(Application no. 63486/00)
(Merits and just satisfaction)
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
MrA. Kovler, judges,
and Mrs S. Doll?, Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was adopted on that date:
The case originated in an application (no. 63486/00) against the
The applicant was represented by Mr Aleksandr Kiriyanov, a lawyer practising
3. The applicant alleged that he had been convicted by a court composed in breach of the relevant domestic law.
4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
By a decision of
7. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations and provided further information about the case.
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1966 and lives in
A. Initial criminal proceedings
9. The applicant worked for the Taganrog Customs Board, supervising the clearance of imported goods at a seaport customs post. In 1996 criminal proceedings were instituted against him and certain others for the alleged smuggling of considerable amounts of vodka.
11. Immediately upon his conviction, the applicant was dispensed from serving the sentence partly because of the expiry of a statutory limitation period and partly because of a 1997 amnesty law.
On 26 and 29 May and
In August and October 2001 the applicant requested the President of the
Legislature of the Neklinovskiy District to provide information concerning
the lay judges who had been authorised to sit in cases during the period
between 10 and
B. Re-examination of the case
20. On an unspecified date following communication of the application to the Government, the President of the Rostov Regional Court lodged an application for a supervisory review of the case on the ground that the judgment of 22 May 2000 had not described in sufficient detail the offence committed by the applicant and his accomplices.
An appeal by the applicant was dismissed by the
Following another application for supervisory review lodged by the President
Ñ. Further developments
Following the request of the applicant’s lawyer, on
II. RELEVANT DOMESTIC LAW
A. Composition of courts in criminal proceedings
Article 15 of the Code of Criminal Procedure provides 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 enjoy the same rights as the professional judge.
B. Lay judges
Section 2 of the Act provides that lists
of lay judges should be compiled for every district court by local self-governing
representative authorities, such lists being subject to confirmation by
the legislature of the respective Federation entity. Section 5 of the Act,
which determines the procedure for the selection of lay judges, provides
that the president of a district court should draw lots at random from
a list of names of a certain number of lay judges to be assigned to the
competent district court. The number of lay judges assigned to every professional
judge should be at least three times greater than that needed for a hearing.
Since most criminal cases in
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.
Under the Decree of the Acting President
of Russia issued on
The applicant complained under Article 6 § 1 of the Convention that the
court that had convicted him on
28. The applicant specifically claimed that neither the president of the court nor the presiding judge had drawn lots for the lay judges as required by the Lay Judges Act. The applicant also maintained that the lay judges Ms Streblyanskaya and Ms Khovyakova had been acting in this capacity before the applicant’s trial for at least eighty-eight days, instead of the maximum fourteen days permitted by law, and, lastly, that there had been no evidence that any judicial authority had been conferred on them before the trial.
I. THE APPLICANT’S VICTIM STATUS
The Government contended that the applicant could no longer claim to be
a victim of the violation alleged. They submitted that the original judgment,
i.e. the judgment of 22 May 2000 in which the lay judges Ms Streblyanskaya
and Ms Khovyakova had been involved, had been set aside after notice of
the application had been given by the Court to the Russian authorities,
and that a fresh examination of the case had been carried out by properly
appointed judges. Moreover, since the decision of the Presidium of the
Rostov Regional Court of
The applicant agreed that both the adverse judgments of the Neklinovskiy
District Court, those of
31. By Article 34 of the Convention, “the Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...”.
The Court reiterates that it falls first to the national authorities to
redress any alleged violation of the Convention. In this regard, the question
whether or not the applicant can claim to be a victim of the violation
alleged is relevant at all stages of the proceedings under the Convention
(see E. v. Austria, no. 10668/83, Commission decision of
33. The Court further reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).
Turning to the facts of the present case, it may be true that the applicant’s
criminal record has now been erased following the decision of
35. In these circumstances, the Court considers that the applicant may still claim to be the victim of a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
36. Article 6 § 1 of the Convention, in so far as relevant, provides:
“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.”
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.
The Court is therefore requested to examine allegations such as those made in the present case concerning a flagrant breach of the internal rules for the appointment of judicial officers. The fact that the allegation in the present case concerns lay judges, does not make it any less important as, pursuant to Article 15 of the Code of Criminal Procedure, in their judicial capacity lay judges enjoy the same rights as the professional judge.
The parties’ dispute focuses on the extent to which the participation of
the lay judges Ms Streblyanskaya and Ms Khovyakova in the hearing of
39. The applicant’s initial claim was that the two women had, contrary to section 9 of the Act, been acting as lay judges before the applicant’s trial for at least eighty-eight days, instead of the maximum fourteen days per year. Moreover, their names had not been drawn by lot, in breach of section 5 of the Act.
The applicant subsequently supplemented that complaint. On the basis of the Neklinovskiy District Authority’s reply of 4 October 2002 that there was no record of any adoption of lay judges’ lists before 4 February 2000, the applicant concluded that there was no proof that Ms Streblyanskaya and Ms Khovyakova had ever been appointed as lay judges, even before the enactment of the Lay Judges Act.
In their defence, the Government referred to the Presidential Decree of
41. However, apart from the apparent failure to observe the requirements of the Lay Judges Act regarding the drawing of random lots and two weeks’ service per year, the Court is particularly struck by the fact that the Neklinovskiy District Authority – the body responsible for the appointment of lay judges – has confirmed that it had no list of lay judges appointed before 4 February 2000. The authority thus failed to present any legal grounds for the participation of Ms Streblyanskaya and Ms Khovyakova in the administration of justice on the day of the applicant’s trial, bearing in mind that the list adopted on 4 February 2000 only took effect on 15 June 2000 after its approval by the Rostov Regional Legislature.
These circumstances, cumulatively, do not permit the Court to conclude that the Neklinovskiy District Court which heard the applicant’s case on 22 May 2000 could be regarded as a “tribunal established by law”.
42. There has accordingly been a violation of Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
43. 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.”
44. The applicant claimed the sum of 10,000 euros (EUR) for the violation of his right to be tried by a tribunal established by law. He said that he had suffered emotional distress on account of his conviction by a court with no authority and the risk of his being dismissed from his job as a result.
45. The Government refrained from making comments on the applicant’s claims because they believed that the quashing of the judgment of 22 May 2000 had erased any adverse effects which it might have produced.
46. The Court accepts that the applicant suffered damage of a non-pecuniary nature as a result of his conviction by an unlawfully constituted court. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 500.
B. Costs and expenses
47. The applicant also requested, without specifying the precise amount, the reimbursement of the legal fees he had incurred in the domestic proceedings.
48. The Government made no comment on this claim.
49. However, in the absence of any details or breakdown of the claim, no award can be made under this head.
C. Default interest
50. 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
1. Holds that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 500 (five hundred euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at a rate applicable at the date of settlement, plus any tax that may be chargeable on that amount;
(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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 4 March 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.