FEDOSOV v. RUSSIA
Inadmissible
Loukis Loucaides
The applicant, Mr Aleksandr Ivanovich Fedosov, is a Russian national who was born in 1958 and lives in Chelyabinsk. The respondent Government are represented by Mr P. Laptev, the 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. In 1999 the police arrested Mr Mikhalevskiy and Mr Shcherbakov on suspicion of having robbed Mr Gichka. They testified that the applicant had been an accomplice to that robbery. On 21 August 1999 the applicant was arrested. According to the applicant, the arresting officers did not explain what the reasons for his arrest were and did not inform him about the statutory rights of an accused. During the first few interviews the applicant refused to answer investigator’s questions relying on his right not to incriminate himself. On 24 August 1999 the Chelyabinsk Regional prosecutor’s office authorised the applicant’s detention on remand. The detention order indicated that he was accused of having been an accomplice to a robbery. The case was referred for trial to the Chelyabinsk Regional Court. The trial court, composed of Ms Kalenova, the presiding judge, Mr Tumkin and Ms Lopayeva, lay assessors, examined documentary evidence, statements by several witnesses and by the applicant’s co-defendants. On 17 July 2001 the Chelyabinsk Regional Court found the applicant guilty as charged and sentenced him to ten years’ imprisonment. The local television company recorded the pronouncement of the judgment of 17 July 2001 and made a programme about the criminal proceedings against the applicant. On 18 July 2001 the programme was shown on television. A reporter allegedly made defamatory comments concerning the applicant. On 5 September 2001 the applicant filed an appeal against the judgment of 17 July 2001. He challenged, inter alia, the composition of the bench that had given the said judgment. Whilst the Federal Law on the Lay Assessors of the Federal Courts of General Jurisdiction allowed lay assessors to be called once a year for a maximum period of fourteen days, or for as long as a specific case lasted, the assessors Ms Lopayeva and Mr Tumkin had been engaged earlier in the course of 2000 and 2001 in at least two other trials. On 13 May 2002 the Supreme Court of the Russian Federation dismissed the appeal and upheld the applicant’s conviction. The Supreme Court noted that “the complaints of the co-defendants about unlawful composition of the bench were unfounded”. On 9 July 2005 a deputy Prosecutor General of the Russian Federation lodged an application before the Presidium of the Supreme Court of the Russian Federation, seeking revision of the judgments of 17 July 2001 and 13 May 2002, by way of a supervisory review. The deputy Prosecutor argued that the trial court which had heard the applicant’s case had been composed in violation of the Federal Law on the Lay Assessors because the lay assessors, Ms Lopatyeva and Mr Tumkin, had participated in two criminal cases in 2001. On 28 September 2005 the Presidium of the Supreme Court of the Russian Federation accepted the application for a supervisory review, quashed the judgments of 17 July 2001 and 13 May 2002 and remitted the case for a fresh examination. In particular, the Presidium held as follows: “According to paragraphs 2 and 3 of Article 9 of the Federal Law on Lay Assessors... ‘lay assessors are called once a year to perform their duties in a regional court for as long as a particular case lasts’. However, that requirement of the law had not been taken into account when the trial court which examined the criminal case against Mr Fedosov... had been set up. As it appears from the case-file, the judgment of the Chelyabinsk Regional Court of 17 July 2001 against Mr Fedosov was taken by the trial court composed of the presiding judge and two lay assessors, Mr Tumkin and Ms Lopayeva. According to a copy of the judgment of the Chelyabinsk Regional Court of 22 March 2001,... in 2001 the same lay assessors were engaged in the examination of another criminal case against Mr Petrukhin and Mr Sazhin, which was pending between 21 February and 22 March 2001. Therefore the lay assessors, Mr Tumkin and Ms Lopayeva, were engaged in examination of the criminal case against Mr Fedosov... in violation of the abovementioned law, and under Article 381 of the Russian Code on Criminal Procedure that fact serves as a ground for quashing of the judgment because it was issued by the unlawfully composed court.” The Presidium also held that the applicant should remain in custody pending the new examination of his case. On 2 May 2006 the Troitsk Town Court of the Chelyabinsk Region, composed of one professional judge, re-examined the applicant’s case, found him guilty of aggravated extortion and robbery and sentenced him to six years, eight months and ten days’ imprisonment. The Town Court based its judgment on statements by the victims and witnesses, confessions by the applicant’s co-defendants given in open court and documentary evidence. The judgment of 2 May 2006 was not appealed against and became final on 13 May 2006. The applicant was released on 2 May 2006 because he had served his sentence. For the summary of relevant domestic law provisions concerning appointment of lay assessors see Posokhov v. Russia, no. 63486/00, ECHR 2003IV, § 28, and Fedotova v. Russia (dec.), no. 73225/01, 1 April 2004.