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FIRST
SECTION
CASE OF
PETR SEVASTYANOV v. RUSSIA
(Application
no. 75911/01)
JUDGMENT
STRASBOURG
14 June
2011
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 Petr Sevastyanov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
George Nicolaou,
Mirjana Lazarova
Trajkovska, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 75911/01) 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 Petr Aleksandrovich
Sevastyanov (“the applicant”), on 30 September 2001.
- The
applicant was represented by Mr S. Belozertsev and Mrs K. Moskalenko,
lawyers practising in Moscow. The Russian Government (“the
Government”) were initially represented
by Mr P. Laptev, the
former Representative of the Russian Federation at the European Court
of Human Rights, and subsequently by their Representative, Mr
G. Matyushkin.
- The
applicant alleged, in particular, that he had been tried and
convicted by a court which could not be considered to have been
established by law and independent.
- By
a decision of 14 October 2010 the Court declared the application
partly admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Moscow.
- Between
July and September 2000 the Nikulinskiy District Court of Moscow
(“the Nikulinskiy District Court”), composed of one
professional judge, Mr Bobkov, and two lay judges, Ms Matuzova and Mr
Rubtsov, examined the charges brought against the applicant in
connection with a drug-related offence.
- On
4 September 2000 the Nikulinskiy District Court found the applicant
guilty of illegal acquisition and storage of narcotics on a
particularly large scale for the purpose of sale and of illegal sale
of drugs and sentenced him to eight years’ imprisonment.
- The
applicant and his counsel appealed against the judgment of
4 September 2000 to the Moscow City Court (“the City
Court”). They complained, in particular, that lay judge Rubtsov
had not been appointed in accordance with the law and had not been
independent because he worked as a clerk (секретарь
суда) at the Nikulinskiy District Court.
- On
5 October 2000 the City Court returned the case to the first-instance
court and ordered it to look into the applicant’s complaints
about the competency of lay judge Rubtsov.
- The results of the inquiry carried out by the Supreme
Court Justice Department in respect of the competency of lay judge
Rubtsov to sit in the case were summarised in a report of 17 January
2001, which stated as follows:
“...The inquiry established that the Nikulinskiy
District Court had at its disposal a copy of the decision of 24
October 1991 of the Gagarinskiy District Council of People’s
Deputies of Moscow confirming the results of the additional selection
of lay judges of the Gagarinskiy District Court of Moscow as well as
a copy of the list of lay judges elected by the staff of the
Gagarinskiy District Court, which comprised two persons (Mrs Asharova
and Mr Rubtsov) and which had not been properly certified.
According to information obtained from the
Administration of Moscow and from the Moscow Archives, the originals
of the documents on the election of lay judges of the Gagarinskiy
District Court had not been kept.
Nevertheless, lay judge Rubtsov had been in possession
of the card [identifying him as a] lay judge of the Gagarinskiy
District Court of Moscow, which had been valid until May 1995.
The presidential decrees of 22.03.95 No. 299 and
23.01.97 No. 41, 12.12.98 No. 64, 02.01.00 No.37, and 25.01.00 No.103
extended the terms of office of previously selected lay judges until
the adoption of the Federal Law on the selection of lay judges and
the compilation of general lists of lay judges.”
12. On
3 April 2001 the City Court examined the case on appeal. It held that
the applicant’s guilt of acquisition of drugs for the purpose
of sale and the sale of drugs had been proved by the evidence
examined during the trial. Regarding the allegedly unlawful
composition of the trial court, the appeal court held that the term
of office of lay judge Rubtsov had been extended in accordance with
the Presidential decrees. The court also noted that the fact
that lay judge Rubtsov worked for the court as a clerk did not
preclude him from being elected as a lay judge. The City Court
reduced the applicant’s sentence to five years’
imprisonment and upheld the remainder of the judgment.
- On
13 February 2002 the Supreme Court of the Russian Federation (“the
Supreme Court”) reviewed the case under the supervisory review
procedure. The Supreme Court held that the applicant’s guilt of
acquisition and storage of drugs on a large scale had been
established. However, the materials of the criminal case file had not
contained any evidence which would allow it to establish with
sufficient credibility that the applicant had acquired the drugs for
the purpose of sale and that he had sold them. In those
circumstances, the applicant’s actions should have been
classified as illicit procurement and storage of drugs without intent
to sell.
- The
Supreme Court amended the judgment of 4 September 2000 and the
decision of 3 April 2001, convicted the applicant of illicit
procurement and storage of drugs without intent to sell and sentenced
him to three years’ imprisonment. With reference to the Amnesty
Act of 26 May 2000, the court ordered that the applicant be released
from serving his sentence and, consequently, from custody.
II. RELEVANT DOMESTIC LAW
A. The Code of Criminal Procedure of 1960 (in force
until 1 July 2002)
- Article
15 of the Code provided that hearings in first-instance courts
dealing with criminal cases should, subject to certain exceptions, be
conducted by a single professional judge or by one professional and
two lay judges. In their judicial capacity, lay judges enjoyed the
same rights as professional judges.
B. The RSFSR Law of 8 July 1981 on Election of District
(Town) Courts (in force until 10 January 2000)
- Part
III of the Law set out the procedure for the election of lay judges.
Elections of lay judges of district (town) courts were called by the
Presidium of the RSFSR Supreme Council and were carried out by the
executive committees of the district or town Councils of Peoples’
Deputies (Articles 56 and 57). Lay judges were elected during general
staff meetings, general meetings and gatherings of citizens at their
places of residence. A separate, open vote was held in respect of
each candidate. Persons who received more than fifty percent of the
votes were elected (Article 58). The results of the elections had to
be recorded in the minutes of the meetings (Article 59). The relevant
executive committee determined the results of the elections, compiled
the list of elected lay judges, approved that list, published the
information on the results of the elections and sent the list of lay
judges to the district court (Articles 57 and 60).
C. The Constitution of the Russian Federation of 12
December 1993
- Article
90 of the Constitution provides that the President of the Russian
Federation shall issue decrees and orders which shall have binding
force on the entire territory of the Russian Federation and which
should not run contrary to the Constitution of the Russian Federation
and federal laws.
D. Presidential Decrees
- The
Decree of 22 March 1995 provided that lay judges of district (town)
courts had to continue their service until the adoption of the
respective federal law. Executive authorities of the constituent
elements of the Russian Federation had, if necessary, to 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.
- The
Decree of 23 January 1997 provided, among other things, that lay
judges of district courts had to continue their service until the
adoption of the federal law on the procedure for appointment
(election) of lay judges.
- The
Decree of 25 January 2000 provided that lay judges serving in the
courts of general jurisdiction were authorised to remain in office
until the courts received new lists of lay judges confirmed by a
regional legislative body.
E. The Lay Judges Act of 2 January 2000, in force since
10 January 2000 and applicable to criminal proceedings until 1
January 2004
- The
Act provided in section 1 that citizens of the Russian Federation had
a right to take part in the administration of justice in the quality
of lay judges. Lay judges were persons empowered by law to hear civil
and criminal cases as part of the court panel and carry out their
judicial duties on a non-professional basis.
- Section
2 provided that lists of lay judges for every district court had to
be compiled by respective local self-government bodies on the basis
of lists of voters in the district. Such lists had to be validated by
regional legislative assembly and submitted to the district court.
The term of office of lay judges on the list was five years.
- Section
3 provided that the following persons could not be selected as lay
judges: persons who had convictions which had not been quashed,
persons fully or partially deprived of their legal capacity by a
competent court, civil servants of category “A” and
persons occupying elective posts in local government bodies,
prosecutors, investigators and persons registered with either drugs
counsellors or psychiatrists.
- Sections
5 and 6 provided that the president of the respective court had to
draw a certain number of lay judges by lot from the list. Lay judges
to sit in a particular case were to be drawn by lot by the
professional judge who would hear the case from those drawn by lot by
the president of the court.
- Section
9 provided that lay judges could be called to sit in cases heard by a
district court for a period of fourteen days, or as long as the
proceedings in a particular case lasted. Lay judges could not be
called on more than once a year.
F. The Supreme Court’s Ruling on the selection of
lay judges of 14 January 2000
- The
ruling provided that the president of a given court had to draw by
lot from the list of lay judges, 156 names for each judge of the
court. The lay judges for a particular case had to be drawn by lot by
the professional judge to whom the case had been assigned. The
sitting lay judges had to remain in office until new lists of lay
judges arrived at the court. The regulation also provided that each
court had to keep a record of the results of the selection at random
of lay judges.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 of the Convention that the
criminal proceedings against him had been unfair. In particular, he
alleged that:
(a) Mr
Rubtsov, who had sat in his case as a lay judge, had had no right to
do so, since he had not been on the list of lay judges selected to
sit in cases examined by the Nikulinskiy District Court;
(b) lay
judge Rubtsov had not been independent vis-à-vis
the professional judge sitting in his case since he had worked at the
Nikulinskiy District Court as a clerk and had not been discharged of
his functions during the applicant’s trial.
- Article
6 of the Convention, in so far as relevant, provides as
follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by an independent and impartial tribunal established by
law.”
A. Allegedly unlawful participation of lay judge
Rubtsov in the applicant’s trial
1. The parties’ submissions
- The
applicant firstly argued that Mr Rubtsov had never been selected to
sit as a lay judge in the Nikulinskiy District Court. In 1991 he was
selected to sit as a lay judge in the Gagarinskiy District Court of
Moscow (“the Gagarinskiy District Court”). However, those
two courts were two different courts which had two distinct
addresses. Therefore, the selection in 1991 of Mr Rubtsov to sit as a
lay judge in the Gagarinskiy District Court had not empowered him to
sit in cases heard by the Nikulinskiy District Court. Furthermore, it
had followed from a letter from the President of the Nikulinskiy
District Court that in April 1999 there had been ten lay judges in
the Nikulinskiy District Court. A list of those judges had been
enclosed. However, Mr Rubtsov had not been on that list. The
applicant claimed that the Government had provided no document
confirming the selection of Mr Rubtsov to sit as a lay judge in
the Nikulinskiy District Court.
- The
applicant further argued that the Government had not provided any
document to prove that lay judge Rubtsov had been selected by lot to
sit in the applicant’s trial.
- The
applicant lastly claimed that lay judge Rubtsov had already started
to sit in cases examined by the Nikulinskiy District Court in January
2000. Therefore, by the date of the applicant’s trial he had
sat in cases for more than fourteen days.
- The
Government submitted that lay judge Rubtsov had been competent to sit
in the applicant’s case. They referred to the results of the
inquiry carried out in 2001 by the Supreme Court Justice Department
(see paragraph 11 above) which established that the Nikulinskiy
District Court had had at its disposal copies of the decision of 24
October 1991 of the Gagarinskiy District Council of People’s
Deputies of Moscow which approved the results of the additional
elections of lay judges for the Gagarinskiy District Court and the
list of lay judges elected by the staff of the Gagarinskiy District
Court, which comprised two lay judges, Mrs Asharova and Mr
Rubtsov. The Government also informed the Court that the originals of
the documents on the election of lay judges of the Gagarinskiy
District Court had not been kept. Lay judge Rubtsov’s term of
office had been valid until May 1995. Subsequently, it had been
extended by the Presidential decrees of 22 March 1995, 23 January
1997, 12 December 1998 and 25 January 2000 until the adoption of
the Lay Judges Act, and subsequently until the courts received new
lists of lay judges.
- Furthermore,
according to the decision of the Mayor of Moscow, in 1994 the
Oktyabrskiy District Court of Moscow had been renamed as the
Gagarinskiy District Court and the former Gagarinskiy District Court
had been renamed the Nikulinskiy District Court.
- Between
September and November 2000 lay judge Rubtsov had taken part in the
examination of criminal and civil cases in the Nikulinskiy District
Court for seventeen days, that is, more than the maximum period of
fourteen days provided for by law. That had been due to a difficult
situation which had existed before new lists of lay judges had been
compiled. However, the applicant’s case had been the first on
the list of cases in which lay judge Rubtsov had sat. Therefore, on
the date of the applicant’s trial the maximum period of
fourteen days had not been attained.
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 required to examine allegations
such as those made in the present case concerning a breach of the
domestic rules on 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, under the Russian law then in force, in
their judicial capacity lay judges enjoyed the same rights as
professional judges (see “Relevant domestic law” above).
- The
Court has already found violations of Article 6 § 1 of the
Convention in a number of cases against Russia pertaining to the
appointment of lay judges. Violations were found on account of the
domestic authorities’ failure to produce documentary evidence
showing that the lay judges had been appointed to the office in
accordance with the procedure established by domestic law, combined
with the apparent failure to observe the requirements of the Lay
Judges Act regarding the drawing of random lots and the maximum
length of service per year (see, for instance, Posokhov v. Russia,
no. 63486/00, §§ 38-44, ECHR 2003 IV, and
Moskovets v. Russia, no. 14370/03, §§ 96-101, 23
April 2009).
- Turning to the circumstances of the present case and
having regard to the information provided by the Government, the
Court is satisfied that in 1994 the Gagarinskiy District Court was
renamed and became the Nikulinskiy District Court. Therefore, it has
to verify in the first place, whether lay judge Rubtsov had been
selected to sit as a lay judge in the cases heard by the Gagarinskiy
District Court in accordance with the procedure established by
domestic law. In that respect the Court observes that the inquiry
carried out in 2001 by the Supreme Court Justice Department and to
which the Government referred, established, among other things, that
the list of lay judges elected by the staff of the Gagarinskiy
District Court comprising two lay judges, Mrs Asharova and Mr
Rubtsov, had not been properly certified and that the originals of
the documents on the election of lay judges of the Gagarinskiy
District Court had not been kept. The latter information was also
confirmed by the Government, who have not provided any other document
to prove the selection of lay judge Rubtsov to sit in cases examined
by the Gagarinskiy District Court (renamed as the Nikulinskiy
District Court). The Court further observes that the Government have
not provided any document confirming that lay judge Rubtsov had been
drawn by random lot to sit in the applicant’s trial as required
by the domestic law (see “Relevant domestic law” above).
- Those
findings are sufficient to conclude that the Nikulinskiy District
Court, which heard the charges against the applicant between July and
September 2000 and which convicted him on 4 September 2000, could not
be regarded as “a tribunal established by law”. The Court
also notes that the Moscow City Court, in the review of the case on
appeal and the Supreme Court of the Russian Federation, which
examined the case by way of supervisory review, did not eliminate the
above-mentioned defects.
- Therefore, the Court concludes that there has been a
violation of Article 6 § 1 of the Convention.
B. Alleged lack of independence of lay judge Rubtsov
- The
applicant maintained his complaint.
- The
Government submitted that section 3 of the Lay Judges Act (see
“Relevant domestic law” above) provided an exhaustive
list of persons who could not be selected as lay judges. Staff of the
registries of district courts were not included on that list. On 5
January 2000 the President of the Nikulinskiy District Court had
discharged Mr Rubtsov of his functions in the Nikulinskiy District
Court for the period of his participation in the examination of cases
as a lay judge. Therefore, he had not lacked independence in relation
to the professional judge sitting in the applicant’s case.
- Having
regard to its findings in paragraphs 37 - 39 above, the Court
considers that there is no need to examine separately the applicant’s
complaint under Article 6 § 1 of the Convention regarding the
alleged lack of independence of lay judge Rubtsov.
II. 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 submitted that he had difficulty in calculating the exact
amount of the pecuniary damage sustained. Therefore, he asked the
Court to determine that amount on the basis of the fact that he had
suffered at length as a result of “blatant misrule”,
while his position had deprived him of any power to resist that
situation. He claimed 35,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered that the applicant’s claim in respect of
pecuniary damage should be dismissed since he had failed to duly
substantiate it. They argued that his claim in respect of
non-pecuniary damage was excessive.
- The
Court reiterates that in accordance with Rule 60 of the Rules of
Court an applicant who wishes to obtain an award of just satisfaction
must make a specific claim to that effect and submit details of all
claims, together with any relevant supporting documents, within the
fixed time-limits. The Court observes that in the present case the
applicant did not provide any information or supporting documents in
respect of his claim under the pecuniary damage head. Therefore, the
Court rejects the applicant’s claim in that part. On the other
hand, the Court considers that the applicant must have suffered
distress and frustration as a result of the
violation of his right to a fair trial. However, the amount claimed
appears to be excessive. Making its assessment on an equitable basis,
the Court awards the applicant EUR 3,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed EUR 1,200 for the fees of his representative Mr S.
Belozertsev and EUR 800 for the fees of his other representative,
Mrs K. Moskalenko.
- The
Government contested those claims and pointed out that the applicant
had not provided any documents in support of his claims.
- 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 are
reasonable as to quantum. The Court observes that the applicant did
not provide any documents confirming that the expenses to which he
refers have actually been incurred. Therefore, it rejects the
applicant’s claims for costs and expenses.
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
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the unlawful composition
of the court which convicted the applicant on 4 September 2000;
- Holds that there is no need to examine
separately the applicant’s complaint under Article 6 § 1
of the Convention regarding the alleged lack of independence of lay
judge Rubtsov;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros), plus any tax that may be chargeable to the
applicant, 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 amount 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
