Karinna Moskalenko: "The ordinary person is at the centre of our concerns"

Vera Vasilieva, 23/12/10

Source: hro.org

· European Court of Human Rights · The Courts · Human Rights Defenders · Moscow City & Moscow Region

On Wednesday, 22 December 2010, the latest “Strasbourg Session”, a round table held each month by lawyers from the Centre for International Protection, was held at Moscow’s Independent Press Centre. Participants focus their attention on the latest developments in the legal practice of the European Court of Human Rights.

The current session could be said to “reviewing results” for two reasons. First, at this meeting the results of 2010 were considered. And second, quite recently, on 19 December, the Centre for International Protection marked its 16th anniversary.

Lawyers from the Centre taking part were Karinna Moskalenko, Anna Stavitskaya, Oksana Preobrazhenskaya, Elena Liptser, Maria Samorodkina and Dmitry Agranovsky.

“Someone might have the impression that we help only well-known people. That is not true. At the centre of our concerns is always the ordinary person who has experienced misfortune and has no protection,” said Karinna Moskalenko.

“Many of our fellow citizens have achieved justice exclusively thanks to lawyers from our Centre. This year, for example, our lawyers have won 40 of the 250 cases from Russia on which the Strasbourg court has made judgments, which is 15 percent. At the same time, the Centre provides its services free of charge to the applicant, and this is very important.”

Legal education is one of the purposes of the “Strasbourg Session”. That which took place on 22 December was no exception.

Karinna Moskalenko pointed out that, as a result of a lack of knowledge, applicants frequently miss the deadline for applying to the European Court of Human Rights. This is six months from the moment that the last court decision has been handed down in effective court procedures. Such a court procedure includes a court appeal, but not a judicial review, as some assume. An appeal for judicial review can also be made after an application has been submitted to the European Court of Human Rights in Strasbourg.

In addition, Karinna Moskalenko underlined that the quashing of unlawful domestic courts’ decisions as a result of a decision by the European Court of Human Rights must not deprive an individual of the status of victim. “The quashing of a judgment or a fresh reconsideration of a case are not at all a guarantee that the rights of an applicant will be restored,” she pointed out.

Oksana Preobrazhenskaya illustrated this assertion in the sad case of Timergaliyev v Russia, a 2008 judgment by the European Court of Human Rights.

The applicant, sentenced in a criminal court, appealed on the grounds that his right to a fair trial had been violated, as guaranteed by Article 6 of the European Convention on Human Rights and Fundamental Freedoms. As a result of a judgment in his favour by the European Court, the Presidium of the Supreme Court of the Russian Federation quashed the verdict.

However, Mr Timergaliyev was deprived of the possibility of participating in the court hearing since he suffers from a hearing defect (in one ear he is deaf, and in the other he has only 50 percent hearing). As a result, this person, who had previously been convicted and sentenced, does not know what decision was taken by the Presidium, he does not know whether he had a lawyer, and if so, whether the lawyer had been aware of all the materials of the case, or whether he knew the position of his client. According to Oksana Preobrazhenskaya, the only thing that Mr Timergaliyev understood was that his punishment had been reduced, but by how much, and in relation to which of the charges, he knew nothing.

At the present time the Centre for International Protection continues to provide legal assistance to Timergaliyev.

It frequently happens that the Centre’s lawyers literally save people’s lives. An example of this is the case of Gladyshev v Russia, which Elena Lipster believes to have been one of the most successful in her legal practice.

In May 2001 a police officer in Kostoma Region stopped Mr Gladyshev’s car, which he was allegedly driving while intoxicated, and drew up a protocol for an administrative violation. The next morning, police officers came to Mr Gladyshev’s home and took him to the local police station. At the police station, officers began to beat Mr Gladyshev, demanding that he confess to the killing of the officer who had stopped his car. As a result, the accused signed a confession which became the main, and almost the only, basis for an 18-year sentence in prison.

Subsequently, Mr Gladyshev announced that he had confessed under duress and he made an application to the European Court of Human Rights. The European Court ruled that in relation to the applicant the domestic court had violated Article 3 (prohibition of torture) and Article 6 of the European Convention. The case of Mr Gladyshev was retried in Russia by a jury and he was fully acquitted.

As Elena Liptser admitted, Mr Gladyshev, who had served 9.5 years of his 18-year sentence, is certain he would have died in prison, since Mr Gladyshev suffers from numerous illnesses and at 70 is far from young.

One more example of how the Centre’s lawyers have saved somebody’s life is the case of the unlawful extradition to Tajikistan of Mukhamadruzi Iskandarov, whose application to the European Court of Human Rights was made Anna Stavitskaya. The Strasbourg Court’s judgment in this case, Iskandarov v Russia, of 23 September 2010 is unique. The Court ruled that the Tajik opposition politician had been abducted by Russian security agencies and taken to Tajikistan, where he was handed over to the local authorities, who committed him to prison. In this situation Iskandarov’s life proved to be in danger: according to Anna Stavistkaya, and other experts, torture is widely used in Tajikistan.

Anna Stavitskaya says that this decision is unprecedented because, as a rule, to prove the participation in such abductions of the Russian authorities is extremely complicated.

Mukhamadruzi Iskandarov’s story began in December 2004. Detained in Moscow Pre-Trial Detention Centre No. 4, he petitioned the Federal Migration Service of Russia for refugee status. In addition, Iskandarov wrote to the General Prosecutor of the Russian Federation to request that he not be handed over to the Tajik authorities. Iskandarov explained that, as a member of the political opposition, he was being persecuted by the Tajik authorities for political motives.

But Iskandarov was not given refugee status. Instead of this, on 4 April 2005 he was unexpectedly released from detention by Moscow’s Babushkinsky district court.

On the evening of 15 april, while walking his dog, Iskandarov was detained by people in the uniform of traffic police officers who handcuffed him and took him away in a car. The manner in which all this happened led Iskandarov to believe that he had been kidnapped by bandits for ransom. However, a day later Iskandarov was deported by plane to Dushanbe.

It is interesting that the European Court of Human Rights considered the statement of the Tajik authorities to be evidence implicating Russian law enforcement in the abduction of Iskandarov. In response to a question from the UN High Commissioner for Refugees, the Foreign Ministry of Tajikistan replied that Iskandarov had been officially deported to Tajikistan by the law enforcement agencies of the Russian Federation.

Although Mukhamadruzi Iskandarov is, as before, detained in Tajikistan, his life is in significantly less in danger, given that he now has the attention of European legal institutions. Moreover, it is too early to put a full stop to the story of Iskandarov. Anna Stavitskaya continues to seek the return of her client to Russia.

“A State that is bold enough to condemn someone should understand that what is secret sooner or later becomes public knowledge,” Karinna Moskalenko concluded. In her view, when the authorities little by little, from case to case, destroy the “presumption of good conscience” in their favour, it will be easier for all prisoners that follow to win cases in the European Court of Human Rights.

Dmitry Agranovsky talked about the case of Syarkevich v Russia. This year the procedure of communication began in this case: the European Court of Human Rights sent the Russian government questions on the application prepared by the lawyer.

Evgeny Syarkevich was convicted by Sakhalin regional court in May 2006. The applicant considers that he has been the victim of a violation of Article 6 of the Convention. The European Court of Human Rights considered his arguments to be weighty.

For example, the judges of the Strasbourg Court have asked how appropriate it was to make public as a “witness” statement the confessions of one of the accused who committed suicide. Also the European Court of Human Rights asked whether making public the evidence of victims and witnesses who failed to appear in court without sufficient reason was compatible with the demands of Article 6 of the Convention.

The special interest of this case lies in the fact that Dmitry Agranovsky’s client was sentenced in a trial by jury.

“In our country of Russia, in our astonishing legal practice, courts of appeal do not want to question the correctness of jury trials,” the lawyer explained.

According to Karinna Moskalenko, the positive decision by the European Court of Human Rights in relation to the application by Evgeny Syarkevich would create an important precedent for the notorious criminal prosecutions of Igor Sutyagin and Aleksei Pichugin. As is well-known, the convictions in these cases were also brought in jury trials. At the same time, in relation to these individuals as well, not only lawyers, but also independent observers, noted numerous crude violations of the law during the investigations and court proceedings, and a lack of justice in the judgments.
Rights in Russia,
29 Dec 2010, 03:54