European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5849/05
by Sergey Aleksandrovich ALSHEV
against Russia

The European Court of Human Rights (Fifth Section), sitting on 7 July 2009 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs R. Jaeger,

Mr K. Jungwiert,
Mr R. Maruste,
Mr A. Kovler,
Mrs M. Lazarova Trajkovska,
Mrs Z. Kaladjieva, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 21 December 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Aleksandrovich Alshev, is a Russian national who was born in 1971 and lives in Zlatoust. He was represented before the Court by Ms O. Gorina, a lawyer practising in Chelyabinsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 30 June 2004 the applicant was arrested. On the same day he was charged with murder.

On 2 July 2004 he appeared before the Chebarkulskiy Town Court, where Judge G. ordered his detention pending trial.

On 10 August 2004 the Chelyabinsk Regional Court rejected the applicant’s appeal and upheld the decision of 2 July 2004.

In November 2004 the applicant learned that by Decree no. 775 of 26 June 2001, the President of the Russian Federation had appointed Judge G. to the Miassky Town Court. No further decree had been issued transferring him to the Chebarkulskiy Town Court. The applicant immediately lodged a complaint to the Chelyabinsk Regional Prosecutor’s Office challenging the lawfulness of the decision of 2 July 2004.

On 22 December 2004 the Prosecutor’s Office replied that the impugned decision had been fully lawful.

The Government provided the Court with a copy of a decree, issued on 5 August 2003 by the President of the Chebarkulskiy Town Court, according to which the duties of a temporarily absent judge of that court were to be performed by Judge G. with effect from 4 August 2003.

B.  Relevant domestic law and practice

1. Constitution of the Russian Federation

Article 47

“1. No one may be deprived of the right to have his or her case considered by the court and judge on which cognisance of the case is conferred by law.”

Article 128

“..2. Judges of ... the federal courts shall be appointed by the President of the Russian Federation according to the rules laid down by federal law...”

2. Federal Law on organisation of the courts in the RSFSR

Section 27

“... In the event of the temporary absence of a judge of a district (town) court, his duties shall be performed by a judge of the nearest district (town) court by decision of the President of a higher court...”

3. Case-law of the Constitutional Court of the Russian Federation

In Decision no. 303-O-O of 19 April 2007, the Constitutional Court held as follows: “According to Article 47 of the Constitution of the Russian Federation (part 1), no one may be deprived of the right to have his or her case considered by the court and judge on which cognisance of the case is conferred by law...

The legislator, in exercising legal regulation in the judicial sphere in order to secure the right of citizens and associations to judicial protection within a reasonable time, has the power to determine the organisational and procedural arrangements for the district (town) courts, including the arrangements for replacing temporarily absent judges. The Law on organisation of the courts in the RSFSR provides that in the event of the temporary absence of a judge of a district (town) court, his duties shall be performed by a judge of the nearest district (town) court, the arrangements for his replacement being made by decision of the President of a higher court. Therefore, the impugned provision, being aimed at securing the smooth operation of justice in the event of the temporary absence of a judge, does not impair any constitutional right of the applicant in his specific case.

...The principles of independence and irremovability of judges guaranteed by the Constitution of the Russian Federation are not violated by Section 27 of the Federal Law on organisation of the courts in the RSFSR, as the fact that the duties of a temporarily absent judge of a district (town) court are performed by a judge of the nearest district (town) court does not amount to the transfer of a judge to another position or another court. A judge preserves his powers, office, position and grade for the whole period of his activity within a judicial body...”

COMPLAINT

The applicant complained under Article 5 of the Convention that his detention had not been lawful as it had been sanctioned by Judge G. at the Chebarkulskiy Town Court, although the judge in question had neither been assigned to that court nor transferred there.

THE LAW

The applicant complained that his detention had been ordered in breach of the domestic law, contrary to requirements of Article 5 of the Convention, which reads, as far as relevant, as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

... (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...”

The Government submitted that domestic remedies had not been exhausted. They observed that the applicant had never complained to any domestic court that his detention was unlawful. The applicant suggested that after the Prosecutor’s Office rejected his complaint he had not had any further effective remedy at his disposal.

The Court considers that it is unnecessary to rule on the issue of whether the applicant had exhausted domestic remedies, as it finds that the application is in any event inadmissible for the following reasons.

The Court reiterates that since Article 5 § 1 (c) forms a whole with Article 5 § 3, “competent legal authority” is a synonym, in abbreviated form, for “judge or other officer authorised by law to exercise judicial power” (see Schiesser v. Switzerland, judgment of 4 December 1979, Series A no. 34, § 29). Therefore, the officer referred to in Article 5 should have the power to decide on the justification for the detention and to order release if there is none (see Duinhof and Duijf v. the Netherlands, judgment of 22 May 1984, Series A no. 79, § 40), and must satisfy certain conditions providing a guarantee to the person detained against any arbitrary or unjustified deprivation of liberty (see Nikolova v. Bulgaria [GC], no. 31195/96, § 49, ECHR 1999 II).

The Court notes that being appointed a judge by the President of the Russian Federation, Judge G. had the power to decide on the justification for the detention and to order release if there was none (see Duinhof and Duijf v. the Netherlands, judgment of 22 May 1984, Series A no. 79, § 40), and thus satisfied the requirements of Article 5 as developed in the Court’s case-law. The main issue to be determined in the present case is whether the disputed detention was "lawful", that is whether it complied with "a procedure prescribed by law". The Convention here refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules (see Bizzotto v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996 V, § 31).

The Court observes that Russian law distinguishes between the transfer of a judge to another court, which can be done only by the President of the Russian Federation, and the replacement of a temporarily absent judge, which can be ordered by the President of a higher court.

In their observations the Government indicated that on 5 May 2003 the President of the Chebarkulskiy Town Court imposed duties of an absent judge on Judge G., and submitted the relevant document. Therefore, when authorising the applicant’s detention on 2 July 2004 Judge G. executed his power in accordance with the domestic law, namely Section 27 of the Federal Law on organisation of the courts in the RSFSR. This provision, as interpreted by the Constitutional Court, is aimed at securing the smooth operation of justice in the event of the temporary absence of a judge, and as such does not impair rights of parties to proceedings.

Furthermore, in the present case the applicant’s detention was upheld by a higher court which had full jurisdiction to examine its lawfulness.

Given the above considerations, the Court concludes that the applicant was detained in accordance with a procedure prescribed by law. Therefore, the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Peer Lorenzen
Deputy Registrar President