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FIRST
SECTION
CASE OF ILATOVSKIY v. RUSSIA
(Application
no. 6945/04)
JUDGMENT
STRASBOURG
9 July
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ilatovskiy v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 18 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6945/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Oleg Yuryevich
Ilatovskiy (“the applicant”), on 22 December 2003.
- The
applicant was represented by Mr K. Redkin, a lawyer practising in St.
Petersburg. The Russian Government (“the Government”)
were represented by Mr P. Laptev and Mrs V. Milinchuk, former
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, that he had been convicted by a
court which had not been “a tribunal established by law”.
- On
25 October 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lived until his arrest in
St. Petersburg.
- On 7 June 2000 the applicant was charged with
aggravated robbery and possession of weapons. On 17 April 2002
he was committed to stand trial before the Primorskiy District Court
of St. Petersburg, composed of Ms T., the presiding judge, Mr S.
and Ms B., lay judges. The Government, relying on a copy of
“Supplement to list no. 1” approved on 28 August
1991 by the Head of the Primorskiy District Council of People's
Deputies and listing the names of eleven individuals, including Mr
S., their home address and place of work, argued that Mr S. had been
selected to serve in the Primorskiy District Court in 1991. The
Government further submitted that Ms B. had been appointed as a lay
judge to the Primorskiy District Court in 1999. They supported their
assertion with a copy of decision no. 2156 of 7 December 1999 of
the Primorskiy District Council, approving the list of lay judges for
the Primorskiy District Court. According to that decision, Ms B.
was elected by the Presidium of the Primorskiy District Assembly of
War and Labour Veterans. Mr S. was not included in that list.
- The applicant unsuccessfully asked the District Court
to hear several individuals who could have provided “valuable
information concerning the case”. He and his lawyer also
challenged the composition of the bench a number of times, arguing
that the lay judges S. and B. had no right to sit on the bench and
asking for documents to be produced confirming that they had been
elected to serve in the Primorskiy District Court. The challenges
were dismissed with the bald statement that the court's composition
was lawful.
- On
27 December 2002 the District Court found the applicant guilty of
aggravated robbery, dismissed the charge of arms possession and
sentenced him to eight years' imprisonment.
- The applicant and his lawyer filed an appeal against
the judgment of 27 December 2002. They challenged, inter
alia, the composition of the bench that had given the said
judgment. They claimed that the lay judges, Mr S. and Ms B., had not
been appointed in accordance with the procedure established by law.
They also referred to the list of lay judges of the Primorskiy
District Court of St. Petersburg which had been adopted by the St.
Petersburg Legislative Council on 6 November 2002. Mr S. and Ms B.
were not on that list. They also indicated that St. Petersburg
archives did not have any document showing that those persons had
ever been included in lists of lay judges in St. Petersburg. The
applicant further argued that, even assuming that Mr S. and Ms B. had
been appointed as lay judges, their term of office had expired, at
least on 5 August 2002 according to the decree of the President of
the Russian Federation.
- On
14 November 2003 the St. Petersburg City Court dismissed the appeal
and upheld the applicant's conviction. The City Court ruled that the
complaint about the unlawful composition of the bench was unfounded.
The lay judges had been appointed in accordance with domestic law and
their powers could not have been discontinued by the decree of 5
August 2002 because the case had commenced before that date and they
had already served as lay judges in the earlier period.
II. RELEVANT DOMESTIC LAW
A. The RSFSR Constitution of 1978 (as amended by the
Federal Law no. 4061-1 of 9 December 1992)
- By
virtue of Section 164 of the RSFSR Constitution of 1978 (in force
until 12 December 1993, when the Constitution of the Russian
Federation was adopted), lay judges were elected during meetings of
citizens at their place of work or residence for a term of five
years.
B. The RSFSR Judicial System Act
- Under Section 22 of the RSFSR Law of 8 July 1981 on
the RSFSR Judicial System (hereafter “the RSFSR Judicial System
Act”) (in force until 10 January 2000, the date of the
official publication of the Federal Law on Lay Judges of Federal
Courts of General Jurisdiction in the Russian Federation) lay judges
of district courts were to be elected during meetings of citizens at
their place of work or residence for a term of two and a half years.
Section 22 also indicated that the procedure for the election of lay
judges was laid down in the RSFSR Law on Election of District (Town)
People's Courts in RSFSR.
C. The Courts Election Act
- Part III of the RSFSR Law of 8 July 1981 on Election
of District (Town) Courts in the RSFSR (hereafter “The Courts
Election Act) (in force until 10 January 2000), setting out the
procedure for election of lay judges, read as follows:
Article 56. Procedure for calling elections.
“Elections of lay judges of district (town) courts
of RSFSR are called by the Presidium of the RSFSR Supreme Council.
A decree of the Presidium of the RSFSR Supreme Council
calling an election of lay judges shall be published in the press no
later than thirty days before [the lay judges'] term of office is to
expire...”
Article 57. Management of elections
“Elections of lay judges of district (town) courts
are carried out by executive committees of district, town... Councils
of People's Deputies.
...
The executive committee of the district, town... Council
of People's Deputies:
...
shall
determine the results of elections... and compile a list of elected
lay judges;
...
shall
publish information on the results of the elections of lay
judges...”
Article 58. Election procedure
“Elections of lay judges of district (town) courts
are carried out during general staff meetings, general meetings and
gatherings of citizens at their place of residence...
Staff meetings shall be called by the trade union
committee and the administration of an enterprise, organisation...
General meetings and gatherings of citizens at their
place of residence shall be called by the executive committee of the
town, district... Council of People's Deputies...
...
Lay judges... shall be elected by open vote in respect
of each candidate separately.
Persons who have received more than half the votes of
the electors at a staff meeting or of the electors at their place of
residence... shall be considered to have been elected as lay judges
of a district (town) court...”
Article 59. Minutes of the meeting for the elections
of lay judges
“The results of the elections shall be recorded in
the minutes of the meetings...”
Article 60. Determination of the results of elections
of lay judges
“The executive committee of the district, town...
Council of People's Deputies shall determine the results of the
elections of lay judges on the basis of the meeting minutes and shall
compile the list of lay judges for that district (town) court.
...
The list of lay judges shall be approved by the
executive committee of the district, town... Council and shall be
sent to the district (town) court.”
D. The Constitution of the Russian Federation
- On
12 December 1993 the Constitution of the Russian Federation was
adopted. Section 90 of the Constitution read as follows:
“1. The President of the Russian Federation shall
issue decrees and orders.
2. Decrees and orders of the President of the Russian
Federation have binding force in the entire territory of the Russian
Federation.
3. Decrees and orders of the President of the
Russian Federation should not run contrary to the Constitution of the
Russian Federation and federal laws.”
- Part
2 of the Russian Constitution contained provisions aimed at
preserving the continuity of the judiciary and other State bodies for
the transitional period. In particular, paragraph 6 of part 2
established that until the adoption of the federal law setting out
the procedure for the examination of cases by a jury, the previous
procedure of examination of that category of cases by courts should
be preserved.
E. The President's Decree of 22 March 1995
- On
22 March 1995 the acting President of Russia issued Decree no. 299,
which read as follows:
“Relying on Section 90 and paragraph 6 of part 2
of the Constitution of the Russian Federation, [I] order that:
1. Lay judges of district (town) courts should continue
their service until the adoption of the respective federal law.
2. Executive authorities of the constituent
elements of the Russian Federation should, if necessary, organise
by-elections of lay judges of district (town) courts at general staff
meetings, general meetings and gatherings of citizens at their places
of residence.”
F. The Judicial System Act
- On
1 January 1997 the Federal Constitutional Law no. 1-FKZ on the
Judicial System of the Russian Federation (hereafter – “the
Judicial System Act”) entered into force. By virtue of section
1 of the Act judicial authority in the Russian Federation was vested
exclusively in courts comprising professional judges, jurors, lay and
arbitration judges appointed/elected in accordance with the procedure
laid down by the federal law.
- Section
8 of the Judicial System Act prescribed that individuals could
participate as jurors, lay and arbitration judges in the
administration of justice in accordance with the procedure
established by the federal law.
- Section
37 established that lay judges elected to serve in the courts before
1 January 1997 should remain in office until the expiration of
the term of office for which they had been elected.
G. The President's Decree of 23 January 1997
- On
23 January 1997 the President of the Russian Federation issued Decree
no. 41, which, in so far as relevant, read as follows:
“Having regard to the [fact] that the Federal
Constitutional Law on the Judicial System of the Russian Federation
has come into effect, for the purpose of ensuring the activities of
the courts of general jurisdiction in the Russian Federation and for
judicial protection of the rights of individuals, and relying on
Section 90 of the Constitution of the Russian Federation, [I] order
that:
1. Lay judges of... district courts should continue
their service until the adoption of the federal law on the procedure
for appointment (election) of lay judges.”
H. The Lay Judges Act
- On
10 January 2000 the Federal Law on Lay Judges of Federal Courts of
General Jurisdiction in the Russian Federation (“the Lay Judges
Act”) came into force. By section 1 (2) of the Act, lay judges
are persons authorised to sit in civil and criminal cases as
non-professional judges.
- Section
2 provides that lists of lay judges must be compiled for every
district court by local self-government bodies, such lists being
subject to confirmation by the regional legislature. Section 5
determines the procedure for selection of lay judges. It provides
that the president of a district court is to draw names at random
from a list of lay judges assigned to that court. The number of lay
judges assigned to every professional judge should be at least three
times as many as that needed for a hearing.
- By section 9, lay judges should be called to serve in
a district court for a period of fourteen days, or as long as the
proceedings in a particular case last. Lay judges may only be called
for service once a year.
I. The President's Decree of 25 January 2000
- Under
the Decree of the acting President of Russia issued on 25 January
2000, lay judges serving in the courts of general jurisdiction were
authorised to remain in office until the courts received new lists of
judges confirmed by the regional legislatures.
J. The Regulation on appointment of lay judges
- The
Presidium of the Supreme Court of the Russian Federation issued on 14
January 2000 a Regulation on the procedure for selection of lay
judges. The regulation provided that the President of a district
court should draw at random from the general list of lay judges, 156
names for each judge. The lay judges for a particular case were to be
drawn by lot by the judge to whom the case had been assigned.
K. The President's Decree of 5 August 2002
- On
5 August 2002 the President of the Russian Federation issued Decree
no. 855, by which, relying on the Lay Judges Act, he declared that
his decrees no. 299 of 22 March 1995, no. 41 of 23 January 1997 and
no. 103 of 25 January 2000 were no longer in force.
The Russian Code of Criminal Procedure: reopening of criminal
proceedings
- Article 413 of the Russian Code of Criminal Procedure,
setting out the procedure for re-opening of criminal cases, reads, in
so far as relevant, as follows:
“1. Court judgments and decisions which
became final should be quashed and proceedings in a criminal case
should be re-opened due to new or newly discovered circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms committed by a court of the Russian Federation during
examination of a criminal case and established by the European Court
of Human Rights, pertaining to:
(a) application of a federal law which runs
contrary to provisions of the European Convention for the Protection
of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the
Convention for the Protection of Human Rights and Fundamental
Freedoms;
(c) other new circumstances.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of
the Convention that he had not been tried and convicted by “a
tribunal established by law” because the lay judges had not
been selected in compliance with the procedure established by the
domestic law. The relevant parts of Article 6 § 1 read as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal established by law.”
A. Submissions by the parties
1. The Government
- The
Government submitted that the lay judges S. and B. had been competent
to sit in the applicant's case as they had been lawfully elected in
1991 and 1999, respectively, and their statutory term of office had
been extended by the President's Decrees of 22 March 1995, 23 January
1997 and 25 January 2000. In particular, Mr S. was included in the
list of the Primorskiy District Court's lay judges which was approved
by the Head of the Primorskiy District Council of People's Deputies
on 28 August 1991. His term of office was regulated by the RSFSR
Constitution of 1978 and amounted to five years. Ms B. was included
in the list of the Primorskiy District Court's lay judges on
7 December 1999 by a decision of the Primorskiy District
Council.
- The
Government further argued that the President's Decree of 5 August
2002, which had stripped the previous decrees of 22 March 1995,
23 January 1997 and 25 January 2000 of their binding force, had
not rendered unlawful the participation of the lay judges S. and B.
in the applicant's trial, as it had commenced on 17 April 2002. By
virtue of the principle of continuity prescribed by the Russian Code
of Criminal Procedure the lay judges' term of office was to expire
only after the end of the applicant's trial and not on 5 August 2002,
when the President had issued the Decree.
- In
addition, the Government noted that the list of lay judges serving in
the Primorskiy District of St. Petersburg had been adopted on
6 November 2002 in compliance with the procedure set out in the
new Lay Judges Act. The lay judges S. and B. were not included in
that list. However, in the Government's opinion, the lay judges
already serving on 6 November 2002 were exempted from the
requirements of the Lay Judges Act.
2. The applicant
- The
applicant submitted that neither he nor his lawyer had been able to
find any evidence in the St. Petersburg archives confirming that Mr
S. and Ms B. had ever been elected to serve in the Primorskiy
District Court as lay judges. Even assuming that lay judges acquired
their status under the RSFSR laws, the applicant challenged the
validity of their powers allegedly acquired under the RSFSR Judicial
System Act of 8 July 1981. That Act provided that lay judges
were to be elected at citizens' meetings. The minutes and results of
the elections were to be certified and published by local executive
committees and then forwarded to the district or town court. The
applicant's lawyer asked the Primorskiy District and St. Petersburg
City courts and the St. Petersburg City archive for certified copies
of minutes of the meetings for election of lay judges, lists of lay
judges and copies of official publications of such lists. His
requests were fruitless. The domestic courts merely responded that
the lay judges had been lawfully elected. The applicant inferred
therefrom that until 6 November 2002 in the Primorskiy District of
St. Petersburg there had been no lay judges who had been duly
nominated to their office in accordance with the RSFSR Judicial
System Act.
- In
the alternative, the applicant submitted that since 10 January 2000
the status of lay judges, including Mr S. and Ms B., should have been
governed by the Lay Judges Act because it had entered into force on
that day and federal laws did not envisage any prolongation of the
term of office for lay judges elected before the Lay Judges Act
became binding. The President's Decrees could not serve as the legal
basis for the extension of the term of office as they could not run
contrary to federal laws.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
- The
Court reiterates that the phrase “established by law”
covers not only the legal basis for the very existence of a
“tribunal” but also the composition of the bench in each
case (see Buscarini v. San Marino (dec.), no. 31657/96, 4
May 2000). The Court is therefore required to examine allegations
such as those made in the present case concerning a breach of the
domestic rules for the appointment of judicial officers. The fact
that the allegation in the present case concerned lay judges, does
not make it any less important as, by virtue of Article 6 of the Code
of Criminal Procedure then in force, in their judicial capacity lay
judges enjoyed the same rights as professional judges.
- The
Court observes that it has found violations of Article 6 § 1 of
the Convention in a number of cases against Russia pertaining to the
appointment of lay judges (see, for example, Posokhov v.
Russia, no. 63486/00, §§ 40-44, ECHR
2003 IV, and Fedotova v. Russia, no. 73225/01, §§
41-44, 13 April 2006). The finding of a violation was made against
the background of “the apparent failure to observe the
requirements of the Lay Judges Act regarding the drawing of random
lots and two weeks' service per year” and the domestic
authorities' admission that there had been no lists of lay judges
before Regional Legislatures approved lists of lay judges established
under the new Lay Judges Act. The combination of these circumstances
led the Court to conclude that the courts which heard the applicant's
case had not been tribunals “established by law”.
- Turning
to the facts of the present case, the Court notes that the parties
disagreed whether the lay judges S. and B. had been elected to serve
in the Primorskiy District Court in compliance with the RSFSR
Judicial System Act and Courts Election Act and whether, at the time
of passing the judgment of 27 December 2002, the status of lay
judges S. and B. had been governed by the President's Decrees by
which the lay judges' term of office had been extended or by the more
recent Russian Lay Judges Act. The Court therefore, firstly, has to
decide whether the essential requirements of the procedure for
selection of lay judges, as laid down in the RSFSR Judicial System
and Court Election Acts of 1981, were respected and then it has to
proceed to the examination of the lawfulness of the extensions of the
lay judges' term of office by the President's Decrees.
(a) Selection of lay judges S. and B.:
legal basis and procedure followed
- The
Government, relying on a copy of a certain “Supplement to list
no. 1”, submitted that Mr S. had been elected to serve in the
Primorskiy District Court in 1991. In this respect, the Court
observes that the presented “Supplement” does not contain
any indication that the individuals, including Mr S., enclosed in the
list had, in fact, been selected to serve as lay judges in the
Primorskiy District Court (see paragraph 7 above). The “Supplement”
merely lists the names of eleven persons, their home address and
place of work. The Government did not refer to any other source of
information on the basis of which their assertion regarding the
content of the “Supplement” could be verified. The Court
observes – and this was not disputed by the parties –
that Mr S. and Ms B. should have been appointed to the tribunal in
accordance with the RSFSR Judicial System and Courts Election Acts
(see paragraphs 13 and 14 above). Accordingly, it was open to the
Government to submit copies of documents which could constitute the
legal basis for the lay judges' appointment, such as the minutes of
citizens' meetings for the election of lay judges, the official
publications of the list in the local press or the complete text of
the decision of the executive committee of the District Council of
People's Deputies by which the list of lay judges had been approved.
However, no such documents were presented. An archive search carried
out by the applicant with a view to finding such documents was
unavailing. The applicant's and his lawyer's requests to the District
Court for provision of such documents also did not produce any result
(see paragraphs 8 and 10 above). The Court is, therefore, not
convinced by the Government's submission that Mr S. was elected to
serve in the Primorskiy District Court.
- As
to the participation of the lay judge B. in the applicant's trial,
the Court observes that the Government produced a copy of decision
no. 2156 of 7 December 1999 of the Primorskiy District Council in
support of their assertion that Ms B. had been selected to serve in
the Primorskiy District Court (see paragraph 7 above). It appears
from that decision that the Presidium of the Primorskiy District
Assembly of War and Labour Veterans elected Ms B. to serve as a lay
judge. In that connection, the Court notes the apparent failure to
observe the requirements of the RSFSR Judicial System and Courts
Election Acts (see paragraphs 13 and 14 above) regarding the election
of lay judges by general staff meetings or general meetings and
gatherings of citizens at their place of residence. The Court
observes that the Government did not argue that under the domestic
law in force at the material time the Presidium could have replaced a
general staff meeting at Ms B.'s place of work or a general meeting
at Ms B.'s place of residence. It follows that there has been a
substantive breach of the rules for selection of lay judges
established in Article 58 of the Courts Election Act (see paragraph 14
above) and Section 22 of the RSFSR Judicial System Act (see paragraph
13 above).
- Accordingly,
there existed no legal grounds for the participation of the lay
judges S. and B. in the administration of justice. The above
considerations do not permit the Court to conclude that the
Primorskiy District Court that issued the judgment of 27 December
2002 could be regarded as a “tribunal established by law”.
The St. Petersburg City Court, in its review of the matter on appeal,
did nothing to eliminate the abovementioned defects (see Fedotova
v. Russia, cited above, § 43).
- There has therefore been a violation of Article 6 §
1 of the Convention.
(b) Extension of the lay judges' term of
office: the President's Decrees and the Lay Judges Act
- The
parties, in addition, disputed whether the President had the
authority to extend lay judges' term of office in view of the
adoption of the Lay Judges Act in 2000, two years before the
applicant's trial commenced. In this connection the Court reiterates
its finding that the fairness of the criminal proceedings against the
applicant was undermined by the serious defects in the initial
selection of the lay judges which had heard the applicant's case. It
therefore considers it unnecessary to examine separately whether the
fairness of the proceedings was also breached because the lay judges'
term of office had been extended by the President's Decrees while the
Lay Judges Act, setting the new procedure for the selection of lay
judges, had already come into force (see Komanický v.
Slovakia, no. 32106/96, § 56, 4 June 2002 and
Vladimir Romanov v. Russia, no. 41461/02, § 107, 24
July 2008).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained that the District Court had refused to call
several witnesses on his behalf and that the domestic courts had
committed other gross violations of the domestic law.
- However,
having regard to its finding made in paragraph 42 that the
fundamental defects in the composition of the bench which had tried
the applicant undermined the fairness of the criminal proceedings
against him, the Court considers it unnecessary to examine further
the applicant's complaints pertaining to the domestic courts' alleged
failure to summon defence witnesses and to comply with requirements
of the domestic procedural law. It follows that this part of the
application must be rejected pursuant to Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant asked for the judgment of 27 December 2002, as upheld on
appeal on 14 November 2003, to be quashed and his case re-examined by
the domestic courts. He did not claim any compensation in respect of
pecuniary and non-pecuniary damage.
- The
Government noted that it was not the Court's task to re-examine the
facts of the applicant's case. It was for the domestic courts to
issue a decision in his criminal case.
- In this connection, the Court notes that in the
present case it has found a violation of Article 6 § 1 of the
Convention. Inasmuch as the applicant's claim relates to the finding
of that violation, the Court reiterates that when an applicant has
been convicted despite a potential infringement of his rights as
guaranteed by Article 6 of the Convention, he should, as far as
possible, be put in the position in which he would have been had the
requirements of that provision not been disregarded, and that the
most appropriate form of redress would, in principle, be
trial de novo
or the reopening of the proceedings, if requested (see Öcalan
v. Turkey [GC], no. 46221/99, § 210 in fine,
ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 264,
13 July 2006). The Court notes, in this connection, that
Article 413 of the Russian Code of Criminal Procedure provides that
criminal proceedings may be reopened if the Court finds a violation
of the Convention (see paragraph 28 above).
- The
Court further observes that the applicant did not submit a claim for
compensation for pecuniary or non-pecuniary damage. Accordingly, the
Court considers that there is no call to award him any sum on that
account.
B. Costs and expenses
- The
applicant did not claim any amount for the costs and expenses
incurred before the domestic courts and before the Court.
Consequently, the Court does not make any award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
composition of the bench admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the absence of any legal
grounds for the participation of the lay judges S. and B. in the
administration of justice in the applicant's case;
- Holds that there is no need to examine
separately the complaint under Article 6 § 1 of the Convention
pertaining to the extension of the lay judges' term of office by the
President's Decrees;
- Holds that there is no call to award the
applicant any amount by way of just satisfaction.
Done in English, and notified in writing on 9 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
In
accordance with Article 45 § 2 of the Convention
and Rule 74 § 2 of the Rules of Court, the joint concurring
opinion of Judges Spielmann and Malinverni is annexed to the
judgment.
C.L.R.
A.M.W.
JOINT CONCURRING OPINION OF JUDGES SPIELMANN AND
MALINVERNI
- We
agree in all respects with the Court's conclusions as to the
violation of 6 § 1 of the Convention on account of the absence
of any legal grounds for the participation of the lay judges S. and
B. in the administration of justice in the applicant's case.
- We
would, however, have liked the reasoning set out in paragraph 49 of
the judgment, on account of its importance, to have been included in
the operative provisions as well, for the following reasons, already
explained in our joint concurring opinion delivered in the case of
Vladimir Romanov v. Russia, (no. 41461/02) and attached to the
judgment of 24 July 2008.
- Firstly,
it is common knowledge that while the reasoning of a judgment allows
the Contracting States to ascertain the grounds on which the Court
reached a finding of a violation or no violation of the Convention,
and is of decisive importance on that account for the interpretation
of the Convention, it is the operative provisions that are binding on
the parties for the purposes of Article 46 § 1 of the
Convention. It is therefore a matter of some significance, from a
legal standpoint, for part of the Court's reasoning to appear also in
the operative provisions.
- And
indeed, what the Court says in paragraph 49 of the judgment is in our
view of the utmost importance. It reiterates that when an applicant
has been convicted despite a potential infringement of his rights as
guaranteed by Article 6 of the Convention, he should, as far as
possible, be put in the position in which he would have been had the
requirements of that Article not been disregarded (the principle of
restitutio in integrum).
It further reiterates that the most appropriate form of redress
would, in principle, be trial de novo or the reopening of the
proceedings, if requested (see Öcalan v. Turkey [GC], no.
46221/99, § 210 in fine, ECHR 2005 IV, and Popov
v. Russia, no. 26853/04, § 264, 13 July 2006). Moreover, in
the same paragraph the Court notes in this connection that Article
413 of the Russian Code of Criminal Procedure provides that criminal
proceedings may be reopened if the Court finds a violation of the
Convention (see also paragraph 28 of the judgment). In the present
case, the best means of achieving this is the reopening of the
proceedings and the commencement of a new trial at which all the
guarantees of a fair trial are observed.
- In
the present case, the applicant asked for the judgment of 27 December
2002, as upheld on appeal on 14 November 2003, to be quashed and his
case re-examined by the domestic courts (see paragraph 47 of the
judgment).
- The
reason why we wish to stress this point is that it must not be
overlooked that the amounts which the Court orders to be paid to
victims of a violation of the Convention are, according to the terms
and the spirit of Article 41, of a subsidiary nature. Wherever
possible, the Court should therefore seek to restore the status
quo ante for the victim. We would also like to stress that in the
present case, the applicant did not claim any compensation in respect
of pecuniary and non-pecuniary damage (see paragraph 47 of the
judgment).
- Admittedly,
States are not required by the Convention to introduce procedures in
their domestic legal systems whereby judgments of their Supreme
Courts constituting res judicata may be reviewed. However,
they are strongly encouraged to do so, especially in criminal
matters. We believe that where, as in the present case, the
respondent State has equipped itself with such a procedure (Article
413 of the Russian Code of Criminal Procedure), it is the Court's
duty not only to note the existence of the procedure, as paragraph 49
of the judgment does, but also to urge the authorities to make use of
it. However, this is not legally possible unless such an exhortation
appears in the operative provisions of the judgment.
- Moreover,
the Court has already included directions of this nature in the
operative provisions of judgments. For example, in Claes and
Others v. Belgium (nos. 46825/99, 47132/99, 47502/99,
49010/99, 49104/99, 49195/99 and 49716/99, 2 June 2005) it held in
point 5 (a) of the operative provisions of its judgment that “unless
it grants a request by [the] applicants for a retrial or for the
proceedings to be reopened, the respondent State is to pay, within
three months from the date on which the applicant in question
indicates that he does not wish to submit such a request or it
appears that he does not intend to do so, or from the date on which
such a request is refused”, sums in respect
of non-pecuniary damage and costs and expenses. Similarly, in Lungoci
v. Romania (no. 62710/00, 26 January 2006) the Court held in
point 3 (a) of the operative provisions of its judgment that “the
respondent State is to ensure that, within six months from the date
on which the judgment becomes final in accordance with Article 44 §
2 of the Convention, the proceedings are reopened if the applicant so
desires, and at the same time is to pay her EUR 5,000 (five thousand
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount, to be converted into Romanian lei at the
rate applicable at the date of settlement”.
- By
virtue of Article 46 § 2 of the Convention, supervision of the
execution of the Court's judgments is the responsibility of the
Committee of Ministers. That does not mean, however, that the Court
should not play any part in the matter and should not take measures
designed to facilitate the Committee of Ministers' task in
discharging these functions.
- To
that end, it is essential that in its judgments the Court should not
merely give as precise a description as possible of the nature of the
Convention violation found but should also, in the operative
provisions, indicate to the State concerned the measures it considers
the most appropriate to redress the violation.
