25.06.2011
to the Civil Cases Cassation Panel of the Supreme Court of Russian
Federation through trial court of the Supreme Court of Russian
Federation (judge: Yemisheva V. A.) 121260, Moscow, Povarskaya st., 15
Claimant: Bugrova Lada Stanislavovna
Address: 620075, Yekaterinburg, Turgeneva st., 11-1
PRIVATE COMPLAINT
considering the judicial decision dated May, 16 2011 in which the
court refused to accept an application of challenging item 11 of
Statement on allowance conditions of people detained for
administrative offence, nutritional standards and medical services
provided for such people
On April, 30 2011 L. S. Bugrova (hereinafter called the Applicant)
appealed to the Supreme Court of Russian Federation in order to
challenge item 11 of "Statement on allowance conditions of people
detained for administrative offence, nutritional standards and medical
services provided for such people ", approved in Government of the
Russian Federation Ordinance No.627 dated October, 10 2003.
On May, 16 the Supreme Court of Russian Federation issued a decision
in which it refused to accept L. S. Bugrova's application.
1. The court has misapplied procedural law.
The court considered that the Applicant in her reference to the court
was acting on the base of article 44 of the Code of Civil Procedure as
a procedural successor in interest.
The Applicant appealed to the Supreme Court of Russian Federation as
an individual entity, as an implicit victim, about which she had
comprehensively written in her application to the Supreme Court of
Russian Federation, namely, on page 2 of the application it was
specified as follows:
"Due to demise of Bugrov M. Y., it's practically impossible for him to
challenge article 11 of the Statute. Withal, it is commonly recognized
in judicial practice of the European Human Rights Court that if a
third person has had a close relationship with the deceased (kinship
or other), they are considered an implicit victim and have a right for
legal action in order to claim for restoration of violated rights of
the deceased - direct victim (Cakici v. Turkey, judgment of the
European Court of Human Rights dated July, 8 1999, para. 98 - in
translation of M. de Salvia, Precedents of the European Human Rights
Court. Spb.: Yuridichesky Centre press, 2004. P. 820; Rantsev v.
Cyprus and Russia dated January, 7 2010, item 3 ref. judgment text on
[1]http://sutyajnik.ru/documents/3184.pd). Thus according to item 3 of
the judgment in case Rantsev v. Cyprus and Russia claimant was a
father, who complained inter alia about violation of the rights of his
deceased daughter guaranteed by Article 2 of the Convention and
insufficient investigation of circumstances of her death. I am M. Y.
Bugrov's wife. It means I am an implicit victim and have a right to
take legal action.
According to part 4 of article 15 of the Constitution of Russian
Federation the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment is a part of the legal
framework of Russian Federation.
According to item 10 of Decree of Plenum of the Supreme Court of
Russian Federation No.5 dated October, 10 2003 "About application of
commonly recognized principles and legal standards of international
law and international treaties in trial courts of general
jurisdiction" such courts are obliged to use the Convention regarding
judicial practice of the European Court of Human Rights in order not
to commit a violation of any right described in the Convention for the
Protection of Human Rights and Fundamental Freedoms." According to
item 2.1 of Decree of the Constitutional Court of Russian Federation
dated February, 2 2007 "judgments of the European Human Rights Court
along with the Convention for the Protection of Human Rights and
Fundamental Freedoms are a part of the legal system of Russian
Federation, and thus should be taken into consideration by the
law-enforcement body when administering corresponding legal
standards".
2. The court has violated Article 6 of the Convention for the
Protection of Human Rights and Fundamental Freedoms.
The Supreme Court of Russian Federation in its decision dated May, 16
2011 didn't assess an argument of the Applicant about her procedural
legal capacity.
By refusing to regard the Applicant's argument, considering her right
to independent appeal to the court, it has violated the legal
standards described in part 1 of Article 6 of the Convention for the
Protection of Human Rights and Fundamental Freedoms. The standards
describer in part 1 of Article 6 of the Convention was interpreted in
judicial practice of the European Court of Human Rights, which is
binding for all courts in Russia. The European Human Rights Court has
repeatedly clarified that in order to provide fair trial national
courts have to "define with sufficient clarity the basis, on which
they are issuing their judgments" (motivated judgment guarantee) (ref.
Hadjianastassiou v. Greece, judgment of 16 December 1992, Series A no.
252 para 33; Van de Hurk v. the Netherlands, judgment of 19 April
1994, Series A no. 288 at para 61; Hiro Balani v. Spain, judgment of
09 December 1994, Series A no. 303-B at para 28; Ruiz Toroija v.
Spain, judgment of 9 December 1994, Series A no.303-A, at para 30). If
the court has based its decisions on articles of the Convention, it
was bound to "correspondingly examine the given reasons, arguments and
evidence" (Kraska v. Switzerland, judgment of 19 April 1993, Series A
no. 254-B). In connection to the aforesaid the court's actions, by
which it refused to assess the one and only argument of the Applicant,
based on the Convention and considering her legal capacity to take
legal action, do not conform with its obligations to provide for fair
trial as stipulated in 1 of Article 6 of the Convention.
Thus there was misapplication of procedural law, namely, Articles 2, 3
and 6 the Convention for the Protection of Human Rights and
Fundamental Freedoms as they are interpreted in the abovementioned
judgments of the European Court of Human Rights as a part of the legal
framework of Russian Federation, which led to wrong resolving of the
issue about legal capacity of the Applicant and direct violation of
the rights described in Article 6 of the Convention for the Protection
of Human Rights and Fundamental Freedoms.
On the basis of article 364 of the Code of Civil Procedure
I APPEAL:
to cancel the decision of the Supreme Court of Russian Federation
dated May, 16 2011.
Enclosed: a copy of this private complaint, a copy of the decision
dated May, 16 2011, returned documents (including a copy of the power
of attorney), claim for reinstatement of period of appeal (18 sheets).
June, 25 2011.
Ссылки
1. http://sutyajnik.ru/documents/3184.pdf
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