Новости судебных дел
Судебное дело "Борисов против России"
Жалоба в Конституционный Суд РФ
Жалоба в Конституционный Суд РФ
Жалоба в Конституционный Суд РФ
Dr Peter комментирует
Права ребенка при разводе родителей
Права ребенка при разводе родителей
ИСКОВОЕ ЗАЯВЛЕНИЕ о защите прав потребителей к оператору по предоставлению мне услуг доступа в Интернет
Злоупотребления судей и сотрудников аппарата Конституционного Суда РФ и Уставного Суда Свердловской области, связанные с отказом в принятии обраще...
ЖАЛОБА Руководителю Консульского отдела Посольства РФ в Великобритании на бездействие сотрудников Консульского отдела Посольства РФ в Великобритани...
Права ребенка при разводе родителей
Горохов Михаил Георгиевич комментирует
Сутяжники задают вопросы Президенту России
Права ребенка при разводе родителей (144)
Жалоба в Конституционный Суд РФ (9)
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.
Поделиться в социальных сетях: