THIRD SECTION

DECISION

Application no. 39187/06 S.A. against Russia

The European Court of Human Rights (Third Section), sitting on 7 September 2021 as a Committee composed of:

Georges Ravarani, President, Anja Seibert-Fohr, Andreas Zünd, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 25 September 2006 ,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant is a Russian national, who was born in 1981. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr D. Agranovskiy and Mr B. Kuznetsov , lawyers practising in Moscow.

2. The Russian Government (“the Government”) were represented by M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Vinogradov.

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

4. At the material time the applicant was a lieutenant in the Russian army and served in a military unit based in the Moscow Region.

5. In 2002 the applicant’s unit went on mission to the Chechen Republic.

6. On 16 January 2003 the Groznyy City Prosecutor’s Office initiated criminal proceedings into the discovery of the bodies of three men. The case was subsequently referred to the military prosecutor’s office.

7. On 3 November 2003 the applicant was charged with the murder of three men, robbery and abuse of office, committed in conspiracy with Kh.

8. On 22 November 2003 the prosecution referred the criminal case to the Military Court of the North Caucasus Circuit (“the Military Court”), Rostov-on-Don, for trial.

9. At a preliminary hearing on 25 December 2003 the Military Court allowed a request by the applicant and his co-defendant to have their case heard by a jury.

10. On 28 June 2004 the jury found that the applicant and his co ‑ defendant were not guilty of the impugned crimes.

11. On 29 June 2004 the Military Court, based on the jury’s not-guilty verdict, acquitted the applicant and his co-defendant of all charges.

12. The prosecutor and the relatives of the killed men appealed against the applicant’s and his co-defendant’s acquittal to the Military Section of the Supreme Court of the Russian Federation (“the Supreme Court”).

13. On 11 November 2004 the Supreme Court quashed the judgment of 29 June 2004, having found that ten out of twelve jurors had been selected from the list of jurors of 2003, instead of that of 2004. The Supreme Court referred the case for a fresh examination to the court of first instance.

14. On 2 March 2005 the Military Court allowed the applicant’s request to have his case heard by a jury.

15. On 6 October 2005 the jury found the applicant and his co-defendant not guilty of the impugned crimes.

16. On 12 October 2005 the Military Court, based on the jury’s not ‑ guilty verdict, acquitted the applicant and his co-defendant of all charges. The relatives of the killed men, but not the prosecutor, appealed against the acquittal of the applicant and his co-defendant.

17. On 27 November 2005 the President of the Chechen Republic submitted a letter to the Military Court in the framework of unrelated criminal proceedings. He informed the Military Court that following the election on 27 November 2005 of the Parliament of the Chechen Republic, there were no longer obstacles for the composition of a list of candidates for jurors among inhabitants of the Chechen Republic and providing them with the possibility to participate in rendering justice, as provided for in Article 32 of the Constitution (see “Relevant domestic law” below).

18. On 8 February 2006, in the framework of unrelated criminal proceedings and with reference to the letter of the President of the Chechen Republic of 27 November 2005, the Military Court asked the Constitutional Court to review the constitutionality of the provisions of laws governing trial by jury (section 8 § 1 (5) of the Federal Law governing the entry into force of the Code of Criminal Procedure and Article 32 of the Code of Criminal Procedure of the Russian Federation, see “Relevant domestic law” below).

19. On an unspecified date the President of the Chechen Republic and a certain T. also asked the Constitutional Court to review the constitutionality of the provisions of laws governing trial by jury.

20. On 6 April 2006 the Constitutional Court examined those requests jointly having regard to their similar subject matter and adopted Ruling no. 3-П. The Constitutional Court observed that the requests concerned the question whether it was possible for the Military Court to examine, with the participation of a jury, criminal cases concerning particularly serious crimes against life, committed on the territory of the Chechen Republic, if the jury did not include persons who lived on a permanent basis in the Chechen Republic.

21. The Constitutional Court held that the challenged provisions were compatible with the Constitution. In particular, those provisions meant that for examination by a circuit military court of a criminal case concerning a particularly serious crime against life, the jury would be composed of citizens who lived on a permanent basis on the territory of the constituent entity of the Russian Federation where the crime had been committed. If it was impossible to compose a jury on such a basis, the criminal case had to be examined by a circuit military court in a different composition, established in accordance with the law, without the participation of a jury. In that case, the application of the death penalty was not allowed.

22. The Constitutional Court further held that the constitutional meaning of the above provisions revealed in its ruling of 6 April 2006 was binding and excluded any other interpretation. That ruling was final and entered into force immediately after its pronouncement.

23. On 25 April 2006 the Supreme Court examined the appeal lodged by the relatives of the killed men against the judgment of 12 October 2005. The Supreme Court quashed that judgment and held that the case had to be sent for a fresh examination from the stage of the preliminary hearing. In particular, the Supreme Court stated that in its ruling of 6 April 2006 the Constitutional Court had held that section 8 § 1 (5) of the Federal Law on the entry into force of the Code of Criminal Procedure was compatible with the Constitution. The Supreme Court held as follows:

“... Therefore, the content of Article 32 of the [Code of Criminal Procedure of the Russian Federation] testifies to the impossibility of the military court examining the present case with the participation of a jury which was not composed of citizens who permanently lived on the territory of the Chechen Republic – the place where the crime with which Kh. and S.A. are charged was committed.

In accordance with the above-mentioned ruling of the Constitutional Court of the Russian Federation, the present criminal case had to be examined by a circuit military court in a different composition provided for by law, without the participation of a jury.

In such circumstances, the criminal case concerning the charges against Kh. and S.A. was examined by a court in an unlawful composition, which is, in any event, grounds for quashing the court decision in accordance with Article 381 § 2 subparagraph 2 of the Code of Criminal Procedure ...”

24. In the third set of proceedings the case was heard by the Military Court in a single-judge formation, presided by Judge Ts.

25. On 27 December 2007 the Military Court found the applicant guilty of triple murder committed in conspiracy with Kh. and sentenced him to fifteen years’ imprisonment. The court acquitted the applicant of the remaining charges.

26. On 28 August 2008 the Supreme Court, composed of Judges K., Ku. and To., upheld the applicant’s conviction on appeal. Judge K. was both the president of the bench and the rapporteur in the case.

27. Article 20 § 2 provides that capital punishment until its complete abolition may be established by federal law as an exclusive form of punishment of particularly grave crimes against life, provided that the accused shall be granted the right to have his (her) case examined by a court with the participation of a jury.

28. Article 32 § 5 provides that citizens of the Russian Federation shall have the right to participate in administering justice.

29. Article 47 § 2 provides that anyone accused of committing a crime has the right to have his (her) case examined by a court with the participation of a jury in the cases as provided for by federal law.

30. Section 8 § 1 (5) of the Federal Law governing the entry into force of the Code of Criminal Procedure of the Russian Federation, in force at the material time, provided that trial by jury would be introduced in the Chechen Republic on 1 January 2007.

31. Article 4 provided that the criminal procedure statute in effect at the time of the performance of the procedural action or the making of a procedural decision shall apply in proceedings in a criminal case, unless otherwise stipulated by this Code.

32. Article 30 § 1 provided that criminal cases were tried by a court collegially or in accordance with the single judge procedure.

33. Article 30 § 2 (2) provided that criminal cases concerning offences specified in Article 31 § 3 of the Code were tried by a federal judge and a panel of twelve jurors at the request of the defendant. According to Article 31 § 3 such offences included murder. Article 31 § 6 provided that military circuit courts had jurisdiction over cases referred to in paragraph 3 of that Article in respect of servicemen.

34. Article 32 § 1 provided that criminal cases were tried by the court at the place where the offence had been committed, except for the instances specified in Article 35 of the Code.

35. Article 35 § 1 provided that a criminal case was not tried by the court at the place where the offence had been committed in the following cases: (a) at the request of a party to the case, when a challenge to the entire composition of the court had been satisfied; (b) at the request of a party to the proceedings or on the initiative of the president of the court to which the criminal case was referred for examination, if all the judges of that court had already taken part in the examination of that case before or if not all the participants of the criminal case live on the territory over which that court had jurisdiction, provided that all the participants agreed that the case would be examined by another court.

36. Article 381 § 2 provided that the rendering of a judgment by an illegitimately constituted court, or the rendering of a verdict by an illegitimate jury panel constituted grounds for changing or quashing the judgment on appeal.

COMPLAINTS

37. The applicant complained under Article 6 § 1 of the Convention that the way in which the Supreme Court had interpreted and retrospectively applied the Constitutional Court’s ruling in his case and quashed his acquittal had resulted in a breach of legal certainty.

38. The applicant complained under Article 6 § 1 of the Convention that the Supreme Court which on 28 August 2008 examined his appeal against his conviction had not been independent and impartial.

THE LAW

39. The applicant complained under Article 6 § 1 of the Convention that the way in which the Supreme Court had interpreted and retrospectively applied in his case the Constitutional Court’s ruling and quashed his acquittal had resulted in a breach of legal certainty. Article 6 § 1 of the Convention reads, as far as relevant, as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

40. The Government submitted that in its ruling of 6 April 2006 the Constitutional Court had revealed the binding constitutional meaning of legal provisions governing the trial by jury. Based on that interpretation, the Supreme Court, which examined the appeal against the applicant’s acquittal, established that the criminal case against the applicant had been examined by an unlawfully composed court and quashed the judgment of 12 October 2005, which had not yet acquired legal force.

41. The Supreme Court’s decision to quash the applicant’s acquittal was made in accordance with Article 381 § 2 of the Code of Criminal Procedure (see “Relevant domestic law” above) with the aim of correcting judicial errors and improper administration of justice, while maintaining the balance between the principle of legal certainty and the right to a fair trial. Therefore, there was no breach of the principle of legal certainty in the present case.

42. The applicant submitted that the interpretation of legal provisions governing the trial by jury provided by the Constitutional Court was substantially different from that of the Military Court, when in March 2005 it had approved his choice to be tried by a jury, and by the Supreme Court, when in November 2004 it had examined his case on appeal.

43. He considered that it was the State’s responsibility to ensure that his case be heard by a lawful composition of the court when it had been referred for trial. The retrospective application in his case of the new interpretation of the domestic law breached his right to a fair trial.

44. In the context of civil disputes, the Court has ruled that although, in principle, the legislature is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force, the principle of the rule of law and the notion of fair trial enshrined in Article 6 of the Convention preclude, except for compelling public-interest reasons, interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute (see Stran Greek Refineries and Stratis Andreadis v. Greece , 9 December 1994, § 49, Series A no. 301 ‑ B, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 126, ECHR 2006 ‑ V).

45. Those principles are essential elements of the concept of legal certainty and protection of litigants’ legitimate interest and they are applicable to both civil and criminal proceedings (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 132, 17 September 2009).

46. The Court observes that on 6 April 2006 while the appeal against the applicant’s acquittal was pending before the Supreme Court, the Constitutional Court adopted Ruling 3-П, in which it interpreted legal provisions governing examination of criminal cases concerning particularly serious crimes against life by military circuit courts. Those provisions had been applied by the Military Court in the applicant’s case on 25 December 2003 and on 2 March 2005 when it had allowed the applicant’s request to have his case heard by a jury.

47. On 25 April 2006 the Supreme Court, based on the interpretation provided by the Constitutional Court in the ruling of 6 April 2006, held that the applicant’s case had been examined by an unlawful composition of the court, since it should have been examined by the Military Court in a single ‑ judge formation and not by a jury.

48. The question is whether the Constitutional Court’s ruling of 6 April 2006, as far as it was applied by the Supreme Court in the applicant’s criminal case, can be comparable to an interference by legislature in the administration of justice.

49. The Court observes that it was the Military Court, albeit in the context of unrelated criminal proceedings, who applied to the Constitutional Court with the request to verify the compatibility with the Constitution of legal provisions governing trial by jury.

50. Furthermore, the Constitutional Court has interpreted the existing legal provisions and has not enacted any new legislative provisions, despite the Military Court’s quite different interpretation of them in the applicant’s case in December 2003 and March 2005. It is also of relevance that the interpretation in question concerned only procedural rules as opposed to substantive criminal law.

51. The Court finally observes that the applicant’s acquittal had not yet become final when the Supreme Court applied the Constitutional Court’s ruling in his case and quashed his acquittal.

52. Having regard to the above elements, which were not contested by the applicant, the Court considers that the Constitutional Court’s ruling and its subsequent application by the Supreme Court to the pending appeal proceedings in the criminal case against the applicant cannot be equated with an interference by a legislature with the administration of justice and was not contrary to the principle of legal certainty. Rather, in the context of a regular appeal review the Supreme Court applied the relevant procedural rules as in force at the time of such review.

53. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

54. The applicant complained under Article 6 § 1 of the Convention that his appeal against his conviction had not been examined by an impartial and independent tribunal, having regard to the presence on the bench of Judge K., who had previously been the Deputy President of the Military Court which had convicted him. Article 6 § 1 of the Convention reads, as far as relevant, 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.”

55. The Government submitted that the applicant’s appeal against his conviction had been examined by an independent and impartial court. Judge K. was the Deputy President of the Military Court between 24 January 2006 and 31 October 2007. During the same period, he also presided the Civil Chamber of the Military Court and therefore, had not been called to sit in criminal cases and had not been a direct superior of Judge Ts. Judge K. had left the Military Court on 31 October 2007, prior to the applicant’s conviction on 27 December 2007. Therefore, there are no doubts in the impartiality of Judge K. The Government provided copies of decisions concerning nominations of Judge K. to the positions mentioned above.

56. The applicant submitted that Judge K. was interested in upholding the applicant’s conviction pronounced by Judge Ts. During the major part of examination of his criminal case by the Military Court, Judge K. occupied the position of the Deputy President of the Military Court and thus was a superior of Judge Ts.

57. In the present case the applicant alleged bias and lack of independence on the part of Judge K., as presiding judge, and rapporteur on the bench of the appeal court, which comprised two other judges whose impartiality and independence the applicant did not question.

58. The Court observes that the applicant did not adduce any evidence to indicate personal bias on the part of Judge K. The Court therefore considers that the personal impartiality of Judge K. is not at issue in the present case and the complaint of lack of impartiality must be examined from the standpoint of the objective impartiality test and more specifically the Court must address the question whether the applicant’s doubts, stemming from the specific situation, may be regarded as objectively justified in the circumstances of the case.

59. The Court observes that the criminal case against the applicant was examined by the Military Court between 25 April 2006 and 27 December 2007. According to the information provided by the Government and confirmed by the relevant official documents, Judge K. was the President of the Civil Chamber of the Military Court between 24 January 2006 and 31 October 2007. He did not sit in any criminal case, did not perform any supervisory function in respect of Judge Ts. and left the Military Court prior to the applicant’s conviction. Therefore, irrespective of whether a supervisory function as such would be sufficient to find a violation, it cannot be said that the relationship between Judge Ts. and Judge K. was of such a nature and degree as to indicate a lack of impartiality on the part of Judge K. It therefore cannot be said that the applicant’s doubts regarding the lack of impartiality of Judge K. were objectively justified.

60. The Court further observes that the applicant did not adduce any arguments regarding the alleged lack of independence of Judge K.

61. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 September 2021.

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Olga Chernishova Georges Ravarani Deputy Registrar President