EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF FEDOTOVA v. RUSSIA
(Application No. 73225/01)
JUDGMENT <*>
(Strasbourg, 13.IV.2006)
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Fedotova v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 23 March 2006,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 73225/01) 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 Yelena
Yuryevna Fedotova, on 28 January 2001.
2. The applicant was represented before the Court by Mr A.
Kiryanov, a lawyer practising in Taganrog. The Russian Government
("the Government") were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
3. The applicant alleged, in particular, that the court that
had given the judgment of 16 October 2000 had not been composed in
accordance with the domestic law.
4. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. By a decision of 1 April 2004 the Court declared the
application partly admissible.
6. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed First Section (Rule 52 з 1).
7. The applicant and the Government each filed observations on
the merits (Rule 59 з 1).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1970 and lives in Taganrog.
A. Domestic proceedings
9. The applicant was a party to a civil dispute involving
several other persons.
10. On 16 October 2000 the Taganrog Town Court of the Rostov
Region, composed of Ms C. (presiding judge), Ms S. and Ms L. (lay
judges), dismissed the applicant's claims and ordered her to bear
costs and expenses.
11. On 23 and 24 October 2000 the applicant and her lawyer
filed their notices of appeal. The applicant challenged, inter
alia, the composition of the bench. She alleged a breach of the
rules on the appointment of lay judges in that the lay judges had
not been drawn by lot, contrary to the requirements of the Lay
Judges Act. In addition, it was claimed that, while the Lay Judges
Act allowed lay judges to be called once a year for a maximum
period of fourteen days, or for as long as a specific case lasted,
the lay judges S. and L. had been engaged earlier in the course of
2000 in at least one another case. Also, according to an undated
letter of the President of the Taganrog Town Court, the lay judges
S. and L. had been assigned to sit with the presiding judge I.
rather than with the judge C.
12. On 24 January 2001 the Rostov Regional Court dismissed the
appeals. The court rebutted the argument concerning the allegedly
unlawful composition of the bench, relying on the President's
Decree of 25 January 2000 whereby the term of office of acting lay
judges had been extended pending appointment of new ones in
accordance with the Lay Judges Act. The list of lay judges had
only been approved by the Rostov Regional Legislature on 15 June
2000 and made available to the courts on 18 October 2000, that is
after the decisions in the applicant's case had been made. This
fact led the Regional Court to the conclusion that the lay judges
who had sat in these cases were exempted from the requirements of
the Lay Judges Act.
B. Police inquiry in connection with the applicant's
claim for just satisfaction
13. Following the Court's decision as to the admissibility of
the application, on 17 April 2004 the applicant submitted her
claim for just satisfaction. She claimed, in particular, the legal
fees paid to her representative before the Court, Mr Kiryanov, and
expenses relating to translation of documents carried out by Ms
Volkova.
14. On 9 July 2004 an officer of the Taganrog police department
who investigated tax offences formally requested the applicant's
representative and translator to submit evidence that they had
paid taxes on the amounts disbursed by the applicant.
15. On 11 July 2004 the applicant informed the Court about the
above request. She alleged that it amounted to a hindrance with
her right of individual application guaranteed under Article 34 of
the Convention. The applicant submitted copies of the summonses
for Mr Kiryanov and Ms Volkova and a description of Ms Volkova's
interview at the police station. The police officer questioned Ms
Volkova as to who had asked her to perform translations for the
applicant, how the applicant had paid for translations, whether
they had signed a contract on provision of services and why she
had not paid taxes on these amounts.
16. The Court asked the respondent Government to comment on
compatibility of the above measures with Article 34 of the
Convention.
17. On 29 July 2004 the Government submitted their comments on
the applicant's claim for just satisfaction. They indicated, in
particular, that the claimed translation costs had not been "real"
because Ms Volkova had not reported the amounts received on her
tax declaration.
18. In response to the Court's request for comments, on 9
August 2004 the Government claimed that the applicant's allegation
of hindrance under Article 34 of the Convention should be
registered as a new application and a separate decision as to its
admissibility should be taken. They denied that the authorities
had forced the applicant, directly or indirectly, to withdraw or
modify her application to the Court. The actions of the competent
bodies had been lawful and purported to secure payment of taxes
and to ensure "the economic well-being of the country". In the
Government's submission, the inquiry was successful as it had
revealed a breach of tax laws by Ms Volkova who had translated
correspondence for the applicant but failed to pay taxes on the
amounts received. The Government treated the applicant's letter of
11 July 2004 as "provocation" and maintained that no immunity
should be granted to the applicant and her representatives solely
by virtue of the fact that she had lodged an application with the
Court.
II. Relevant domestic law and practice
A. Lay Judges Act
19. On 10 January 2000 the Federal Law on Lay Judges of Federal
Courts of General Jurisdiction in the Russian Federation ("the Lay
Judges Act" or "the Act") came into effect. By section 1 (2) of
the Act, lay judges are persons authorised to sit in civil and
criminal cases as non-professional judges.
20. Section 2 provides that lists of lay judges must be
compiled for every district court by local self-government bodies,
such lists being subject to confirmation by the regional
legislature. Section 5 determines the procedure for selection of
lay judges. It provides that the president of a district court is
to draw random lots from a list of lay judges assigned to that
court. The number of lay judges assigned to every professional
judge should be at least three times as many as that needed for a
hearing.
21. By section 9, lay judges 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 judges may only be
called for service once a year.
B. President's Decree of 25 January 2000
22. Under the Decree of the acting President of Russia issued
on 25 January 2000, lay judges serving in the courts of general
jurisdiction were authorised to remain in office until the courts
received new lists of judges confirmed by the regional
legislatures.
C. Regulation on appointment of lay judges
23. The Presidium of the Supreme Court of the Russian
Federation issued on 14 January 2000 a regulation on the procedure
for selection of lay judges. The regulation provided that the
President of a district court should draw at random from the
general list of lay judges, 156 names for each judge. The lay
judges for a particular case were to be drawn by lot by the judge
to whom the case had been assigned. The regulation also provided
that the sitting lay judges would remain in office until new lists
of lay judges had been received.
THE LAW
I. The Government's request to strike the application
out of the list of cases
24. By letter of 7 July 2004, the applicant informed the Court
that she refused the settlement of the case on the terms proposed
by the Government.
25. By letter of 13 September 2004, the Government asked the
Court to strike the application out of the list of cases, in
accordance with Article 37 з 1 of the Convention, on the ground
that the applicant had refused to negotiate the terms of a
friendly settlement.
26. The Court observes at the outset that the parties were
unable to agree on the terms of a friendly settlement of the case.
The Court recalls that under certain circumstances an application
may indeed be struck out under Article 37 з 1 (c) of the
Convention on the basis of a unilateral declaration by the
respondent Government even if the applicant wishes the examination
of the case to be continued (see Tahsin Acar v. Turkey [GC], No.
26307/95, з 76, 6 May 2003). It notes, however, that this
procedure is an exceptional one and is not, as such, intended to
circumvent the applicant's opposition to a friendly settlement.
Moreover, accepting of the terms of the friendly settlement
proposed by the Government is the applicant's right rather than an
obligation and a refusal of such a proposal cannot, by itself, be
construed as the absence of intention to pursue the application.
27. Furthermore, the Court observes that a distinction must be
drawn between, on the one hand, declarations made in the context
of strictly confidential friendly-settlement proceedings (Article
38 з 2 of the Convention and Rule 62 з 2 of the Rules of Court)
and, on the other hand, unilateral declarations made by a
respondent Government in public and in the context of adversarial
proceedings before the Court.
28. On the facts, the Court observes that the Government failed
to submit with the Court any formal statement capable of falling
into the latter category and offering a sufficient basis for
finding that respect for human rights as defined in the Convention
does not require the Court to continue its examination of the
case.
29. This being so, the Court rejects the Government's request
to strike the application out of the list of cases in accordance
with Article 37 з 1 of the Convention.
II. Alleged violation of Article 6 з 1 of the Convention
30. The applicant complained under Article 6 з 1 of the
Convention that the judgment of 16 October 2000 had not been
issued by a tribunal established by law because the lay judges had
not been drawn by lot and had acted in that capacity outside the
time-limit set in the domestic law. The relevant parts of Article
6 з 1 read 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 applicant
31. The applicant submitted that on 16 October 2000 the status
of the lay judges S. and L. should have been governed by the Lay
Judges Act because a new list of lay judges had been approved by
the Rostov Regional Legislature on 15 June 2000 and forwarded to
the Courts' Administration Department of the Rostov Region already
on 19 July 2000. That information that had been obtained from the
head of the office of the legislature, cast doubt on the
Government's assertion that on 16 October 2000 the lay judges S.
and L. had been exempted from the requirements of the new
procedure.
32. Even assuming that the lay judges only acquired their
status under the new Lay Judges Act on 18 October 2000 when the
new lists were delivered to the Taganrog Town Court, the applicant
challenged the validity of their powers allegedly acquired under
the USSR Judiciary Act of 8 July 1981. That Act provided that lay
judges were to be elected at citizens' meetings. The minutes and
results of the elections were to be certified and published by
local executive committees and then forwarded to the district or
town court. The applicant's lawyer asked the Ministry of Justice,
the Governor of the Rostov Region, the Taganrog town
administration, the Taganrog town archive and the local official
newspaper Taganrogskaya Pravda for certified copies of minutes of
the meetings for election of lay judges, lists of lay judges and
copies of official publications of such lists. All the above
bodies responded that they were not in possession of any such
documents; a search of back issues of local newspapers did not
yield any results either. The applicant inferred therefrom that
until 18 October 2000 in the Rostov Region there had been no lay
judges who had been duly nominated to their office in accordance
with the USSR Judiciary Act.
33. The applicant produced copies of judgments and decisions of
the Taganrog Town Court showing that the lay judges L. and S. had
sat on the bench in different cases on 17 August, 28 September and
16 October 2000. It followed that they had functioned as lay
judges for at least sixty-one days, that is in excess of the
maximum fourteen-days term of office established in the Lay Judges
Act. Moreover, the lay judges L. and S. had been assigned to sit
with the judge I., whereas in the applicant's case the bench had
been presided over by the judge C. Such "transfer" of lay judges
from one presiding judge to another was, in the applicant's
opinion, a separate violation of the Lay Judges Act.
34. Finally, the applicant contended that, irrespective of how
and when the lay judges had been nominated to their office, they
should have been drawn by random lots for their participation in a
specific case but no such drawing had taken place in the present
case.
2. The Government
35. The Government submitted that the lay judges S. and L. had
been competent to sit in the applicant's case as their statutory
term of office had been extended by the President's Decree of 25
January 2000. The list of lay judges serving in the Rostov Region
had been approved by a decision of the Rostov Regional Legislature
on 15 June 2000 and made available to the Taganrog Town Court on
18 October 2000. Therefore, in the Government's opinion, the lay
judges who had sat on 16 October 2000 had been exempted from the
requirements of the Lay Judges Act. The applicant's contention
that the lay judges had sat in court for longer than two weeks was
not supported by evidence.
36. In their supplementary submissions the Government
acknowledged that the Taganrog Town Court was not in possession of
minutes of any citizens' meetings held for the election of lay
judges.
37. Finally, the Government indicated that both the USSR
Judiciary Act (section 70) and the Lay Judges Act (section 9 з 1)
set the global term of lay judges' service at fourteen days. The
Lay Judges Act also provided that the lay judges could take up
their duties once a year. However, there was no requirement that
their term of service be continuous, and lay judges could take
part in several proceedings throughout the year.
B. The Court's assessment
38. 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 judges, 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 judges
enjoyed the same rights as professional judges.
39. The Court recalls that it has found a violation of Article
6 з 1 of the Convention in a similar case that originated in the
same Russian region (see Posokhov v. Russia, No. 63486/00, зз 40 -
44, ECHR 2003-IV). The finding of a violation was made against the
background of "the apparent failure to observe the requirements of
the Lay Judges Act regarding the drawing of random lots and two
weeks' service per year" and the domestic authorities' admission
that there had been no lists of lay judges before 15 June 2000
when the Rostov Regional Legislature approved a list of lay judges
established under the new Lay Judges Act. The combination of these
circumstances led the Court to conclude that the district court
which heard the applicant's case had not been a tribunal
"established by law".
40. The Court notes that substantially similar circumstances
are present in the instant case as well. The parties disagreed
whether at the time of passing the judgment of 16 October 2000 the
status of lay judges S. and L. had been governed by the USSR
Judiciary Act of 1981 or by the more recent Russian Lay Judges
Act. However, the Court need not decide on this issue for it
appears that in either case essential requirements of the
procedure for selection of lay judges were not respected.
41. The Government claimed that on 16 October 2000 the lay
judges S. and L. had enjoyed the extended term of office by virtue
of the President's Decree of 25 January 2000. In such a case they
should have been appointed to the tribunal in accordance with the
USSR Judiciary Act. However, the Government acknowledged that the
district court was not in possession of any documents that could
constitute the legal basis for their appointment, such as the
minutes of citizens' meetings for election of lay judges. An
extensive archive research carried out by the applicant with a
view to finding such documents was unavailing as no regional or
central authority had been able to produce documents showing that
those lay judges had ever been elected to sit in the court (see
paragraph 32 above). It follows that there existed no legal
grounds for the participation of the lay judges S. and L. in the
administration of justice.
42. Alternatively, if the lay judges S. and L. had been
selected to sit on the bench on 16 October 2000 in accordance with
the new procedure described in the Lay Judges Act, the Court notes
the apparent failure to observe the requirements of that Act
regarding the drawing of random lots for their participation in
the case. Nor was it disputed that the lay judges S. and L. had
been selected to sit with the professional judge I. but on 16
October 2000 the bench had been presided over by the professional
judge C. Furthermore, the applicant produced documentary evidence
showing that the lay judges S. and L. had also sat on the bench on
17 August and 28 September 2000. This evidence begs the conclusion
either that the maximum permitted fourteen-day period of service
had been significantly exceeded or that those lay judges had been
called for service several times in the same year. In either case
this amounted to a substantive breach of the rules for selection
of lay judges established in section 9 of the Lay Judges Act (see
paragraph 21 above).
43. The above considerations do not permit the Court to
conclude that the Taganrog Town Court that issued the judgment of
16 October 2000 could be regarded as a "tribunal established by
law". The Rostov Regional Court, in its review of the matter on
appeal, did nothing to eliminate the above-mentioned defects.
44. There has been therefore a violation of Article 6 з 1 of
the Convention.
III. Allegation of hindrance to the right of individual
petiton under Article 34 of the Convention
45. The applicant alleged that a police inquiry into the tax
matters of her representative before the Court and translator of
her correspondence with the Court, amounted to a hindrance to the
exercise of her right of individual petition under Article 34 of
the Convention which reads:
"The Court may receive applications from any person... claiming
to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in the Convention or the Protocols
thereto. The High Contracting Parties undertake not to hinder in
any way the effective exercise of this right."
46. The Government's comments on the applicant's allegations
are summarised above in paragraph 18.
47. The Court observes from the outset that the timing of the
applicant's complaint under Article 34 does not give rise to any
issue of admissibility under the Convention (see Cooke v. Austria,
No. 25878/94, з 46, 8 February 2000; Ergi v. Turkey, judgment of
28 July 1998, Reports of Judgments and Decisions 1998-IV, з 105).
The Government's argument on this point must be rejected.
48. The Court reiterates that it is of the utmost importance
for the effective operation of the system of individual petition
instituted by Article 34 that applicants should be able to
communicate freely with the Convention organs without being
subjected to any form of pressure from the authorities to withdraw
or modify their complaints. The expression "any form of pressure"
must be taken to cover not only direct coercion and flagrant acts
of intimidation of applicants or their legal representatives but
also other improper indirect acts or contacts designed to dissuade
or discourage them from pursuing a Convention remedy (see Kurt v.
Turkey, judgment of 25 May 1998, Reports of Judgments and
Decisions 1998-III, з 160; and Tanrikulu v. Turkey [GC], No.
23763/94, з 130, ECHR 1999-IV, with further references). The
threat of criminal or disciplinary proceedings invoked against an
applicant's lawyer concerning the contents of a statement
submitted to the Court has previously been found to interfere with
the applicant's right of petition (see Kurt, cited above, зз 160
and 164, and McShane v. the United Kingdom, No. 43290/98, з 151,
28 May 2002) as has the institution of criminal proceedings
against a lawyer involved in the preparation of an application to
the Commission (see {Sarli} v. Turkey, No. 24490/94, зз 85 - 86,
22 May 2001).
49. In the instant case it is not in dispute that the local
police summoned the applicant's legal representative and
translator for a formal interview in connection with the
applicant's claims for just satisfaction. The Government furnished
no explanation as to how the Rostov police had obtained the
documents submitted in the framework of the Convention
proceedings. There is no doubt, however, that the inquiry had been
launched at the request of the Government's representative before
the Court because the Government relied on the findings of the
police inquiry in their comments on the applicant's claim for just
satisfaction (see paragraphs 17 and 58).
50. It is of particular concern for the Court that the police
interview was not confined to matters regarding Ms Volkova's tax
reporting but probed into more general aspects of her relationship
with the applicant and other persons (see paragraph 15 above).
Also, the Court sees no plausible reason as to why, in the absence
of any apparent indication of a criminal offence, the questioning
had been conducted by the regional police rather than by a
competent tax authority (cf. Ergi, cited above, з 105).
51. The Court would emphasise that it is not appropriate for
the authorities of a respondent State to enter into direct contact
with an applicant on the pretext that "forged documents have been
submitted in other cases" (see Tanrikulu, cited above, з 131). If
the Government had reason to believe that in a particular case the
right of individual petition had been abused, the appropriate
course of action was for that Government to alert the Court and to
inform it of its misgivings (ibid.). To proceed as the Government
did in the present case could very well have been interpreted by
the applicant as an attempt to intimidate her. The fact that the
summons had been served on the applicant's legal representative
and translator does not make any difference. The moves made by the
Russian Government to investigate the applicant's disbursements to
her representatives, even though they did not apparently result in
a criminal prosecution, must be considered an interference with
the exercise of the applicant's right of individual petition and
incompatible with the respondent State's obligation under Article
34 of the Convention (cf. Kurt, cited above, з 164).
52. In view of the foregoing, the Court considers that the
respondent State has failed to comply with its obligations under
Article 34 of the Convention.
IV. Application of Article 41 of the Convention
53. 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
54. The applicant claimed 1,000 euros (EUR) in respect of
compensation for non-pecuniary damage for the violation of Article
6 з 1 of the Convention. She submitted that the amount claimed was
in line with the Court's award in the Posokhov case.
55. The Government considered the claim excessive and
unreasonable. They claimed that a token amount would be an
equitable just satisfaction.
56. 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 moves by
the Government that brought about a police inquiry into her
relationship with counsel and translator, caused the applicant
further anxiety and disquiet. 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 her 1,000 euros, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
57. Relying on documentary evidence, the applicant claimed EUR
1,070.71 in respect of the legal fee for her representation before
the Court and EUR 169.16 for postage, research, travel and
translation expenses.
58. The Government accepted the applicant's claim in respect of
the legal fee and postage expenses. Travel expenses were not
necessarily incurred as the information could have been obtained
by phone or fax. Translation expenses were not "real" because the
applicant's translator did not include the amounts received in her
tax declaration.
59. Taking into account that only one of the applicant's
complaints was declared admissible, the Court, making its
assessment on an equitable basis, awards the applicant a global
amount of EUR 800 in respect of costs and expenses, plus any tax
that may be chargeable on that amount.
C. Default interest
60. 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
1. Holds that there has been a violation of Article 6 з 1 of
the Convention;
2. Holds that the respondent State has failed to comply with
its obligations under Article 34 of the Convention;
3. 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 з 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate
applicable at the date of settlement:
(i) EUR 1,000 (one thousand euros) in respect of non-pecuniary
damage;
(ii) EUR 800 (eight hundred euros) in respect of costs and
expenses;
(iii) any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 13 April 2006,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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