Судебное дело "Жалоба Исарлова С.Э. на нарушение ст. 5, 6, 13 Европейской Конвенции "
24.09.2012
FIRST SECTION
Application no. 4493/07
Stanislav Emestovich ISARLOV
against Russia
lodged on 28 December 2006
STATEMENT OF FACTS
The applicant, Mr Stanislav Emestovich Isarlov, is a Russian national,
who was born in 1972 and lives in the town of Revda, Sverdlovsk
Region. He is represented before the Court by Ms N. Yermilova, a
lawyer practising in Yekaterinburg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 19 December 2005 the applicant was arrested on suspicion of having
falsely accused a number of persons of criminal offences. The
prosecutor's case was that on a number of occasions the applicant had
sent letters to law-enforcement authorities having accused officials
of a municipal hospital of a number of criminal offences.
On the following day the Revda Town Court authorised the applicant's
placement in custody. The detention order was quashed upon his appeal
on 15 February 2006 by the Sverdlovsk Regional Court with a finding
that the Town Court had failed to examine a possibility of applying a
more lenient measure of restraint to the applicant. He was released.
The investigating authorities again applied to the Town Court seeking
an authorisation of the applicant's detention on remand. They reasoned
that the applicant was charged with a serious criminal offence and was
liable to abscond, reoffend or pervert justice as he refused to take
part in investigative actions, and he continued his disorderly
behaviour towards the hospital officials, having called them at least
seventy times per day. That application was dismissed by the Town
Court on 9 March 2006 with the finding that there was no evidence of
the applicant's intention to go on a run or to tamper with witnesses.
The applicant learned that the Town Court scheduled the trial hearing
for 11 July 2006. Neither the applicant nor his representatives, Mr G.
and Ms Yermilova, whom the applicant had issued with a power of
authority, were summoned to the hearing. The applicant and his
representatives filed written requests with the Town Court seeking
leave to appear at the hearing.
On 11 July 2006 the Revda Town Court found that the applicant had made
false accusation of criminal acts against hospital officials. It,
however, relieved the applicant from criminal responsibility, finding
that he was mentally incapacitated. The Town Court ordered the
application of compulsory measures of a medical nature to the
applicant and his placement in a psychiatric hospital. The relevant
part of the decision read as follows:
"Having regard to the factual circumstances of the present case and
the opinion of the legal representative of [the applicant] - Ms P.,
and despite the fact that [the applicant] committed a petty criminal
offence, the court considers it possible to issue a decision on
application of compulsory measures of medical nature to him, as [the
applicant], given the state of his mental health, poses danger to
himself and others around him which is confirmed by a forensic
psychiatric expert examination of 22 May 2006 which lawyer M. also did
not dispute in the court hearing".
The applicant's interests at the hearing were defended by a
court-appointed lawyer, Mr M., and the applicant's mother, Ms P. The
applicant and his two representatives, Ms G. and Ms Yermilova, were
absent from the hearing. As it appears from the materials presented by
the applicant, lawyer M. entered the criminal proceedings not earlier
than 6 July 2006. At the trial the mother asked to admit the applicant
for inpatient treatment in a psychiatric hospital as she "witnessed
psychiatric deviations in his behaviour", the applicant had no
intention to undergo outpatient treatment, his grandmother had also
been writing complaints, similar to those sent by the applicant to
various state officials, the applicant was unemployed and his mother
had to support him financially.
The judgment of 11 July 2006 was not amenable to appeal by the
applicant. Nevertheless, the applicant lodged an appeal statement. He
also unsuccessfully asked lawyer M. to appeal. However, according to
the applicant, lawyer M. refused to take any part in the proceedings
after the hearing on 11 July 2006. With no formal appeal against the
judgment having been made, it became final on 21 July 2006. The
applicant was admitted to the hospital on 2 August 2006.
The applicant's representatives, Ms Yermilova and Mr G., applied to
the Town Court asking to serve them with a copy of the judgment of 11
July 2006 and to inform them about the fate of the applicant's appeal.
They also complained to various judicial authorities about the Town
Court's refusal to afford them and the applicant an opportunity to
take part in the trial.
On 25 October 2006 the Revda Town Court returned to Ms Yermilova the
applicant's and her statements of appeal, having noted that they had
had no standing to appeal against the judgment by virtue of Article
444 of the Russian Code of Criminal Procedure. The relevant part of
the Town Court's letter read as follows:
''The materials of the case file do not contain any information that
the investigator of the Revda Town prosecutor's office... allowed you
to take part [in the proceedings] as [the applicant's] defender, and
not a representative of his interests, as that is not a civil case.
By a decision of 6 June the investigator... accepted Ms P., [the
applicant's] mother, as his legal representative in the case and she
took part in the court hearing on 7 July 2006.
Moreover, by virtue of Article 438 of the Russian Code of Criminal
Procedure on 6 July 2006 the court appointed lawyer M.... to act as in
the [applicant's] interests and he took part in the hearing on 7 July
2006 and defended [the applicant's] interests. During the pre-trial
investigation [the applicant's] defence was ensured by legal aid
lawyer O."
On 5 April 2007 the Revda Town Court dismissed a request by the
applicant's psychiatric hospital seeking the discontinuation of the
compulsory measures of a medical nature and the applicant's release.
The applicant and his representative Ms Yermilova only learned about
that decision in 2008. On 14 February 2008 they applied to the Town
Court asking to restore the time-limit for lodging an appeal against
that decision. The request was granted and on 14 November 2008 the
Sverdlovsk Regional Court, having examined the statement of appeal and
having heard the applicant and Ms Yermilova, upheld the decision of 5
April 2007. The reasoning was as follows:
"On 23 March 2007 [the psychiatric hospital] applied to the court with
a request to
annul [the applicant's] compulsory hospitalisation as following the
treatment [the
applicant] began understanding the factual character and social
dangerousness of the
acts committed by him in the past; given his state of health [he] may
be relieved of the compulsory treatment.
By a court decision of 5 April 2007 [the hospital's] request... was
dismissed and [the applicant] was to continue his compulsory inpatient
treatment in the psychiatric hospital of general care. The court based
its conclusions on statements by the head of the medical commission,
Mr S., according to whom, in view of the fact that the hospital had
not been provided with necessary medicines, in the last month it had
been impossible to ensure the adequate medical treatment for [the
applicant]. Improvements in his state of health which had been
observed earlier decreased, improvements of his mental state are not
stable and there are no guarantees that [the applicant] will not
reoffend in the absence of control and treatment. In these
circumstances, the court concluded that the grounds which led to the
application of the compulsory medical measures to [the applicant] did
not cease to exist...
Having studied the case file materials and having discussed the
statement of appeal, the court does not see any reasons to accept it.
The decision of 5 April 2007 to continue the compulsory medical
treatment of [the applicant] is well-founded and reasonable; it was
based on the explanations by the head of the medical commission
concerning the failure to provide [the applicant] with adequate
treatment in the last month resulting in the decrease of the
improvement of his health and that improvement becoming unstable;
therefore, the grounds for the application of the compulsory medical
treatment did not cease to exist. The court does not find any
violations of the procedural law."
The Regional Court also noted that the compulsory treatment of the
applicant had, in any case, been discontinued on 3 September 2007,
upon the hospital's new application.
On 6 February 2009 the Revda Town Court dismissed a request by the
psychiatric hospital to pronounce the applicant mentally and legally
incapacitated and to place him under a permanent guardianship. Having
examined a number of forensic psychiatric opinions, the Town Court
found that the applicant's treatment in the hospital between 2 August
2006 and September 2007 had been a success and there was no evidence
that his condition had deteriorated after his release from the
hospital. That decision became final on 12 March 2009 when a
prosecutor's office withdrew the appeal against it.
B. Relevant domestic law
2. For relevant domestic law provisions see the case of Proshkin v.
Russia (no. 28869/03, S:S: 37-60, 7 February 2012).
3. By decision no. 13-P issued on 20 November 2007 the Constitutional
Court of the Russian Federation declared unconstitutional a number
of provisions of the Russian Code of Criminal Procedure, including
Article 444 of the Code, as long as authorities interpreted them
as grounds to strip mentally ill defendants in criminal cases of
their procedural rights, including a right to study case file
materials, to attend court hearings, to lodge requests and
motions, to initiate proceedings concerning the amendment or
annulment of the measures and to appeal against any
decision impairing their rights.
i
COMPLAINTS
1. The applicant complained under Article 5 S: 1 (e) of the Convention
that his detention in the psychiatric hospital had been unlawful as he
had not
been declared legally incapacitated and that, in any case, his
detention for
two months between 2 February and 5 April 2007 had lacked any legal
grounds, as the court should have reviewed the grounds for his
detention no
later than 2 February 2007.
4. The applicant also complained under Articles 6, 13 and 14 of the
Convention that he had not been afforded an opportunity to attend
the trial and had been unable to appeal against the conviction.
5. The applicant further complained under Article 6 S: 3 (c) of the
Convention that he had not been able to defend himself with an
assistance of a representative of his choice, as the authorities
had not allowed Ms Yermilova or Mr G. to take part in the
proceedings.
QUESTIONS TO THE PARTIES
6. Did the applicant have a fair hearing in the determination of the
criminal charge against him, in accordance with Article 6 S: 1 of
the Convention? In particular, having regard to the applicant's
absence at the trial and the authorities' refusal to allow Ms
Yermilova or/and Mr G. to act as the applicant's representatives,
was the applicant able to defend himself in person or though legal
assistance of his own choosing, as required by Article 6 S: 3 (c)
of the Convention?
7. The Government are asked to provide detailed answers to the
following questions and to support their submissions with
evidence:
8. Does the Russian law on criminal procedure set out specific rules
regulating presence of a mentally ill defendant at the trial and
issues of his legal representation, particularly those concerning
his/her right to retain counsel?
9. When was Mr M. appointed to act as the applicant's legal aid
counsel and did he have meetings with his client before the trial
hearings?
10. Is there any procedural guarantees for a mentally ill defendant if
his/her interests/position/line of defence runs contrary to that
of his legal "defender" (the applicant's mother in the present
case)?
11. Was Article 2 of Protocol No. 7 applicable in the present case to
the proceedings by which the compulsory measures of medical
character were applied to the applicant? If so, was the applicant
afforded the right of appeal envisaged by Article 2 S: 1 of
Protocol No. 7? Did the absence of an appeal in the present case
fall within the exceptions laid down by Article 2 S: 2 of Protocol
No. 7? Has the applicant suffered discrimination in the enjoyment
of his rights under Article 6 of the Convention and Article 2 S: 1
of Protocol No. 7 on the ground of his mental health, contrary to
Article 14 of the Convention, given that the Russian law did not
afford him an opportunity, as a mentally ill defendant, to appeal
against the judgment by which the compulsory measures of medical
character had been applied? What are the procedural rules
governing representation of mentally ill-defendants at the appeal
stage? Was the applicant represented by legal aid counsel on
appeal? If so, the Government are asked to produce documents in
support of their submissions. What procedural rules govern a
situation when a mentally ill defendant's wish to appeal against
the conviction is not supported by his legal aid lawyer and
or/legal defender?
12. Given that the applicant was unable to appeal against the judgment
of 11 July 2006, did he have at his disposal an effective domestic
remedy, as required by Article 13 of the Convention?
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