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Ответ юриста на вопрос 13081 онлайновой консультации
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ОДНИХ УПОЛНОМОЧЕННЫХ ПРЕСЛЕДУЮТ ПОСЛЕ ОТСТАВКИ, ДРУГИМ ПРОДЛЕВАЮТ ПОЛНОМОЧИЯ... КАКОВЫ КРИТЕРИИ?! (1)
Ответ юриста на вопрос 13081 онлайновой консультации (1)
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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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