Isabelle Desrosiers

Russian Lawyer with the Urals Centre for Constitutional and International protection of Human Rights, Ms Anna Demeneva, contributes to the advancement of the protection of the right to individual petition for Russian citizens detained in correctional facilities

The ratification of Protocol 14 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), by the Russian Federation, has been the subject of many talks, as, by enabling the long-awaited reform of the European Court of Human Rights (the Court), it represents an important step towards the protection of the individual right to petition to Strasbourg, enshrined in Article 34 of the Convention, and jeopardized by the overload of cases awaiting their consideration by the ECHR.

However, the judgment delivered by the Court in the case of Zakharkin v. Russia on 10 June 2010 shines a new light within the Russian Federation on another aspect of the right to individual petition guaranteed by Article 34, that is the right of detainees, preparing an application before the ECHR, to establish and maintain contact with non-advocate representatives under the same conditions as if they were professional advocate representatives.

Indeed, Mr Zakharkin's representative before the Court, Ms Demeneva, not a professional advocate, but an NGO lawyer specialising in international protection of human rights, despite numerous requests and attempts to obtain permission, was not allowed to visit the applicant detained in remand center IZ-66/1 (Ekaterinburg) to discuss crucial issues in the preparation of his claim before the ECHR.

As stated by the Court “should the Government’s action make it more difficult for the individual to exercise his right of petition, this amounts to “hindering” his rights under Article 34” (see para.155 of the judgment). In the present case, the Court underlined that the refusal to grant access to Ms Demeneva was not due to any security risk or a risk of collusion or perversion of the course of justice, but to a gap in the law. Indeed, section 18 of the Detention Act provides that a non-advocate such as Ms Demeneva may visit a detainee in a remand centre only if the former possesses a judicial decision by which he or she has been admitted to act as a counsel in the domestic criminal proceedings, such admittance being within the discretionary powers of the trial or appeal judge. “No exceptions to that rule are possible. Accordingly, non-advocate representatives before the Court are faced with difficulties in obtaining permission to visit their clients” (see para. 157 of the judgment).

Not an isolated case, but a rather common and frequent obstacle for Russian representatives, the Court's judgment that ruled “that the restriction of the applicant’s contacts with his representative before the Court constituted an interference with the exercise of his right of individual petition which is incompatible with the respondent State’s obligations under Article 34 of the Convention” (see para. 160 of the judgment), is therefore a significant step for non-advocates and their beneficiaries in their efforts to promote and protect human rights in Russia.

The Court's judgment in Zakharkin v. Russia also stands out as the ECHR noted “that the present case is different from many Russian cases where a violation of Article 3 of the Convention was found on account of the lack of personal space afforded to detainees” (see para. 122 of the judgment). In Zakharkin v. Russia, the Court ruled that the applicant’s rights under Article 3 were violated as he suffered from other aspects of improper conditions of detention in the solitary cells were he was held, such as the coldness of his cell, insufficient access to daylight and poor sanitary conditions, elements that had previously been considered by the Court as being relevant to its assessment of compliance with Article 3 of the Convention.

Moreover, the Court couldn't help “but state that it is appalled by the photographs showing the interior of the applicant’s cells. The cells are evidently in a deplorable state of repair and cleanliness. The concrete walls, the ceiling and the floor are damaged by dampness. The toilet facilities are decrepit and filthy and are not separated from the living area. There is no lavatory bowl or flush system; the washbasin is eaten away with rust. The metal beds are also rusty and dilapidated, while the bedding is worn out and dirty” (see para 126 of the judgment). Thus, the Court ruled that the conditions of detention in which Mr Zakharkin was detained in remand centre IZ-66/1 had to have aroused in him feelings of anguish and inferiority capable of humiliating and debasing him and had therefore amounted to inhuman and degrading treatment strictly prohibited.

Furthermore, the Court also ruled that there had been a violation of Article 3 on the account of insufficient medical assistance as the applicant suffered from Rheumatoid arthritis and was kept in cold, damp cells, without receiving the proper medical treatment prescribed to him to soothe the inflammation in his affected joints and reduce the pain, with the result that he was left to suffer considerable pain for a prolonged period of time, which amounted to inhuman and degrading treatment, in further violation of Article 3.

As reported by Ms Demeneva :

"Acting as the representative of Mr Zakharkin, I underwent some insisting attempts to give the State chances to improve the situation at the national level. Thus, we used to refer to the Convention and the ECHR’s practice in national documents drafted by advocates to national courts and other state bodies at every stage of the national proceedings. These arguments were never taken into account. The most colorful example is the violation of Article 6 of the Convention ruled by the ECHR on the ground that the tribunal considering the case was not established by law. The problem with the appointment of lay judges in Russia in those times was already criticized by the European Court of Human Rights in case Posokhov v. Russia (Judgment of 4 March 2003). We referred to this case in cassation and application on the supervisory review, but the Supreme Court of the Russian Federation didn’t pay any attention to these arguments. If it did the violation could have been avoided at the national level."

As to the other judgment issued by the Court against Russia on 10 June 2010 in the case of Sharkunov and Mezentsev v. Russia, it ruled on a violation of the second applicant's rights under Article 6(1)(3(d)) of the Convention, right to a fair trial. Both of the applicants were also represented by Ms Anna Demeneva for the proceedings before the ECHR. As established by the Court in its case-law, “where a conviction is based solely or to a decisive extent on statements that have been made by a person whom the accused has had no opportunity to examine or to have examined at some stage of the proceedings, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6” (see para 114 of the judgment). Therefore, by failing to provide reasonnable efforts to secure the witness presence at the hearing, given that Mr Mezentsev was convicted of instigation to destruction of property by arson on the base of the absent witness previous testimony to the authorities, the Court found a violation of Article 6(1)(3(d)) of the Convention.

21.06.2010