Last Updated on November 6, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 6427/05
Emmin Gusseynogly GASANOV
against Russia
The European Court of Human Rights (Third Section), sitting on 9 January 2018 as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 24 January 2005,
Having regard to the observations submitted by the respondent
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr EmminGusseynoglyGasanov, is a Russian national who was born in 1984 and lives in Kirov. He was represented before the Court by Mr V.V. Babintsev, a lawyer practising in Kirov.
2. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 2004 the Kirovskiy Regional Court (“the Regional Court”) brought a claim against the applicant before the Leninskiy District Court of Kirov (“the District Court”). It claimed compensation for damage resulting from a car accident involving a court vehicle and the applicant’s car.
5. On 5 August 2004 the District Court held that the applicant had been responsible for causing the road accident and ordered him to pay damages to the claimant.
6. The applicant lodged an appeal in which he submitted, among other things, that the District Court had breached the provisions of Article 6 of the Convention. In particular, he questioned the District Court’s impartiality as a court which was subordinated to the Regional Court.
7. The appeal case file materials were passed on to the Nizhegorodskiy Regional Court (“the Appeal Court”) for examination.
8. On 12 October 2004 the Appeal Court dismissed the applicant’s claim. It held, in particular, that the District Court had examined all the circumstances of the case and the parties’ submissions, had studied the evidence, and had given an assessment of it. It also found that the District Court had objectively assessed the evidence, had reached the right conclusions, and had based its decision on the relevant domestic law.
B. Relevant domestic law
9. Article 16 of the Code of Civil Procedure (“the CCP”) provides that a judge may not take part in the consideration of a case if he or she:
– has previously acted in the case, whether as a prosecutor, courtroom secretary, representative, witness, expert, specialist or interpreter;
– has a parental or other close family relationship with any of the parties or their representatives;
– has a personal direct or indirect interest in the case, or if his or her impartiality may be called into doubt for any other reason.
10. A case may not be assigned to judges related to each other.
11. A judge who has previously examined a case before a first-instance court may not sit at an appeal court considering the same case. A judge who ruled on a case before an appeal court may not consider it again before a first-instance court if the case is remitted (Article 17 of the CCP).
12. A court must refer a case to a different court if:
– a defendant whose place of residence or temporary abode is unknown asks the court to remit the case to a court at his place of residence or temporary abode;
– both parties ask the court to examine the case before a court in the place where most of the evidence is located;
– it transpires that a case has been taken up by a court in breach of the jurisdiction rules;
– after the withdrawal of one or more judges sitting in the case, or for any other reason, it becomes impossible to replace the judges or if the examination of the case by that court is impossible. The referral must be made by a superior court (Article 33).
13. An appeal court reviews the factual and legal grounds underlying a first-instance court’s decision. It examines both existing evidence and additional evidence if it is established that a party was unable to submit that evidence to the first‑instance court, and it upholds the factual and legal findings of the first‑instance court or establishes new facts or applies new law. An appeal court may review a first-instance court’s decision in full, if so required by the law (Article 347).
14. A first-instance court’s decision will be quashed on appeal in the event of a breach or a misapplication of the procedural law if such breach or misapplication has resulted or could have resulted in a wrong court decision on a case. The decision of the first-instance court will be quashed on appeal ‒ regardless of the arguments presented in the grounds of appeal ‒ if the case has been examined by a court constituted in breach of the law (Article 364).
15. In the event that a first-instance court decision has been quashed by an appeal court and the case referred for a fresh examination, the appeal court’s instructions are binding for the court re-examining the case. An appeal court may not predetermine the issues of the validity and importance of the evidence and prescribe what decision is to be issued after a fresh consideration of the case (Article 369).
COMPLAINT
16. The applicant complained under Article 6 of the Convention that a claim brought against him by the Regional Court had not been heard by an independent and impartial court.
THE LAW
17. The applicant complained that there had been a violation of his right to an independent and impartial tribunal. He referred to Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing…”
18. The Government submitted that the domestic courts had considered the case in full compliance with the Russian law, and there was no indication that the judge of the District Court had been biased. The District Court’s decision had been reviewed by an independent appeal court located in another region.
19. The applicant maintained his complaint.
20. The Court reiterates that there are two aspects to the requirement of “impartiality” for the purposes of Article 6 § 1. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is to say, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Moreover, in order to establish whether a tribunal can be considered as “independent”, regard must be had, inter alia, to the existence of guarantees against outside pressures and the question of whether the body presents an appearance of independence (see, amongst many authorities, Thomann v. Switzerland, 10 June 1996, §§ 30-31, Reports of Judgments and Decisions 1996‑III, and Findlay v. the United Kingdom, 25 February 1997, § 73, Reports 1997‑I).
21. However, the Court does not see the need to make a conclusive finding about whether or not the first‑instance tribunal lacked impartiality because in determining issues of fairness for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole, including the decision of the appeal court (see Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247‑B, and Ranson v. the United Kingdom (dec.), no. 14180/03, 2 September 2003).
22. The Court considers that the real issue in the present case is whether the Appeal Court was capable of remedying any perceived unfairness at first instance. It is well established in the Court’s case‑law that a defect at first instance may be remedied on appeal, so long as the appeal body has full jurisdiction. Where a complaint is made of a lack of impartiality on the part of the decision-making body, the concept of “full jurisdiction” entails that the reviewing court not only considers the complaint but also has the ability to quash the impugned decision and either to make the decision itself, or to remit the case for a new decision by an impartial body (see De Haan v. the Netherlands, 26 August 1997, § 52, Reports 1997‑IV, and Kingsley v. the United Kingdom [GC],no. 35605/97, § 32, ECHR 2002‑IV).
23. The Court notes that the Appeal Court in the present case reached its own conclusion regarding the road accident on the basis of evidence, including in particular witnesses’ depositions and the parties’ submissions. In doing so, the court entirely reviewed the applicant’s case, both from a procedural and a substantive-law point of view, and considered whether it was inappropriate to remit the matter for retrial. In addition to having studied the lower court’s case file and the submissions by the parties, the Appeal Court heard evidence from the parties at a public hearing. The applicant therefore had ample opportunity to convince the Appeal Court of the merits of his arguments (see Dallos v. Hungary, no. 29082/95, § 50, ECHR 2001‑II).
24. Accordingly, the Court finds that the proceedings were not, taken as a whole, unfair and that the application is manifestly ill-founded. It must therefore be declared inadmissible under Article 35 §§ 3 and 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 February 2018.
Fatoş Aracı Luis López Guerra
Deputy Registrar President
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