ALSHEV v. RUSSIA
Inadmissible
Peer Lorenzen
The applicant, Mr Sergey Aleksandrovich Alshev, is a Russian national who was born in 1971 and lives in Zlatoust. He was represented before the Court by Ms O. Gorina, a lawyer practising in Chelyabinsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 June 2004 the applicant was arrested. On the same day he was charged with murder. On 2 July 2004 he appeared before the Chebarkulskiy Town Court, where Judge G. ordered his detention pending trial. On 10 August 2004 the Chelyabinsk Regional Court rejected the applicant’s appeal and upheld the decision of 2 July 2004. In November 2004 the applicant learned that by Decree no. 775 of 26 June 2001, the President of the Russian Federation had appointed Judge G. to the Miassky Town Court. No further decree had been issued transferring him to the Chebarkulskiy Town Court. The applicant immediately lodged a complaint to the Chelyabinsk Regional Prosecutor’s Office challenging the lawfulness of the decision of 2 July 2004. On 22 December 2004 the Prosecutor’s Office replied that the impugned decision had been fully lawful. The Government provided the Court with a copy of a decree, issued on 5 August 2003 by the President of the Chebarkulskiy Town Court, according to which the duties of a temporarily absent judge of that court were to be performed by Judge G. with effect from 4 August 2003. Article 47 “1. No one may be deprived of the right to have his or her case considered by the court and judge on which cognisance of the case is conferred by law.” Article 128 “..2. Judges of ... the federal courts shall be appointed by the President of the Russian Federation according to the rules laid down by federal law...” Section 27 “... In the event of the temporary absence of a judge of a district (town) court, his duties shall be performed by a judge of the nearest district (town) court by decision of the President of a higher court...” In Decision no. 303-O-O of 19 April 2007, the Constitutional Court held as follows: “According to Article 47 of the Constitution of the Russian Federation (part 1), no one may be deprived of the right to have his or her case considered by the court and judge on which cognisance of the case is conferred by law... The legislator, in exercising legal regulation in the judicial sphere in order to secure the right of citizens and associations to judicial protection within a reasonable time, has the power to determine the organisational and procedural arrangements for the district (town) courts, including the arrangements for replacing temporarily absent judges. The Law on organisation of the courts in the RSFSR provides that in the event of the temporary absence of a judge of a district (town) court, his duties shall be performed by a judge of the nearest district (town) court, the arrangements for his replacement being made by decision of the President of a higher court. Therefore, the impugned provision, being aimed at securing the smooth operation of justice in the event of the temporary absence of a judge, does not impair any constitutional right of the applicant in his specific case. ...The principles of independence and irremovability of judges guaranteed by the Constitution of the Russian Federation are not violated by Section 27 of the Federal Law on organisation of the courts in the RSFSR, as the fact that the duties of a temporarily absent judge of a district (town) court are performed by a judge of the nearest district (town) court does not amount to the transfer of a judge to another position or another court. A judge preserves his powers, office, position and grade for the whole period of his activity within a judicial body...”