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FIRST
SECTION
CASE OF LARYAGIN and ARISTOV v. RUSSIA
(Applications
nos. 38697/02 and 14711/03)
JUDGMENT
STRASBOURG
8
January 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 Laryagin and
Aristov 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,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 38697/02 and 14711/03)
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 two Russian nationals, Mr
Sergey Vasilyevich Laryagin (“the first applicant”) and
Mr Vyacheslav Viktorovich Aristov (“the second applicant”),
on 10 September 2002 and 25 March 2003 respectively.
- The first applicant, who had been granted legal aid,
was represented by the International Protection Centre, a
Moscow-based human rights organisation; the second applicant was
self-represented. The Russian Government (“the
Government”) were initially represented by Mr P. Laptev
and Ms V. Milinchuk, former Representatives of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mr G. Matyushkin.
- Each
applicant alleged, in particular, that the trial court in their case
had not been a tribunal established by law because it had been
composed in breach of domestic regulations.
- On
3 June 2005 and 24 March 2006, respectively, the President of the
First Section decided to give notice of the applications to the
Government. It was also decided to examine the merits of the
applications at the same time as their admissibility (Article 29 §
3).
- The
Government objected to the joint examination of the admissibility and
merits of the applications. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1969 and 1967 respectively. They are
currently serving prison sentences.
A. The applicants’ detention and pre-trial
investigation
- In
October 1998 the applicants were arrested and remanded in custody on
suspicion of several counts of murder, robbery and other crimes. Both
applicants alleged that the policemen had ill-treated them and forced
to confess.
- The
applicants partly confessed to several criminal offences. Both of
them had lawyers at the preliminary stage of investigation. The
applicants did not complain about the alleged ill-treatment during
the pre-trial investigation.
- Between
January 1998 and March 1999 the investigation carried out a
significant number of forensic expert examinations. On 17 April 1999
the investigator familiarised the first applicant with decisions to
appoint all these examinations and with their conclusions. The first
applicant refused to get acquainted with the examinations and stated
that he would read them together with the whole case file at the end
of the investigation.
B. Trial
- On
an unspecified date the investigation was completed and the case was
referred to the Chelyabinsk Regional Court for trial. The
trial court was composed of Mr S., the presiding judge, and Ms G. and
Ms U., lay judges. The first applicant unsuccessfully asked for a
trial by jury.
- The
first applicant admitted, partly or fully, his guilt on five counts
of aggravated murder and robbery, one of attempted murder, unlawful
possession of weapons, forgery of documents and several other crimes.
He pleaded not guilty on two other counts. Apart from the first
applicant’s confession, the trial court relied on statements of
co-accused made both during the pre-trial investigation and the
trial, witnesses, documentary evidence, numerous records of
investigative actions, including a record of inspection of the first
applicant’s flat, during which the police had found a number
plate for a car, allegedly supposed to be used for robbery, and
expert examinations. The first applicant, however, challenged the
results of the forensic medical examination of the body of Mr S., one
of the victims, claiming that the examined body had not been found in
the place where he had committed the murder of Mr S.; therefore it
belonged to another person.
- Out
of seven episodes of murder, robbery and unlawful possession of
weapons, incriminated to the second applicant, he partly admitted his
guilt as regards robbery and the murder of Mr S. He pleaded not
guilty with respect to the remainder of the episodes. However the
trial court found him guilty as charged. The court relied on
depositions of the co-defendants, including the first applicant, the
second applicant’s confession made during the pre-trial
investigation, documentary evidence, video recordings of
investigative actions with the applicant and his co-defendants, and
results of forensic examinations.
- The
second applicant requested that the trial court hear Mr I., who could
allegedly have confirmed his alibi. The court noted that the
authorities had tried to establish Mr I.’s whereabouts and had
checked the address indicated by the second applicant. It was
established that such a person had never lived in the Chelyabinsk
Region, contrary to what had been alleged by the second applicant.
- The
first applicant and co-defendants complained to the trial court that
the policemen had beaten them during the investigation. The court
thoroughly examined these complaints and dismissed them as
unsubstantiated. It appears that the second applicant did not make a
similar complaint.
- On
8 December 2000 the trial court heard the final pleas of the second
applicant and co-defendants. The first applicant refused to speak
because his lawyer was not present.
- On
27 December 2000 the first applicant did not feel well and refused to
pronounce his final plea. On the same day the Chelyabinsk Regional
Court delivered judgment. It found the applicants guilty of having
committed and abetted several aggravated murders and robberies,
unlawful possession and theft of weapons, organising a criminal gang,
and forgery of documents. The trial court sentenced the first
applicant to life imprisonment and the second applicant to
twenty-five years’ imprisonment; and issued confiscation orders
in respect of the applicants’ property.
C. Appeal proceedings
- The
applicants appealed against the judgment of 27 December 2000. In
their voluminous statements of appeal they challenged, inter alia,
the composition of the bench that had given the judgment. Whilst the
Lay Judges Act allowed lay judges to be called once a year for a
maximum period of fourteen days or for as long as a specific case
lasted, the lay judges Ms G. and Ms U. had been engaged earlier in
the course of at least one other trial in 2000.
- On
18 October 2002 the Supreme Court of the Russian Federation upheld
the judgment on appeal. The appeal court noted that there were no
grounds for quashing the judgment of 27 December 2000 as the trial
court had examined the applicants’ case thoroughly and without
any bias. With respect to the composition of the bench the court
noted that the applicant’s complaint was unsubstantiated as “no
lists of lay judges had been formed at the moment of examination of
the case”.
D. Supervisory review proceedings
- On 5 August 2005 a deputy Prosecutor General submitted
a request for supervisory review (надзорное
представление)
to the Presidium of the Supreme Court of the Russian Federation. He
requested that the judgments of 27 December 2000 and 18 October 2002
be quashed, having referred to the Court’s conclusion in the
case of Posokhov v. Russia (no. 63486/00, ECHR
2003-IV). The deputy Prosecutor General emphasised that Ms G. and Ms
U. had sat in court in several other cases in 2000, in breach of
section 9 of the Lay Judges Act. Thus, the applicants’ case had
been examined by a bench with an unlawful composition, which led to
the quashing of the judgment pursuant to paragraph 2 of Article 381
of the Code of Criminal Procedure of the Russian Federation.
- On
17 January 2007 the Presidium of the Supreme Court of the Russian
Federation rejected the Prosecutor’s request for supervisory
review. The Presidium acknowledged that Ms G. and Ms U. had sat in
court in other cases in 2000; however it found that lay judges
sitting in court more than once a year was not in itself sufficient
to challenge the legitimacy of the composition of the bench, as the
above lay judges had been authorised by law to serve in an unlimited
number of cases. According to the Supreme Court, a limitation set out
in Section 9 of the Lay Judges Act served to protect the rights of
those lay judges who wished to refuse to serve repeatedly within one
year; however this limitation could not be considered a ground to
declare the composition of the bench unlawful.
- The
Presidium also noted that one of the co-defendants had already been
released and thus a new examination of the case could significantly
impair his situation. In such circumstances quashing the final
judgment would constitute a breach of the principle of legal
certainty inherent in the Convention.
II. RELEVANT DOMESTIC LAW
A. Composition of courts in criminal proceedings
- According
to Article 15 of the RSFSR Code of Criminal Procedure, in force at
the material time, hearings in first instance courts dealing with
criminal cases should, subject to certain exceptions, be conducted by
a single judge or by a judge and two lay judges. In their judicial
capacity, lay judges enjoy equal rights with the judge.
B. Lay judges
- On
10 January 2000, the Federal Law on the Lay Judges of the Federal
Courts of General Jurisdiction in the Russian Federation (“the
Lay Judges Act” or “the Act”) came into effect. By
section 1 (2) of the Act, lay judges are persons authorised to sit in
civil and criminal cases as non-professional judges.
- 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 not be called more than once a
year.
C. Expert examinations
- According
to Sections 78 and 80 of the RSFSR Code of Criminal Procedure of
1960, as in force at the relevant time, in cases requiring special
knowledge of science, technology, art or particular skill, an
investigative authority or a court may appoint an expert to carry out
an expert examination. The conclusions of an expert are not binding
on a court but any disagreement with them must be motivated. By
Sections 81 and 290 of the Code incomplete, unclear, unjustified or
dubious expert conclusions a court may order additional or repeated
expert examinations.
- Section
185 of the Code states that an accused and his counsel can challenge
an expert, seek an appointment of a particular person as an expert,
adduce further questions, be present during the expert examination in
person and make any comments and be informed of expert conclusions.
In case the respective request was granted, an investigation alters
its decision to carry out the examination accordingly. By
Section 193 of the Code, expert conclusions should be presented to
the applicant who has the right to respond or object to these
conclusions as well as the right to request the authority to put
additional questions to the expert or carry out an additional or a
repeated expert examination.
THE LAW
I. JOINDER OF THE APPLICATIONS
- In
view of the connection between the applications as regards the facts
and the substantive questions that they both raise, the Court
considers it appropriate to join them in accordance with Rule 42 §
1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention that
the judgment of 1 July 2002 had not been issued by a tribunal
established by law. Article 6 § 1, in so far as relevant, reads
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. Admissibility
- The
Government contended that the applicants had not exhausted domestic
remedies as required by Article 35 § 1 of the Convention. They
maintained that they failed to lodge an application for a supervisory
review of the judgment as the Deputy Prosecutor General had done in
their interests.
- The Court reiterates that an application for
supervisory review is not a remedy to be exhausted under Article 35
§ 1 of the Convention (see Berdzenishvili v. Russia
(dec.), no. 31697/03, 29 January 2004). Therefore, the
Government’s objection as to the non-exhaustion of domestic
remedies must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
applicants submitted that the lay judges Ms G. and Ms U. had been
engaged in other trials in 2000 whereas according to Section 9 of the
Lay Judges Act lay judges may not be called more than once a year.
They considered therefore that Ms G. and Ms U. lacked legal basis to
sit on the panel.
- The
Government confirmed that Ms G. and Ms U. had served in at least two
criminal proceedings in 2000 and referred to the Deputy General
Prosecutor’s request for supervisory review in the applicants’
case. However, they maintained that repeated participation of the
above lay judges in a number of proceedings within one year, in
breach of section 9 of the Lay Judges Act, had occurred due to a
difficult situation with lay judges before a new list had been
created, and in any event had not involved an essential violation of
the applicants’ rights.
2. The Court’s assessment
- 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 requested to examine allegations
such as those made in the present case concerning a breach of the
domestic rules for appointment of judicial officers. The fact that
the allegation in the present case concerned lay judges does not make
it any less important as, pursuant to Article 15 of the Code of
Criminal Procedure then in force, in their judicial capacity lay
judges enjoyed the same rights as professional judges (see paragraph
22 above).
- The
Court reiterates that it has found a violation of Article 6 § 1
of the Convention in other Russian cases with similar factual
circumstances (see Posokhov v. Russia, no.
63486/00, §§ 40-44, ECHR 2003-IV; Fedotova v. Russia,
no. 73225/05, §§ 38-44, 13 April 2006; and Shabanov and
Tren v. Russia, no. 5433/02, §§ 28-32, 14 December
2006). The finding of a violation was made against the background of,
inter alia, “the apparent failure to observe the
requirements of the Lay Judges Act regarding the drawing of random
lots and two weeks’ service per year”. These
circumstances led the Court to conclude that district courts which
heard the applicants’ cases had not been tribunals “established
by law”.
- Turning
to the circumstances of the present case, the Court notes that they
are similar. Both the Supreme Court and the respondent Government
confirmed that lay judges Ms G. and Ms U. had been called for service
more than once in the same year. This amounted to a breach of the
rules for the selection of lay judges established in section 9 of the
Lay Judges Act (see paragraph 24 above). Furthermore, the Government
failed to produce any document setting out the legal grounds for
participation of these lay judges in the administration of justice.
- The
above considerations do not permit the Court to conclude that the
Chelyabinsk Regional Court that issued the judgment of
27 December 2000 could be regarded as a “tribunal
established by law”. The Supreme Court, in its review of the
matter on appeal, did nothing to eliminate the above-mentioned
defects.
- There
has therefore been a violation of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE
CONVENTION IN RESPECT OF THE FIRST APPLICANT
- The
first applicant complained that at no stage of the proceedings had he
been able to question experts and that the domestic courts had
refused to obtain their attendance and examination. He relied on
Article 6 § 3 (d) of the Convention, which, in so far as
relevant, reads as follows:
“3. Everyone charged with a criminal
offence has the following minimum rights:
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him...”
- The
Government noted that on 17 April 1999 the first applicant had been
given the decisions to appoint all the expert examinations in his
case and their conclusions; however he had refused to study them.
After the pre-trial investigation was completed and the first
applicant had studied the expert conclusions, he was fully able to
object to them, to lodge requests for additional examinations and for
experts to be summoned to the court, which he never did. Neither had
he requested the trial court to secure the experts’ presence at
the hearing or to appoint additional examinations. They concluded,
therefore, that the first applicant’s rights guaranteed by
Article 6 § 3 (d) of the Convention had not been violated.
- The
first applicant disagreed. He maintained that requests to obtain
experts’ attendance had been repeatedly lodged by his
co-defendants during the trial. Each time the court clarified the
position of all the trial participants with respect to these requests
he expressed his support. Therefore, in his point of view, it was not
necessary to lodge the same requests again, and he was deprived of
his right to obtain the attendance and examination of experts.
- The
Court reiterates that, as a general rule, it is for the national
courts to assess the evidence before them, as well as the relevance
of the evidence which defendants seek to adduce. Article 6 § 3
(d) leaves it to them, again as a general rule, to assess whether it
is appropriate to call witnesses. However, where a conviction is
based solely or to a decisive degree on depositions that have been
made by a person whom the accused has had no opportunity to examine
or to have examined, whether during the investigation or at the
trial, the rights of the defence are restricted to an extent that is
incompatible with the guarantees provided by Article 6 (see Lucà
v. Italy, no. 33354/96, § 40, ECHR 2001-II).
Within the meaning of Article 6, where an expert has been appointed
by a court, the parties must in all instances be able to attend the
interviews held by him or to be shown the documents he has taken into
account (see Mantovanelli v. France, judgment of 18 March
1997, Reports of Judgments and Decisions 1997 II, § 33).
- In
the present case the Court notes that a large number of forensic
expert examinations of various nature were performed and considered
by the court in the applicants’ case. Although the first
applicant was only informed about the examinations after they had
been completed, he was fully able to object to these conclusions both
after he studied them at the end of the pre-trial investigation and
during the trial, as well as to request the investigative authorities
and trial court to appoint additional expert examinations. The first
applicant had not used these opportunities.
- The
Court further notes that the first applicant failed to explain which
expert examinations he wished to challenge or specify, and why it
would have been important to examine certain experts in the
circumstances of the case. It follows from the material submitted
that during the trial the first applicant only challenged the results
of the forensic medical examination of the body of victim S.,
alleging that it belonged to another person (see paragraph 11 above),
but he had not requested additional examination or proposed certain
questions to experts to clarify the issue.
- Further noting that the first applicant’s
conviction was based on a substantial amount of evidence –
submissions of the applicants and co-defendants, witnesses’
depositions, documentary evidence, records of investigative actions
etc – the Court considers that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants further complained under Article 3 of the Convention that
they had been ill-treated during the preliminary stage of the
investigation. They relied on Article 5, complaining that their
detention was unlawful. They relied on Article 6, stressing that the
criminal proceedings in their case had been excessively long. They
also raised a number of complaints under Article 6 of unfairness of
the proceedings. The first applicant complained that he had not been
tried by jury and that in several other regions of Russia persons
accused of the same crimes were tried by jury. Lastly, he complained
under Article 34 of the Convention that he had had difficulties in
sending documents to the Court in support of his application.
- The
Court has examined the remainder of the applicants’ complaints
and considers that, in the light of all the material in its
possession and in so far as the matters complained of are within its
competence, they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that these parts of the applications should be declared
inadmissible pursuant to Article 35 §§ 3 and 4 of the
Convention.
V. 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
first applicant claimed 1,000,000 euros (EUR) in respect of
non-pecuniary damage. The second applicant claimed EUR 36 per day
(presumably for each day of his detention) without any further
specification.
- The
Government found these claims excessive and unsubstantiated.
- The
Court considers that the applicants must have suffered a feeling of
injustice as the judgment in their case had been given by a tribunal
which had not been “established by law”. The
non-pecuniary damage they have thereby sustained would not be
adequately compensated by the finding of a violation. Accordingly,
making its assessment on an equitable basis, the Court awards the
applicants EUR 500 each as compensation for non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The first applicant also claimed EUR 500 to be paid to
his mother for the costs and expenses she incurred while representing
him before the Court (telephone, postage etc). The second applicant
did not claim any costs and expenses.
- The
Government noted that the first applicant had failed to submit
payment receipts.
- The
Court notes that the first applicant was paid EUR 715 in legal aid by
the Council of Europe. According to the Court’s case-law, an
applicant is entitled to the reimbursement of costs and expenses only
in so far as it has been shown that these have been actually and
necessarily incurred and were reasonable as to quantum. The Court
observes that the first applicant failed to make any specific claim
for reimbursement of his costs and expenses as required under Rule 60
of the Rules of Court and did not produce documents in support of his
claim. In these circumstances, the Court makes no award under this
head to any of the applicants.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins the applications;
- Declares the complaint concerning composition of
the bench admissible and the remainder of the applications
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 500 (five
hundred euros) each, plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
