COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS

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1 CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS SECOND SECTION DECISION AS TO THE ADMISSIBILITY OF Application no /00 by Sergey Vitalyevich POSOKHOV against Russia The European Court of Human Rights (Second Section), sitting on 9 July 2002 as a Chamber composed of Mr J.-P. COSTA, President, Mr A.B. BAKA, Mr GAUKUR JÖRUNDSSON, Mr L. LOUCAIDES, Mr C. BÎRSAN, Mr M. UGREKHELIDZE, Mr A. KOVLER, judges, and Mrs S.DOLLÉ, Section Registrar, Having regard to the above application introduced on 2 October 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:

2 2 POSOKHOV v. RUSSIA DECISION THE FACTS The applicant, Sergey Vitalyevich Posokhov, is a Russian national who was born in 1966 and lives in Taganrog. He is represented before the Court by Mr Aleksandr Kiryanov, a lawyer practising in Taganrog. A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1. Criminal proceedings against the applicant The applicant worked as an officer at the Taganrog Customs Board, supervising clearance of imported goods at a seaport customs post. In 1996 criminal proceedings were instituted against the applicant and certain accomplices for the alleged smuggling of considerable amounts of vodka. In the indictment prepared by the investigation the applicant was, inter alia, charged under Article of the Criminal Code with the avoidance of customs duties. On 22 May 2000 the Neklinovskiy District Court of the Rostov Region, composed of Judge Kink, and two lay assessors (народные заседатели), Ms Streblyanskaya and Ms Khovyakova, considered it necessary to depart from the indictment prepared by the prosecution: The indictment... is made without regard to Article 33 of the Criminal Code that lists types of complicity in criminal acts, and does not comply with Article 20 of the Code of Criminal Procedure that requires the comprehensive and objective investigation of all the circumstances of a case. The court however finds it possible to compensate for the incompleteness of the preliminary investigation without remitting the case for a supplementary investigation, to cure the violations of the law, and give a sentence based on the evidence examined at the hearing... The applicant was found guilty, inter alia, under Article of the Criminal Code in conjunction with Article 33 5 (aiding and abetting), for being an accessory in the avoidance of customs duties. Immediately upon his conviction the applicant was relieved from serving the sentence partly because of the expiry of a statutory limitation period and partly because of an amnesty law of On 26 and 29 May and on 16 June 2000 the applicant and his counsel filed appeals against the judgment. In one of the appeals the applicant s lawyer submitted that the trial court had effectively substituted itself for the prosecution. It was asserted that the court of its own motion charged and

3 POSOKHOV v. RUSSIA DECISION 3 subsequently convicted the applicant of aiding and betting under Article 33 5 of the Criminal Code, whereas this particular charge had not been included in the indictment nor pursued by the prosecution during the trial. On 17 August 2000 the applicant requested from the President of the Neklinovskiy District Court, Judge Kalinchenko, a list of lay assessors currently serving in the court and a copy of the President s decision selecting lay assessors to sit in the cases under the presidency of Judge Kink in January-May On 29 August 2000 the applicant supplemented his appeal with new points. He challenged the bench that gave the judgment of 22 May, alleging a breach of the rules on the appointment of lay assessors. In particular, the applicant submitted that, whereas the Federal Law on the Lay Assessors of the Federal Courts of Common Jurisdiction allowed lay assessors to be called once a year for a maximum period of fourteen days, or for as long as a specific case lasted, the assessors Mmes Streblyanskaya and Khovyakova had been engaged earlier in the course of 2000 in several other trials. In addition, it was claimed that Ms Streblyanskaya s statutory term of office had expired before the day of the applicant s trial. On 29 August 2000 the Criminal Chamber of the Rostov Regional Court dismissed the applicant s appeals. The court also refused the applicant s and his counsel s application for access to copies of earlier judgments issued by the Neklinovskiy District Court under the presidency of Judge Kink. The court held, inter alia, that the applicant had been informed of his right to challenge the bench at the outset of his trial, but he had failed to do so. No breach of the rules for the nomination of lay assessors had been established. On 16 November 2000 the President of the Rostov Regional Court refused a supervisory review of the applicant s case. In his application to the President, the applicant raised a new argument in support of his allegation that the assessors had not been appointed according to the applicable rules: it was claimed that there was nothing to indicate that the assessors had been drawn by lot as required by law. The President rejected the applicant s earlier argument as to the expiry of the assessors term, by reference to the Presidential Decree of 25 January 2000 whereby the term of acting lay assessors had been extended pending the appointment of new ones. The President noted that the list of the lay assessors of the Rostov Region had been drawn up on 18 October 2000, and thus after the applicant s conviction. No answer was given to the applicant s allegation that the assessors had not been drawn by lot. On 20 February 2001 the President of the Rostov Regional Court refused another request for a supervisory review made by the applicant. In August and October 2001 the applicant requested from the President of the Legislature of the Neklinovskiy District information concerning the lay assessors authorised to sit in cases during the period between 10 and 22 May 2000.

4 4 POSOKHOV v. RUSSIA DECISION On 2 October 2001 the Neklinovskiy District Authority informed the applicant that the only list of lay assessors of the Neklinovskiy District was compiled on 4 February 2000 and confirmed by the Legislature of the Rostov Region on 15 June Proceedings against the investigator On 17 May 2000 the applicant filed an application with the office of the North Caucasian Transport Prosecutor requesting that criminal proceedings be opened against the investigator who had dealt with his case. It was alleged that the investigator had exceeded his authority by initiating a baseless criminal prosecution against the applicant and by extorting evidence. After the application had been refused on 11 July 2000, the applicant appealed. The appeal was dismissed on 15 August 2000 by the Proletarskiy District Court of Rostov-on-Don and again by the Rostov Regional Court on 10 January Proceedings against Judge Kalinchenko On 21 February 2001 the applicant requested Judge Kalinchenko to allow him access to the documents concerning the assignment of the lay assessors Mmes Streblyanskaya and Khovyakova. In his reply of 5 March 2001, the judge refused the applicant s request and informed him that the involvement of these two assessors in the applicant s case had been lawful because their statutory term had been extended. The judge noted that the Neklinovskiy District Court had been unable to follow the proper procedure of drawing names as the list of lay assessors had not been made available to the court by the competent authorities. On 26 March 2001 the applicant brought an action against Judge Kalinchenko for his failure properly to draw lay assessors for Judge Kink. On 9 April 2001 the Taganrog City Court refused to deal with the action for lack of jurisdiction. The applicant was advised to file a petition against the alleged negligence of Judge Kalinchenko with the Judicial Qualifications Board of the Rostov Region. The applicant s appeal against the decision of 9 April 2001 was dismissed on 15 August On 3 May 2001 the applicant made an administrative complaint against Judge Kalinchenko to the Judicial Qualifications Board. On 10 May 2001 the Board refused to entertain the applicant s complaint, having found that the drawing of lay assessors is a procedural act of potential significance for the lawfulness of judgments and, as such, should be raised before the competent appeal court.

5 POSOKHOV v. RUSSIA DECISION 5 On 23 May 2001 the applicant requested the President of the Supreme Court of Russia to apply for a review of the decision of the Judicial Qualifications Board of the Rostov Region, but no reply was received. 4. Re-examination of the criminal case 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 (протест в порядке надзора) on the grounds that the judgment of 22 May 2000 did not describe in sufficient detail the crime committed by the applicant and his accomplices. On 3 May 2001 the Presidium of the Rostov Regional Court granted the application, partly quashed the judgment of 22 May 2000 and the appeal judgment of 29 August 2000, and ordered a fresh examination of the case. On 2 July 2001 the Neklinovskiy District Court, under the presidency of Judge Kalinchenko, found the applicant guilty of the same offences but relieved him from serving the sentence under the statute of limitations. The applicant s lawyer appealed to the Rostov Regional Court against the judgment of 2 July 2001, inter alia, on the grounds that Judge Kalinchenko could not have retained impartiality in view of the administrative proceedings against him initiated by the applicant and therefore should have withdrawn from the case. The appeal was dismissed on 2 October 2001 and the judgment became final. Following another application for supervisory review lodged by the President of the Rostov Regional Court on an unspecified date, the Presidium of the Rostov Regional Court on 31 January 2002 invalidated the decisions given on 2 July and 2 October 2001 which re-examined the applicant s case. It was found that the courts were not in a position to decide on the applicant s guilt because the case should have been dropped under the statute of limitations. However, this decision did not amount to an acquittal, and even though the applicant has never served the sentence originally imposed, criminal records retain the fact of his conviction. B. Relevant domestic law 1. Composition of courts in criminal proceedings According to Article 15 of the Code of Criminal Procedure, hearings in first instance courts dealing with criminal cases shall, subject to certain exceptions, be conducted by a single judge or by a judge and two lay assessors. In their judicial capacity, lay assessors enjoy equal rights with the judge.

6 6 POSOKHOV v. RUSSIA DECISION 2. Lay assessors On 10 January 2000 the Federal Law on the Lay Assessors of the Federal Courts of Common Jurisdiction in the Russian Federation (Федеральный Закон «О народных заседателях федеральных судов общей юрисдикции в Российской Федерации», hereinafter the Law ) came into force. According to Section 1 2 of the Law, lay assessors are persons authorised to sit in civil and criminal cases as non-professional judges. Section 2 of the Law provides that lists of lay assessors shall be compiled for every district court by local self-government representative authorities, such lists being subject to confirmation by the legislature of a respective Federation entity. In accordance with Section 5 of the Law, which determines the procedure for the selection of lay assessors, the President of a district court shall draw at random from the list the names of a certain number of lay assessors to be assigned to the respective district court. The number of assessors assigned to every judge shall be at least three times more than that needed for a hearing. Since most criminal cases in Russia are examined by a court composed of one professional judge and two laymen or women, it appears that every judge must have at least six assessors attached to him or her. Out of these six, a judge picks at random two to sit in a particular case. Pursuant to Section 9, lay assessors shall be called to perform in a district court for a period of fourteen days, or as long as proceedings in a particular case last. Lay assessors may not be called more often than once a year. Under the Decree of the acting President of Russia issued on 25 January 2000, lay assessors serving the courts of common jurisdiction were authorised to remain in office until the courts received new lists of assessors, as confirmed by the legislatures of the Federation s entities. 3. Disqualification of judges According to Article 61 of the Code of Criminal Procedure: In [relevant] circumstances a judge must withdraw from proceedings. A judge may also be disqualified on the same grounds by a prosecutor, defendant, victim, the civil parties or their representatives. A motion of disqualification shall be reasoned and shall be made before the beginning of a court investigation. Subsequent motions of disqualification may only be made if the grounds for it become known to the party seeking the motion after the court investigation has started. 4. Aiding and abetting Article 33 5 of the Criminal Code reads as follows: An accessory is a person who aided or abetted an offence by giving advice and instructions, or by furnishing the information and instruments for a crime, or by

7 POSOKHOV v. RUSSIA DECISION 7 removing obstacles to a crime; or a person who had promised beforehand to secrete a criminal, the means and instruments or traces of a crime, or the objects obtained by crime, or a person who had promised beforehand to acquire or sell such objects. COMPLAINTS 1. The applicant complains under Article 6 1 of the Convention that the court that convicted him on 22 May 2000 cannot be considered to have been a tribunal established by law because it was composed in breach of the relevant national rules. It is specifically claimed that neither the President of the court, Judge Kalinchenko, nor the presiding judge drew for the lay assessors as required by law. The applicant also maintains that the assessors Mmes Streblyanskaya and 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. 2. Under Articles 6 1 and 13 of the Convention, the applicant next complains of the competent authorities refusal to prosecute the investigator who dealt with his case. He also challenges the findings of the courts that confirmed the refusal and claims that the court decisions were not properly reasoned. 3. Under Article 6 1 the applicant further complains that Judge Kalinchenko, who passed the sentence of 2 July 2001, lacked impartiality because of the administrative proceedings which the applicant had brought against him. 4. Relying on the same Convention provision, the applicant also claims that the court which originally convicted him on 2 May 2000 acted ultra vires when it applied Article 33 5 of the Criminal Code on aiding and abetting. According to the applicant, a criminal court may not depart from the charges set out in the indictment prepared by the prosecution, as this would inevitably lead to the court assuming prosecution functions. 5. Under Article 6 1 and 2 of the Convention, the applicant maintains that his guilt was not proved beyond reasonable doubt; that the courts based their findings on contradictory evidence; that the courts disregarded his allegation of having to give evidence under duress, and that the courts based their findings on an expert opinion obtained in breach of the law. It is also alleged that the sentence did not specify those breaches of tax legislation which led the courts to find him guilty of a tax offence.

8 8 POSOKHOV v. RUSSIA DECISION THE LAW 1. The applicant complains under Article 6 1 of the Convention that the court which convicted him on 22 May 2000 was composed in violation of the relevant national law. Article 6 1, insofar as relevant, reads as follows: 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 submit, firstly, that the two lay assessors, Mmes Streblyanskaya and Khovyakova, had the power to sit in the applicant s case as their statutory term of office had been extended by the Presidential Decree of 25 January The Government do not contest the fact that the assessors had acted in that capacity for longer than the prescribed two weeks before the applicant s conviction. Nevertheless, the Government do not agree that this fact impaired the assessors legitimacy since they had been elected for a term of five years and not just for two weeks per year. The Government conclude that the applicant s allegation has in any event lost its importance since his conviction was quashed. With regard to the above, the Government object to the review of the substance of the complaint by the Court because it is manifestly ill-founded and because the subsequent judicial review of the sentence has remedied any omissions possibly made in the proceedings. The applicant disputes the arguments put forward by the Government. As to the merits of the complaint, the applicant believes that, even though the Presidential Decree of 25 January 2000 indeed extended the term of office of the lay assessors, the decree contained no derogation from the rule by which assessors can only carry out their duties for two weeks per year. The applicant insists that the lay assessors presence was in any event unlawful because they had not been drawn by lot. Furthermore, since according to the Neklinovskiy District Authority the list of lay assessors for the Neklinovskiy District was not adopted until 15 June 2000, no judicial power had been conferred on Mmes Streblyanskaya and Khovyakova before that date. The applicant also does not agree that this matter has been resolved. He maintains that the reasons given by the supervisory review court for setting aside the judgment of 22 May 2000 did not include the allegedly wrong composition of the bench, and that, therefore, this possible violation of his rights has not been recognised or cured. The applicant challenges the supervisory review of his sentence as being a tactical move hastily taken by the Government with the intention of obstructing the proceedings before the Strasbourg Court. The applicant supports this allegation with the fact that the President of the Rostov Regional Court, who had previously twice refused a supervisory review of

9 POSOKHOV v. RUSSIA DECISION 9 the case, found it possible to depart from his previous opinion after notice of the application had been given to the Government. The Court does not agree with the Government that the applicant s complaints have been fully remedied by the quashing of his conviction and sentence in 2002, some six years after the proceedings had started, especially since the applicant s conviction remains on his criminal record. Indeed, after the application for supervisory review was granted on 3 May 2001, the proceedings in the applicant s case went through another full cycle of trial and appeals, culminating in the decision of the Presidium of the Rostov Regional Court of 31 January The Court also notes that the issue of the allegedly unlawful presence of the particular lay assessors was not addressed by the courts in their judgments. The Court considers, in the light of the parties submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 3 of the Convention. No other ground for declaring it inadmissible has been established. 2. Under Articles 6 1 and 13 of the Convention the applicant also complains about the competent authorities refusal to prosecute the investigator who dealt with his case and about the court decisions that confirmed that refusal. In this connection, the Court recalls that the right to bring criminal proceedings against a third person is not guaranteed, as such, by the Convention (see X. v. the Federal Republic of Germany, no. 7116/75, Commission decision of 4 October 1976, DR 7, p. 91). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 3 and must be rejected in accordance with Article The applicant complains in addition that the judgment of 2 July 2001 was not given by an impartial tribunal since the applicant had earlier initiated administrative proceedings which could have had an unfavourable impact on the judge who gave the judgment. The Court recalls that, in accordance with Article 35 1 of the Convention, it may deal with a matter only after all domestic remedies have been exhausted. The Court also recalls its constant case-law to the effect that the mere existence of doubts as to the prospects of success does not absolve an applicant from exhausting a given remedy (see Donnelly and six others v. United Kingdom, applications nos /72, Commission decision of 15 December 1975, DR 4, p. 4, 72 with further references). The applicant admits that he did not bring the allegation of partiality to the attention of the Neklinovskiy District Court during the proceedings in question. He submits, however, that it was in the first place for Judge

10 10 POSOKHOV v. RUSSIA DECISION Kalinchenko himself to withdraw from the case and that, in any event, it would in all probability have been futile to enter such a plea. The Court notes that under Article 61 of the Code of Criminal Procedure (see reference to domestic law above) it was open to the applicant to challenge the impartiality of the judge who tried his case by moving for his disqualification (отвод). The Court finds that the aforesaid remedy, i.e. bringing the issue of independence and impartiality to the attention of the Neklinovskiy District Court during the proceedings in question, cannot be said to have been clearly without any prospects of success. Having regard to the above, the Court considers that the applicant cannot be said to have exhausted domestic remedies when he had the right under domestic law to challenge the trial court as constituted but refrained from doing so (see, mutatis mutandis, the Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 357, 34). This conclusion is not affected by the fact that the applicant raised the issue of the court s impartiality in his grounds of appeal to the Rostov Regional Court. It follows that this complaint must be rejected pursuant to Article 35 1 and 4 of the Convention for non-exhaustion of domestic remedies. 4. Relying on Article 6 1 of the Convention, the applicant also claims that the court which originally convicted him on 2 May 2000 acted ultra vires by reclassifying the charge drawn up by the prosecution. The Court notes that reclassification of this kind may infringe the guarantees embodied in Article 6 3, if the defendant has not been duly informed and given effective means to reorganise his defence accordingly (see, as a most recent authority, Sipavičius v. Lithuania, no /99, 27-28, 21 February 2002). The present case, however, contains no such allegation. The Court further notes that, under Russian criminal law, aiding and abetting does not constitute a separate offence but represents a degree of involvement in criminal acts. When Neklinovskiy District Court determined that degree in the applicant s case it, did not, therefore, act outside its normal competence; nor is there any other element which would allow the Court to conclude that the District Court established the facts in an arbitrary or unreasonable manner or that it misinterpreted the applicable provisions of the domestic law to the detriment of the overall fairness of the proceedings. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 3 and 4 of the Convention. 5. Invoking Articles 6 1 and 2 and 7 1 of the Convention, the applicant challenges the merits of the charge and the findings of the domestic courts as being groundless and not based on the law or the factual evidence.

11 POSOKHOV v. RUSSIA DECISION 11 The Court notes that it is not its task to act as a court of appeal or, as sometimes said, as a court of fourth instance from the decisions taken by domestic courts. It is the role of the domestic courts to interpret and apply the relevant rules of procedural or substantive law. Furthermore, it is the domestic courts which are best placed for assessing the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp , 32; the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, 34). To the extent that the applicant has substantiated these complaints and complied with the requirements of Article 35 1 of the Convention, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints is manifestly ill-founded and must be rejected in accordance with Article 35 3 and 4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant s complaint about the composition of the court; Declares inadmissible the remainder of the application. S. DOLLÉ J.-P. COSTA Registrar President