Судебное дело "Лесникович против России (жалоба no. 17181/09)"
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 ЯНАО 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 (СИЗО - 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-О, from
20 October 2005 No. 374-О, from 28 May 2009 No. 638-О-О, from 16
December 2010 No. 1684-О-О and from 23 April 2013 No. 626-О).
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 ЯНАО 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 ЯНАО 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-О.
2. Statement on the conclusion of a settlement agreement.
Anton Burkov,
Representative of the applicant
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