Судебное дело "Прошкин против России"
20.02.2012
EUROPEAN COURT
OF HUMAN RIGHTS
Council of Europe
Strasbourg
Application No. 28869/03
Proshkin v. Russia
Dear sir,
I enclose the observations on behalf of the applicant in reply to the
Government's observations.
15 December 2007
Ludmila Churkina
Legal representative of Proshkin S.A.
for proceedings before the European Court of Human Rights__________
THE WRITTEN OBSERVATIONS OF THE APPLICANT IN REPLY TO THE MEMORANDUM
OF THE REPRESENTATIVE OF THE RUSSIAN FEDERATION AT THE EUROPEAN COURT
OF HUMAN RIGHTS DATED 2 OCTOBER 2007
On 17 October 2007 the European Court of Human Rights sent the
applicant's representative the Memorandum of the Representative of the
Russian Federation at the European Court of Human Rights in respect of
the application "Proshkin v. Russia".
The arguments submitted by the Russian authorities cannot be accepted
by the following reasons.
Question No. 1.
In the Memorandum dated 2 October 2007 the Russian Federation
authorities state that on 27 January 2003 on question of preventive
punishment concerning the applicant the judge of the Industrial
District Court of Perm delivered only one decision on custody of the
applicant in the psychiatric hospital.
In reality on 27 January 2003 the Industrial District Court of Perm
issued two decisions which were identical, save for one difference. By
the first decision the District Court ordered the applicant's
placement in temporary detention facility of Perm. By the second
decision it authorized the applicant's detention in a psychiatric
hospital.
Under p. 7 of Article 108 of the Code of Criminal Procedure of the
Russian Federation a decision of a judge authorizing detention on
remand is to be immediately executed. In connection with the first
decision Mr. Proshkin was sent to the temporary detention facility
where he was kept from 27 January to 18 August 2003. It is also
confirmed by the answer of the Russian Federation authorities of 14
January 2005 to the inquiry of the European Court under Rule 39 (page
3).
We propose that the Russian Federation authorities provide
contradictory information as two decisions were illegally issued.
Under Articles 442, 443 of the Code of Criminal Procedure a court
issues a decision on relief of a person from criminal responsibility
and application of compulsory measures of medical character to him and
indicates what kind of compulsory measures of medical character should
be applied. During the hearing of 27 January 2003 the Industrial
District Court of Perm did not indicate compulsory measures of medical
character to Mr. Proshkin.
Article 108 of the Code of Criminal Procedure contains a close list of
circumstances on the ground of which such measure of restraint may be
applied to a person. But it does not provide detention on remand in
connection with circumstances indicated in the decisions of the
Industrial District Court of Perm dated 27 January 2003.
Thus, the custody of the applicant from 27 January to 18 August 2003
in the temporary detention facility of Perm was not carried out "by
way of, stipulated the law". Therefore, it did not correspond to
requirements of item1 of Article 5 of the Convention.
Question No. 2.
The applicant appealed against the decisions of the Industrial
District Court of Perm of 27 January 2003 on 28 January, 31 January,
and 1 February 2003.
But these appeals were not examined what is confirmed by the decision
of Perm Regional Court dated 6 March 2003.
Therefore, the applicant had no effective remedies to appeal against
the decision of the Industrial District Court of Perm of 27 January
2003.
In its case-law the European Court repeatedly stated that "the purpose
of Article 5 (4) is to assure to persons who are arrested and detained
the right to a judicial supervision of the lawfulness of the measure
to which they are thereby subjected". The Court also noted that "the
review should, however, be wide enough to bear on those conditions
which, under the Convention, are essential for the "lawful" detention
of a person as ill-mentally; this is all the more so because the
conditions initially justifying that detention may change to such an
extent that they cease to exist" (see De Wilde, Ooms and Versyp v.
Belgium, judgment of 18 June 1971; Engel and others v. Netherlands,
judgment of 8 June 1976; Thynne, Wilson and Gunnel v. the United
Kingdom, judgment of 25 October 1990; Iribarne Perez v. France,
judgment of 24 October 1995; X. v. Royaume-Uni, judgment of 5 November
1981; Van Droogenbroek v, Belgium, judgment of 24 June 1982; Weeks v.
the United Kingdom, judgment of 2 March 1987; E. c. Norvege, judgment
of 29 August 1990; Hussain v. the United Kingdom, judgment of 21
February 1996; Singh v. the United Kingdom, judgment of 21 February
1996; Chahal v. the United Kingdom, judgment of 15 November 1996).
In the case Winterwerp the European Court also noted that "mental
illness may entail restricting or modifying the manner of exercise of
such a right, but it cannot justify impairing the very essence of the
right" (see Winterwerp v. Netherlands, judgment of 24 October 1979).
We consider that the Russian Federation violated item 4 of Article 5
of the European Convention.
Answer 3.
On 17 and 18 February 2003 the Industrial District Court of Perm
considered criminal case of the applicant. On 15 April 2003 the
Judicial Chamber on Criminal Cases of the Perm Regional Court examined
the appeal of Shchyokotova. The applicant was not brought to the
appeal hearing and could not represent his arguments.
The argument of the Russian Federation authorities that Section 51 of
the Code of Criminal Procedure, by which way the criminal case was
examined, does not provide participation of mentally sick person in
judicial session is ungrounded and illegal. This Section lays down
procedural norms for application of compulsory measures of medical
character. Under item 1 of Article 441 of the Code of Criminal
Procedure a court examines a case concerning application of compulsory
measures of medical character in an ordinary manner. Thus this Section
contains no specific rules concerning the participation of a mentally
ill person at trial and appeal hearings.
The argument of the Russian Federation authorities that on 20 February
2003 the applicant was recognized incapacitated is untrue.
On 6 May 2003 the Industrial District Court of Perm examined the
application of the prosecutor of the Industrial District of Perm and
declared Mr. Proshkin civilly incapacitated taking into account the
psychiatric expertise of 20 February 2003. Therefore, on 20 February
2003 Mr. Proshkin was no declared incapacitated.
In the amendments to the cassational appeal dated 26 March 2003 Mrs.
Shchyokotova stated that the right of Proshkin to court was violated
as at hearings of 17 and 18 February 2003 neither he himself nor his
lawyer, Mr. Nikolaev, with whom he concluded an agreement, attended.
The court invited another lawyer by virtue of Article 51 of the Code
of the Criminal Procedure. Mr. Nikolaev was not summoned for hearings
of 17, 18 February, 15 April 2003.
In the case Pakelli the European Court stated that "Article 6 para. 3
(c) guarantees three rights to a person charged with a criminal
offence: to defend himself in person, to defend himself through legal
assistance of his own choosing and, on certain conditions, to be given
legal assistance free" (see Pakelli v. Germany, judgment of 25 April
1983).
More than that the European Court indicated that "unlike the rights
embodied in other provisions of Article 6 para. 3 the right to free
legal assistance conferred by sub-paragraph (c) is not absolute; such
assistance is to be provided only if the accused "has not sufficient
means to pay" (see Croissant v. Germany, judgment 25 September 1992).
Mr. Proshkin himself chose a lawyer from the moment of investigation.
Therefore, the right of Mr. Proshkin to a fair trial in part of
guarantees of item 3(c) of Article 6 of the European Convention.
On the basis of the abovementioned, we consider that the Russian
Federation violated item 1 and item 4 of Article 5, item 3(c) of
Article 6 of the European Convention.
Appendix:
1. The decision of the Industrial District Court of Perm dated
27.01.2003 on the applicant's placement in temporary detention
facility of Perm
2. The decision of the Industrial District Court of Perm dated
27.01.2003 on the applicant's placement in psychiatric hospital
3. The decision of the Perm Regional Court of 6 March 2003
4. The answer of the Industrial District Court of 25.11.2003
5. Amendments of Shchyokotova G.V. to the cassational appeal of
26.03.2003 against decision of the Industrial District Court of
Perm dated 18.02.2003
15 December 2007
Ludmila Churkina
Legal representative of Proshkin S.A.
for proceedings before the European Court of Human Rights__________
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