The Committee of Ministers, under the
terms of Article 46, paragraph 2, of the Convention for the
Protection of Human Rights and Fundamental Freedoms, as
amended by Protocol No. 11 (hereinafter referred to as “the
Convention”),
Having regard to the judgment of the
European Court of Human Rights in the Posokhov case
delivered on 4 March 2003 and transmitted to the Committee
of Ministers once it had become final under Articles 44
and 46 of the Convention;
Recalling that the case originated in
an application (No. 63486/00) against the Russian
Federation, lodged with the European Court of Human Rights
on 2 October 2000 under Article 34 of the Convention by
Mr Sergey Vitalyevich Posokhov, a Russian national, and that
the Court declared admissible the complaint that he had been
convicted by a court composed in breach of the relevant
domestic law;
Whereas in its judgment of 4 March
2003 the Court unanimously:
- held that the applicant might claim
to be a “victim” for the purposes of Article 34 of the
Convention;
- held that there had been a violation
of Article 6, paragraph 1, of the Convention;
- held that the government of the
respondent state was to pay the applicant, within three
months from the date at which the judgment became final, 500
euros in respect of non-pecuniary damage, plus any tax that
may be chargeable on that amount, and that simple interest
at a rate equal to the marginal lending rate of the European
Central Bank plus three percentage points shall be payable
from the expiry of the above-mentioned three months until
settlement;
- dismissed the remainder of the
applicant's claim for just satisfaction;
Having regard to the Rules adopted by
the Committee of Ministers concerning the application of
Article 46, paragraph 2, of the Convention;
Having invited the government of the
respondent state to inform it of the measures which had been
taken in consequence of the judgment of 4 March 2003, having
regard to the Russian Federation's obligation under
Article 46, paragraph 1, of the Convention to abide by it;
Whereas during the examination of the
case by the Committee of Ministers, the government of the
respondent state gave the Committee information about the
measures taken preventing new violations of the same kind as
that found in the present judgment; this information appears
in the appendix to this resolution;
Having satisfied itself that on 29
July 2003, within the time-limit set, the government of the
respondent state had paid the applicant the sum provided for
in the judgment of 4 March 2003,
Declares, after having taken note of
the information supplied by the Government of the Russian
Federation, that it has exercised its functions under
Article 46, paragraph 2, of the Convention in this case.
Appendix to Resolution
ResDH(2004)46
Information provided by the
Government of the Russian Federation
during the examination of the Posokhov case
by the Committee of Ministers
As regards the applicant's situation,
the Government recalls that on 22 May 2000, the Neklinovskiy
District Court of the Rostov Region found the applicant
guilty of being accessory in the avoidance of customs duties
and of abuse of office. On 2 July 2001, the same court
dispensed him from serving the sentence because the case was
time-barred. No further individual measures thus appear
required and indeed the applicant has not requested for any
such measures.
As an interim general measure to
ensure implementation of this judgment of the European
Court, on 17 April 2003, the Deputy Chairman of the Supreme
Court sent to the chairmen of all domestic courts a circular
drawing their attention to the Court's findings and drawing
their attention to the need to secure compliance with rules
on participation of lay judges in criminal trials until 1
January 2004, when the new Code of Criminal Procedure would
be fully in force. This Code, which entered into force on
1 July 2002, repealed the Lay Judges Act of 10 January 2000,
which was at issue in the present case, but in accordance
with the transitional provisions of the new Code, lay judges
could sit in criminal cases until 1 January 2004.
In addition, the judgment of the
European Court was published in translation in
Rossijskaia Gazeta on 8 July 2003.
The importance of respecting the
European Convention, particularly in this kind of cases, was
also stressed by the Plenum of the Supreme Court on 10
October 2003, in a decision concerning the application by
the courts of common jurisdiction of the principles and
norms of international law and international treaties
entered into by the Russian Federation. In particular, while
referring to Article 47 of the Russian Constitution and
Article 6, paragraph 1, of the Convention, this decision
reiterates that the composition of courts should in each
civil and/or criminal case be established by law.
Furthermore, this decision recalls that the Convention, as
interpreted in the light of the case-law of the European
Court, is part of the national legal order and its
provisions prevail over every other legislative provision.
On 1 January 2004 the new Code of
Criminal Procedure became fully operational, providing a
full solution to the problems raised by the Court's
judgment.
The Government of the Russian
Federation is of the opinion that these measures have
prevented new violations of the Convention similar to that
found in the present case.
In the light of the abovementioned
considerations and measures taken, the Government of the
Russian Federation considers that the Russian Federation has
fulfilled its obligations with regard to Article 46,
paragraph 1, of the Convention.