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Судебное дело "А.В. Захаркин против России"

Отзыв Захаркина на меморандум Уполномоченного России при ЕСПЧ: организовал 5 одиночных пикетов, требовать уведомления о проведении которых также абсурдно, как требовать от пешеходов уведомления о стоянии на тротуаре; единственным основанием доставления Захаркина в милицию - температура в г. Сургут -38С; судья (он же прокурор, он же адвокат) не является независимым и беспристрастным; интересы правосудия требовали предоставления Захаркину бесплатного адвоката.




                                                  First Section Registrar

                                                           So/ren Nielsen

                                           European Court of Human Rights

   22 October 2014

   Written   Observations   on  behalf  of  the  applicant  in  reply  to
   observations  by  the  Representative of the Russian Federation at the
   European Court of Human Rights

   Application No. 40377/10

   Zakharkin v Russia

   Dear Sir,

   In  reply  to  the  written  observations by the Representative of the
   Russian  Federation at the European Court of Human Rights (Agent) of 2
   September 2014 No. 14-4104-14 we submit written observations on behalf
   of the applicant to the European Court of Human Rights.

   violations of Articles 10 and 11 of the Convention

    1. The  Agent  considers that the interference with the rights of the
       applicant in this case, taking into account margin or appreciation
       of  the state, was reasonable and not amounted to violation of the
       provisions of Articles 10 and 11 of the Convention.


    2. Article 10 and 11 of the European Convention have been declared by
       the  European  Court  of Human Rights as being the foundation of a
       democratic  society. However, the state can legally restrict those
       rights if there is a law that pursues a legitimate aim and that is
       necessary  in  a  democratic  society.  The  law must be clear and
       precise so that the applicant knows which actions will be followed
       by  an  arrest and fine. To have a legitimate aim, the restriction
       must  fit  into  one  of  the  categories enumerated in the second
       paragraph  of both articles. As for the condition of the necessity
       in a democratic society, the state must prove that the restriction
       is proportionate to the aim pursued.
    3. Before  analyzing  the  Court's  requirements,  we  would  like to
       specify  that  the  Court  makes  a difference between illegal and
       legal  protests.  Illegal  protests  are  those that have not been
       authorized,  while legal protests would therefore be the opposite,
       meaning  when  the  authorization has been issued for the protest.
       The  requirements  for an illegal protest to be legitimate for the
       Court  is  narrow,  however in our case, solo protesting should be
       legal without authorization and that is what we will try to argue.

   Quality of the Law 

    4. The  law  must be clear and precise for the citizens to be able to
       "regulate  their  conduct"  Rekvenyi  v.  Hungary, ECtHR, App. No.
       25390/94, 20 May 1990 para 34).

   Firstly,  the  law  must be adequately accessible: the citizen must be
   able  to  have  an indication that is adequate in the circumstances of
   the legal rules applicable to a given case. Secondly, a norm cannot be
   regarded as `law' unless it is formulated with sufficient precision to
   enable  the citizen to regulate his conduct: he must be able - if need
   be  with  appropriate  advice  -  to  foresee,  to  a  degree  that is
   reasonable in the circumstances, the consequences which a given action
   may entail. (Sunday Times judgment, p. 31, para. 49; Silver and Others
   judgment, p. 33, paras. 87 and 88)

    5. In  our case, the precision of the law can be questioned. In fact,
       Mr.  Zakharkin thought that he regulated conduct of his fellows in
       a  way  that  was  following the law. The fact that it isn't clear
       that  solo  protesting  is  covered  by  the  law  in terms of the
       obligation  to  give notice to local government means that the law
       is not precise and clear enough.
    6. When  organizing  solo protesters Mr. Zaharkin thought that he was
       following  Part  1  Article 7 of the Law "On assemblies, meetings,
       demonstrations, processions and picketing."

   A notice of holding the public event (except for a rally and picketing
   held by a single participant) shall be sent by its promoter in writing
   to  the  executive power body of the Subject of the Russian Federation
   or  the  body  of  local self-government within the period not earlier
   than  fifteen  and  not  later  than  ten days prior to holding of the
   public event.  

    7. In  addition  to the irregularities of the law and practice of its
       implementation in terms of the need to send notification, we state
       further  in  our  observation  that  it  is  not  necessary  in  a
       democratic  society  and  even  that  it  is  a legal absurdity to
       require  a  single  person protesting on a street to register this
       protesting  with  authorities  (to  send  a  notice of holding the
       public  event) in advance as this would require all pedestrians to
       authorize their movements on the streets.

   Legitimate aim:

    8. It  has  been accepted by the Court that regulating protests has a
       legitimate  aim.  (Nemtsov  v  Russia, ECtHR, App. no. 1774/11, 31
       July  2014  and  Eva Molnar v Hungary, ECtHR, App. no. 10346/05, 7
       January  2009).  For  the  public  order  and national security, a
       government can require the protests to be subject to authorization
       (Eva  Molnar  v Hungary,). However, as established by Eva Molnar v
       Hungary,  if  the  requirement  of authorization is in fact just a
       hidden  obstacle  to Article 11, then there would be no legitimate
       aim to the measure.
    9. Asking a solo protester to give his itinerary days in advance when
       there  could  not be potential disturbance to the public order (in
       the  same  way  as  there  is  no  potential  danger  in  a single
       pedestrian  walking  on a street) is just a hidden obstacle to the
       rights  protected  under  Article  11. A peaceful single protester
       standing on the sidewalk by definition as a regular citizen is not
       a  threat  or  a  disturbance  that  needs to be supervised by the
       police. There is no need to notify the local government so that it
       can  arrange  special police forces to oversee public order at the
       time  and  the place of a single protest. The only goal of advance
       notification is to evaluate if a public event requires enforcement
       of  regular police on city streets. A solo person on a street does
       not  require  enforcement.  If  this  were  the case, every single
       person  walking to work would be a threat and therefore would need
       to ask for authorization to go to his or her office. It would be a
       legal  absurdity  that  would  drastically affect people and their
       freedom of expression.
   10. Therefore  the aim of the interference with Mr. Zakharkin's rights
       in   terms   of   requiring  him  to  provide  notification  about
       forthcoming  solo  picketing  by  definition  posing  no threat to
       public  order  is not to protect the public, but rather to protect
       the  state  from  being questioned by the public. Consequently, as
       established  by  Eva  Molnar  v  Hungary,  the  requirement of the
       legitimate aim is not met.

   Necessary in a democratic society:

   11. The right to freedom of assembly and freedom of expression are the
       foundation  of  a democratic society. If there are restrictions to
       the  right  to  freedom  of  assembly,  they must be "convincingly
       established"  and  the  exception  of the second paragraph must be
       "narrowly   interpreted".  (Nemtsov  v  Russia,  ECtHR,  App.  no.
       1774/11, 31 July 2014 at para 72).
   12. The  Agent  must show that it is necessary in a democratic society
       to  restrain  the  solo  protesting,  which  the Agent did not do.
       Necessity  implies  the  existence  of  a  "pressing  social need"
       (Rekvenyi  v. Hungary, ECtHR, App. No. 25390/94, 20 May 1990, para
       42).  It is not a pressing social need to restrain a peaceful solo
       protester, because there is no interference to the public order or
       no  actual  need  to  have  police forces looking after one person
       protesting  while  standing  on  the  sidewalk. Requiring peaceful
       single  protesters to ask for an authorization restrains the right
       to  freedom  of  assembly  and freedom of expression in such a way
       that it will discourage people to show their conviction.
   13. In  Ezelin  v.France,  ECtHR  App.  No  11800/85  and in Nemtsov v
       Russia,  ECtHR, App. no. 1774/11, 31 July 2014, 26 April 1991, the
       Court  clearly states that Articles 10 and 11 cannot be restrained
       by  a  state  in  a  way that would discourage others from showing
       their  convictions. Moreover, the Court in that judgement declares
       that  any  sanction,  even  at  the  lower  end  of  the  scale of
       penalties,  is  a  limitation to the rights of freedom of assembly
       and  freedom  of expression and there should not be any limitation
       as  long  as  the  person  does  not  commit any reprehensible act
       (Ezelin  v.France,  ECtHR  App. No 11800/85, 26 April 1991 at para
       53).  Although  the  solo protests in that case were legal as they
       did not requires authorization, and the sanction occurred within a
       disciplinary  context,  the  principle  remains  applicable to Mr.
       Zakharkin  for whom the restriction was the requirement to ask for
       authorization. As we submitted earlier, solo protesting should not
       need  an authorization to be legal, and therefore any restriction,
       even the smallest one, would not be legitimate as long as the solo
       protester does not commit any reprehensible act.

   Proportionality of the restriction

   14. Even  if  the  measure  has a legitimate aim and is necessary in a
       democratic  society, it needs to be proportionate. In the Piermont
       v  France,  ECtHR,  App. No. 15773/89, November 3, 1994, the Court
       established  that  a  good  balance  should  be  kept  between the
       prevention  of disorder and the freedom of expression protected by
       Article  10  of  the  Convention. If the balance is not kept, than
       there  is  a  violation of Article 10. To have a law that requires
       authorization by single protestors is not proportionate to the aim
       pursued.  There is no need for such a restriction of the citizens'
       right  of  expression.  A  peaceful single protester standing (not
       even  walking)  on  the  sidewalk does not create a disturbance or
       traffic which would require an authorization in order to alert the
       police to potential dangers.
   15. In  addition  and  without  prejudice  to  the  foregoing, even if
       authorization  had  been  a  necessary  requirement,  the police's
       decision to arrest Mr. Zakharkin may not have been a proportionate
       reaction.  In  Oya  Ataman  v  Turkey, ECtHR, App. No. 74552/01, 5
       March  2007  at para 42, the Court held that even for unauthorized
       protests,  "where demonstrators do not engage in acts of violence,
       it  is  important  for  the  public  authorities to show a certain
       degree  of tolerance towards peaceful gatherings if the freedom of
       assembly  guaranteed  by Article 11 of the Convention is not to be
       deprived  of  all  substance".  Arresting peaceful solo protesters
       does not show a degree of tolerance, on the contrary: it restrains
       the  right  of  freedom  of expression used peacefully without any
       interference to the public safety or order.
   16. Therefore,  it  was  violation  of  Articles  10  and  11  of  the


   Violation of Articles 5 of the Convention

   17. According  to  Article  5(1)c  of  the Convention everyone has the
       right  to liberty and security of person. No one shall be deprived
       of  his liberty save in the following cases and in accordance with
       a  procedure  prescribed  by  law.  Only  one provision "c" of the
       Article   5(1)   might  be  applicable  to  circumstances  of  the
       Zakharkin's  case  -  "the  lawful arrest or detention of a person
       effected  for  the  purpose  of  bringing him before the competent
       legal  authority  on  reasonable  suspicion of having committed an
       offence  or  when it is reasonably considered necessary to prevent
       his  committing  an  offence  or  fleeing  after  having done so."
       However,  provision  "c"  of the Article 5(1) of the Convention is
       not  applicable  to Zakharkin as he had not committed any offence.
       Indeed he followed the Law.
   18. Mr.  Zakharkin  did not commit any offence, therefore he could not
       be arrested.
   19. Moreover,  Mr.  Zakharkin  could  not be arrested for being on the
       street  when  it was -38C or in order to save him from the cold by
       arresting him.


   Violation   of  Article  6  of  the  Convention  -  violation  of  the
   impartiality  requirement on account of the absence of any prosecuting
   authority and the role of the judge in these circumstances

   The tribunal was not impartial within the meaning of Article 6.

   20. The  judicial  process  leading  to  Mr.  Zakharkin's fine was not
       impartial  because it lacked objective guarantees of impartiality,
       thereby  undermining the public's confidence in the judiciary. The
       European  Court of Human Rights has repeatedly drawn a distinction
       between  "a subjective approach, that is endeavouring to ascertain
       the  personal  conviction of a given judge in a given case, and an
       objective   approach,  that  is  determining  whether  he  offered
       guarantees  sufficient  to  exclude  any  legitimate doubt in this
       respect"  (Piersack  v. Belgium, ECtHR App. No. 8692/79, 1 October
       1982 at para 30).
   21. By  consistently  applying  the  objective test in addition to the
       subjective, the Court has indicated that the inquiry is of broader
       significance  than  just  determining  whether  a particular judge
       lacked  impartiality  on  a  given  matter. Instead, "[w]hat is at
       stake  is  the confidence which the courts in a democratic society
       must  inspire  in  the  public  and  above all, as far as criminal
       proceedings are concerned, in the accused." (Hauschildt v Denmark,
       ECtHR  App.  no. 10486/83, 24 May 1989 at para 48). In the case of
       Mr.  Zakharkin,  the  judge's assuming prosecutorial functions and
       the  absence  of an independent prosecutor are sufficient to erode
       public confidence in the judicial system.
   22. The judge's assuming prosecutorial functions also breached Article
       6  of  the  Convention because Mr. Zakharkin himself had objective
       reasons  to  doubt  the impartiality of the judge. In applying the
       objective  test,  "the  standpoint of the accused is important but
       not  decisive"  (Piersack  v.  Belgium  ECtHR  App. No. 8692/79, 1
       October  1982  at  para  31 & Hauschildt v Denmark at para 48). In
       addition,  the  fear  of  lack of impartiality must be justifiable
       objectively (Hauschildt v Denmark, ECtHR App. no. 10486/83, 24 May
       1989  at para 48). In cases involving prior involvement of a trial
       judge  in pre-trial investigative functions, the European Court of
       Human  Rights  has  noted  that  an  accused  would have objective
       reasons to fear seeing a judge who had previously interrogated him
       subsequently  partaking  in the trial court decision (de Cubber v.
       Belgium,  ECtHR  App.  No.  9186/80, 26 October 1984 at para 29, &
       Oleksandr  Volkov v. Ukraine, ECtHR App no. 21722/11 at para 115).
       In  the case of Mr. Zakharkin, while the judge was not involved in
       pre-trial  decisions,  Mr. Zakharkin's seeing a person responsible
       for  adjudicating  his claim simultaneously interrogate him in the
       absence  of  an  independent  prosecutor  would  lead to a similar
       objectively  justifiable  fear.  As  such,  the  judge's  assuming
       investigative  or prosecutorial functions was sufficient to breach
       Article  6  of  the  Convention because Mr. Zakharkin's fears were
       objectively justified.
   23. The  fact  that Mr. Zakharkin's judge was not involved in the case
       does  not  mitigate  his  lack of impartiality. In some situations
       wherein  a  court  partakes  in summary procedures for contempt of
       court,  the  European  Court of Human Rights has held that judges'
       acting as adjudicators while simultaneously determining the charge
       can  lead  to  lack  of impartiality. In such cases, the Court has
       noted that:

   the  confusion  of  roles between complainant, witness, prosecutor and
   judge  could  self-evidently  prompt objectively justified fears as to
   the  conformity  of  the  proceedings with the time-honoured principle
   that  no  one  should  be  a  judge  in  his  or  her  own  cause and,
   consequently,  as  to  the  impartiality  of  the  bench (Kyprianou v.
   Cyprus, ECtHR App. no. 73797/01, 15 December 2005 at para 127).

   24. In  Mr.  Zakharkin's  case  there has been a similar conflation of
       roles,  with  the  judge's assuming strong investigatory powers in
       the  absence of an independent prosecutor. While the judge may not
       have  had  a  personal  interest in the outcome of Mr. Zakharkin's
       case,  by  performing  investigative roles normally limited to the
       executive  branch, the judge assumed a political role incompatible
       with  the  idea  of an independent judiciary. In this role as a de
       facto  extension  of  the  executive  branch,  the  judge gave the
       appearance  of  having  an  interest  in  the outcome of the case.
       Consequently,    the    judge's    simultaneous   involvement   in
       investigative  and  adjudicatory  functions  led  to  a  breach of
       Article 6 of the Convention.
   25. Moreover,  the  conviction  of  Mr.  Zakharkin was based solely on
       documents provided by the police.

   The tribunal was not independent within the meaning of Article 6

   26. The  judicial  process  that  led  to Mr. Zakharkin's fine was not
       independent   within   the   meaning  of  Art.  6.  In  evaluating
       independence of a court, it is necessary to consider the:

   manner  of  appointment  of  its members and their term of office, the
   existence  of  guarantees  against  outside pressures and the question
   whether  the  body  presents an appearance of independence (Findlay v.
   The  United  Kingdom, ECtHR App no. 22107/93, 25 February 1997 at para

   27. In Findlay v. United Kingdom, the Court considered a court martial
       whose   limited   safeguards   and   subsequent  review  by  other
       independent  judicial  bodies  were  insufficient  to mitigate the
       problematic  involvement  of  a convening officer in prosecutorial
       and  judicial  functions (Findlay v. United Kingdom, ECtHR App no.
       22107/93,  25  February  1997  at  para  72).  In  the case of Mr.
       Zakharkin,  the  judicial  body  did not even offer the pretext of
       limited  guarantees against outside pressures, as the absence of a
       duly  appointed  prosecutor  in  Mr.  Zakharkin's  case eroded the
       distinction  between  the executive and judicial branches, leaving
       the  judge  to occupy both roles. Consequently, the judge acted as
       if  he  were a member of the executive branch, thereby erasing any
       appearance of independence.
   28. Therefore, there was a violation of Article 6.


   29. A  similar position by the Agent has already been expressed in the
       observations  in the case of Mikhailova v. Russia No. 46998/08. To
       reply to this position we state the following.
   30. The  Court  has held that domestic courts must have "regard to the
       object  and  purpose  of  [Article  6  S:  3(c)]",  which states a
       defendant  has  the  right  to defend himself in person or through
       legal  assistance of his own choosing or, if he has not sufficient
       means  to  pay  for legal assistance, to be given it free when the
       interests  of justice so require (Pakelli v. Germany, No. 8398/78,
       25  April  1983).  In Pakelli, the Court noted that the object and
       purpose  of  the  article  necessitates  that  it be read not as a
       choice between allowing the accused to defend himself in person or
       through legal counsel, but that "a `person charged with a criminal
       offence'  who  does  not  wish to defend himself in person must be
       able to have recourse to legal assistance of his own choosing." In
       other words, the accused has the fundamental human right to choose
       whether he prefers to present his case by himself or through legal
       counsel.  A tribunal cannot make this decision for the accused. It
       is submitted that this proposition holds true even if domestic law
       allows an accused to appear in person to defend himself.
   31. In  Pakelli,  the  Court further held that "it goes without saying
       that  the  personal  appearance  of  the  appellant would not have
       compensated for the absence of his lawyer: without the services of
       a  legal  practitioner,  Mr.  Pakelli could not have made a useful
       contribution to the examination of the legal issues arising ..."
   32. In  Ezeh  and  Connors  v.  The  United Kingdom, Nos. 39665/98 and
       40086/98,  9  October 2003, the Court reached the same conclusion,
       holding  that  an  accused  was  "denied  the  right to be legally
       represented  in  the  proceedings  before  the prison governor" in
       violation of Article 6 when the "governor excluded the applicants'
       legal  representation."  The  Convention  violation  for excluding
       legal  counsel  was  "irrespective  of  whether  they  could  have
       obtained the services of a lawyer free of charge."
   33. In  Zdravko Stanev v. Bulgaria, No. 32238/04, 6 November 2012, the
       Court  highlighted  that  even  an  educated  man cannot be deemed
       prepared  to  represent  himself  personally before a tribunal and
       that  the "interests of justice demanded that, in order to receive
       a  fair  hearing,  the applicant ought to have benefited from free
       legal  representation  during  the  proceedings  before the Sliven
       Regional Court." In the words of the Court:

   [A]lthough  it  is  not in dispute that the applicant had a university
   degree,  there  is  no  suggestion that he had any legal training, and
   while the proceedings were not of the highest level of complexity, the
   relevant  issues  included the rules on admissibility of evidence, the
   rules  of procedure, and the meaning of intent. In addition, the Court
   notes  that  the  applicant  was charged with a criminal offence which
   involved  in  impugnment of a senior member of the judiciary and which
   called  into  question  the  integrity  of  the  judicial  process  in
   Bulgaria.  .  .  .  As such, a qualified lawyer would undoubtedly have
   been  in  a  position  to  plead  the case with greater clarity and to
   counter  more effectively the arguments raised by the prosecution. The
   fact  that  the applicant, as an educated man, might have been able to
   understand  the  proceedings  does not alter the fact that without the
   services  of  a  legal  practitioner he was almost certainly unable to
   defend himself effectively. [emphasis added]

   34. It is submitted that the case law is consistent and clear that the
       interests  of  justice  and compliance with Article 6 necessitates
       that   an  accused  in  a  criminal  proceeding  who  wants  legal
       representation  must  have  access  to  it, and that an individual
       cannot be considered to have had an adequate opportunity to defend
       himself  merely because he was present and permitted to speak at a

   The Government's observations

   35. In  the present case, the Government relies upon the fact that (1)
       the  Applicant was able to participate in the proceedings, (2) the
       amount of the fine imposed on the applicant was small and (3) that
       the proceedings are "simple" (according to the criteria set out in
       Gutfreund  v France, No. 45681/99, 25 April 2002) to show that the
       interests  of  justice  did  not  require that legal assistance be
       provided   free  of  charge.  In  all  aspects,  the  reliance  is
   36. It  is  not correct to describe the proceedings before the Justice
       of  the  Peace  or District Court as "simple". The court procedure
       involved  the  Applicant  being called before a judge to give full
       oral  and  written submissions. The Applicant was also entitled to
       call  and  cross-examine  witnesses. The nature of the offences of
       which the Applicant was accused was criminal.
   37. The  Applicant  is  not  a lawyer. He was placed in an emotionally
       charged  situation as she faced charge of a criminal nature with a
       possible  sentence  of imprisonment if he refused or could not pay
       the  initial  fine. Although he could physically appear before the
       judge,  submit  written  and  oral  statements,  and cross-examine
       witnesses,  as  a person with no legal background, he could not do
       this  effectively  without  legal  assistance.  The  applicant was
       devoid  of  any  effective assistance before the courts because he
       was unable to afford legal assistance, and was therefore unable to
       effectively  present  his  argument,  cross-examine  witnesses and
       function effectively at the hearings.
   38. In  such  a  case,  it is submitted that it is in the interests of
       justice  to provide an accused with a legal representative who can
       effectively  take  care  of  the  legal  and emotional burden, can
       present  the accused's case calmly and dispassionately, making use
       of his/her legal training to focus on making the legally important
       points required to found a successful defence.
   39. The  fact  that  the  Applicant lacked sufficient means to pay for
       qualified  legal  representation  himself  and  that  the  Russian
       authorities   did  not  provide  him  free  legal  assistance  was
       therefore  a  crucial  factor affecting the fairness of the trial.
       This  principle  of  `fairness',  which has been recognised by the
       Court  (see  McVicar v. the United Kingdom, No. 46311/99, 7 August
       2002),  should have meant that in this case the Applicant received
       the assistance of a lawyer.
   40. Lack  of  a  lawyer  representing  the applicant in a trial of the
       charge means that the functions of a defending lawyer were assumed
       by  a judge. Therefore, in this case the judge conducted functions
       of  a  judge,  of  a  prosecutor  and  of a defending lawyer. This
       situation could not be called a fair trial.
   41. The  fact  that  the  applicant  did  not  benefit  from any legal
       assistance  and that the judge assumed all the functions of actors
       of  the  trial  was  a  prejudice which, it is submitted, violated
       Article 6 of the Convention.


   42. The Court has recognized on many occasions that application of the
       rule requiring exhaustion of domestic remedies is neither absolute
       nor  capable  of  being applied automatically, but rather "must be
       applied  with  some  degree  of  flexibility and without excessive
       formalism"  given its application "in the context of machinery for
       the  protection  of human rights that the Contracting Parties have
       agreed  to set up." In reviewing whether an applicant has observed
       the  rule, the Court will consider the particular circumstances of
       each  individual  case, including not only the existence of formal
       remedies in the legal system of the respondent state, but also the
       general legal and political context in which they operate, as well
       as the personal circumstances of the applicant.
   43. The Court has recognized that an applicant need not always exhaust
       domestic  remedies.  The  Court  will  often dismiss a preliminary
       objection  by  a  respondent  state  that  the  applicant  has not
       exhausted  domestic  remedies where the state has not "established
       with  sufficient  certainty  that  the  remedy  advanced ... had a
       reasonable  prospect  of success."^ The Court has interpreted this
       requirement in the context of Article 13 as a requirement that the
       applicant have an "effective" remedy. An effective remedy does not
       require  the certainty of a favorable outcome, but it does require
       that  the  remedy  either  "prevent[] the alleged violation or its
       continuation[] or ... provid[e] adequate redress for any violation
       that has already occurred."^
   44. The  Court  has  concluded that an applicant need not pursue every
       available  form of relief where that applicant brought a number of
       unsuccessful  court  complaints.  In  Arutyunyan  v.  Russia,  the
       applicant complained that the conditions of his detention violated
       Article  3 of the Convention. Russia objected to the admissibility
       of  the  application  on  the  basis  that  the  applicant had not
       exhausted  domestic  remedies--even though he had brought numerous
       complaints   with   the   facility   administration   and  various
       law-enforcement  and executive authorities, as well as the Russian
       courts--because  he  had  not  brought a separate tort action. The
       Court  concluded  that  the  applicant was not required to file "a
       separate action with the same court":

   The  Court ... does not find it unreasonable that in a situation where
   the  domestic  courts had analysed, a number of times, the applicant's
   complaint  of  inadequate  conditions of detention, he did not lodge a
   separate  action  with  the  same  court  following  the  formal  tort
   procedure  as  required  by  the  Russian Civil Code. In circumstances
   where  the  domestic courts at two levels of jurisdiction had examined
   and  dismissed  the  applicant's  complaints,  having  found  that the
   conditions  of  his  detention  fully complied with the domestic legal
   norms,  it  is  not apparent that a tort action before the same courts
   would  have  been  any more successful, would have been decided on the
   basis  of any other issues or could have even passed the admissibility

   45. It  is  worth  noting  that  the  existence of a judicial decision
       providing  the  relief  requested  may  be sufficient to support a
       respondent state's contention that exhaustion of domestic remedies
       is  required.  In Ananyev & Others v. Russia, the Court considered
       complaints  that  the  applicants had been detained in inhuman and
       degrading  conditions  in  remand  centers while awaiting criminal
       trials against them. The Court recognized that a judicial decision
       showing an available remedy would have supported Russia's argument
       that  exhaustion  was  required,  but ultimately rejected Russia's
       objection  to  the non-exhaustion of domestic remedies and found a
       violation  of  Article  13 where "[t]he Russian Government ... did
       not submit a single judicial decision showing that the complainant
       had  been  able  to  vindicate  his or her rights by [submitting a
       judicial    complaint   regarding   the   conditions   of   prison
   46. The  same  situation  in  the  case of the Applicant. Two judicial
       instances  (justice  of  the  peace  and  a  district  court judge
       confirmed legality of actions of the police). Having demanded that
       Mr.  Zakharkin  to  file  a separate law suit against the police's
       actions,  the  Agent  did  not  submit  a single judicial decision
       showing that the suggested law suit would be able to vindicate Mr.
       Zakharkin's  rights  by  submitting  a separate law suit regarding
       police's actions, legality of which the justice of the peace and a
       district court judge has already considered.
   47. Therefore we submit that the Applicant Mr. Zakharkin has exhausted
       effective domestic remedies.

                            THEREFORE I SUBMIT:

    1. Mr. Zakharkin has exhausted effective domestic remedies.
    2. There was a violation of Articles 10 and 11 of the Convention.
    3. There was a violation of Article 5 of the Convention.
    4. Article  6  of  the  Convention  was  applicable  to  the domestic
       proceedings in the present case, under the criminal limb.
    5. There was a violation of Article 6 in two regards:

    a. lack of prosecution to present the charge before the judge;
    b. lack  of  free  legal assistance offered to the applicant to fight
       the charge

   leading  to  the  situation  when  the judge assumed all the functions
   therefore  breached  the  guarantee of a fair trial under Article 6 of
   the Convention.

                        CLAIMS FOR JUST SATISFACTION

   With  regard  to  just  satisfaction  claims,  the  Applicant asks for
   compensation of:

    1. RUB  1,500  in  respect of pecuniary damage caused by ordering the
       Applicant  to pay fines of RUB 1,500 under Article 20.2 (paragraph
       1) of the Code of Administrative Offences;
    2. EUR 10,000 in respect of non-pecuniary damage.


   Representative of the applicant


   ^See,  e.g.,  Maskhadova & Others v. Russia, No. 18071/05, S:S: 206-07
   (June  6,  2013)  (dismissing  state's  preliminary objection based on
   failure to exhaust domestic remedies where there "was some uncertainty
   in  domestic  law  as regards the status of decisions taken under [the
   proposed  domestic  remedy]" and where subsequent Constitutional Court
   ruling  called  for  judicial review of decisions taken under proposed
   domestic  remedy but "only enabled an applicant to ask for a review of
   formal  lawfulness  of the relevant decision, but not to disagree with
   the well-foundedness and proportionality of the measure as such").

   ^Ananyev at S: 96.

   ^Arutyunyan at S: 64.

   ^Ananyev  at  S:  110  ("The  Court,  for  its part, has not noted any
   examples  of  the  successful  use  of  this  remedy  in  any  of  the
   conditions-of-detention cases that have previously come before it.").



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15.05.2015г. распоряжением Минюста РФ СРОО "Сутяжник" включена в реестр иностранных агентов.