(Application no. 6945/04)
9 July 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 Ilatovskiy v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 18 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
A. The RSFSR Constitution of 1978 (as amended by the Federal Law no. 4061-1 of 9 December 1992)
B. The RSFSR Judicial System Act
C. The Courts Election Act
Article 56. Procedure for calling elections.
“Elections of lay judges of district (town) courts of RSFSR are called by the Presidium of the RSFSR Supreme Council.
A decree of the Presidium of the RSFSR Supreme Council calling an election of lay judges shall be published in the press no later than thirty days before [the lay judges'] term of office is to expire...”
Article 57. Management of elections
“Elections of lay judges of district (town) courts are carried out by executive committees of district, town... Councils of People's Deputies.
The executive committee of the district, town... Council of People's Deputies:
shall determine the results of elections... and compile a list of elected lay judges;
shall publish information on the results of the elections of lay judges...”
Article 58. Election procedure
“Elections of lay judges of district (town) courts are carried out during general staff meetings, general meetings and gatherings of citizens at their place of residence...
Staff meetings shall be called by the trade union committee and the administration of an enterprise, organisation...
General meetings and gatherings of citizens at their place of residence shall be called by the executive committee of the town, district... Council of People's Deputies...
Lay judges... shall be elected by open vote in respect of each candidate separately.
Persons who have received more than half the votes of the electors at a staff meeting or of the electors at their place of residence... shall be considered to have been elected as lay judges of a district (town) court...”
Article 59. Minutes of the meeting for the elections of lay judges
“The results of the elections shall be recorded in the minutes of the meetings...”
Article 60. Determination of the results of elections of lay judges
“The executive committee of the district, town... Council of People's Deputies shall determine the results of the elections of lay judges on the basis of the meeting minutes and shall compile the list of lay judges for that district (town) court.
The list of lay judges shall be approved by the executive committee of the district, town... Council and shall be sent to the district (town) court.”
D. The Constitution of the Russian Federation
“1. The President of the Russian Federation shall issue decrees and orders.
2. Decrees and orders of the President of the Russian Federation have binding force in the entire territory of the Russian Federation.
3. Decrees and orders of the President of the Russian Federation should not run contrary to the Constitution of the Russian Federation and federal laws.”
E. The President's Decree of 22 March 1995
“Relying on Section 90 and paragraph 6 of part 2 of the Constitution of the Russian Federation, [I] order that:
1. Lay judges of district (town) courts should continue their service until the adoption of the respective federal law.
2. Executive authorities of the constituent elements of the Russian Federation should, if necessary, 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.”
F. The Judicial System Act
G. The President's Decree of 23 January 1997
“Having regard to the [fact] that the Federal Constitutional Law on the Judicial System of the Russian Federation has come into effect, for the purpose of ensuring the activities of the courts of general jurisdiction in the Russian Federation and for judicial protection of the rights of individuals, and relying on Section 90 of the Constitution of the Russian Federation, [I] order that:
1. Lay judges of... district courts should continue their service until the adoption of the federal law on the procedure for appointment (election) of lay judges.”
H. The Lay Judges Act
I. The President's Decree of 25 January 2000
J. The Regulation on appointment of lay judges
K. The President's Decree of 5 August 2002
The Russian Code of Criminal Procedure: reopening of criminal proceedings
“1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances.
4. New circumstances are:
(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:
(a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;
(c) other new circumstances.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law.”
A. Submissions by the parties
1. The Government
2. The applicant
B. The Court's assessment
(a) Selection of lay judges S. and B.: legal basis and procedure followed
(b) Extension of the lay judges' term of office: the President's Decrees and the Lay Judges Act
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 9 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Spielmann and Malinverni is annexed to the judgment.
JOINT CONCURRING OPINION OF JUDGES SPIELMANN AND MALINVERNI
1 See also the joint concurring opinion of Judges Rozakis, Spielmann, Ziemele and Lazarova Trajovska in Salduz v. Turkey ([GC], no. 36391/02, 27 November 2008) and the reference to public international law, most notably to the judgment of 13 September 1928 of the Permanent Court of International Justice in the case concerning the Factory at Chorzów (claim for indemnity) (merits):
“The essential principle is ... that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed”. (Series A, no. 17, p. 47).
See also, J. Crawford, The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 211, (2)); Loukis G. Loucaides, “Reparation for Violations of Human Rights under the European Convention and Restitutio in integrum”,  European Human Rights Law Review, pp. 182-192.