THIRD SECTION

DECISION

Application no . 31430/05 Nikolay Yuryevich PAVLOV against Russia

The European Court of Human Rights ( Third Section ), sitting on 26 January 2016 as a Committee composed of:

Helen Keller , President, Johannes Silvis , Alena Poláčková , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 15 August 2005 ,

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, Mr Nikolay Yuryevich Pavlov , is a Russian national, who was born in 1969 and lives in Cheboksary . He is represented before the Court by Mr N. Mulyakov , a lawyer practising in Cheboksary .

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin , Representative of the Russian Federation to the European Court of Human Rights.

A. The circumstances of the case

3. On 26 November 2004 the prosecutor ’ s office of the Leninskiy District of Cheboksary initiated criminal proceedings against the applicant on suspicion of murder.

4. On 17 January 2005 another criminal case was opened against the applicant on suspicion of murder and the two cases were joined.

5. On 4 March 2005 a bill of indictment was delivered and on 23 March 2005 the case was sent for trial to the Leninskiy District Court of Cheboksary.

6. On 12 April 2005 the Leninskiy District Court held a preliminary hearing, with Judge T. as the presiding judge. It appears that the applicant ’ s representative had placed a tape recorder on the desk. During the hearing, the following statements were recorded:

“Listening to you one can ’ t help wondering why on earth do you exist at all? Why should you have children? People like you should be castrated once they start abusing alcohol.”

7. The applicant was aware of the impropriety of the statements, but did not try to challenge the judge at the time.

8. On 5 May 2005 the Leninskiy District Court convicted the applicant, and another co ‑ accused, of aggravated murder and robbery and sentenced him to fourteen years ’ imprisonment.

9. After receipt of the tape recording on 26 May 2005, the applicant submitted comments and requested, inter alia , to have the judge ’ s words added to the transcript of the hearing .

10. On 30 May 2005 the Leninskiy District Court rejected the applicant ’ s submission concerning the transcript of the hearing of 12 April 2005 as unsubstantiated and refused to amend the record of the trial.

11. On 26 May and 30 June 2005 the applicant lodged an appeal, in which he also raised the issue of the inappropriate statements allegedly made by Judge T. He also complained that the court had ignored his submissions concerning the tape recording, which would have proved that the judge had made the statements, and that the court had not verified his allegations by checking the tape recording of the hearing.

12. On 5 July 2005 the Supreme Court of the Republic of Chuvashia reduced the applicant ’ s sentence to thirteen years ’ imprisonment. The court did not address the applicant ’ s complaint that the judge had made inappropriate statements.

13. On 22 July 2008, after the respondent Government had been given notice of the present case, the Supreme Court of the Russian Federation, at the request of the Deputy Prosecutor General, agreed to a supervisory review of the case and quashed the appeal judgment of the Supreme Court of the Republic of Chuvashia of 5 July 2005 . The Supreme Court of the Russia n Federation found that the Supreme Court of the Republic of Chuvashia had failed to examine the arguments submitted by the applicant in his additional appeal of 30 June 2005 challenging the impartiality of the judge in question, and decided that the case should be re-examined by the Court of Appeal. The relevant part of the decision reads as follows:

“... In the case file there is an additional appeal of 30 June 2005, received by the Supreme Court of the Republic of Chuvashia on 4 July 2005, that is, before (that court ’ s) hearing. In his appeal the applicant expressed his concerns as to the impartiality of the court and referred to specific facts.

However, those arguments were not mentioned in the decision of 5 July 2005 , which means that this additional appeal has not been examined by the appeal court ...”

14. On 19 August 2008 the Supreme Court of the Republic of Chuvashia examined the applicant ’ s appeal, including bo t h issues of fact and law , and reduced the sentence to twelve years and six months ’ imprisonment. It dismissed the applicant ’ s submissions concerning the impartiality of Judge T. as unsubstantiated . It also noted that the applicant had not challenged the judge ’ s behaviour during the hearing of the first-instance court. The relevant part of the decision reads as follows:

“... The applicant ’ s arguments as to the impartiality of the judge have not been substantiated.

Thus, in the transcript of the hearing there is no information supporting the conclusion that the presiding judge was personally, directly or indirectly biased as to the outcome of the criminal proceedings.

It is evident from the transcript that the defendant did not challenge the trial judge during the hearing of the first-instance court ...

The applicant ’ s comments concerning the transcript were duly examined and dismissed.

Given the above, the court considers that there is no reason to doubt the impartiality of Judge T. in this case ...”

15. On 30 January 2009 the applicant brought a claim against Judge T. for the non-pecuniary damage caused by her alleged inappropriate statements. On 4 February 2009 the Moskovskiy District Court of Cheboksary dismissed the applicant ’ s claim without considering the merits, on the grounds that it could not be examined in the course of civil proceedings. The relevant part of the decision reads as follows:

“... In accordance with Article 1070 of the Civil Code, a judge can only be held responsible for actions committed in the course of the administration of justice if he or she has been convicted of an abuse of power during criminal proceedings. That is not the case in the present proceedings ...”

16. On 2 March 2009 the Supreme Court of the Republic of Chuvashia dismissed an appeal by the applicant. The relevant part of the decision reads as follows:

“... Since no guilt on the part of Judge T. has been established in the course of criminal proceedings ... the applicant ’ s claim was lawfully dismissed ...”

17. On 1 June 2009 the applicant tried to institute criminal proceedings against Judge T. for insult ing behaviour , relying on Article 130 of the Criminal Code .

18. The deputy head of the inter-district investigation committee opened a pre-investigation e nquiry , questioned those who had taken part in the hearing and listened to a recording of the audio tape. The participants submitted the following information:

“The applicant ’ s lawyer confirmed that he had recorded the hearing on audio tape and that it had been Judge T. who had said those things. The tape recorder had been in plain sight on his table during the whole trial. He is not aware of what happened to the original audio tape after he handed it over to the applicant ’ s father.

Judge T. submitted that during the trial she had not said anything that was insulting. According to the record of the hearing, there had been no audio recording during the trial. After listening to the recording (of the audiotape), she added that technical progress nowadays allowed the editing of any kind of recording, and thus she did not consider that the recording constituted reliable evidence that she had ever said such things. Moreover, the words uttered did not contain any personal insults towards the applicant.

The judge ’ s clerk submitted that she did not remember the judge using any insulting words to the applicant. On listening to the recording, she did not recognise the judge ’ s voice and did not believe that the recording was of very good quality.

The lawyer of the other co-accused submitted that he did not remember if somebody had used a tape recorder during the hearing and did not remember any insulting words being uttered by the judge. After listening to the recording, he was not able to identify who had made the statement.

The State prosecutor who took part in the hearing submitted that Judge T. had behaved appropriately during the trial, and had not insulted any of the parties. After listening to the recording, she found that the voice resembled Judge T. ’ s voice, but she could not be sure. Moreover, it appeared from the transcript of the hearing that there had been no audio recording by the parties, and thus it could not be ruled out that the tape had been edited.”

19. On the basis of the above arguments, on 11 June 2009 the investigator decided against opening a criminal investigation, owing to the lack of evidence of any offence. The applicant did not appeal against that decision.

B. Relevant domestic law

20 . At the material time, t he Articles of the Code of Criminal Procedure of the Russian Federation applicable to the case provided as follows:

Article 61. Circumstances in which participation in criminal proceedings is forbidden

“... [A judge] ... may not participate in criminal proceedings in cases where there are other circumstances that give reason to believe that [he or she] personally, either directly or indirectly, has an interest in the outcome of the criminal case .”

Article 64 . Application for the disqualification of a judge

“ 1. In the circumstances provided for by Articles 61 and 63 of this Code, a judge may be disqualified by the participants in criminal proceedings.

2. An application for disqualification shall be made before the opening of judicial proceedings ... Subsequent applications for disqualification may only be filed if the party making the application became aware of the grounds for the application after the start of judicial proceedings.”

Article 241. Public nature of trial s

“1. Trials of criminal cases in all courts shall be public, with the exception of cases set out in the present Article ...

5. The public are allowed to make an audio record ing and a written transcript of hearings . P hotographing, videotaping or filming is allowed with the permission of the presiding judge . ”

Article 259. Records of hearing s

“1. A record must be kept during hearings ...

5. If in the course of criminal proceedings the re has been any photography, or audio and / or video - recording ... a note o f this shall be made in the transcript . In such case s , the photograph s, or audio and/or video - recording ... shall be included in the materials of the criminal case file . ”

COMPLAINTS

21. The applicant complained under Article 6 § 1 of the Convention that he had not received a fair trial by an impartial tribunal.

THE LAW

22. The applicant complained that Judge T. had shown bias through her statements about him. He relied on Article 6 § 1 of the Convention which reads as follows:

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

A. The parties ’ submissions

23. The Government submitted that the applicant had not br ought the allegation of a lack of im partiality to the attention of the Leninskiy District Court during the proceedings in question. They noted that it had been open to the applicant to challenge the impartiality of the judge trying his case by means of an application for h er disqualification . They also submitted that the applicant had not appealed against the rejection of his submission as regards the transcript of the court ’ s hearing of 30 May 2005.

24. On the merits, the Government disputed the applicant ’ s allegations that the judge had made inappropriate statements during the hearing and referred to the absence of any such words in the transcript of the hearing. Relying on Article 259 of the Criminal Code, the Government submitted that if an audio recording had been made during the proceedings, this fact should have been noted in the transcript. In the present case this had not been done. The Government submitted that on 22 July 2008 the Supreme Court of Russia had quashed the appeal judgment of 5 July 2005 and submitted the case for a fresh examination on appeal. On e of the grounds was the failure of the appeal court to examine the applicant ’ s argument s regarding the lack of im partiality of the court. On 19 August 2008 the appeal court had examined the applicant ’ s appeal, including, inter alia , his argument on impartiality, and had found his allegations to be unsubstantiated. I n the view of the Government , any defects in the first ‑ instance proceedings ha d been cured by the appeal proceedings .

25. The applicant maintained his complaint. He accepted that he had not submitted an application for disqualification of the judge during the trial as it would in all probability have been futile to make such a n application. Furthermore, o n 30 May 2005 the Leninskiy District Court had rejected his submission of comments concerning the record of the hearing of 12 April 2005 as unsubstantiated and had refused to amend the t ranscript . He also submitted that the audio tape had never been examined by the domestic authorities, despite his requests. Relying on Article 241 of the Code of Criminal Procedure, he argued that he had been allowed to make an audio recording of the hearing without requiring permission from the judge or having any remarks about the matter made in the transcript.

B. The Court ’ s assessment

1. Non -exhaustion argument

26. The Court does not consider it necessary to examine the Government ’ s objection of non-exhaustion, because the applicant ’ s complaints under Article 6 § 1 of the Convention are in any event inadmissible for the following reasons.

2. Establishment of the facts

27. In the present case, t he dispute between the parties concerns, in particular, the question of whether inappropriate statements were directed at the applicant by Judge T. during the criminal proceedings . The applicant asserted that she had made insulting remarks to him . The Government, for their part, re peated the account given by the domestic authorities that there was no evidence that such words had ever been uttered by the trial judge. This dispute between the parties is central to the present case. In these circumstances, the Court will need to review the facts established in the domestic proceedings.

28 . In doing so, the Court remains sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom ( dec. ), no. 28883/95, 4 April 2000, and Khashiyev and Akayeva v. Russia , nos. 57942/00 and 57945/00, § 135, 24 February 2005). Where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. The Court, however, is not bound by the findings of the domestic courts, although in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Klaas v. Germany , 22 September 1993, §§ 29-30 , Series A no. 269, and Avşar v. Turkey , no. 25657/94, § 283, ECHR 2001 - VII (extracts)).

29. In the present case the Court observes that it was not disputed by the parties that an audio-tape recording was made by the applicant on which the above-mentioned words were uttered by somebody. The Court notes that the domestic courts dismissed the applicant ’ s arguments on several occasions as they found them to be unsubstantiated. The courts referred mainly to the fact that there were no remarks about an audio recording in the transcript of the hearing and thus it had not been possible to verify the authenticity of the tape. The results of the pre-investigation e nquiry did not allow the investigator to conclude that the voice on the recording belonged to Judge T. The Court observes that an expert examination of the recording has never been carried out, but at the same time notes that it is not clear from the case file that the applicant ever requested one. In addition, it is evident from the statement of the applicant ’ s lawyer to the investigator that the original of the audio tape has been lost.

Taking into account t he materials at its disposal , the Court is not in a position to conclude that Judge T. made inappropriate comments to the applicant , and considers that such a conclusion would be go ing too far.

30 . In the light of the foregoing , it must be concluded that the applicant ’ s claims lack corroboration and are generally unsubstantiated. Accordingly, they are manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 February 2016 .

Marialena Tsirli Helen Keller              Deputy Registrar President