THIRD SECTION

CASE OF SAZANOV v. RUSSIA

(Application no. 24647/05)

JUDGMENT

STRASBOURG

1 December 2015

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 Sazanov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Luis López Guerra, President,
	George Nicolaou,
	Helen Keller,
	Helena Jäderblom,
	Johannes Silvis,
	Dmitry Dedov,
	Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 10 November 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24647/05) 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 Mikhail Mikhaylovich Sazanov (“the applicant”), on 27 April 2005.
2.  The applicant, who had been granted legal aid, was represented by Ms E. Yefremova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3.  The applicant alleged, in particular, that the court which convicted him on 29 November 2004 had not been impartial, in breach of Article 6 § 1 of the Convention.
4.  On 31 August 2011 the above complaint was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1959 and is currently serving a prison sentence in the Nizhniy Novgorod Region.
Section 1.01	A.  The applicant’s conviction in 1990
6.  On 27 April 1990 the applicant was convicted of threatening to murder, hooliganism, robbery, rape and murder under Articles 207, 206 § 2, 146 § 2, 117 § 4 and 102 of the Criminal Code of the RSFSR (the Russian Soviet Federative Socialist Republic) and sentenced to death.
7.  On 5 June 1990 the Supreme Court of Russia upheld the above judgment on appeal, having amended the legal qualification of the charge of murder under Article 102 of the Criminal Code of the RSFSR.
8.  On 14 September 1991, by virtue of Presidential decree no. 8‑1/140‑90, the death penalty was replaced by twenty years’ imprisonment.
Section 1.02	B.  Court proceedings to bring the applicant’s sentence of 1990 into conformity with the new criminal law
9.  In 1997–2008 the domestic courts, at three levels of jurisdiction and on several occasions, brought the legal qualification of the crimes of which the applicant had been convicted into line with the newly enacted Criminal Code of the Russian Federation (Federal Law no. 63-FZ of 13 June 1996) and its subsequent amendment (Federal Law no. 162-FZ of 8 December 2003). On each occasion the final sentence – twenty years’ imprisonment – remained unaltered.
10.  The last decision in this connection was taken by the Supreme Court of Russia on 26 June 2008.
Section 1.03	C.  The applicant’s conviction in 2004
11.  On 27 February 2004 new criminal proceedings were instituted against the applicant on suspicion of murder.
12.  Police officers allegedly intimidated the applicant and forced him to confess. The applicant alleged that he was subsequently forced to confirm a self-incriminating statement in the presence of legal-aid counsel.
13.  The applicant did not complain about the alleged ill-treatment, because he considered such a remedy ineffective.
14.  On 29 February 2004 the applicant’s custody was changed to detention on remand pending trial.
15.  On 27 May 2004 the pre-trial investigation was completed and the case was sent to the Chelyabinsk Leninskiy District Court for trial.
16.  According to the applicant, at the court hearing of 26 July 2004, while questioning witness M. and victims T. and P., the trial judge P. three times read out an extract from the judgment of 27 April 1990 relating to the applicant’s previous conviction for murder.
17.  According to the Government, the reading out of the 1990 judgment against the applicant was done only once, on 23 August 2004, at the stage of the examination of the case file at the request of the prosecutor during the determination of the term of the applicant’s sentence, and the defence raised no objections.
18.  At the court hearings of 23 August 2004 and 2 September 2004 the applicant asked the court to obtain the attendance of an expert whom he wished to question. His requests were refused by the court.
19.  On 23 August and 25 October 2004 the applicant sought the withdrawal of the judge, without success. In dismissing the applicant’s request for the withdrawal of the trial judge on 23 August 2004 the court indicated that the partial announcement of the applicant’s unspent conviction of 1990 did not constitute a predisposition of the court to deliver a finding of guilt, but served the purpose of full and comprehensive examination of the applicant’s personality as he had earlier been convicted of an analogous crime – premeditated murder. In dismissing the applicant’s challenge of 25 October 2004 the court indicated that the applicant had failed to provide justification for his application for the withdrawal of the judge.
20.  On 29 November 2004 the Chelyabinsk Leninskiy District Court convicted the applicant of threatening murder, bodily harm, murder, and destruction of property, and sentenced him to twenty years’ imprisonment, taking into account that the applicant had not fully served the sentence handed down on 27 April 1990.
21.  The applicant appealed, claiming in particular that the court which convicted him had been biased and predisposed to deliver a finding of guilt. The applicant referred to the fact that while questioning witness M. and victims T. and P. the judge had read out extracts from his conviction of 27 April 1990, thus “creating an atmosphere of guilt”. He further indicated that he had challenged the judge in view of his attitude, although to no avail, and deplored the fact that the transcript of the trial omitted to mention the judge’s reading out of the judgment of 1990.
22.  On 21 February 2005 the Chelyabinsk Regional Court upheld the judgment of 29 November 2004 on appeal. As regards the applicant’s complaint relating to the alleged bias of the trial judge, the Regional Court held as follows:
“The [applicant’s] arguments concerning bias on the part of the [trial] court – its predetermination to deliver a finding of guilt, the selective record of the course of the trial, and the violation of his rights by the reading out of the judgment of 27 April 1990 – had been addressed during the trial and had been reasonably dismissed as unsubstantiated. The transcript of the trial complies with Article 259 of the Code of Criminal Procedure of the Russian Federation ... The [applicant’s] conviction of 27 April 1990 had not been expunged, therefore the reading out of the judgment [in question] cannot be regarded as having breached [his] rights.”
Article II.	II.  RELEVANT DOMESTIC LAW
Section 2.01	A.  Criminal Code of the Russian Federation
23.  Article 18 §§ 1 and 5 of the Code defines recidivism as the commission of a premeditated crime by a person who has an unspent conviction for another premeditated crime committed earlier. It further provides that recidivism leads to a more severe sentence on the grounds and within the limits set out by the Code.
24.  Article 58 of the Code determines the type of correctional facility in which a convict must be detained, depending on the crime committed and on whether recidivism is involved.
25.  Pursuant to Article 60 § 3 of the Code, when determining the sentence the court takes into account the nature and danger to society of the crime committed and the personality of the defendant, as well as any circumstances alleviating or aggravating the punishment.
26.  Article 63 § 1 of the Code lists recidivism as an aggravating circumstance in determination of a sentence.
27.  Article  68 § 1 provides that when determining the sentence when there is recidivism, the court shall take into account the nature and danger to society of the previous offences, the circumstances why the previous sentence proved to be insufficient, and the nature and danger to society of the newly committed offences.
28.  Articles 69-72 of the Code set out the rules for determining the punishment for cumulative crimes, for cumulative sentences, and for determining and calculating the terms of sentences in case of cumulation of offences.
Section 2.02	B.  The Code of Criminal Procedure of the Russian Federation
29.  Article 73 § 3 of the Code provides that circumstances characterising the personality of the accused shall be subject to proof.
30.  Article 308 of the Code provides that the operative part of the judgment shall indicate, among other things, the type and length of sentence imposed on the defendant for each offence of which the latter was found guilty, as well as the final sentence to be served under Articles 69-72 of the Criminal Code.
31.  Article 260 of the Code provides that the parties are entitled to submit their comments on the record of the trial within three days of studying it. The presiding judge shall examine the comments immediately and decide whether to grant or to refuse them. The comments on the record of the trial shall be joined to the record of the trial.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
32.  The applicant complained that the court which convicted him on 29 November 2004 had not been impartial, in that while questioning one of the witnesses and two of the victims the trial judge had read out extracts from the applicant’s previous conviction of 27 April 1990. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [an] ... impartial tribunal ...”
Section 3.01	A.  Admissibility
33.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  The parties’ submissions
34.  The Government submitted that the proceedings in the applicant’s case had complied with the requirement of fairness set out in Article 6 of the Convention: they had been carried out in accordance with the domestic law on criminal procedure; the applicant was assisted by counsel of his own choosing; the defence participated actively in the questioning of witnesses and victims; and the applicant had an opportunity to express his own position on the case before the court. As to the partial announcement of the 1990 judgment against the applicant, the Government stressed that this was done by the trial judge at the request of the prosecutor at the stage of the examination of the case file material, and not during the questioning of witnesses and victims as alleged by the applicant, and that the applicant did not raise any objections in this respect. The Government explained that a copy of the 1990 judgment was included in the case file because the applicant’s unspent conviction under this judgment had legal importance for determining the latter’s sentence, as account needed to be taken of the applicant’s recidivism and the type of correctional facility where the applicant was to serve his sentence. The Government further relied on the record of the hearing of 26 July 2004, from which it follows that witness M. and victims T. and P. testified without being subjected to any pressure by the trial judge. The applicant’s applications for the withdrawal of the trial judge were duly considered by the court and dismissed with relevant reasons being given. The Government summed up that the reading out of part of the 1990 judgment could not serve as a reasonable justification of the applicant’s doubts as to the court’s impartiality.
35.  The applicant submitted that the conduct of the judge during the examination of witness M. and victims T. and P. with a focus on the applicant’s previous conviction could not be regarded as unbiased. Although his previous conviction was relevant for the purposes of sentencing, it was absolutely irrelevant for the establishment of his guilt in the offences imputed to him. He further claimed that the record of the hearing of 26 July 2004 was inaccurate in that it concealed the pressure put on the witness and the victims by the trial judge during their questioning, and that he was not provided with copies of the decisions of 23 August and 25 October 2004 dismissing his applications for the withdrawal of the trial judge.
(b)	2.  The Court’s assessment
36.  The Court reiterates that there are two aspects to the requirement of impartiality in Article 6 § 1 of the Convention. First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Secondly, the tribunal must also be impartial from an objective viewpoint, meaning it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see, among numerous authorities, Daktaras v. Lithuania, no. 42095/98, § 30, ECHR 2000‑X, and, most recently, Morice v. France [GC], no. 29369/10, § 73, 23 April 2015).
37.  As to the subjective test, the Court notes that no evidence has been produced in the present case which might suggest personal bias on the part of Judge P. of the Chelyabinsk Leninskiy District Court.
38.  Under the objective test, it must be determined whether there are ascertainable facts which may raise doubts as to the judge’s impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to the proceedings (see Daktaras, cited above, § 32).
39.  The Court notes that during the examination of the applicant’s criminal case Judge P. read out extracts from the applicant’s unspent sentence of 1990, by which the latter had been convicted of threatening murder, hooliganism, robbery, rape and murder, and sentenced to death, subsequently replaced with twenty years’ imprisonment. The Court observes, however, that the parties disagree as to the moment in the proceedings when the reading out of the 1990 judgment had taken place and as to its purpose. While the applicant claims that the trial judge P. read out on three occasions extracts from the above judgment during the questioning of witness M. and victims T. and P. on 26 July 2004, so as to create an “atmosphere of guilt”, the Government asserted that the reading out of the 1990 judgment had taken place at the request of the prosecutor at a later stage, during the studying of the case file material with a view to determining the applicant’s sentence to take account of his uncompleted sentence.
40.  The Court notes that the record of the trial does not mention the reading out by the trial judge of the extracts from the applicant’s conviction of 1990 while questioning witness M. and victims T. and P. on 26 July 2004. The record mentions, on the other hand, that on 23 August 2004 at the request of the prosecutor the court examined the case file material, including the 1990 judgment, to which no objections were raised by the defence. The Court has no reason to doubt that. In so far as the applicant claimed that the record of the trial had been inaccurate, the Court considers, that, as he was represented by a lawyer, nothing prevented him from submitting comments on the record of the trial in accordance with the procedure set out for this purpose in the domestic law.
41.  As regards the purpose of the reading out of the 1990 judgment by the trial judge, the Court notes the Government’s explanation that it was necessary for the correct determination of the applicant’s sentence to take account of his previous unspent conviction and the type of correctional facility where the applicant was to serve his sentence. The Court further notes that the applicant had failed to provide any evidence to show that the 1990 judgment had been read out by the trial judge in order to exert pressure on witness M. and victims T. and P. The Court considers, therefore, that in the circumstances of the present case as they appear from the case file material the reading out of the 1990 judgment as such could not have cast doubt on the impartiality of the trial judge.
42.  In the light of these circumstances, the Court considers that there are no ascertainable facts in the present case which would objectively justify the applicant’s doubts as to the impartiality of the Chelyabinsk Leninskiy District Court which convicted him on 29 November 2004.
43.  There has accordingly been no violation of Article 6 § 1 of the Convention.
Article IV.	II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
44.  The applicant further complained, under Articles 3, 6 and 13 of the Convention and under Article 4 of Protocol No. 7, of ill-treatment, various irregularities in the proceedings leading to his conviction of 2004, and irregularities in the proceedings to bring his sentence of 1990 into conformity with the new criminal law.
45.  The Court has given careful consideration to these grievances in the light of all the material in its possession and considers that, 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 this part of the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint under Articles 6 of the Convention about alleged partiality of the court which convicted the applicant on 29 November 2004 admissible, and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 6 of the Convention.
Done in English, and notified in writing on 1 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	Luis López Guerra
	Deputy Registrar	President