MEMORANDUM RZHAVIN AGAINST RUSSIA

REPRESENTATIVE OF THE RUSSIAN FEDERATION

AT THE EUROPEAN COURT OF HUMAN RIGHTS

Representative                                                                             Représentant

of the Russian Federation                                                de la Fédération de Russie auprés de

at the European Court of Human Rights           la Cour Européenne des Droits de l’Homme

_____________________________________________________________________________

14, Zhitnaya, Moscow, 119991                                                                      tel. (495) 677-09-40, fax (495) 677-06-93

«15» September 2010

14-6607-10

EUROPEAN COURT

OF HUMAN RIGHTS

MEMORANDUM

Application no. 33177/07

“Rzhavin against Russia”

On 25 May, 2010 the European Court of Human Rights (hereinafter – the European Court) informed the authorities of Russia about application no. 33177/07 “Rzhavin against Russia”, submitted to the European Court in accordance with Article 34 of the European Convention on human rights and fundamental freedoms (hereinafter – the Convention) by the Russian citizen Boris Fyodorovich Rzhavin, and also offered to represent their comments and to answer the following questions:

1.  As regards the events on 17 December 2001, has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present instance by the domestic authorities in breach of Article 3 of the Convention?

2.  Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?

3.  Was the applicant deprived of his liberty on 17 December 2001 in breach of Article 5 § 1 of the Convention?

The response to questions of the European Court

1. On 17 December 2001, at approximately 10.00 – 11.00 p.m., police officers came to the applicant’s flat in order to get explanations in connection with his niece’s complaint as he was suspected of having broken a window in his niece’s flat. Further, in breach of the Russian legislation, police officers forcibly took the applicant by their car to the police department in order to get explanations at night, in winter, and the applicant was barefoot and dressed in skivvies. A protocol that the applicant was taken to the police department wasn’t drawn up.

2. In the meantime, the Criminal Procedural Code of the Russian Federation and the law of 18 April, 1991 №1026-1 “About police” doesn’t provide any opportunity of forced delivery of the person (who is not found guilty, suspected or a witness in a criminal case) to the department of Internal affairs for receiving explanations in frames of the inquiry of complaints on crimes (in distinction from the interrogation within the frames of preliminary investigation) without drawing up relevant procedural documents (for example,  a protocol of detention, protocol of interrogation or protocol of any other investigating actions).

A police officer has only the right to offer the applicant to give explanations voluntarily in the place and at the time convenient for him.

Moreover, in accordance with part 21 Article 5 and part 3 Article 164 of the Criminal Procedural Code of the Russian Federation investigating actions can be allowed at night time (from 10.00 p.m till 06.00 a.m) only in emergency cases.

3.  In accordance with the applicant’s complaint against police officers’ actions there was an inquiry, in frames of which any violations of the law on the part of police officers were not found.   Taking into consideration all above-mentioned, such an inquiry can’t be effective.

4. The applicant appealed all decisions on the refusal to open a criminal case against police officers in the Court and/or prosecutor’s office. Each time the decisions were quashed and an additional inquiry was held. In spite of the fact that courts sustained complaints of the applicant several times, the last decision on the refusal to open a criminal case was found to be lawful and well-founded. Thus, the applicant couldn’t achieve a reversal of the illegal decision.

5. At last, as it was refused to open a criminal case and documents which can prove that the applicant was taken to the department of the Internal Affairs were not drawn up, the applicant didn’t have an opportunity to receive compensation in civil proceedings.

On the assumption of the above-mentioned, representing interests of the Russian Federation in accordance with the Statute about the Representative of the Russian Federation at the European Court of Human Rights, provided by the RF Presidential Edict №310 of 29 March, 1998,

I PRESUME:

that in the present case there is a violation of the applicant’s rights, guaranteed by Articles 3 and 13 and Article 5 § 1 of the Convention.

G.O. Matyushkin

The translation was made by the employee of Regional public organization “Human being and Law” Liubov Sergeeva