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Судебное дело "Алина Саблина против тайной трансплантации органов"


Дополнение к жалобе Саблина и другие против России (относительно статуса прокурора в гражданском процессе)

 

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

                                     4


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Комментарии:

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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