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15.09.2010

 

     УПОЛНОМОЧЕННЫЙ РОССИЙСКОЙ ФЕДЕРАЦИИ ПРИ ЕВРОПЕЙСКОМ СУДЕ ПО ПРАВАМ
                                  ЧЕЛОВЕКА

                        Representative Representant

   of the Russian Federation de la Federation de Russie aupres de

   at the European Court of Human Rights la Cour Europeenne des Droits de
   Г Homme

   14, Zhitnaya, Moscow, 119991 tel. (495) 677-09-40, fax (495) 677-06-93

   15 september 2010 No. 14-6907-10

   EUROPEAN COURT OF HUMAN RIGHTS

   Additional observations application no. 12543/09 Borisov v. Russia

   On  10  August  2010,  the European Court of Human Rights (hereinafter
   referred  to  as "the European Court") communicated to the authorities
   of  the  Russian  Federation the applicant's observations on the above
   application together with his claims for just satisfaction and invited
   the  authorities  of  the  Russian  Federation to submit their further
   observations   and   comments  on  the  applicant's  claims  for  just
   satisfaction.

   In  this  connection,  the authorities of the Russian Federation would
   like to submit the following.

   1.  On  26  March  2010,  the  authorities  of  the Russian Federation
   submitted  to  the  European  Court  the  Memorandum,  in  which their
   position  regarding  the  case  Borisov  v.  Russia  was  stated.  The
   Memorandum  was  submitted  within  the time limits established by the
   European  Court. All of the applicant's arguments were examined in the
   said  Memorandum and appropriate assessment was given thereto, as well
   as  comprehensive  answers  were  given  to the questions posed by the
   European Court.

   2.  Hereby, the authorities of the Russian Federation entirely confirm
   their  position  stated  in  their  Memorandum in respect of the above
   application  and the questions of the European Court and would like to
   stress that the applicant has not

   advanced sufficient reasons that could possibly refute the submissions
   of  the authorities of the Russian Federation as his objections appear
   to  contain  irrelevant  speculations rather than new arguments ad rem
   concerning the subject-matter of the instant case.

   3.  Simultaneously,  the  authorities  of the Russian Federation would
   like to draw the European Court's attention to the following.

   4.  According to the applicant, he made relevant calculations based on
   the   information,   presented  by  the  authorities  of  the  Russian
   Federation  in  their Memorandum, concerning the quantity of detainees
   in  the  cells of IZ-66/1 (See the applicant's observations, S: 1). In
   this   connection   it   should  be  noted  that  in  the  applicant's
   calculations there are a lot of distorted facts and invalid inferences
   based on them.

   Therefore,  the  mentioned  summary  in  the  applicant's observations
   regarding  violation  of  Article 3 of the Convention is not valid and
   the  European  Court's  case-law (See the applicant's observations, S:
   1-9) is irrelevant to this application.

   The authorities of the Russian Federation reiterate:

     * that  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 cells;
     * there  is  a brick partition which separates the lavatory facility
       from the living area in all cells of IZ-66/1;
     * during  the whole period of detention in IZ-66/1 the applicant was
       provided with all necessary bedding and dinnerware.

   The  authorities  of  the Russian Federation believe that there was no
   violation  of  Article  3  of the Convention and the conditions of the
   applicant's   detention   were   compatible  with  Article  3  of  the
   Convention.

   5.  The  authorities  of the Russian Federation strongly disagree with
   the   applicant's  allegations  that  his  right  to  be  present  and
   participate  at  an  appeal  hearing was violated and entirely confirm
   their   position   stated  in  the  Memorandum  in  respect  of  these
   allegations (See S:S: 48-67 of the Memorandum).

   6.  The authorities of the Russian Federation reiterate that there are
   no  reasons  to  assume that they have anyhow violated the applicant's
   conventional rights.

   Comments on the applicant's claims for just satisfaction

   7.  Considering  the question of awarding just satisfaction, the Court
   is based
   on the fact that causal relation should lay between the damages, which
   the
   applicant suffered, and a breach of Conventional provisions (e.g., see
   Benthem v.
   Netherlands judgment of 23 October 1985, S: 46; Kalashnikov v. Russia,
   judgment
   of 15 July 2002, S:139).

                                  

   8.  Compensation  can  be awarded to the applicant only if the fact of
   violation  of  his  rights,  as  guaranteed by the Convention, and the
   damage,  he  suffered  resulting from the violation of his rights, are
   established  as well as the causal link between the said violation and
   the inflicted damage.

   9.  The  authorities of the Russian Federation would like to note that
   they  do  not  consider  that  the  rights  of the applicant have been
   violated. However, if the Court finds any violation of the Convention,
   the   finding  of  a  violation  would  in  itself  be  adequate  just
   satisfaction in the applicant's case.

   Concerning the claims for non-pecuniary damage

   10. In respect of the applicant's claim for non-pecuniary damage, the
   authorities  of the Russian Federation, taken into account the Court's
   wide
   jurisprudence  related  to  complaints against violations of Article 3
   and Article 6
   S:S:1  and  3  (c)  of  the  Convention express their opinion that the
   amount of 15,000
   Euros claimed by the applicant is excessive from the standpoint of the
   Court's
   approach  grounded  on  the  equitable  basis (See Dorokhov v. Russia,
   judgment of
   14 February 2008; Romanov v. Russia, judgment of 20 October 2005).

   11.  As  for  the  applicant's  claims  for  costs  and  expenses, the
   authorities of
   the  Russian  Federation note that, according to the Court's case-law,
   the applicants
   are  entitled  to reimbursement of their costs and expenses only in so
   far as it has
   been  shown  that they have been actually incurred and were reasonable
   as to
   quantum (see, Skorobogatova v. Russia, judgment of 1 December 2005,
   no. 33914/02, S: 61).

   Best regards,

   G. Matyushkin


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