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FIRST
SECTION
CASE OF BARASHKOVA v. RUSSIA
(Application
no. 26716/03)
JUDGMENT
STRASBOURG
29 April
2008
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 Barashkova v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Sverre Erik
Jebens,
Giorgio Malinverni, judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 1 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26716/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Ms Galina Mikhaylovna
Barashkova (“the applicant”), on 17 July 2003.
- The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mrs V. Milinchuk.
- The
applicant alleged, in particular, that the court that had given the
judgment of 1 July 2002 had not been composed in accordance with the
relevant domestic law.
- By
a decision of 29 March 2007 the Court declared the application partly
admissible.
- The
applicant, but not the Government, filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Moscow.
- The
applicant was a party to a civil dispute with her former husband over
a flat which they occupied under a tenancy agreement. The Nagatinskiy
District Court of Moscow twice rendered judgments unfavourable to the
applicant but the Moscow City Court quashed them on appeals and
remitted the case for fresh examinations.
- The
new hearing of the case was set for 14 May 2002. The Nagatinskiy
District Court was composed of Ms F. (presiding judge), Ms B. and Mr
S. (lay assessors). Prior to that, on 6 March 2001 in accordance with
Section 5 of the Lay Assessors Act the acting President of the
Nagatinskiy District Court of Moscow assigned the above two lay
assessors to sit with judge F.
- Before
the court started to examine the claims, the applicant challenged the
composition of the bench. She alleged a breach of rules on the
appointment of lay assessors in that the lay assessors Ms B. and Mr
S. had not been drawn by lot contrary to the requirements of the
Federal Law on the Lay Assessors of the Federal Courts of General
Jurisdiction (Федеральный
Закон «О народных
заседателях
федеральных
судов общей
юрисдикции
в Российской
Федерации»).
However, the applicant's motion of challenge was rejected. No breach
of the rules governing the calling of lay assessors was established.
- At
the next hearing of the case on 18 June 2002 the lay assessors Ms B.
and Mr S. were absent.
- On
1 July 2002 the presiding judge F. in accordance with Section 9
of the Lay Assessors Act “drew lots” among the lay
assessors Ms B. and Mr S. assigned to her on 6 March 2001 by the
acting President of the Nagatinskiy District Court, and chose both of
them for sitting at the hearing of the applicant's case.
- On
1 July 2002 the Nagatinskiy District Court of Moscow composed of Ms
F. (presiding judge), Ms B. and Mr S. (lay assessors), dismissed the
applicant's action.
- The
applicant appealed against the judgment. In her grounds for appeal
the applicant again raised the issue of the lay assessors being
appointed in breach of rules set forth in the Lay Assessors Act. In
particular, she submitted that the case file did not contain the
record of selection of the lay assessors Mr S. and Ms B.
- On
30 January 2003 the Moscow City Court upheld the judgment on appeal.
The applicant's argument about the lack of record of the selection of
lay assessors in the case file was found in itself insufficient for
quashing of the judgment on appeal. The court did not go into further
examination of the applicant's allegation.
- The
applicant subsequently produced documentary evidence showing that in
the course of 2002 the lay assessor Mr S. sat in court in unrelated
civil cases with the judge F. on 5 and 30 April, 14, 23 and 24 May,
5, 19 and 27 June, 1 July, 1, 11 and 12 November, 19 and 30 December.
The applicant also produced documentary evidence showing that in the
course of 2002 the lay assessor Ms B. sat on the bench with the
judge F. in unrelated cases on 4 March, 14 May, 5 and 27 June, 1
July, 4 and 17 October.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The RSFSR Code of Civil Procedure of 1964
- According to Article 6 of the Code, in force at the
material time, civil cases could be examined by a formation
comprising two lay assessors and a professional judge. In the
administration of justice lay assessors enjoyed the same rights as
professional judges.
B. Lay Assessors Act of 2000
- On
10 January 2000, the Federal Law on the Lay Assessors of the Federal
Courts of General Jurisdiction in the Russian Federation (“the
Lay Assessors Act” or “the Act”) came into effect.
Under Section 1 § 2 of the Act, lay assessors were persons
authorised to sit in civil and criminal cases as non-professional
judges.
- Section 2 of the Act provided that lists of lay
assessors had to be compiled for every district court by local
self-government bodies, such lists being subject to validation by the
regional legislature.
- Section
5 of the Act determined the procedure for the selection of lay
assessors. It provided that the president of a district court had to
draw at random from the list a certain number of lay assessors to be
called to the competent district court. The number of lay assessors
assigned to every professional judge had to be at least three times
the number of persons needed for a hearing.
- In accordance with Section 9, lay assessors were to be
called to serve in a district court for a period of fourteen days, or
as long as the proceedings in a particular case lasted. Lay assessors
could not be called more than once a year.
- On
14 November 2002 the new Code of Civil Procedure of the Russian
Federation was enacted and replaced the RSFSR Code of Civil Procedure
from 1 February 2003. It no longer provided for participation of
non-professional judges in civil cases.
C. Validation of the general lists of lay assessors
- On 22 November 2000 the Moscow City Legislature
validated the general lists of lay assessors assigned to the district
courts of Moscow and the Supreme Court of Russia. The addendum no. 1
to the above regulation contained the general list of 2810 lay
assessors assigned to the Nagatinskiy District Court of Moscow.
D. Regulation on appointment of lay assessors
- The Presidium of the Supreme Court of the Russian
Federation issued on 14 January 2000 a regulation on the procedure
for selection of lay assessors. The regulation provided that the
President of a district court should draw at random from the general
list of lay assessors 156 names for each judge. The lay assessors for
a particular case were to be drawn by lot by the judge to whom the
case had been assigned.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the judgment of 1 July 2002 had not been issued by a tribunal
established by law. Article 6 § 1, in so far as relevant, reads
as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal established by law.”
A. Submissions by the parties
1. The Government
- The
Government submitted that the selection procedure of lay assessors
for participation in the hearing at the Nagatinskiy District Court of
Moscow of 1 July 2002 was in accordance with Section 5 of the Lay
Assessors Act, which was confirmed by the decision of the acting
President of the Nagatinskiy District Court of Moscow of 6 March 2001
on the assignment of lay assessors Ms B. and Mr S. to sit with judge
F., and by the minutes and results of the drawing of lay assessors
for the purposes of the hearing of 1 July 2002 by the presiding judge
F.
- They
further indicated that, pursuant to Section 9 of the Lay Assessors
Act the overall term of office of lay assessors was not to exceed two
weeks. The Lay Assessors Act also provided that the lay assessors
could take up their duties once a year. However, there was no
requirement that their term of service should be continuous, and lay
assessors could take part in several proceedings throughout the year.
Therefore, the fact that the lay assessor Ms B. sat on the bench
in different cases on 4 March, 14 May, 5 and 27 June, 1 July and
17 October 2002 and that the lay assessor Mr S. sat on 5 and 30
April, 14, 23 and 24 May, 5, 19 and 27 June, 1 July, 1, 11 and
12 November, 19 and 20 December did not upset the requirements of the
domestic law.
2. The applicant
- The applicant disputed the arguments put forward by
the Government. She referred, firstly, to Section 5 of the Lay
Assessors Act, which provided that the number of lay assessors
assigned to sit with every professional judge should be at least
three times the number of persons needed for a hearing. Secondly, the
applicant referred to Article 6 of the RSFSR Code of Civil Procedure
in force at the time when the applicant's case was examined, which
provided that the bench in a district court should comprise one
professional judge and two lay assessors. Consequently, the number of
lay assessors assigned to sit with a professional judge should not be
less than six. However, contrary to the above requirements, on 6
March 2001 the acting President of the Nagatinskiy District Court of
Moscow assigned only two lay assessors – Ms B. and Mr S. to sit
with judge F. The minutes of drawing of lay assessors of 1 July 2002
confirm that instead of drawing lots among six lay assessors in order
to select two of them for the purposes of the hearing the presiding
judge drew lots among only two lay assessors, which violated the
procedure.
- The
applicant further relied on Section 9 of the Lay Assessors Act. In
accordance with this provision lay assessors should be called to
serve in a district court for a period of fourteen days, or as long
as the proceedings in a particular case last. Lay assessors may not
be called more than once a year. The applicant submitted that the lay
assessors Ms B. and Mr S. sat on the bench in the applicant's case on
14 May and 1 July 2002. They were absent from the hearing of the
applicant's case on 18 June 2002, which is confirmed by the minutes
of the hearing. Before sitting on the bench in the applicant's case
the lay assessors Ms B. and Mr S. sat in court in unrelated cases: Ms
B. – on 4 March and Mr S. – on 5 and 30 April. After the
hearing of the applicant's case had commenced, Ms B. sat on the bench
in unrelated cases on 5 and 27 June, and Mr S. sat on 23 and 24 May,
5, 19 and 27 June 2002. After the rendering of the judgment in the
applicant's case on 1 July 2002 Ms B. sat in court in unrelated
cases on 4 and 17 October, and Mr S. sat on 1, 11 and 12 October, and
on 19 and 20 December 2002. Thus, the lay assessors Ms B. and Mr S.
interrupted the continuity of the processing of the applicant's case
and sat on the bench more than once in the course of 2002.
- In
conclusion the applicant referred to the case of Posokhov v.
Russia (no. 63486/00, 4 March 2003) where a violation of Article
6 § 1 on account of unlawful composition of the bench was
established.
B. The Court's assessment
- The
Court reiterates that the phrase “established by law”
covers not only the legal basis for the very existence of a
“tribunal” but also the composition of the bench in each
case (see Buscarini v. San Marino (dec.), no. 31657/96, 4
May 2000). The Court is therefore requested to examine allegations
such as those made in the present case concerning a breach of the
domestic rules for appointment of judicial officers. The fact that
the allegation in the present case concerned lay assessors does not
make it any less important as, pursuant to Article 6 of the Code of
Civil Procedure then in force, in their judicial capacity lay
assessors enjoyed the same rights as professional judges (see
paragraph 16 above).
- The
Court recalls that it has found a violation of Article 6 § 1 of
the Convention in other Russian cases with similar factual
circumstances (see Posokhov v. Russia, no.
63486/00, §§ 40-44, ECHR 2003-IV; Fedotova v. Russia,
no. 73225/05, §§ 38-44, 13 April 2006; and Shabanov and
Tren v. Russia, no. 5433/02, §§ 28-32, 14 December
2006). The finding of a violation was made against the background of,
inter alia, “the apparent failure to observe the
requirements of the Lay Assessors Act regarding the drawing of random
lots and two weeks' service per year”. These circumstances led
the Court to conclude that district courts which heard the
applicants' cases had not been tribunals “established by law”.
- Turning
to the circumstances of the present case, the Court notes that, in
compliance with the domestic law, on 22 November 2000 the Moscow City
Legislature validated the general list of 2810 lay assessors assigned
to the Nagatinskiy District Court of Moscow (see paragraphs 18 and 22
above). The Court observes that thereafter the President of the
District Court had to select from the general list of lay assessors
156 names for each judge (see paragraph 23 above). However, as it
follows from the decision of 6 March 2001, the acting President of
the Nagatinskiy District Court of Moscow selected only two lay
assessors to sit with judge F. with the consequence that on 1 July
2002 the judge F. instead of drawing lots among 156 lay assessors in
order to select two of them for sitting on the bench for the hearing
of the applicant's case “drew lots” among only two of
them. It follows that the procedure provided for by the domestic law
for selection of lay assessors and drawing of random lots for their
participation in the applicant's case had not been observed.
- The
above considerations do not permit the Court to conclude that the
Nagatinskiy District Court of Moscow which issued the judgment of
1 July 2002 could be regarded as a “tribunal established
by law”. The Moscow City Court, in its review of the matter on
appeal, did nothing to eliminate the above-mentioned defects.
- Therefore,
there has been a violation of Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“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.”
A. Damage
- The
applicant claimed 21,139 euros (EUR) in compensation of the pecuniary
damage, which represents the value of the room privatised by the
applicant's former husband after the termination of the proceedings
in the present case. She further claimed EUR 20,000 in respect of the
non pecuniary damage.
- The
Government considered the applicant's claims to be excessive and
unreasonable. They further submitted that in any event the finding of
a violation would constitute adequate just satisfaction.
- As
to the claim in respect of pecuniary damage, the Court cannot
speculate as to what the outcome of the proceedings at issue might
have been if the violation of the Convention had not occurred. It
therefore rejects this claim. On the other hand, the Court considers
that the applicant must have suffered a feeling of injustice as the
judgment in her case had been given by a tribunal which had not been
“established by law”. The non-pecuniary damage she has
thereby sustained would not be adequately compensated by the finding
of a violation. Accordingly, making its assessment on an equitable
basis, the Court awards the applicant EUR 500 as compensation
for non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- Relying
on documentary evidence, the applicant claimed 500 Russian
roubles for postage expenses.
- The
Government did not comment on the applicant's claims under this head.
- The
Court reiterates that it will award legal costs and expenses only if
satisfied that these were necessarily incurred and reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicant the sum of EUR 15 for the costs and
expenses of the Convention proceedings, plus any tax that may be
chargeable on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention the followings
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
500 (five hundred euros) in respect of non-pecuniary damage;
(ii) EUR
15 (fifteen euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
