AS TO THE ADMISSIBILITY OF
by Pavel Vasilyevich ZAYTSEV
The European Court of Human Rights (First Section), sitting on 14 May 2009 as a Chamber composed of:
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 27 December 2004,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
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 applicant, Mr Pavel Vasilyevich Zaytsev, is a Russian national who was born in 1970 and lives in Moscow. He was represented before the Court by Mr A. Gofshteyn, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Since 1999 the applicant has been working as a special investigator for important cases at the Investigation Board of the Ministry of the Interior.
On 7 September 2000 the Chief Department of the Interior of the Moscow Region started an investigation into a case concerning customs and financial fraud involving a group of companies which were allegedly affiliated with various high-ranking State officials.
On 9 October 2000 the fraud case was assigned to the applicant, and from 22 October 2000 he was in charge of the investigation team working on this case. The investigation involved surveillance and telephone interception; the applicant claims that he also received instructions from his superior to conduct searches, if necessary without prior authorisation, under the extraordinary powers provided for in urgent cases.
On 10 and 15 November 2000 the applicant, acting under his own authority, ordered a series of urgent searches. The searches were carried out on 12, 16 and 19 November 2000. Two suspects were arrested but both were released three days later.
On 22 November 2000 the office of the Prosecutor General notified the Investigation Board of the Ministry of the Interior that “some unlawful searches and arrests had taken place in connection with the [fraud] case” and withdrew the case file from the Ministry of the Interior.
The Investigation Board of the Ministry of the Interior carried out an internal enquiry and concluded that there had been no abuse of authority on the part of the applicant.
The applicant alleged that certain documents disappeared from the case file as soon as the Prosecutor General’s Office took over the case.
On 20 December 2000 the Prosecutor General instituted criminal proceedings against the applicant on charges of abuse of official powers and ordering unlawful arrest (Article 286 § 1 and Article 301 § 1 of the Criminal Code), on account of the above searches and arrests. Between 8 February 2001 and 18 February 2001 the applicant was under an obligation not to leave the city. The recognisance not to leave the city was renewed on 6 June 2001 and remained in force until the date of his conviction, 3 November 2003.
On 17 February 2001 the Minister of the Interior sent a letter to the Prosecutor General in which he contested the charges against the applicant. He alleged that the searches were necessary and that the applicant’s decision to proceed without prior authorisation was made in accordance with the law and was justified by the special circumstances. He also contended that a persecution of the investigators had been orchestrated by the suspects in the fraud case, through certain contacts within the Prosecutor General’s Office, and that the same persons had attempted to have the fraud case file closed. The Minister of the Interior requested the Prosecutor General to end the proceedings against the applicant.
On 7 May 2001 the Prosecutor General discontinued criminal proceedings in the fraud case.
On 6 June 2001 the applicant was indicted on charges of exceeding official powers and ordering unlawful arrest.
On 8 June 2001 a newly appointed Minister of the Interior wrote to the Prosecutor General restating, in substance, his predecessor’s letter of 17 February 2001.
On 28 June 2001 the Deputy Prosecutor General replied to the Minister of the Interior that the criminal proceedings against the applicant had been instituted lawfully and reasonably.
On 29 October 2001 the criminal case against the applicant was submitted to the Moscow City Court. At first the Moscow City Court President assigned the case to judge N.G., but owing to the latter’s heavy workload it was transferred to judge M.K.
On 14 February 2002 the President of the Security Committee of the State Duma made an official inquiry about the state of proceedings against the applicant, in reply to which the Prosecutor General allegedly stated “I will lock him up”.
On 13 March 2002 the State Duma issued a Resolution entitled “Parliamentary Question to the Prosecutor General, V.V. Ustinov, about the Circumstances surrounding the Investigation into the case concerning the Smuggling of Furniture into the Russian Federation”. The Resolution read as follows:
“On 7 September 2000 the Chief Department of the Interior of the Moscow Region opened criminal proceedings concerning the fraudulent import of furniture into the Russian Federation through a shell [company], following a finding by the State Customs Committee that there had been a breach of customs rules. ... the Investigation Board of the Ministry of the Interior started its investigation. The Ministry of the Interior and the State Customs Committee set up a joint investigation group which made important progress in investigating the facts of furniture smuggling ...
Subsequently the case file was reclaimed by the Prosecutor General’s Office and the case was transferred to the special investigator for important cases at the Prosecutor General’s office, who decided to terminate the proceedings for a lack of corpus delicti. The Prosecutor General’s Office also instituted criminal proceedings against P. V. Zaytsev, the investigator of the Investigation Board of the Ministry of Interior who investigated the [case of fraud], and charged him with having ordered searches and arrests in breach of the procedure prescribed by law, ...
To ensure a fair and objective assessment of this situation, and further to a proposal by the Prosecutor General, a joint expert group was set up, in which the Prosecutor General’s Office, the State Customs Committee of the Russian Federation and the Investigation Board of the Ministry of the Interior took part.
On 14 February 2002 the Security Committee of the State Duma heard the report of the joint expert group. The President of the State Customs Committee, the acting Chief of the Investigation Board of the Ministry of the Interior and the experts representing these agencies, who were all present at the meeting, expressed their disagreement with the termination of the [fraud investigation], having noted that the special investigator for important cases at the Prosecutor General’s Office had failed to examine a number of substantive issues ...
Having regard to the above, the [State Duma] requests that [the Prosecutor General] resumes criminal proceedings in the case concerning the smuggling of furniture into the Russian Federation ...”
The Prosecutor General did not resume the criminal proceedings requested by the State Duma. These proceedings were resumed only in 2006.
In the meantime the criminal case against the applicant had continued. On 5 September 2002 the Moscow City Court, composed of judge M.K. and two lay assessors, examined the case and acquitted the applicant of all charges.
On 25 February 2003 the Supreme Court of the Russian Federation granted an appeal by the public prosecutor and reversed the acquittal, on the grounds that the court’s conclusion had been self-contradictory. It remitted the case for fresh examination by the first-instance court in a different composition.
On 23 April 2003 that court, composed of Ms Kudeshkina as judge, and two lay assessors, Ms G. and Ms V.K., began to examine the case. Ms G. and Ms V.K. were subsequently replaced for unknown reasons. On 24 April 2003 the hearing was adjourned on the grounds of the applicant’s illness. On 24 June 2003 the court, composed of judge Kudeshkina and two newly appointed lay assessors, Ms I. and Ms D., resumed the hearing.
During the hearing on 26 June 2003 judge Kudeshkina invited the public prosecutor to present evidence for the prosecution. The prosecutor replied that the court had failed to ensure the attendance of the prosecution witnesses and objected to the manner in which the proceedings were being conducted. On the following day, Friday 27 June 2003, he challenged Ms Kudeshkina on the grounds of bias which she had allegedly shown when questioning one of the victims. Other parties to the proceedings, including the victim in question, objected to the challenge. On the same day the lay assessors dismissed the challenge, following which the public prosecutor challenged both lay assessors. The parties to the proceedings objected to the challenge and it was dismissed. On the same day the public prosecutor filed another challenge to the lay assessors on the grounds of bias, which was also dismissed by Ms Kudeshkina on the same day.
On Monday 30 June 2003 both lay assessors filed a motion to withdraw from the proceedings.
On 1 July 2003 the public prosecutor declared that the minutes of the proceedings were being kept incorrectly and requested access to the records. The court refused this motion, on the grounds that the minutes could be accessed after their completion.
On 3 July 2003 Ms Kudeshkina allowed the withdrawal of both lay assessors, stating as follows:
“At the hearing the lay assessors I and D declared their withdrawal from the proceedings, on the grounds that they were unable to participate in the examination of the case because of the [public prosecutor’s] biased and discourteous behaviour towards them and due to the perverse environment at the hearing, for which he is responsible and which made them ill.”
The Moscow City Court President, Ms Yegorova, then during the proceedings called Ms Kudeshkina to her office and asked her about the details of the proceedings, putting certain questions regarding the conduct of the trial and the decisions on the above motions.
The parties disagree on the circumstances of Ms Kudeshkina’s withdrawal from the case. According to the applicant, Ms Yegorova removed Ms Kudeshkina from sitting in the case on 4 July 2003, the day after the lay assessors’ withdrawal. According to the Government, the case remained with Ms Kudeshkina until 23 July 2003, when it was withdrawn from her on the grounds that she had delayed forming a new court composition and that there was a risk of further delay in view of her request for annual leave from 11 August to 11 September 2003, which she filed on 22 July 2003.
On 23 July 2003 the Moscow City Court President assigned the case to judge M.
On 25 August 2003 the Moscow City Court, composed of judge M. and lay assessors Mr B. and Mr S., began to examine the case. On 3 November 2003 the court found the applicant guilty of having exceeded his official powers. The other charge had been dropped by the prosecutor. The applicant was sentenced to two years’ imprisonment, suspended, with one-year probation. The court also decided that an injunction against holding office in the bodies of the Ministry of the Interior was not necessary.
The applicant appealed against the judgment to the Supreme Court of the Russian Federation, pleading not guilty and claiming that his conviction was based on the wrong assessment of evidence and misinterpretation of the Criminal Code.
While the applicant’s appeal was pending, on 2 December 2003 Ms Kudeshkina lodged a complaint with the High Judiciary Qualification Panel, in which she referred to certain alleged procedural irregularities in the criminal case against the applicant. Her complaint read as follows:
“I request that the President of the Moscow City Court, Olga Aleksandrovna Yegorova, be charged with a disciplinary offence for exerting unlawful pressure on me in June 2003, when I was presiding in the criminal proceedings against P.V. Zaytsev. She demanded that I give an account on the merits of this case while its examination was underway, and that I inform her about the decisions the court was about to take; she even called me out of the deliberations room for that purpose. [She] insisted on removing certain documents from the case file, forced me to forge the minutes of the hearing, and also recommended that I ask the lay assessors not to turn up for the hearing. Following my refusal to bow to this unlawful pressure [she] removed me from the proceedings and transferred the case to another judge.
As to the particular circumstances, they were as follows.
I was appointed to examine the case against Zaytsev and the court, acting in a bench with two lay assessors, I. and D., started its examination.
Having started the trial, the court questioned a number of victims. The public prosecutor who was representing the Prosecutor General’s Office clearly decided that this questioning was not favourable to the prosecution and therefore did everything possible to disrupt the hearing. For no reason he challenged me as a judge, the lay assessors and the whole composition of the court. His motions were made in a manner that was humiliating, offensive and insulting to the court, and were clearly untrue. Soon after his challenge was rejected by the court, the Moscow City Court President Yegorova called me to her office.
In violation of Article 120 of the Constitution and section 10 of the Law “On the Status of a Judge in the Russian Federation”, the Moscow City Court President demanded an explanation from me as to why the lay assessors and I were putting one or other question to the victims in the trial and why one or another motion by the parties was refused or accepted. In my presence the Moscow City Court President had a telephone conversation with the [First Deputy Prosecutor General], who had issued the indictment against Zaytsev. Yegorova informed [the First Deputy Prosecutor General] that the judge was being called to account with regard to what was going on in the proceedings.
Back in my office I told the lay assessors what had happened. By then they were already reduced to despair by the repeated groundless objections and insulting challenges against them on the part of the public prosecutor, and they therefore considered it impossible to continue to take part in the proceedings. One of the assessors, Ms I., was seeking medical assistance due to a health problem. For these reasons they decided to withdraw from the proceedings and to state frankly in their request that the reason for their withdrawal was the pressure put on them by the agent of the Prosecutor General’s Office.
At the court’s following meeting the lay assessors announced their withdrawal on the above grounds. Their written requests were given to me to be enclosed in the file, and the court adjourned for deliberations.
I was again called from the deliberations room by the Moscow City Court President, Yegorova. This time she demanded that I explain what we were doing in the deliberations room and what decisions we were going to take. Her main point was that there should have been no mention in the assessors’ written requests that the reason for their withdrawal was pressure being exerted on the court. The Moscow City Court President also insisted on excluding from the hearing minutes any mention of the behaviour by the public prosecutor which the assessors had regarded as pressure. In essence, Yegorova was pushing me to forge the case file. Moreover, she proposed that I ensure that the assessors did not turn up for the hearing, literally ‘ask them not to come to the court any more’. The aim was obvious – if the assessors [did] not appear the proceedings themselves [would] fall apart. It seemed that for some reason [she] did not want the case to continue to be examined in this composition. The unlawfulness of the Moscow City Court President’s actions was obvious.
I followed none of her instructions. The lay assessors’ requests were included in the file, the court allowed their withdrawal and stated that the reason for it was the pressure being applied by the Prosecutor General’s Office. The hearing minutes reflected everything that happened in the proceedings.
Once I signed [the minutes] Yegorova withdrew the case from me and transferred it to another judge without stating reasons.
I consider that such acts on the part of the Moscow City Court President, Olga Alexandrovna Yegorova, are incompatible with the status of a judge and undermine judicial authority, and are thus destructive for justice, for which she must be held liable. This is what I hereby request from the High Judiciary Qualification Panel of the Russian Federation.”
The applicant was not notified of this complaint. In December 2003 Ms Kudeshkina, furthermore, gave one radio interview and two newspaper interviews reiterating the above allegations and criticism.
Following this, on 15 December 2003 Ms D., one of the lay assessors who had, on 3 July 2003, withdrawn from the criminal case against the applicant sent a letter to the High Judiciary Qualification Panel which read as follows:
“Further to the publication of an interview with judge Kudeshkina ... I decided to write you because I participated in Zaytsev’s case as a lay assessor.
I entirely support everything judge Kudeshkina said in her interview.
During the trial the [public prosecutor] did everything to prevent the court from hearing the case. He was rude and aggressive to the court; in his interventions and requests he deliberately misrepresented what was going on in the proceedings, and he repeatedly filed objections to the court’s composition. These motions were made in a humiliating, even obnoxious manner. By doing so he was exerting pressure on the court, to force it to give a judgment that was convenient to him, or, alternatively, to set the court hearing at naught.
I was appalled by that, but what was my surprise when I learned about the pressure also being exerted on judge Kudeshkina by the court President!
We, the assessors, were there when, during the interval, judge Kudeshkina received a phone call from the court President to come and see her. After some time judge Kudeshkina returned, she was upset and depressed. To our question she replied that [the court President] had accused her that the court was reluctant to examine the case; that the lay assessors were asking the victims the wrong questions; and that she had suggested that judge Kudeshkina arrange for the lay assessors not to appear at the court proceedings.
... On the following morning ... both Ms I. and I decided to withdraw from the proceedings.
At the start of the hearing on that day the public prosecutor, before he was called by the court, began with a motion in which he, in essence, again degraded and insulted me by repeating [a] comment made by [the victim] outside the courtroom about me ... he did not react to the reproof by the judge.
After that ... I declared that I was withdrawing from sitting in the proceedings on the grounds of the public prosecutor’s rude and offensive behaviour, which could not be defined as anything but pressure on the court. After that Ms I. also withdrew.
Before the trial I had never met anybody [involved in the proceedings]: not the judge, not [the applicant], not the public prosecutor, not the defence counsel; I had no personal interest in the case. The public prosecutor’s behaviour was therefore inexplicable and came as a shock to me.
At about 6 p.m. judge Kudeshkina was called out from the deliberations room, where the court was taking a decision. It was the court President who called her. ...
On the following day ... judge Kudeshkina told us that the court President had shouted at her, demanding that she refrain from enclosing [the assessors’] withdrawal requests in the file and not refer in the court’s decision to the reason for the withdrawal.
Ms I. and I were shocked by what was going on. First it was the public prosecutor who put pressure on us at the hearing, and then it turned out that the [court President] joined in.
What a surprise it was when the [court’s Deputy President] came into the deliberations room and started trying to persuade me and Ms I. not to comment on the public prosecutor’s behaviour in the court decision, but to state in our requests and in the court decision that we withdrew on medical grounds. She said that they would invite me and Ms I. to take part in other proceedings.
Ms I. and I refused to change our requests, and after the Deputy President had left the court issued the decision [to allow withdrawal] which reflected what had happened.
I have been a lay assessor before, I have taken part in several other proceedings, but this was the first time that I came across such pressure being exerted on the court.
I request you to look into the above events and to take action against the [court’s President and her Deputy].”
On 16 December 2003 the other lay assessor who had withdrawn, Ms I., sent a similar letter to the High Judiciary Qualification Panel.
Following Ms Kudeshkina’s complaint of 2 December 2003, the High Judiciary Qualification Panel appointed Mr S., a judge of the Moscow City Commercial Court, to examine the allegations against Ms Yegorova, the Moscow City Court President. The Government submitted a copy of an internal report prepared by Mr S. and submitted to the High Judiciary Qualification Panel, which contained the following conclusions:
– during the hearing of the criminal case against the applicant judge Kudeshkina herself consulted Ms Yegorova, seeking advice on the conduct of the proceedings in view of the public prosecutor’s behaviour;
– further communications between judge Kudeshkina and Ms Yegorova and, on another occasion, the deputy court president, took place in private and their content could not be established;
– there was insufficient evidence that Ms Yegorova exerted pressure on judge Kudeshkina, since both Ms Yegorova and the deputy court president denied the allegations;
– Ms Yegorova transferred the criminal case file against the applicant to another judge on the grounds that Ms Kudeshkina “was unable to conduct the court hearing, her procedural acts were inconsistent, [she acted] in breach of the principle of adversarial proceedings and equality of arms, she stated her legal opinion on the pending criminal case and she attempted to seek the court president’s advice on that case, and in view of the existence of confidential reports by relevant agencies to the Moscow City Court President with regard to judge Kudeshkina, in connection with the examination of Zaytsev’s case and other criminal cases”.
On 11 May 2004 the High Judiciary Qualification Panel reported to the President of the Supreme Court their findings concerning the complaint against Ms Yegorova. The President decided, without elaborating on the reasons, that there were no grounds for charging Ms Yegorova with a disciplinary offence.
On 17 May 2004 the High Judiciary Qualification Panel decided to dispense with disciplinary proceedings against Ms Yegorova. No copy of this decision was provided to the Court. The applicant was not informed about the enquiry conducted by the High Judiciary Qualification Panel, or about its findings. On the same day Ms Kudeshkina was informed by letter that her complaint against the court president had been examined and that no further action was considered necessary.
On the same day the High Judiciary Qualification Panel wrote a letter to both lay assessors stating that no grounds had been found to bring disciplinary proceedings against the President of the Moscow City Court.
On 19 May 2004, following disciplinary proceedings against Ms Kudeshkina, the High Judiciary Qualification Panel decided that her office as a judge should be terminated on account of her statements in the interviews given in December 2003.
On 10 August 2004 the Supreme Court of the Russian Federation examined the applicant’s appeal against his conviction. The court, composed of three judges, upheld the judgment of 3 November 2003 by a majority, having found that the applicant’s conviction was lawful and well founded. Judge G. expressed a dissenting opinion stating that the applicant’s actions had no constituent elements of a crime as provided for by Article 286 § 1 of the Criminal Code.
On 30 November 2004 the Office of the Prosecutor General sent an official enquiry to the Deputy Minister of the Interior about the applicant’s continued employment in the Ministry of the Interior, in spite of his conviction for abuse of powers. The Ministry of the Interior reviewed the applicant’s file and considered that it was not necessary to dismiss the applicant, in view of the court’s decision to dispense with an injunction against holding office in the bodies of the Ministry of the Interior.
On 24 February 2005 the First Deputy Prosecutor General sent an official letter of warning to the Minister of the Interior. The letter referred to the generally unsatisfactory performance by the Ministry of the Interior in investigating criminal cases and pointed out certain instances of breach of procedure. Among the latter the prosecutor’s office indicated the “appalling example” of the applicant’s continued employment in the Ministry of the Interior after his conviction for abuse of power.
On 31 March 2005 the acting First Deputy Minister of the Interior replied to the prosecutor’s warning. In so far as it concerned the applicant, he relied on the decision by the first-instance court, upheld by the Supreme Court, to dispense with an injunction against the applicant holding office in the Ministry of the Interior’s entities and informed the prosecutor’s office that the applicant had not been dismissed.
B. Relevant domestic law and practice
1. Search ordered ultra vires
Article 168 § 3 of the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic, in force at the material time, provided that in urgent cases an investigating officer could exceptionally order and carry out a search without prior authorisation by the prosecutor. The prosecutor was to be notified within 24 hours of a search carried out under this provision.
The Criminal Code of the Russian Federation provides:
Article 286 § 1
Exceeding Official Powers
“Acts by an official which clearly go beyond his or her authority, if they incur a substantial breach of individual rights and the legitimate interests of a person or organisation, or of state or public interests protected by law
– are punishable by a fine of up to eighty thousand roubles or of up to six times the monthly salary or other income of the convicted, or by a prohibition to hold certain official posts or to perform certain official functions for up to five years, or by arrest for four to six months, or by imprisonment of up to four years.”
2. Composition of courts and assignment of cases to judges
The Code of Criminal Procedure of the Russian Federation provides:
Immutability of court composition
“1. The case must be examined by one and the same judge or by a court bench in one and the same composition.
2. If one of the judges is no longer able to take part in the hearing he or she must be replaced by another judge, and the court hearing must restart from the beginning.”
Law no. 3132-I of 26 June 1992 “On the Status of Judges in the Russian Federation” provides:
Powers of court Presidents and deputy court Presidents
“1. The Court President, at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by Federal Constitutional Laws and Federal Laws, carries out the following functions:
(1) organises the court’s work;
(3) distributes duties between the President’s deputies and, in accordance with the procedure provided for by Federal Law, between the judges; ...”
As a matter of common practice, a court President distributes cases lodged with a court between the judges of that court.
C. Jurisdiction of courts in criminal cases
The Code of Criminal Procedure of the Russian Federation provides:
Article 31 Jurisdiction of the courts in criminal cases
3. ... the city courts of [Moscow and St Petersburg], ... have jurisdiction in criminal proceedings concerning:
(1) criminal offences provided for by Articles ..., 294-302, ... of the Criminal Code of the Russian Federation;
4. The Supreme Court of the Russian Federation has jurisdiction in the criminal cases indicated in Article 452 of this Code and other criminal cases that fall under its jurisdiction in accordance with the Constitutional Laws and the Federal Laws.”
Article 452 Examination of a criminal case against a
the Federal Council, a deputy of the State Duma or a judge of a federal court
“A criminal case against a member of the Federal Council, a deputy of the State Duma or a judge of a federal court is to be examined by the Supreme Court of the Russian Federation at their request, to be submitted before the beginning of the court examination in their case.”
Article 32 Territorial jurisdiction in criminal cases
Article 34 Remittal of the criminal case according to jurisdiction
“1. When the judge who decides on the scheduling of a hearing establishes that the case ... falls outside the jurisdiction of that court, he or she shall issue an order to remit the case according to jurisdiction.
Article 35 Change of territorial jurisdiction in a criminal case
“1. Territorial jurisdiction in a criminal case may be changed:
(1) at a party’s request – if it has successfully challenged, in accordance with Article 65 of this Code, the entire court composition of the relevant court.
2. Territorial jurisdiction of a criminal case may only be changed before the beginning of the court examination.”
Article 65 Procedure for examination of a challenge to a judge
“3. A challenge brought against several judges or the whole court composition must be decided upon by the same court in its entire composition, by a majority vote.
5. If the challenge to a judge, several judges or the whole court composition is granted the criminal case, the request or the complaint must be transferred to another judge or court composition in accordance with the procedure provided for by this Code.”
Article 381 Breach of criminal procedure
2. The grounds for quashing of a judicial decision [by the cassation instance] are, in any event, as follows:
(2) judgment held by an unlawful court composition ...”
Article 385 Quashing of a conviction judgment
termination of the proceedings
“The court examining the case as a cassation instance may quash the [first instance] conviction and terminate the proceedings if there exist grounds provided for by this Code.”
Article 386 Quashing of a conviction judgment
a remittal of the case for a fresh judicial examination
“1. Criminal case is remitted for a fresh examination:
(2) to the same court that held the [first instance] judgment but in a different composition ...”
The applicant complained under Article 6 § 1 of the Convention that the proceedings in which he was convicted of a criminal offence were unfair and involved a tribunal which was not independent and impartial and, moreover, not “established by law”.
The applicant complained that the tribunal by which he was convicted in criminal proceedings was not independent and impartial and that it did not constitute a “tribunal established by law” as provided in Article 6 § 1 of the Convention, which reads:
“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 Government claimed that this application was manifestly ill-founded and that the applicant has not exhausted domestic remedies. They pointed out that during examination of the case by the court composition appointed after judge Kudeshkina’s removal, the applicant did not challenge judge M. and the lay assessors individually or the court composition as a whole. Furthermore, he did not make any related complaints in his points of appeal filed with the Supreme Court. They relied, in particular, on Articles 381 §2 (2) and 386 § 1 (2) of the Code of Criminal Procedure and claimed that the Supreme Court might have remitted the case for a fresh examination if it found the composition of the first instance court unlawful.
In the alternative reasoning, the Government suggested that the replacement of the judge in the applicant’s criminal case was a decision of an “administrative” nature, not a procedural breach, and therefore he could have complained to the Judiciary Qualification Panel and requested measures to be taken against the Moscow City Court President. They attached an extract from the 2003 report on the disciplinary penalties imposed on judges of various courts in Russia and claimed that this could have provided the applicant with an effective domestic remedy for his complaint, especially in view of a possibility to have the Panel’s decision reviewed by courts.
The applicant contested the effectiveness of the remedies put forward by the Government. He pointed out that the decision of the court President to make a replacement was not as such amenable to a challenge because there existed no written document or official record proving that a replacement had taken place and stating the reasons. In fact, the law contains no requirement that the accused, or his counsel, is notified about the replacement and they cannot, even if they try, find out the reasons for it. The absence of any documents concerning the replacement, therefore, prevents the parties to the proceedings from challenging it.
The applicant, further, alleged that the lack of transparency in the replacement of judge Kudeshkina by judge M. deprived him of a possibility to challenge the latter during the first instance hearing because at this point he was still unaware that the replacement had been unlawful and arbitrary. He claims that he only learned about it on 1 December 2003 from judge Kudeshkina’s interview in the media in which she accused the Moscow City Court President of putting pressure on her, that is one month after the first instance court’s judgment.
As regards the possibility of challenging the replacement in his cassation appeal, the applicant stated that no such complaint before the Supreme Court could succeed in the absence of any traces in the file relating to the decision of the Moscow City Court President to replace Ms Kudeshkina, or evidence that he had already tried to challenge the court composition in the first instance. He therefore claimed that the lack of transparency of the replacement procedure deprived him of any remedies that he could avail himself of in the first instance or the appeal proceedings.
The Court, having regard to the Government’s objection, notes that the applicant, indeed, has not made any domestic complaints in relation to the allegedly arbitrary replacement of a judge in his criminal case.
While the Court accepts the applicant’s argument that during the first instance proceedings he was not aware of the circumstances in which judge Kudeshkina was replaced by judge M., notably because of the absence of any formal notification or official records thereof, it considers that he could still do so before the court of appeal. The applicant claims that he learned about the irregularities of the replacement on 1 December 2003, from the media. That gave him until 10 August 2004, when the Supreme Court of the Russian Federation examined his appeal, to bring this complaint before the court.
The Court notes that Article 381 § 2 (2) of the Code of Criminal Procedure lists the unlawful court composition among grounds for quashing a first-instance judgment by the cassation instance. It follows that the applicant failed to avail himself of the right to appeal against the alleged violation.
This complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Christos Rozakis