Resolution ResDH (2004)46

concerning the judgment of the European Court of Human Rights of 4 March 2003 (final on 4 June 2003) in the case of Posokhov against the Russian Federation

(Adopted by the Committee of Ministers on 20 July 2004 at the 891st meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Posokhov case delivered on 4 March 2003 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 63486/00) against the Russian Federation, lodged with the European Court of Human Rights on 2 October 2000 under Article 34 of the Co n vention by Mr Sergey Vitalyevich Posokhov , a Russian national, and that the Court declared admissible the complaint that he had been convicted by a court composed in breach of the relevant domestic law;

Whereas in its judgment of 4 March 2003 the Court unanimously:

- held that the applicant might claim to be a “victim” for the purposes of Article 34 of the Convention;

- held that there had been a violation of Article 6, paragraph 1, of the Convention;

- held that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 500 euros in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount, and that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant’s claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 4 March 2003, having regard to the Russian Federation’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 29 July 2003, within the time-limit set, the government of the respondent state had paid the a p plicant the sum provided for in the judgment of 4 March 2003,

Declares, after having taken note of the information supplied by the Government of the Russian Federation, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2004)46

Information provided by the Government of the Russian Federation during the examination of the Posokhov case

by the Committee of Ministers

As regards the applicant’s situation, the Government recalls that on 22 May 2000, the Neklinovskiy District Court of the Rostov Region found the applicant guilty of being accessory in the avoidance of customs duties and of abuse of office. On 2 July 2001, the same court dispensed him from serving the sentence because the case was time-barred. No further individual measures thus appear required and indeed the applicant has not requested for any such measures.

As an interim general measure to ensure implementation of this judgment of the European Court, on 17 April 2003, the Deputy Chairman of the Supreme Court sent to the chairmen of all domestic courts a circular drawing their attention to the Court’s findings and drawing their attention to the need to secure compliance with rules on participation of lay judges in criminal trials until 1 January 2004, when the new Code of Criminal Procedure would be fully in force. This Code, which entered into force on 1 July 2002, repealed the Lay Judges Act of 10 January 2000, which was at issue in the present case, but in accordance with the transitional provisions of the new Code, lay judges could sit in criminal cases until 1 January 2004.

In addition, the judgment of the European Court was published in translation in Rossijskaia Gazeta on 8 July 2003.

The importance of respecting the European Convention, particularly in this kind of cases, was also stressed by the Plenum of the Supreme Court on 10 October 2003, in a decision concerning the application by the courts of common jurisdiction of the principles and norms of international law and international treaties entered into by the Russian Federation. In particular, while referring to Article 47 of the Russian Constitution and Article 6, paragraph 1, of the Convention, this decision reiterates that the composition of courts should in each civil and/or criminal case be established by law. Furthermore, this decision recalls that the Convention, as interpreted in the light of the case-law of the European Court, is part of the national legal order and its provisions prevail over every other legislative provision.

On 1 January 2004 the new Code of Criminal Procedure became fully operational, providing a full solution to the problems raised by the Court’s judgment.

The Government of the Russian Federation is of the opinion that these measures have prevented new violations of the Convention similar to that found in the present case.

In the light of the abovementioned considerations and measures taken, the Government of the Russian Federation considers that the Russian Federation has fulfilled its obligations with regard to Article 46, paragraph 1, of the Convention.