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" ( no. 17181/09)"


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09.07.2013

 

                                                        Section Registrar

                                                           So/ren Nielsen

                                           European Court of Human Rights

   11 June 2013

   Memorandum from the Applicant

   Application No. 17181/09

   Lesnikovich v Russia

   Dear Sir,

   In  response  to  the  memorandum of the Representative of the Russian
   Federation  at  the  European  Court  of  Human  Rights  (hereinafter:
   Representative) of 8 April 2013, I present the European Court of Human
   Rights (hereinafter: ECtHR) with the applicant's observations.

   Question no. 1

    1. In  response to paragraphs 1-6 of the Representative's Memorandum,
       I  explain  the  following.  The  application  is filed within the
       six-month application period at the ECtHR, and the legal position,
       set  out  in  the ECtHR judgment in the case of Norkin vs. Russia,
       referred  to  by  the  Representative,  is  not  applicable to the
       applicant in the present case.
    2. On  the  basis of the rules in Art. 208 of the Russian Civil Code,
       the  statute of limitations does not apply to the requirements for
       protection  of  the  right  to  adequate  conditions  in detention
       facilities.  However,  the applicant, in contrast to the situation
       in  the case of Norkin v. Russia, did not invoke said provision of
       the  national  legislation  to  `restore' the term to apply to the
       ECtHR   after   being   released  from  Correctional  Colony  IK-8
       (hereinafter:  IK-8),  but  sought  the  protection  of his rights
       before  domestic authorities while still incarcerated in IK-8; the
       early appeals of the violations of applicant's rights were sent to
       court in 2008, as evidenced by the ruling of the Labytnangsky City
       Court    from  18  November  2008.  The  court  did not accept
       applicant's  appeal  for  an extended period of time. Only in 2010
       the  applicant managed to achieve the acceptance for review of his
       appeal.
    3. In  contrast  to  the  facts  in  the  Norkin vs. Russia case, the
       history of applicant's complaints to public authorities shows that
       the  applicant  repeatedly  appealed  to the relevant institutions
       within  the domestic judicial system for protection of his rights,
       without  appealing to the ECtHR. The applicant did not know at the
       time  that  appeals  to national courts are not effective remedies
       for  rights  protection.  This  is  confirmed by the fact that the
       applicant  repeatedly appealed and filed suits to domestic courts.
       It  was  only  after  the exhaustion of domestic remedies that the
       applicant  filed a complaint with the ECtHR over the course of six
       months.
    4. The Representative has no right to raise a situation regarding the
       efficiency   of  domestic  remedies,  which  was  unknown  to  the
       applicant  at  the  time appealing to the ECtHR, in support of the
       passing of the six-month period for appeal to the ECtHR. Moreover,
       in paragraph 18 of the Memorandum, the Representative insists that
       recourse  to  domestic  courts  for the protection of the right to
       adequate detention conditions is an effective remedy.
    5. Thus,  the applicant did not abuse his right to appeal to domestic
       courts  for  the  protection  of  his  right to adequate detention
       conditions  in  Short-term  Detention  Facility (hereinafter: IVS)
       during  an  open-ended period of limitation. The applicant did not
       await  his  release  from IK-8 to appeal to a domestic court after
       his  release  and thereby `restore' the six-month appeal period to
       the ECtHR, as did Norkin in the case of Norkin v. Russia, which is
       referred to by the Representative.
    6. It  should also be noted, that IVS (short-term detention facility)
       in  the  Federal Law of 15 July 1995 N 103-FZ "On the detention of
       suspects  and  accused  persons"  is  defined  as  a  facility for
       specifically  SHORT-TERM  detention,  since  suspects  and accused
       persons can only be held there OVER A SHORT-TERM, that is within a
       maximum  of  10  days (Article 13 of the Law), while the remaining
       time  should  be spent in Remand Prison ( - hereafter SIZO) or
       IK,  other  detention  facilities.  IVS  are  not designed to hold
       suspects  for more than 10 days. The applicant was in a IVS over a
       period  from  17 February 2006 to 24 June 2006 (over four months).
       Only  on  24  June  2006  the applicant was transferred to a SIZO,
       where he was held until 30 August 2006 until he was transported to
       IK-8.
    7. Thus, even the mere fact that the applicant was held for more than
       six   months  in  IVS,  a  facility  not  designed  for  long-term
       detention,  violates the applicant's guarantees under Article 3 of
       the  Convention  (see paragraphs 22-29 of the judgment in the case
       of KHRISTOFOROV v. RUSSIA, complaint no. 11336/06).

   Question no. 2 and 6.

    8. In response to paragraphs 7-19 of the Representative's Memorandum,
       I explain the following.
    9. The  Representative  has  not  provided the ECtHR with data on the
       number  of  prisoners  held  in  residential  units  in  IK-8, and
       therefore  did  not comply with the burden of proof. The applicant
       was  under  the  full  control  of  the  state  in IK-8. In such a
       situation,   the  burden  of  proving  compliance  with  detention
       conditions   rests   with   the   state   in  the  person  of  the
       Representative.  In turn, the applicant gave a detailed account of
       the  situation of the detention conditions in IK-8. If the data on
       overpopulation,  presented  to the ECtHR by the applicant, are not
       refuted,  then  the  data  presented  by  the  applicant should be
       accepted.
   10. Moreover,  applicant's  guarantee  for  detention  in  IK-8 in not
       overcrowded  conditions  is not only violated in practice (placing
       more  people  than permissible under guarantees of compliance with
       proper detention conditions), but also by directly established low
       standards  for  the  size of floor space in legislation. Part 1 of
       Article  99  of  the Russian Code for Criminal Procedure "Material
       and  social  provision  for  persons  sentenced  to  imprisonment"
       prescribes that "The norm for living space per person sentenced to
       imprisonment  in  correctional  colonies  may not be less than two
       square  meters..."  Thus, Part 1 of Article 99 of the Russian Code
       for  Criminal  Procedure  allows  the  confinement of prisoners in
       premises with a floor space of two square meters per prisoner.
   11. The  European Court of Human Rights has repeatedly drawn attention
       to  the  fact that a minimum standard of two square meters for the
       floor  space  in  a  cell  is  a  violation  of  Article  3 of the
       Convention  (Kalachnikov  v. Russia, no. 47095/991 S: 97; Mamedova
       v.  Russia,  no. 7064/05, S:S: 61 et seq., 1 June 2006; Khudoyorov
       v.  Russia, no. 6847/02, S:S: 104 et seq., ECHR 2005 X (extracts);
       Labzov  v.  Russia,  no.  62208/00, S:S: 44 et seq., 16 June 2005;
       Novoselov  v.  Russia, no. 66460/01, S:S: 41 et seq., 2 June 2005;
       Mayzit v. Russia, no. 63378/00, S:S: 39 et seq., 20 January 2005).
       According to the recommendations by the European Committee for the
       Prevention  of  Torture  and  Inhuman  or  Degrading  Treatment or
       Punishment,  the  minimum permissible area of a cell is considered
       to  be 7 square meters per prisoner (S: 43 General report [CPT/Inf
       (92)   3]).   Moreover,  the  recommendations  are  based  on  the
       jurisprudence  of  the  European  Court of Human Rights, including
       cases against the Russian Federation, which is an integral part of
       the Russian legal system due to the ratification of the Convention
       for the Protection of Human rights and Fundamental Freedoms.
   12. Part  1  of  Article 99 of the Russian Code for Criminal Procedure
       regarding  the  establishment  of  the  2  square  meter  norm for
       residential   area  per  prisoner  was  repeatedly  challenged  by
       prisoners   before   the   Russian   Constitutional  Court,  which
       recognized the norm as constitutional (see attachment), since "the
       norm  does  not  prevent  the implementation of recommendations by
       international organizations (in particular, the European Committee
       for  the  Prevention of Torture and Inhuman or Degrading Treatment
       or  Punishment)  in  matters of the enforcement of punishments and
       the  treatment  of  prisoners,  provided  there  are the necessary
       economic  and  social  conditions"  (ruling  of the Constitutional
       Court  of  the Russian Federation from 11 May 2004 No. 174-, from
       20  October  2005 No. 374-, from 28 May 2009 No. 638--, from 16
       December 2010 No. 1684-- and from 23 April 2013 No. 626-).
   13. All   reporting   documentation   regarding  clothing  allowances,
       essential  items and food standards, is conducted and completed by
       prisoners.  So-called `activists', who are completely dependent on
       the  administrative staff at the facility and have to fulfil their
       requirements.  The  facts  stated  above  emerge from the personal
       experience  of  the  applicant  with said violations of prisoners'
       rights, since the applicant himself had to be an `activist'.
   14. The information presented by the Representative that the applicant
       received his clothing allowances on time, does not correspond with
       reality,  as  either  the  dates  in the statement of receipt were
       corrected or the applicant's signature was forged.
   15. The  applicant  appealed  to  the ECtHR after exhausting all legal
       remedies that are considered effective.

   Question no. 3.

   16. The  Representative  acknowledged  a  violation  of paragraph 1 of
       Article   5  of  the  Convention  regarding  applicant's  unlawful
       detention on 16 February 2006.
   17. The  applicant  was unable to defend his right to personal liberty
       through domestic legal remedies.
   18. The applicant filed a claim with the Noyabrsky City Court  for
       a  violation  of  rights guaranteed in paragraph 1 of Article 5 of
       the  European  Convention (L.185-187). However, the Noyabrsky City
       Court   deliberately  delayed  the  deadlines  for  reviewing  the
       application,   citing  farfetched  and  irrelevant  arguments  and
       returning  the  application.  Ultimately, the Regional (Okruzhnoy)
       Court    ordered  the  Noyabrsky  court to accept the case for
       review  (L.192;  264; 297; 298). By decision of the Noyabrsky City
       Court  the  applicant's  demands were rejected. A cassation appeal
       was  filed  against this decision. However, the court returned the
       appeal  immediately  with two determinations: 1) on the entry into
       force  of the decision; 2) on the need to address the shortcomings
       in  the  cassation  appeal  - the court was not satisfied with the
       receipt  of  payment of state fees and therefore the complaint was
       not  accepted.  The  applicant  had  not  been able to address the
       shortcomings,  as he learned about the shortcomings simultaneously
       with the receipt of the decision to return the appeal, and at that
       time the judgment had already entered into force.

   Question no. 4.

   19. For  the  same  reason,  the  applicant had no opportunity to seek
       compensation for his unlawful detention in accordance with Article
       5 Part 5 of the Convention.
   20. The  applicant  believes  that  he  is  a  victim  in light of the
       provisions  of Articles 3, 5 and 6 of the European Convention, and
       therefore  believes  that  the  respondent  state  is  to  pay him
       compensation  for moral damages in the amount of EUR 38000 (thirty
       eight  thousand  euro) as a fair compensation for the violation of
       the Convention and the applicant's rights.

   Attachment:

    1. Ruling  of the Constitutional Court of the Russian Federation from
       23 April 2013 No. 626-.
    2. Statement on the conclusion of a settlement agreement.

   Anton Burkov,

   Representative of the applicant

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