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>EUROPEAN COURT OF HUMAN RIGHTS

First Section

_____ ___________________ 2013

Application no. 21572/10

Andronova v. Russia

Dear Mr.Nielsen,

In the framework of the application registered by the Court registry under 21572/10, the Claimants find it necessary to inform the Court of the new facts.

The essence of the application is as follows:

The powerful commercial structure OJSC Gazprom (hereinafter CJSC Okhta Center, the commercial structure, the organization) in alliance with the Government of St.Petersburg developed a project of construction in the close proximity to the historical city center of St.Petersburg, as well as to the Claimants residence, of a high-rise building.

On the Okhta Cape, where the skyscraper was planned to be erected, there were numerous historical and architectural monuments of different epochs, Neolithic burial site, the Blockade of Leningrad burials where the great grandmother of the First Claimant rests (for the information on the First Claimant see Appendix 20), and the memorial.

The long and enduring struggle of the whole city, including the First Claimant, resulted in altering the first proposed construction site by transferring it to the outskirts.

However, CJSC Okhta Center is continuing with its efforts to develop the site in its disposal.

CJSC Okhta Center enjoys active support on the part of the government, obviously to the detriment of the public interests, in particular, the First Claimant.

Considering the fact that development of the Okhta Cape will mean for the First Claimant eternal loss of the remains of their relative (archaeological exploration on the territory of the Cape have not been finished, so far only 60% of the territory was explored), the Claimant has taken all action possible to protect their right to private and family life, and having realized that they are inefficient hereby submits the present document to the Court.

. Facts

Information concerning the actions of the First Claimant and decisions taken by the government authorities

1. On March 5, 2012 the Committee on State Control Use and Protection of Historical and Cultural Landmarks (hereinafter the Committee) issued the Instruction (Appendix 1) that allows the development of the Okhta Cape (hereinafter the Instruction as of March 5, 2012), where during the Blockade of Leningrad (the Siege) were buried the remains of the First Claimants great grandmother. In essence this instruction allowed development of the site without preserving the historical and cultural heritage, without reburial of remains.

2. On May 25, 2012 the First Claimant applied to the Kuybushevsky district court of St.Petersburg (Appendix 2) to contest the Instruction as of March 5, 2012 (hereinafter the Application as of May 25, 2013), and on June 13, 2013 submitted a petition (Appendix 3), in which a threat to the blockade burial on the Okhta Cape was cited as the main grounds of the application

The Instruction as of March 5, 2012 is illegal, as it is based on the expert opinion provided by:

- experts not qualified to carry out such research, without experience in this sphere provided for in the legislation;

- was not recommended for approval to the Committee by the Council on Protection of Cultural Heritage of St.Petersburg;

- includes a considerable amount of violations of the procedure for state historical and cultural expert evaluation stipulated in the Russian legislation (Appendix 4) etc.

3. On January 9, 2013 R.N.Romashkin applied to the Krasnogvardeysky district court of St.Petersburg with the claim of the same subject matter and the same grounds as in the case of the First Claimant, which had already been considered in the Kuybushevsky district court of St.Petersburg for six months (Appendix 5).

The issue was considered by the Krasnogvardeysky district court of St.Petersburg in one session in presence of the same parties as in the case of the First Claimant, the Committee and CJSC Okhta Center.

On February 21, 2013 the application of R.N.Romashkin was dismissed (Appendix 6).

4. At the same time the Kuybushevsky district court of St.Petersburg was considering the similar case. Neither the representative of the Committee, nor the representative of CJSC Okhta Center (the same persons as in the hearing at the Krasnogvardeysky district court of St.Petersburg) said a word about the abovementioned similar case, moreover, the decision passed. Both subjects of judicial legal relations concealed the information, expecting that the case would pass the second instance and would have legal power.

However, in the second decade of June the abovementioned persons understood weakness of their position and the turning point in the trial.

Grounds and evidence provided by the First Claimant were much more ponderate and persuasive.

For this reason on June 13, 2013 after almost six months of concealing information from the court about the similar trial considered at another court they filed a request to suspend the proceedings on the First Claimants case until the end of the trial in the second instance on the case of R.M.Romashkin (Appendix 7).

From this request the First Claimant learnt about the other trial.

The abovementioned actions were targeted at creating an issue preclusion. After the decision of a court comes into power all other cases on the same subject and with the same grounds cannot be considered anew, as it would violate the integrity of law.

However, as the Kuybushevsky district court of St.Petersburg stated in the decision on dismissal of the request to suspend the proceedings, there are no grounds to suspend the proceedings on the case, as consideration of this case is possible before the decision of the Krasnogvardeysky district court of St.Petersburg on case 2-679/13 is considered and takes legal effect. In dismissing the request the Court is also guided by the provisions of art. 222 of the Civil Procedure Code of the RF, under which the application shall be dismissed if an earlier case between the same parties, of the same subject and the same grounds is being considered by this or another court, a court of arbitration. As it is seen from the information from the website of the Krasnogvardeysky district court of St.Petersburg, civil case 2-279/13was filed on January 9, 2013, while proceedings on the present case were initiated on May 28, 2013, i.e. much earlier. In this respect the Court supposes that civil case 2-279/13 was initiated in the Krasnogvardeysky district court of St.Petersburg with considerable violation of the abovementioned provisions of the civil procedure code and was to be rejected. The Court cannot ignore the fact that the interested parties in the case, the Committee and CJSC Okhta Center, failed to inform the Krasnogvardeysky district court of St.Petersburg on the earlier trial of the same subject at the Kuybushevsky district court of St.Petersburg. This fact is proved by the representatives of the abovementioned parties in the hearing. The Court considers those actions of the abovementioned persons as abuse of the law of procedure. Considering the abovementioned, guided by art. 220, 222 of the CPC of the RF, the Court decided to dismiss the request of CJSC Okhta Center to suspend the proceedings. This decision cannot be appealed as it does not impede the proceedings.

5. Quite expectedly R.N.Romashkin, who applied to the City court of St.Petersburg to appeal the decision of the Krasnogvardeysky district court as of February 21, 2013, during the session elected not to appeal the abovementioned decision.

6. On June 14, 2013, and later on June 27, 2013 the First Claimant applied to the City Court of St.Petersburg to appeal the decision of the Krasnogvardeysky district court of St.Petersburg, acting as a person not involved in the case whose rights, however, were infringed by the decision taken (Appendix 8).

7. On July 2013, the Krasnogvardeysky district court of St.Petersburg dismissed the claim of the First Claimant on the grounds that the First Claimant had not stated which specific rights were infringed by the decision of the Krasnogvardeysky district court of St.Petersburg as of February 21, 2013 (Appendix 9).

8. On July 9, 2013 the First Claimant filed a revised appeal with the Krasnogvardeysky district court of St.Petersburg, in which in the beginning there were restated the rights infringed by the decision contested, highlighted them in bold and bigger font in the text, supposing that the Court had not read the appeal to the end (Appendix 10).

9. On July 10, 2013 the First Claimant filed a special claim with the City Court of St.Petersburg in respect of the Decision as of July 2, 2013, stating that the courts unwillingness to read the document submitted by the applicant is outrageous and cannot hinder the access to justice (Appendix 11).

10. Also on July 10, 2013 the First Claimant filed with the court additional information concerning the appeal dealt with in part 6 hereof (Appendix 12).

11. On June 17, 2013 the appeal of the First Claimant, dealt with in part 2 hereof, was satisfied by the Kuybushevsky district court of St.Petersburg, after which the Instruction as of March 5, 2013 appealed by the Claimant was repealed (Appendix 13).

12. On July 2, 2013 Committee filed an abbreviated appeal with the Kuybushevsky district court of St.Petersburg to the decision dated June 17, 2013 (Appendix 14).

13. On July 16, 2013 CJSC Okhta Center filed an abbreviated appeal with the Kuybushevsky district court of St.Petersburg to the decision dated June 17, 2013 (Appendix 23).

At the moment the date of consideration of the case at the court of appeal of the City Court of St.Petersburg has not been given.

14. On the same day, June 17, 2013, the Committee replaced the Instruction repealed by the Kuybushevsky district court of St.Petersburg by a new Instruction (Appendix 15), which again allowed for the development of the Okhta Cape (hereinafter the Instruction as of June 17, 2013). This instruction, as well as the Instruction as of March 5, 2012, in essence allowed development of the site without preserving the historical and cultural heritage, without reburial of remains.

15. On June 25, 2013, having learnt of the Instruction as of June 17, 2013, the First Claimant filed an application with the Kuybushevsky district court of St.Petersburg (Appendix 16) to contest the Instruction as of June 17, 2013 (hereinafter the Application as of June 25, 2013).

16. On July 1, 2013 the Kuybushevsky district court of St.Petersburg issued a ruling (Appendix 17) to dismiss the application contesting the Instruction as of June 17, 2013, on the grounds that the Krasnogvardeysky district court of St.Petersburg on June 25, 2013 received a claim by R.N.Romashkin of the same subject and grounds as the First Claimants application, and notwithstanding the fact that the similar applications were filed on the same day, the Krasnogvardeysky district court of St.Petersburg initiated the proceedings on the next day after it was submitted, i.e. on June 26, 2013, while the Kuybushevsky district court of St.Petersburg initiated the proceedings later, within the 5 day term stipulated by the CPC of the RF, i.e. on July 1, 2013. For this reason, to avoid the repeated violation of the principle of integrity of law committed by the Krasnogvardeysky district court of St.Petersburg in considering the application of R.N.Romashkin (part 3 hereof), thus the Kuybushevsky district court of St.Petersburg dismissed the application of the First Claimant.

16.1. It should be noted that on June 25, 2013 the Claimant also turned to a deputy of the Legislative Assembly of St.Petersburg, asking to learn from the citys Governor whether the Committee had issued a new instruction to allow development of the Okhta Cape to replace the Instruction as of March 5, 2011 repealed by the court.

As it is seen from the Governors response, on June 26, 2013 the instruction had not been adopted (Appendix 21), though in fact the document was adopted as early as on June 17, 2013.

The First Claimant supposes that the information was concealed not to allow to appeal the Instruction as of June 17, 2013 by a person interested in its repeal earlier than the figurehead filed a respective claim which would be dismissed to create an issue preclusion, which would not allow to contest the document (including for the First Claimant).

This scheme can be seen at present in the Krasnogvardeysky district court of St.Petersburg, which is considering a civil claim filed by R.N.Romashkin to appeal the Instruction as of June 17, 2013.

The desire to conceal the information of the Instruction as of June 17, 2013, and later of the claim by R.N.Romashkin filed with the Krasnogvardeysky district court of St.Petersburg is also proved by the fact that this claim was not uploaded to the Courts website, in violation of the principle of open trial, as well as any other information in respect of the case until at least June 28, 2013 (Appendix 22).

17. On July 4, 2013 the First Claimant filed with the City Court of St.Petersburg via the Kuybushevsky district court of St.Petersburg a special claim to the Ruling as of July 1, 2013 to dismiss the application (Appendix 18). At the moment the date of the court hearing in the City Court of St.Petersburg has not yet been announced.

b. Legal Grounds:

The meaning of the abovementioned circumstances for the First Claimant

As the First Claimant stated in the Additional Information as of October 18, 2010, on the Okhta Cape, which was supposed for development, there are buried the remains of their great grandmother, who died during the Siege of Leningrad, along with the remains of many other citizens who died from hunger in that period.

The significance of the Okhta Cape for the citizens of St.Petersburg who lost their relatives during the Great Patriotic War was so great that a memorial ensemble was erected on the site, as a tribute to the memory and symbol of mourning.

In one of the court hearings in respect of the First Claimants application (dealt with in part 2 hereof), an expert, an author of the historical and cultural expert evaluation on the basis of which the Committee passed the Instruction as of March 5, 2012, which allowed the development of the Okhta Cape, informed the court that one of the results of the evaluation was a recommendation to preserve the memory of those who perished during the Great Patriotic War on the Okhta Cape (Appendix 19, http://www.spasipiter.ru/court/2227_protokol180413.htm). At the same time the text of the expert evaluation does not contain a single word about the Great Patriotic War and the Siege, which took the lives of more than 650 000 civilians, according to official statistics only.

Archaeological explorations on the Okhta cape were suddenly suspended by the initiative of CJSC Okhta Center, as expert archaeologists who explored the site pointed at the fact that it must not be developed because of a great amount of historical sites, monuments and burials. At the moment there is no access to the territory.

The First Claimant tried to impede the sacrilege on the part of the CJSC Okhta Center, a commercial structure under the protection of and with a lot of subsidies from the state, by all possible means. As a result, the project of a 400-meter building on the place of the Blockade burial was closed and transferred to the citys outskirts. However, the commercial structure, having not received the expected profit and probably having suffered losses, is taking active action to derive at least some benefit from the territory at their disposal.

In their opinion, to derive this benefit the territory shall be developed, which is possible only is this development is sanctioned, notwithstanding historical and architectural monuments, the burial, historical memorials and the Blockade burials.

As it may be seen herefrom, the stages of court appeals the First Claimant passed have no desired effect, as the state, represented by the Committee, as earlier, indulges the OJSC Okhta Center. The state does not hesitate to initiate false court trials in violation of the principle of jurisdiction, integrity of law and legal certainty (part 3 hereof), is not ashamed to ignore the essence of court decisions, issuing an instruction similar to the one repealed by the court on the very day the latter was repealed. Considering all this, it cannot be spoken of a possibility to defend the right to private life, to respect of a family tragedy, to a possibility to pay tribute to relatives.

The state egregiously intervened into the private life of the First Claimant having allowed the development of the site where there lie the remains of the claimants relative. At the same time the state deprived the First Claimant of any chance to at least be given the remains for burial.

Taking into consideration all the abovementioned, the First Claimant supposes that the state violated art.8 and art.13 of the Convention, intervening in the right of the First Claimant to the private and family life for the purpose not stipulated in the Convention and depriving the First Claimant of the possibility to defend this right.

Appendices:

Appendix 1. Instruction of the Committee as of March 5, 2012 10-91 On including sightseeing attraction The Okhta Cape: cultural layer of the Vth century B.C. XXth century in the Unified State Register of the Objects of Cultural Heritage (historical and cultural monuments) of the peoples of the Russian Federation;

Appendix 2. Application on unlawfulness of the Instruction issued by the Committee on May 25, 2012;

Appendix 3. Petition with the Kuybushevsky district court of St.Petersburg;

Appendix 4. Report of the advisory group of the Council on Cultural Heritage under the Government of St.Petersburg on the work with documents in respect of the objects of archaeological heritage on the Okhta Cape and definition of their borders;

Appendix 5. Screenshot from the site of the Krasnogvardeisky district court of St. Petersburg in the Internet;

Appendix 6. Decision of the Krasnogvardeisky district court of St. Petersburg from 21 February 2013 in the case 2-679/13;

Appendix 7. The request of CJSC Okhta Center with the Kuibyshev district court of St. Petersburg from June 6, 2013;

Appendix 8. The Application with the City Court of St.Petersburg from the June 14, 2013;

Appendix 9. Decision of the Krasnogvardeysky district court of St.Petersburg from July 2013;

Appendix 10. The revised appeal with the Krasnogvardeysky district court of St.Petersburg from July 9, 2013;

Appendix 11. The special claim with the City Court of St.Petersburg from tJuly 10, 2013;

Appendix 12. The additional information from July 10, 2013 concerning the appeal with the City Court of St.Petersburg from the June 14, 2013;

Appendix 13. Decision of the Kuybushevsky district court of St.Petersburg from June 17, 2013;

Appendix 14. An abbreviated appeal from July 2, 2013 to the decision dated June 17, 2013 with the Kuybushevsky district court of St.Petersburg;

Appendix 15. Instruction of the Committee as of June 17, 2012 10-290 On including sightseeing attraction The Okhta Cape: cultural layer of the Vth century B.C. XXth century in the Unified State Register of the Objects of Cultural Heritage (historical and cultural monuments) of the peoples of the Russian Federation;

Appendix 16. An application with the Kuybushevsky district court of St.Petersburg from June 25, 2013;

Appendix 17. The decision of the Kuybushevsky district court of St.Petersburg from July 1, 2013;

Appendix 18. A special claim with the City Court of St.Petersburg via the Kuybushevsky district court of St.Petersburg from on July 4, 2013;

Appendix 19. A protocol of juridical session Of the Pskov city court from April 18, 2013 (extracts);

Appendix 20. A protocol of juridical session Of the Pskov city court from April 18, 2013;

Appendix 21. The Governors response from June 26, 2013;

Appendix 22. The protocol of inspection of written evidence by a notary public notarial district of St. Petersburg June 28, 2013;

Appendix 23. An abbreviated appeal from July 16, 2013 to the decision dated June 17, 2013 with the Kuybushevsky district court of St.Petersburg;

Appendix 24. The Russian version of the present document.

The document agreed with the Claimants

the Claimant

_______________________________________ O.O.Andronova

_____ __________________________ 2013


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