CASE OF PETR SEVASTYANOV v. RUSSIA
Violation of Art. 6-1
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
6. The applicant was born in 1973 and lives in Moscow. 7. Between July and September 2000 the Nikulinskiy District Court of Moscow (“the Nikulinskiy District Court”), composed of one professional judge, Mr Bobkov, and two lay judges, Ms Matuzova and Mr Rubtsov, examined the charges brought against the applicant in connection with a drug-related offence. 8. On 4 September 2000 the Nikulinskiy District Court found the applicant guilty of illegal acquisition and storage of narcotics on a particularly large scale for the purpose of sale and of illegal sale of drugs and sentenced him to eight years’ imprisonment. 9. The applicant and his counsel appealed against the judgment of 4 September 2000 to the Moscow City Court (“the City Court”). They complained, in particular, that lay judge Rubtsov had not been appointed in accordance with the law and had not been independent because he worked as a clerk (секретарь суда) at the Nikulinskiy District Court. 10. On 5 October 2000 the City Court returned the case to the first-instance court and ordered it to look into the applicant’s complaints about the competency of lay judge Rubtsov. 11. The results of the inquiry carried out by the Supreme Court Justice Department in respect of the competency of lay judge Rubtsov to sit in the case were summarised in a report of 17 January 2001, which stated as follows: “...The inquiry established that the Nikulinskiy District Court had at its disposal a copy of the decision of 24 October 1991 of the Gagarinskiy District Council of People’s Deputies of Moscow confirming the results of the additional selection of lay judges of the Gagarinskiy District Court of Moscow as well as a copy of the list of lay judges elected by the staff of the Gagarinskiy District Court, which comprised two persons (Mrs Asharova and Mr Rubtsov) and which had not been properly certified. According to information obtained from the Administration of Moscow and from the Moscow Archives, the originals of the documents on the election of lay judges of the Gagarinskiy District Court had not been kept. Nevertheless, lay judge Rubtsov had been in possession of the card [identifying him as a] lay judge of the Gagarinskiy District Court of Moscow, which had been valid until May 1995. The presidential decrees of 22.03.95 No. 299 and 23.01.97 No. 41, 12.12.98 No. 64, 02.01.00 No.37, and 25.01.00 No.103 extended the terms of office of previously selected lay judges until the adoption of the Federal Law on the selection of lay judges and the compilation of general lists of lay judges.” 12. On 3 April 2001 the City Court examined the case on appeal. It held that the applicant’s guilt of acquisition of drugs for the purpose of sale and the sale of drugs had been proved by the evidence examined during the trial. Regarding the allegedly unlawful composition of the trial court, the appeal court held that the term of office of lay judge Rubtsov had been extended in accordance with the Presidential decrees. The court also noted that the fact that lay judge Rubtsov worked for the court as a clerk did not preclude him from being elected as a lay judge. The City Court reduced the applicant’s sentence to five years’ imprisonment and upheld the remainder of the judgment. 13. On 13 February 2002 the Supreme Court of the Russian Federation (“the Supreme Court”) reviewed the case under the supervisory review procedure. The Supreme Court held that the applicant’s guilt of acquisition and storage of drugs on a large scale had been established. However, the materials of the criminal case file had not contained any evidence which would allow it to establish with sufficient credibility that the applicant had acquired the drugs for the purpose of sale and that he had sold them. In those circumstances, the applicant’s actions should have been classified as illicit procurement and storage of drugs without intent to sell. 14. The Supreme Court amended the judgment of 4 September 2000 and the decision of 3 April 2001, convicted the applicant of illicit procurement and storage of drugs without intent to sell and sentenced him to three years’ imprisonment. With reference to the Amnesty Act of 26 May 2000, the court ordered that the applicant be released from serving his sentence and, consequently, from custody. 15. Article 15 of the Code provided that hearings in first-instance courts dealing with criminal cases should, subject to certain exceptions, be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as professional judges. 16. Part III of the Law set out the procedure for the election of lay judges. Elections of lay judges of district (town) courts were called by the Presidium of the RSFSR Supreme Council and were carried out by the executive committees of the district or town Councils of Peoples’ Deputies (Articles 56 and 57). Lay judges were elected during general staff meetings, general meetings and gatherings of citizens at their places of residence. A separate, open vote was held in respect of each candidate. Persons who received more than fifty percent of the votes were elected (Article 58). The results of the elections had to be recorded in the minutes of the meetings (Article 59). The relevant executive committee determined the results of the elections, compiled the list of elected lay judges, approved that list, published the information on the results of the elections and sent the list of lay judges to the district court (Articles 57 and 60). 17. Article 90 of the Constitution provides that the President of the Russian Federation shall issue decrees and orders which shall have binding force on the entire territory of the Russian Federation and which should not run contrary to the Constitution of the Russian Federation and federal laws. 18. The Decree of 22 March 1995 provided that lay judges of district (town) courts had to continue their service until the adoption of the respective federal law. Executive authorities of the constituent elements of the Russian Federation had, if necessary, to organise by-elections of lay judges of district (town) courts at general staff meetings, general meetings and gatherings of citizens at their places of residence. 19. The Decree of 23 January 1997 provided, among other things, that lay judges of district courts had to continue their service until the adoption of the federal law on the procedure for appointment (election) of lay judges. 20. The Decree of 25 January 2000 provided that lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received new lists of lay judges confirmed by a regional legislative body. 21. The Act provided in section 1 that citizens of the Russian Federation had a right to take part in the administration of justice in the quality of lay judges. Lay judges were persons empowered by law to hear civil and criminal cases as part of the court panel and carry out their judicial duties on a non-professional basis. 22. Section 2 provided that lists of lay judges for every district court had to be compiled by respective local self-government bodies on the basis of lists of voters in the district. Such lists had to be validated by regional legislative assembly and submitted to the district court. The term of office of lay judges on the list was five years. 23. Section 3 provided that the following persons could not be selected as lay judges: persons who had convictions which had not been quashed, persons fully or partially deprived of their legal capacity by a competent court, civil servants of category “A” and persons occupying elective posts in local government bodies, prosecutors, investigators and persons registered with either drugs counsellors or psychiatrists. 24. Sections 5 and 6 provided that the president of the respective court had to draw a certain number of lay judges by lot from the list. Lay judges to sit in a particular case were to be drawn by lot by the professional judge who would hear the case from those drawn by lot by the president of the court. 25. Section 9 provided that lay judges could be called to sit in cases heard by a district court for a period of fourteen days, or as long as the proceedings in a particular case lasted. Lay judges could not be called on more than once a year. 26. The ruling provided that the president of a given court had to draw by lot from the list of lay judges, 156 names for each judge of the court. The lay judges for a particular case had to be drawn by lot by the professional judge to whom the case had been assigned. The sitting lay judges had to remain in office until new lists of lay judges arrived at the court. The regulation also provided that each court had to keep a record of the results of the selection at random of lay judges.