Sergey Beliaev

Semi-Annual Report of the NGO Sutyajnik "Strategic Application of the European Convention on Human Rights in Russian Courts"

NGOs Sutyajnik is grateful to its volunteers Galina Vikhrova and Olga Ivanchenko for their help in translating and proof reading the report.

Reporting period: January 1, 2012 – August 31, 2012

Organization: Sverdlovsk Regional Social Organization Sutyajnik

620075 Russia, Yekaterinburg, 11-1 Turgeneva St.

Telephone/fax: (343) 355-36-51

Email: beliaev@sutyajnik.ru

CONTENT

I. STRATEGIC CAMPAIGN TO PURSUE COURTS TO APPLY THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN COURT PRACTICE

II. MEETINGS AND EVENTS

III. PUBLICATION OF BOOKS AND ARTICLES RELATED TO THE PROJECT TOPIC, CONSULTATIONS

The following report includes the period from January 1, 2012 until August 31, 2012.

I. STRATEGIC CAMPAIGN TO PURSUE COURTS TO APPLY THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN COURT PRACTICE

The organization tries more than 50 cases in national courts involving application of the Convention on Human Rights (hereinafter referred to as the Convention) and the case-law of the European Court of Human Right (hereinafter referred to as ECHR), as well as cases pending in the ECHR, that may influence the practice of national courts. The cases brought before the courts involve the following issues:

• crime victims protection,

• the torture and inhuman treatment victims protection,

• the right to liberty and security of person protection,

• the protection against forced labor and human trafficking,

• the right to access to justice,

• the right to property,

• the right to freedom of movement and residence,

• the right to freedom of speech and expression,

• the right to freedom of association,

• the right to freedom from discrimination.

Over the reported period, two cases have been decided in favour in the national courts, three in the ECHR, and three were lodged with the ECHR after having exhausted domestic remedies.

Protection to the Right to Liberty and Security of Person, Protection from Torture and Inhumane Treatment Committed by Government Representatives

• Proshkin v. Russia

The applicant, a resident of the city of Perm, filed a suit seeking compensation for a broken car as a result of a car accident. Instead he was sentenced to a seven-year prison term, which was replaced with an involuntary admission to a psychiatric hospital with intensive supervision. A judgment by the ECHR delivered on February 7, 2012 found Russia liable for violating the right to liberty and security of person. In its judgment, the ECHR found a violation of the right to liberty and security on account of the applicant’s detention, applicants’ absence in the appeal trial and the applicant’s inability to present arguments in his defense during his appeal proceedings to his detention (violation of Art. 5 (1) of the Convention).

• The case challenging the standards of the detention cell space for one person in the detention facilities for the administrative penalties enforcement and recognizing the right of appeal to the Court for indirect victims (case Bugrovoy)

The court recognized the omissions and illegal acts of the police department officials, which resulted in the death of Mr.Bugrov. The court stated that according to paragraph 11 of "Regulations on the conditions of detention of persons detained for administrative violations, food standards and order medical care for individuals" approved by Government Decree No. 627 of October 15, 2003, the minimum space standards in the cell area for one inmate is two square meters. The lack of personal space causes detainees suffering, conflicts, and often entailing injury and even death.

The size of cells in some Russian detention facilities and the number of inmates confined therein does not meet international standards. This must be corrected for Russia to meet its international obligation of humane treatment of prisoners. The applicant based her claim on the Convention in support of the case in the Supreme Court and the Constitutional Court. In particular, the claim referred to the recommendation of the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment, which is based on the ECHR judgments and which sets the minimum standard of a seven square meters space for each detainee.

In 2011, the Supreme Court refused to accept the claim, stating that the rights of the widow, who had filed the claim, have not been violated. On August 17, 2012 the Registry of the Constitutional Court of Russia also replied with the rejection of the claim on the grounds that the rights of the widow have not been violated in the prison cell: http://sutyajnik.ru/documents/4336.pdf)

On February 24, 2012 a preliminary complaint was filed to the ECHR (Burgova vs. Russia): http://sutyajnik.ru/documents/4216.html. And on April 24, 2012 an application, which was prepared in collaboration with an international law firm providing pro-bono services to NGOs, was filed with the ECHR: http://sutyajnik.ru/documents/4280.pdf. The case also raises questions regarding the recognition of the procedural rights of indirect victims to court proceedings, as well as, the duty of courts to directly apply the Convention and the case-law and findings of the ECHR. National courts case material: http://sutyajnik.ru/cases/480.html. ECHR case materials: http://sutyajnik.ru/cases/510.html

Burgova's representatives believe that as a result of the strategic campaign in the Bugrov's case and the attraction of public attention to the problem of inadequate cell space, the Russian Government issued a Resolution that came into effect on May 1, 2012 which increases the minimum size of the detention space for those inmates confined for administrative violations in the facilities of the temporary detention from two to four square meters. Read the article here: http://sutyajnik.ru/articles/432.html

• Borisov v. Russia

Borisov was sentenced by the District Court for fraud to 7 years of imprisonment. After the verdict, he was placed under arrest. Sverdlovsk Regional Court considered his appeal in the absence of the defendant - the defendant was not brought from prison to court. Borisov was detained in inadequate conditions, with violation of sanitary and other regulations. Borisov complained of his violation of the right to freedom from inhumane and degrading treatment (Article 3), and the right to a fair trial (Article 6 of the Convention). The ECHR recognized the case a priority for review on December 4, 2009, and communicated it to the Russian Government. On March 13, 2012 the ECHR delivered a judgment on the case and found a violation of Article 3 of the Convention, The ECHR did not find the violation of Article 6 of the Convention. Case material: http://sutyajnik.ru/documents/4231.html; http://sutyajnik.ru/cases/456.html

Prisoners on the right to vote

• Borisov v. Russia (2)

The Russian Federation has over 600,000 detainees sentenced to confinement by the court (hereinafter detainees). This means that they cannot express their political views since under Article 32(3) of the Russian Constitution they are denied the right to vote. Twenty applicants appealed to the ECHR with complaint of violation of the Convention in respect of their deprivation of the right to vote. It is argued that Article 32 (2) of the Russian Constitution violates Article 3 of the Protocol 1 of the Convention because a) the absolute denial of the right to vote restricts the rights of the applicant to such an extent that it violates the very essence of the fundamental right to vote, and b) such an absolute denial of the right to vote cannot be objectively and reasonably justified even taken into account the applicable law of the state. As a result, the applicants are denied the right to vote and the election right. Further, the applicants are complaining of discrimination. Case material: http://sutyajnik.ru/cases/507.html.

On April 2012 Borisov joined the complaints of the twenty other applicants.

• Public oversight of correctional facilities

Sutyajnik's lawyers regularly consult members of the Public Oversight Commission to monitor correctional institutions in the Sverdlovs region. Publications of activities, materials, and other documents on the results of the public oversight of correctional institutions can be found here: http://sutyajnik.ru/files/40/.

Sutyajnik also supported the prosecuted human rights defenders for their hard work as members of the Public Oversight Commission. On October 1, 2012 the Leninsky District Court of Nizhniy Tagil acquitted Dmitry Rozhin for fraud – a criminal case that had been initiated against him to put pressure on him to stop his public inquiry. As a result of criminal proceedings against him, Dmitry Rozhin was suspended from the Public Oversight Committee: http://sutyajnik.ru/files/68/. It is expected that the prosecutor will file an appeal of the acquittal.

News podcasts, Radio Sutyajnik on the Public Oversight Commission of correctional facilities:

Audio records of the round table that took place on March 14, 2012, “Cooperation of the Human Rights Organizations and Authorities to Support and Provide Legal Aid for People Who Find Themselves in Difficult Circumstances” (Part 1): http://sutyajnik.ru/audio/209.mp3 (Part 2): http://sutyajnik.ru/audio/210.mp3

February 29, 2012 podcast: “Guards and Wardens of Prisons and Camps – the Defenders of the Motherland” http://sutyajnik.ru/audio/208.mp3

February 2, 2012 roundtable: “Should Detainees in Prison Have the Right to Vote?” http://sutyajnik.ru/audio/207.mp3

January 26, 2012 podcast, interview with Igor Golenduhin in Perm: “Igor Golenduhin Discusses the Seminar ' International Standards of Human Rights in Detention Facilities” http://sutyajnik.ru/audio/205.mp3.

January 25, 2012 podcast, interview with Shaklein, MCPCH (International Centre of Human Rights): on the results of the meeting with Russian and American human rights activists in Moscow on January 20-21, 2012: http://sutyajnik.ru/audio/203.mp3

Januray 12, 2012 podcast, with host Beliaev: members of the Sverdlovs Public Oversight Commission, Bashkov, Interregional Centre of Human Rights lawyer, Golenduhin, and head of the press center of the Federal Penitentiary Service for the Sverdlovsk region, Tishchenko, on the events, that took place during the New Years holiday break in the Detention facility # 52: http://sutyajnik.ru/audio/202.mp3

The Right to Access to Justice

• The Constitutional Court refuses to consider the complaints of indirect victims

The Constitutional Court found a conflict of laws in the provisions of the Russian legislation and the Convention. The Russian legislation does not provide for the rights of the deceased family member to challenge in court the normative act that led to the violation of the right of the deceased.

Lada Bugrova challenged the Constitutional Court to paragraph 11 of "Regulations on the conditions of detention of persons detained for administrative violations, food standards and medical care standards for these individuals" approved by Government Decree No. 627 of October 15, 2003, according to which the minimum space in a detention facility cell should be at least two square meters for one detainee. (see above: “The case challenging the standards of the detention cell space for one person in the detention facilities for the administrative penalties enforcement and recognizing the right of appeal to the Court for indirect victims”). On August 17, 2012 the Secretariat of the Constitutional Court of Russia refused another consideration of an appeal on the grounds that the rights of the victim's widow had not been violated. (http://sutyajnik.ru/documents/4336.pdf)

• Abramchuk v. Russia

L.M. Abramchuk's complaint that the Russian Federation violated Article 6.1., of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 1 of Protocol 1 of the European Convention for the protection of human right and fundamental freedoms with regard to considerably delaying the case. On April 10, 2012 the Russian government had recognized the breach and will pay compensation in the amount of 1,000 Euros. http://sutyajnik.ru/documents/4290.html

• Karpenko v. Russia

Karlenko was convicted of robbery. The decision was based on the testimony of an accomplice in a robbery and was given during the preliminary investigation for another criminal case. While in prison, Karpenko was deprived of the opportunity to participate in a civil trial filed by his ex-wife, which depriving him of his parental rights. Karpenko appealed to the ECHR with a complaint of the violation of Article 6 of the Convention. On March 13, 2012 the ECHR found a violation of Article 6 (1) of the Convention in conjunction with Article 6 (3) on account of the applicant’s inability to challenge evidence from the prosecution. April 13, 2012 ECHR ruling: http://sutyajnik.ru/documents/4238.html

• Kiva v. Russia

In 2009, the court ruled in favour of the applicant in a decision recognizing his unlawful dismissal from his employer LLC, Region-Contact. A compensation of 167,000 rubles in payment and moral harm was awarded. The applicant had applied to the Bailiff service officers with the writ of execution. After two years, the courts decision had still not been enforced and enforcement proceedings have been closed. In connection with the violation of the courts decision the applicant applied to the ECHR. On April 5, 2012 the ECHR found the application inadmissible. Case material: http://sutyajnik.ru/cases/499.html

Protection of the right to access information

• Challenging the Order of the President in the Supreme Court of Russia regarding the prohibition to publish the decision to refuse the applications from citizens

The Chairman of the Russian Supreme Court approved Order of June 18, 2012: “Procedure for the organization to access information on the activities of the Supreme Court of the Russian Federations." The text of the document is not published. According to paragraph 5.5. of the Order “the official website of the Supreme Court will publish texts of the Supreme Court judgments decided on merits.” This provision of the Order is contrary to the law and violates the right to access information on the activities of the Supreme Court of the Russia in terms of reference to the judicial decisions of a procedural nature.

Under Article 15 of the Federal Law of December 22, 2008 No. 262-FZ “On Access to Information on the courts’ activities in the Russian Federation,” published on the Internet, all the judicial decisions (taken on their merits and not on their substance) must be published. The claims to bring criminal charges against abuse of judicial power and abuse of power while exercising the legislative functions by the Chairman of the Supreme Court of the Russian Federation were rejected http://sutyajnik.ru/cases/503.html. An application is being prepared to challenge the order of the Chairman of the Supreme Court before the Constitutional Court of Russia and later before the European Court of Human Rights.

The right to the freedom of movement

• The review of the right of a minor child to travel outside of the Russian Federation is rendered in the territorial court in the place of the customs location

On 20 August 2010 members of the boarder control «Yekaterinburg – Airport» did not allow Nicolai to fly alongside his mother to Turkey. The family was going on vacation for rest and recovery. The custom police did not give an explanation to why they were not allowing Nicolai to leave Russia. In connection with the actions of the border guards, N. filed a claim for compensation for moral damages and pecuniary damages in the amount of the unused ticket for her son. The plaintiff alleges the violation of Paragraph 2 Article 2 of Protocol 4 of the Convention (right to leave one's country) and Article 1 of Protocol 1 of the Convention (right to property). The District Court refuses to hear the case. The case for compensation for material damage and moral damage was transferred to the Central District Court of Chelyabinsk – the location of the border control detachment. Case materials: http://sutyajnik.ru/cases/447.html

Protection from Discrimination

• Civil complaint for the defense of a disabled individual’s right to access social infrastructure facilities

The wheelchair-bound, Sychev filed eight complaints in court, and two complaints in the public prosecutor’s office over the absence of wheelchair access ramps at the entrances to the courts, public prosecutors’ offices, and law enforcement offices in Yekaterinburg. In his complaints relating to the entrances to the courts in Yekaterinburg, the plaintiff claimed violation of Article 6, Part 1 of the Convention as it concerns the lack of physical means of access for him to the courts. The plaintiff also cited Article 14 of the Convention (prohibition of discrimination). The courts granted the complainant’s demands. Cases materials: http://sutyajnik.ru/files/5

Also, underway, is an informational campaign on the implementation of the judicial decisions. Listen to Radio Sutyajnik, where people with disabilities demand what they were promised. Interview with Lyudmila Konoplin, vice president of the International Parliament of Associations of Disabled Persons: http://sutyajnik.ru/audio/201.mp3

• Appealing a 30% tax levied on the non-resident citizens of the Russian Federation (instead of the generally established 13% tax)

A citizen of Russia went abroad to study for a period of longer than 6 months. During his period of study, the student returned to Russia to give a lecture at an institute. A 30% tax (as opposed to the standard 13% tax) was deducted from his salary since he had been recognized as a non-resident. It is claimed that there was discrimination based on the place of residence (principle residence of the citizen was Russia), as well as, the refusal of the Constitutional Court to consider these violations to the compliance of the European Convention of Human Rights. Sutyajnik's lawyers in partnership with University of Quebec at Montreal law clinic are preparing an appeal to the ECHR: http://sutyajnik.ru/cases/489.html

Protection of the right to organize

A Tuapse union dockworker, is filing a case against Russia for the violation of the right to organize, the right to conduct mass actions (Article 11 of the Convention), and the right to protection from discrimination (Article 14 of the Convention), as well as other rights.

Tuapse union dockworkers went on strike. The authorities initiated a lawsuit to recognize the strike as illegal and to declare the union as illegitimate. Tuapse union dockworkers complained to the ECHR for Russia's violation of the right to organize, conduct mass actions (Article 11), the right to protection from discrimination (Article 14), and other rights recognized in the Convention. Case materials: http://sutyajnik.ru/cases/495.html

II. MEETINGS AND EVENTS

1. On August 6-10, 2012, Sutyajnik along with the American Bar Association (ABA-ROLI) under the auspices of the Sverdlovsk Human Rights Commissioner and pro-bono support of LLC, Ratsio, held the Ural International Summer School on Human Rights, 2012 “Exercise of the Rights and Freedoms of the Russian Legal System in Line with European Standards.” Twenty-three Russian and foreign lawyers received diplomas certifying them with obtaining knowledge of international guarantees of the freedom of speech, thought, religion, conscience, assembly and association. Case Material: http://sutyajnik.ru/cgi-bin/actions.php?action_id=10051

2. In 2012 a series of Radio-Sutyajnik podcasts had been recorded: http://sutyajnik.ru/audio/. Among the series are prisoners' rights, the activities of the Sverdlovs Public Oversight Commission in detention facilities, on the rights of the disabled, as well as, training sessions, lectures and master classes from the Ural International Summer School on Human Rights, 2012.

From January – August 2012, representatives from Sutyajnik took part in fourteen events, including national and international conferences, round table discussions, training and seminars, and press conferences. Some of these activities have been reviewed below:

1. On January 26, 2012 the National Ukrainian University of State Tax Service with the support of the Ukrainian Association of International Law and the French Embassy in Ukraine held the first international legal read of international affairs expert, Vladimir Isaakovich Evintov. The main themes for discussion: Application of the European Convention on Human Rights and Fundamental Freedoms of 1950 in National courts; migration policy – the object of international legal regulation, the torture of people as a threat to Ukraine's European integration, and the science of international law in Ukraine and its developmental trends. Among the speakers were former advisers to the first President of the Soviet Union and a representative of Sutyajnik. For further reading please see the website: http://sutyajnik.ru/cgi-bin/actions.php?action_id=10075

2. Sutyajnik representative took part in a series of events on the issue of the interaction of human rights organization and the judiciary. The events took place in the city of Perm and Nizhny Novgorod on February 27 and March 19-20, 2012. The series was a continuation of a previously held series of roundtables on the topic, which were held in Yekaterinburg in the summer and autumn of 2010: http://sutyajnik.ru/cgi-bin/actions.php?action_id=10009

3. On March 4-10, 2002, two Ural human rights activists represented Sutyajnik in a delegation of Russian human rights activists at the 19th session of the United Nations (UN) Human Rights Council where they were trained in the use of human rights work on the UN mechanisms to study the rules of work with institutions and permanent representatives of countries of UN.

4. On April 12-13, Sutyajnik spoke at the conference “Problems of criticim of the European Court of Human Rights” at the Hague, Holland, with a report on the practice of using the Convetion on the protection of human rights and fundamental freedoms of association: http://sutyajnik.ru/cgi-bin/actions.php?action_id=10077

5. On May 24-25, 2012, two representatives from Sutyajnik participated at the international conference in Moscow titled, “Strategic litigation: protection of the public interest.” Examples of cases were described in previous sections of the report: http://sutyajnik.ru/cgi-bin/actions.php?action_id=10091

Each event was attended with a free distribution of material on the Convention and the ECHR, prepared by Sutyajnik: http://sutyajnik.ru/rus/library.

Material on the events are published on the website: http://sutyajnik.ru/cgi-bin/actions.php

III. PUBLICATION OF BOOKS AND ARTICLES RELATED TO THE PROJECT TOPIC, AND CONSULTATIONS

A Ph.D. dissertation was defended, thirteen articles had been published in law journals and a chapter in a book. Some publications have been reviewed below:

1. Burkov's “How to Apply the Guarantees of the European Convention for the Protection of Human Rights and Fundamental Freedoms in Russian Courts. // Human Rights. The Practice of the European Court of Human Rights.” Number 4. 2012. pp. 34-39. The purpose of the material is to present the value of the executing of constitutional principles of direct application in Russian Courts of the Convention for the Protection of Human Rights and Fundamental Freedoms to protect rights at the national level, prior to appealing to the ECHR. The ways to apply this international legal instrument are demonstrated through the use of examples such as success stories, which disapprove the stereotype that the Convention can only be used as a tool for international legal protection and applies only to the European Court in Strasbourg. In addition, the paper analyzes the organizational problems and routinely practiced misconceptions that prevent the effective use of the Convention in national courts: http://sutyajnik.ru/articles/434.html

2. Churkina defended her doctorate dissertation on the topic of “Control as a measure to ensure the execution of judgments to the European Court of Human Rights.” Specialization: 12.00.10 – International law, European law. The thesis for the degree of Candidate of Science. Yekaterinburg – 2012: http://sutyajnik.ru/articles/433.html

3. Sultanov, published a book of European legal standards, the lessons of history and practice based on the materials published on Sutyajnik's website (ISBN 978-5-8354-0851-1.) This edition is dedicated to a complex legal problem – the implementation of the European legal standards. However, despite its complex nature, the book is written in an accessible language and is easy to read because the authors intended to make it easily understood even for a layman. At the same time, the book touches on serious legal problems such as the place of the ECHR case-law in the Russian legal system, the procedure on recognition the materials of the extremist character, and compliance with legal procedures. A historical overview, which return the reader to the processes of Daniel and Sinyavsky, Giordano Bruno, Joan of Arc, Jesus, and Socrates, allow the reader to see anew the present legal circumstances. The book is written to address a wide range of audiences, and all those who are interested in the freedom of opinion and human rights. It is not only useful to those who study the application of the European Convention on Human Rights in their research and education, but law enforcers, prosecutors, judges, and those who are professionally engaged in the protection of human rights and freedoms will find this book useful: http://sutyajnik.ru/articles/431.html

4. In a collaborative effort, Burkov and Demeneva co-authored in English “The European Convention of Human Rights and Fundamental Freedoms in the Russian Law System.” This became a chapter in the book The European Convention for Human Rights and Fundamental Freedoms in Central and Eastern Europe. (Utreht: Eleven International Publishing). 2012. http://sutyajnik.ru/articles/425.html

5. Demeneva's “Execution of the European Court of Human Rights in the case of Rakevich vs. Russia.” The author, defended her dissertation in a previous phase of the project in 2010, where she argued that in general the lack of special normative regulatory framework in Russia on the execution of ECHR judgments decisively reduces the implementation and effectiveness of the outcome, which could have had an effect after the decision of the ECHR: http://sutyajnik.ru/articles/424.html

Other publications can be found on the website: http://sutyajnik.ru/articles/all/

Sutyajnik's website also contains a compilation of news reports, materials on the topic of the “Application of the European Convention on Human Rights in the Courts.” The set of documents collected also contains materials, which describe the use of precedents or the denial of application of the Convention and the ECHR jurisprudence in decisions of Russian courts: http://sutyajnik.ru/files/16. Audio podcasts on the materials of the project have been published: http://sutyajnik.ru/audio/, as well as videos: http://sutyajnik.ru/video/archive.html. Throughout the reporting period, the website provided consultation to 98 citizens. All consultations are published on the website in a special section titled “Consultations:” http://sutyajnik.ru/advices/.

President of Sutyajnik

Sergei Beliaev

October 31, 2012

09.11.2012