which the defence's interests
   are  presented  and protected before the appellate court, particularly
   in  the  light  of the issues to be decided by it and their importance
   for the appellant (see Helmers v. Sweden, judgment of 29 October 1991,
   Series A No. 212-A, p. 15, S:S: 31 -32; Belziuk v. Poland, judgment of
   25  March  1998, Reports 1998-H, p. 570, S: 37; PobomikorT v. Austria,
   No.  28501/95,  S:  24,  3  October  2000;  and Kucera v. Austria, No.
   40072/98, S: 25,3 October 2002, S: 25, Timergaliyev v. Russia, S: 50).

   48.  The European Court also stated that Article 6 S: 3 (c) guarantees
   that  proceedings  against  the accused will not take place without an
   adequate representation for the defence, but does not give the accused
   the  right  to  decide  himself  in  what manner his defence should be
   assured. The decision as to which of the two alternatives mentioned in
   the provision should be chosen, namely the applicant's right to defend
   himself  in person or to be represented by a lawyer of his own choice,
   or  in  certain circumstances one appointed by the court, depends upon
   the applicable legislation or rules of court (see Mayzit v. Russia, S:
   65).

   49.  Taking into account the mentioned practice of the European Court,
   the  authorities of the Russian Federation would like to emphasize the
   following.

   The facts relevant to the procedure

   50.  The  applicant  was  found  guilty of the commission of the crime
   stipulated  by  Article 159 Part 4 of the Criminal Code of the Russian
   Federation  (aggravated  fraud)  under the sentence of the Chkalovskiy
   District  Court of Yekaterinburg of 1 September 2008; he was sentenced
   to  7  yeats  of  imprisonment The measure of restraint in the form of
   written  undertaking  not  to  leave the place and behave properly was
   changed to the imprisonment under the same sentence.

   51.The operative part of the sentence of 1 September 2008 contains the
   explanations  regarding  the  order  and  the  time-limits for appeals
   against  it  as  well  as  the right of the convicted person to file a
   motion  for  his participation in the examination of the criminal case
   by  the  cassational court (see Annex no. 15, p. 57). According to the
   records  of  the court session of 1 September 2008, after the sentence
   had  been  announced, the right to file a motion for the participation
   in  the examination by the cassational instance court was explained to
   the accused person (see Annex no. 15, p. 62).

   52.  On  8  September  2008,  the  applicant  received the copy of the
   sentence  (see Annex no. 15, p. 63) and on 23 September 2008, the copy
   of  the  records  of the court session of 1 September 2008. (see Annex
   no. 15, p. 64).

   54. On 9 October 2008, the Chkalovskiy District Court of
   Yekaterinburg  received  the  applicant's cassational appeal, which he
   named as
   the  supplement to the preliminary cassational appeal, dated 6 October
   20091
   (see Annex no. 15, pp. 65-72).

   55. On 10 October 2008, the mentioned appeal of 1he applicant was
   dismissed due to the missed time limit for lodging the complaints and
   absence  of  the  motion regarding its restoration under the ruling of
   the
   Chkalovskiy  District Court of Yekaterinburg. Meanwhile, it was stated
   in the
   ruling  that the applicant did not lodge any preliminary complaints as
   it
   follows from the case-file (see Annex no. 15, p. 73).

   56. On 20 October 2008, the Chkalovskiy District Court of
   Yekaterinburg  received  the motion for restoration of the missed time
   limit for
   lodging appeals against the sentence (see Annex no. 15, pp. 74-76).

   57. On 20 October 2008, the missed time limit for lodging the
   cassational  appeal against the sentence was restored under the ruling
   of the
   Chkalovskiy District Court of Yekaterinburg (see Annex no. 15, p. 77).

   58.   On   29   October   2008,  the  Chkalovskiy  District  Court  of
   Yekaterinburg  received the supplement to the cassational appeal dated
   27 October 2008 from the applicant (see Annex no. 15, pp. 78-82).

   59.  On 18 November 2008, the Sverdlovskiy Regional Court received the
   supplement  to  the cassational appeal dated 14 November 2008 from the
   applicant (see Annex no. 15, pp. 83-84).

   60.  On  21  November  2008,  the sentence of the Chkalovskiy District
   Court  of  Yekaterinburg  of  1  September  2008  was  upheld  and the
   cassational  appeal was dismissed under the cassational finding of the
   Judicial  Division  for  Criminal  Cases  of the Sverdlovskiy Regional
   Court (see Annex no. 15, pp. 85-87).

   Comments on the merits

   61. The authorities of the Russian Federation would like to draw the
   attention  of  the European Court to the feet that neither cassational
   appeal nor
   the  supplement  to it contained the motions for reviewing the case by
   the
   cassational   mstance  court  with  his  participation.  Due  to  that
   circumstance, the
   Judicial  Division  for  Criminal  Cases  of the Sverdlovskiy Regional
   Court
   examined the cassational appeal without the applicant's participation.

   1  It appears, the applicant Indicated the year of 2009 instead of the
   year of 200$ by mistake.

   62.  As  it is stated in the Statement of Facts of the European Court,
   on
   21  November 2008, the applicant was taken to the court house, but due
   to the
   uncertain  reasons  he  was not allowed to enter the court room, where
   the court
   session  was  carried  out,  thus  he was not able to take part in the
   court
   proceedings (see Section А. "ТЪе circumstances of the case")- However,
   there is the reference to the allegation of the applicant regarding me
   fact that
   he  was present in the Sverdlovskiy Regional Court on 21 November 2008
   in
   the  statement  of the question of the European Court addressed to the
   Russian
   Federation   concerning   the   presence   of  the  applicant  in  the
   Sverdlovskiy
   Regional Court.

   In  addition,  Section  II  "Statement  of  Facts"  of the applicant's
   application  with  the  European Court does not contain any statements
   regarding  the  fact  that  he  was taken to the Sverdlovskiy Regional
   Court on 21 November 2008.

   Clause  15.2.15 of Section Ш "Statement of Alleged Violation(s) of the
   Convention and/or Protocols thereto and of Relevant Arguments'* of the
   application  contains the mformation that, on 21 November 2008, in the
   course  of  the  examination  of  the  criminal case in respect of the
   applicant  in the cassafional instance court, the violation of Article
   376 Part 3 of the Code of Criminal Procedure of the Russian Federation
   took  place: the applicant was not "brought" to the examination of the
   application and could not state his opinion.

   63.  According to Article 376 Part 3 of the Code of Criminal Procedure
   of  the  Russian  Federation,  a  convicted person held in custody who
   expressed  his  wish  to be present when the complaint or presentation
   against the judgment are exatnified by the court, shall be entitled to
   participate  either directly in the court session or to state his case
   via  means  of  video conference communication. The court shall make a
   decision  with  respect  to the form of participation of the convicted
   person  in  the court examination. A convicted or acquitted person who
   has  appeared  at  the  court  session shall be allowed to participate
   therein in all instances.

   64.  As  far  as,  at  the  moment  of  examination of the case by the
   cassational  instance  court, the applicant was detained, the question
   regarding  the  form  of  his participation in the court session could
   have  been  decided  by  the  court  only  on me basis of the relevant
   motion.

   The  Constitutional Court of the Russian Federation repeatedly stated,
   relying  on  the  constitutional  and international legal regulations,
   that  the  opportunity  to  notify  the  court  about  their positions
   regarding  all  aspects  of the case should be equally provided to the
   parties which is the required guarantee of the judicial protection and
   fair  trial,  since  only  under that condition the right to effective
   defence  in  the  court  is  exercised.  On  all occasions, the person
   subjected  to  criniinal  prosecution  -  regardless  of  his criminal
   procedure  status (suspected, accused, defendant or convicted) -having
   expressed  the  wish  to  participate  in  the court session cannot be
   deprived of the opportunity to file objections and claims, familiarize
   himself   with  the  case-file,  provide  explanations  regarding  the
   questions  at issue (see Judgments of 10 December 1998 no. 27-П, of 15
   January  1999  no. 1-П, of 14 February 2000 no. 2-П and of 11 May 2005
   no.  5-П;  the  ruling of 10 December 2002 no. 315-0, of 25 March 2004
   no.  99-0,  of  11  July 2006 no. 351-0, of 16 November 2006 no. 538-0
   etc.).  As  it  follows  from  the  submitted materials, the applicant
   failed to express his wish to be present in the court session.

   Due  to  the  absence  of  the convicted person's motion regarding his
   participation   in  the  examination  of  the  criminal  case  by  the
   cassational instance court the Judicial Division for Criminal Cases of
   the Sverdlovskiy Regional Court did not examine the question regarding
   the form of the convict's participation in the court session.

   Thus,  there  were  no  reasons to transfer the applicant from SIZO in
   order to allow him to participate in the cassational court session.

   65.  Examining  the  question  regarding the forms of execution of the
   party's right to explain its position to the court, the Constitutional
   Court of the Russian Federation formulated the legal position that the
   guarantees  of  the  right  to judicial protection can be realized not
   only  by  means  of  provision  of  the  possibility to participate in
   hearings  in  cassational courts of supervisory courts to the convicts
   or  acquitted personally, but also using other ways, in particular, by
   means  of  charging  the chosen lawyers with the task to conduct their
   defence,  by  presenting  their written objections to the arguments of
   the  other  part,  as well as by means of stating their position using
   videoconference  systems.  The  demand  to  provide  the  convict, the
   acquitted  and  their  counsels with the right to state their position
   regarding  all  aspects  of  the case and notify the Court about it is
   constitutionally significant in that case (Rulings of 10 December 1998
   no.  27-П and of 14 February 2000 no. 2-П, Finding of 16 November 2006
   no. 538-0).

   66.  The  authorities  of  the  Russian  Federation  observe  that the
   applicant's  complaints  were  examined  by  the Judicial Division for
   Criminal  Cases  of the Sverdlovskiy Regional Court in the presence of
   his  counsel  -V.S.  Annenkov,  who had to be aware of the applicant's
   presence  in the court house but, due to unknown reasons, did not file
   a motion to transfer the applicant to the court room.

   67. In view of the foregoing, inter alia, the case-law of the European
   Court,   the   absence   of   the  applicant's  motion  regarding  his
   participation   in  the  examination  of  the  criminal  case  by  the
   cassational  instance  court,  the  absence  of  the  grounds  for the
   transfer  of  the  applicant to the court for his participation in the
   cassational  court  session  as  well as attendance of the cassational
   court  session  by  the  applicant's  counsel, there are no reasons to
   consider  that  there  were  any violations of provisions of Article 6
   S:S: 1 and 3 (c) of the Convention.

   Considering  the  aforesaid, representing the interests of the Russian
   Federation  according to the Regulations on the Rjepresentative of the
   Russian  Federation at the European Court of Human Rights, as approved
   by  the  Decree of the President of the Russian Federation of 29 Match
   1998 no. 310,

   I CONSIDER:

   that  the  application  of the applicant alleging the violation of his
   rights  provided for by Article 3 and Article 6 S:S: 1 and 3(c) of the
   Convention  is  manifestly ill-founded according to Article 35 S: 3 of
   the Convention;

   I BEQUEST:

   to  dismiss  this  application  pursuant  to  Article  35  S: 4 of the
   Convention.

   Attachment: on 493 pages.


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