Судебное дело "Алина Саблина против тайной трансплантации органов"
28.04.2016
28 April 2016
European Court of Human Rights
Council of Europe
67075 Strasbourg Cedex
France
Sablina and Others v. Russia (4460/16)
of 28 December 2015
Dear Sir,
This letter is an information update related to an application filed
to the European Court of Human Rights on 28 December 2015 in the case
of Sablina and Others v. Russian (hereinafter the <>).
As stated in paragraph 15 of the statement of facts of the
Application, although the State was not a defendant or an impleaded
party in the civil lawsuit, on 11 February 2015, a preliminary hearing
took place where the State Prosecutor was present. The State
Prosecutor was sitting at the Applicants counsel table, preventing him
to work properly and thus preventing Applicants from making their case
with the full attention it deserved and required.
On 11 February 2015 the Applicants filed an oral motion to exclude the
State Prosecutor from the Courtroom. The motion was summarily
dismissed without justifications. No immediate appeal was possible
under Russian rules of civil procedure. (Paragraph 16 of the statement
of facts of the Application).
On 2 March 2015 the Applicants filed a written motion with the Court
and no answers were ever given. (Paragraph 17 of the statement of
facts of the Application).
On 6 April 2015 an in camera trial began on the merits of the civil
case of the Applicants. (Paragraph 18 of the statement of facts of the
Application).
On 7 April 2015, on the second day of the trial, while she had not
been present on the previous day and during the hearing of the trial
(testimonies and proof) the State Prosecutor showed up in the
courtroom. The Applicants then filed an oral motion to have the State
Prosecutor excluded from the courtroom, which motion was dismissed.
The State Prosecutor, siting at the same table as the Court's clerk,
delivered arguments and conclusions, praising the Court to dismiss the
case. (Paragraph 20 the statement of facts of the Application).
The Applicants case was dismissed on the same day and an appeal was
dismissed by the Moscow city Court on June 30, 2015. (Paragraph 21 and
24 of the statement of facts of the Application)
The presence of the State Prosecutor at a civil case which does not
implead him nor make him a defendant is provided for by Article 10.2
of the Regulation by Russian Prosecutor General of 26 April 2012 No
181 (hereinafter the <>) (Annex 1).
On 28 August 2015 the Applicant Elena Sablina (the Applicant) filed an
application to the Russian Supreme Court (Annex 2) to challenge the
Regulation.
On 8 September 2015 a Supreme Court judge, without a hearing,
dismissed that application and declared it inadmissible (Annex 3), on
the basis that another party had filed the same type of application
(hereafter the <>).
The Similar case had already been heard and ruled by the Supreme Court
on August 11, 2015 (Annex 4).
Considering that the Code of civil procedure allowed a 30 day period
to appeal such a decision, the ruling in the Similar case (August 11,
2015) was therefore not in force at the time.
The Applicant appealed the decision of 8 September 2015 (Annex 5) and,
on 27 October 2015 under a simplified procedure provided for in
Russian procedure regulations (Russian Code of Administrative Justice
- entered into force on 16 September 2015 - since then the prosedure
of consideration of applicaiton by Sablina and "the Similar case" is
covered by the Russian Code of Administrative Justice), a decision was
issued, without hearing the Applicants, and the appeal was simply
dismissed (Annex 6).
During December 2015 the Applicants learned that an appeal in the
similar case would be considered on 14 January 2016 (Annex 7). The
Applicants then filed an application to join in the Similar case
appeal (Annex 8).
On 13 January 2016, the same judge who had issued the decisions of 11
August 2015 in the Similar case and the decision of 8 September 2015,
dismissed the Applicants motion to join in the Appeal in the Similar
case (Annex 9). The representative of the Applicant learned of the
existance of the 13 January 2016 decision after the appeal trial of 14
January 2016. On 14 January 2016 Anton Burkov, the representative of
Elena Sablina, was present at the consideration of the appeal in the
Similar case. The three appeal judges rejected motion by the
representative of Elena Sablina to join the appeal. No reasons were
given. No written opinion was given at the time or later. No motion
was reflected in the 14 January 2016 appeal decision (Annex 10). The
applicant in the Similar case was not present at the hearing.
On 27 January 2016 the Applicant filed an appeal to the 13 January
2016 decision (Annex 11). On 25 February 2016 the appeal was dismissed
(Annex 12). No hearing took place. During all the proseedings
described in this letter, the representative of the Applicant has
never had a chance to appear before judges to explain the Applcant's
legal position and arguments during hearings.
All Russian proceedings have been exhausted and the Applicants have
been denied a fair trial and a fair chance at challenging the
Regulation.
As mentioned hereafter, the Applicants have been denied a fair chance
of having the merits of their civil rights claim reconsidered as the
result of the behavior of the State prosecutor.
In Suominen v. Finland^ this Court ruled that << .... that each party
must be afforded a reasonable opportunity to present their case -
including their evidence - under conditions that do not place them at
a substantial disadvantage vis-`a-vis their opponent^>>... << article
6 S: 1 obliges courts to give reasons for their judgments, but cannot
be understood as requiring a detailed answer to every argument^>>.
As mentioned in the statement of alleged violations of the
Application, the presence of the State Prosecutor at the end of the
trial created an imbalance between the parties to the civil case, and
therefore violated the principle of equality of arms. Despite missing
key part of the trial, the State Prosecutor took sides with the
defendants and delivered conclusions against the Applicants, even
though he was not a defendant nor impleaded in the proceedings. For
those reasons, the Applicants allege a violation of article 6 of the
Convention in the Application.
The alleged violation of Article 6 has to be examined and considered
in conjunction with the proceedings filed after the decision on the
merits of the case was issued. Those proceedings aimed at challenging
the Regulation and they were the object of repeated ex-parte
considerations and summary and unreasoned decisions from the Court.
By dismissing the first attempt of the Applicant Elena Sablina to
challenge the Regulation without giving her the opportunity to make
sound and prepared arguments and by issuing a summary decision,
without justified reasons, the Russian courts made it impossible for
the Applicant to have her civil rights case reconsidered.
As soon as the first motion of the Applicants to have the State
prosecutor excluded from trial was dismissed the Applicants never had
the opportunity to have their case heard by a neutral and impartial
tribunal.
First of all, the Applicant Elena Sablina was dismissed the
possibility to join in the Similar case while the decision which had
dismissed that Similar case was not even in force. Moreover, by
issuing a dismissal based on admissibility, the judge proved its
decision against all possibility for the Applicants to have a hearing
in the appellate courts. Because of the Regulation, an inadmissibility
decision from the first instance can be considered without a hearing.
Even though the Counsel in the Similar case agreed that the Applicants
would join its case in Appeal (copy of the letters is in Annex 7), the
judge denied them any consideration.
The violation of the right to a fair and just trial in the
determination of the civil rights of the Applicant results from the
combination of the enforcement of the Regulation and the decision of
the Court to declare the motion of the Applicants inadmissible. By
doing so, the Applicant never had the opportunity to make full
arguments and to have a resulting comprehensive and reasoned judgment.
In Khan v. United Kingdom this Court stated that, while considering a
possible violation to Article 6, the fundamental question is to know
if the proceedings, as a whole, were fair^.
The only legitimate aim the courts proceedings can achieve is one of
efficiency. It could be argued that Appellate Courts can be more
efficient if, in some circumstances, cases can be considered without a
proper hearing. However, in this particular case, the declaration of
inadmissibility, issued without justification, in a context where the
Similar case was not even in force, gave rise to a series of
proceedings that let no fair chance to the Applicants. The enforcement
of the Regulation resulted in a violation of Article 6.
We hope this update on the recent Russian proceeding developments
related to the Application can be useful and submit this letter with
respect.
Annexes:
1. Regulation by Russian Prosecutor General of 26 April 2012 No 181.
2. Application of 28 August 2015 to the Russian Supreme Court.
3. 8 September 2015 Supreme Court decision.
4. 11 August 2015 Supreme Court judgment and applcation to the
Supreme Court.
5. Appeal of the decision of 8 September 2015.
6. 27 October 2015 Appeal decision.
7. Letters to the applicant to the Similar case.
8. Application to join in the Similar case appeal.
9. 13 January 13 2016 decision.
10. 14 January 13 2016 decision.
11. 27 January 2016 appeal to the 13 January 2016 decision
12. 25 February 2016 decision.
Anton Burkov,
representative of Elena Sablina
Suominen v. Finland No 37801/97, (2003), judgment, ECHR.
Ibid, par. 25
^Ibid., par. 34
Khan v. United Kingdom, No 35394/97 (2000), judgment, ECHR,1, par. 38
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1. Anonymous - 17.05.2016 11:02:38
Есть вариант на русском языке ???? Хотелось прокоментировать статус прокурора в процесе , что помогло бы открыть полную картину его участия перед ЕСПЧ .
2. СУТЯЖНИК - 17.05.2016 11:52:37
К сожалени, нет. Желающие, могут перевести и мы опубликуем
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