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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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