{"id":261,"date":"2019-04-06T14:11:46","date_gmt":"2019-04-06T14:11:46","guid":{"rendered":"https:\/\/laweuro.com\/?p=261"},"modified":"2021-09-22T12:58:26","modified_gmt":"2021-09-22T12:58:26","slug":"case-of-shaykhatarov-and-others-v-russia","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=261","title":{"rendered":"CASE OF SHAYKHATAROV AND OTHERS v. RUSSIA (European Court of Human Rights) Applications nos. 47737\/10 and 4 others \u2013 see appended list"},"content":{"rendered":"

THIRD SECTION
\nCASE OF SHAYKHATAROV AND OTHERS v. RUSSIA<\/strong>
\n(Applications nos. 47737\/10 and 4 others \u2013 see appended list)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n15 January 2019<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Shaykhatarov and Others v. Russia,<\/strong><\/p>\n

The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n

Helen Keller, President,
\nPere Pastor Vilanova,
\nMar\u00eda El\u00f3segui, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n

Having deliberated in private on 11 December 2018,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1. The case originated in five applications (nos.\u00a047737\/10, 53466\/10, 61884\/10, 21727\/11 and 22996\/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by five Russian nationals. Their details appear in Appendix below.<\/p>\n

2. The applicants were represented by Mr A. Laptev (applications nos.\u00a047737\/10, 53466\/10 and 61884\/10), a lawyer practising in Moscow, and Mr E. Mezak (applications nos.\u00a021727\/11 and 22996\/11. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr\u00a0G.\u00a0Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr\u00a0M. Galperin.<\/p>\n

3. On 22\u00a0November 2016 and 25\u00a0October 2017notice of the complaints concerning the composition of the tribunalwas given to the Government and the remainder of application no.\u00a053466\/10 was declared inadmissible pursuant to Rule\u00a054 \u00a7 3 of the Rules of Court.<\/p>\n

THE FACTS<\/strong><\/p>\n

I. THE CIRCUMSTANCES OF THE CASE<\/p>\n

A. Appointment of Ms G. to office<\/strong><\/p>\n

4. On 4 September 2000 the President of Russia appointed Ms G. to the office of judge of the Syktyvkar Town Court for a period of three years.<\/p>\n

5. On 21\u00a0May 2004 the State Council of the Komi Republic appointed Ms G. to the office of justice of the peace of Lesozavodskiy Judicial District of Syktyvkar for three years. On 31\u00a0May 2007 the Council extended her appointment for another seven years.<\/p>\n

6. On 16\u00a0January 2008 the Judicial Qualifications Board granted Ms\u00a0G.\u2019s application for resignation and terminated her judicial status effective as of 1\u00a0April 2008.<\/p>\n

7. On 19\u00a0November 2009 the acting President of the Supreme Court of the Komi Republic appointed Ms G. as actingjustice of the peace for Kutuzovskiy district in Syktyvkaras of 23\u00a0November 2009 pending the appointment of a permanent justice. According to the Government, Ms G. served as justice of the peace until 8\u00a0February 2010.<\/p>\n

8. On 8\u00a0April 2010 the acting President of the Supreme Court of the Komi Republic appointed Ms G. to the office of justice of the peace in Vylgort as of 16\u00a0April 2010 for a period of one year.<\/p>\n

B. Shaykhatarov v. Russia, application no.\u00a047737\/10<\/strong><\/p>\n

9. On 5, 9 and 29\u00a0May and 4\u00a0June 2010 the applicant was arrested by the police for (1) driving a vehicle without a registration plate, (2) driving without a driving licence,(3) refusal to take a breath test and (4) driving under the influence.<\/p>\n

10. On 4 and 22\u00a0June and 6\u00a0July 2010 Justice of the Peace G. found the applicant guilty onseven counts of road traffic offences and sentenced him to administrative detention and a fine.<\/p>\n

11. On an unspecified date the applicant appealed against the five judgments of 4\u00a0June 2010, arguing, inter alia, that the justice of the peace who had considered his cases had been appointed to the office in contravention of the applicable laws.<\/p>\n

12. On 24 and 30\u00a0June 2010 the Syktyvdinskiy District Court of the Komi Republic dismissed the applicant\u2019s appeal. The District Court discerned no irregularities as regards the appointment of Ms\u00a0G. to the office of justice of the peace.<\/p>\n

13. The applicant did not appeal against the judgments of 22\u00a0June and 6\u00a0July 2010 in view of the futility of his previous appeals.<\/p>\n

C. Lodygina v. Russia, application no.\u00a053466\/10<\/strong><\/p>\n

14. On 24\u00a0December 2009 Justice of the Peace G. dismissed the applicant\u2019s claims against the social-security authorities for interest payments and non-pecuniary damage.<\/p>\n

15. The applicant appealed, arguing, inter alia, that the justice of the peace who had considered her case had been appointed to the office in contravention of the applicable laws.<\/p>\n

16. On 23\u00a0April 2010 the Syktyvkar Town Court upheld the judgment of 24\u00a0December 2009 on appeal. The Town Court discerned no irregularities as regards the appointment of Ms\u00a0G. to the office of justice of the peace.<\/p>\n

D. Valiyev v. Russia, application no.\u00a061884\/10<\/strong><\/p>\n

17. On 9\u00a0May and 13\u00a0July 2010 the applicant was arrested by the police for refusal to take a breath test and driving under the influence respectively.<\/p>\n

18. On 13 July 2010 Justice of the Peace G. found the applicant guilty as charged and sentenced him to administrative detention.<\/p>\n

19. On an unspecified date the applicant appealed against the two judgments, arguing, inter alia, that the justice of the peace who had considered his cases had been appointed to the office in contravention of the applicable laws.<\/p>\n

20. On 6 August 2010 the Syktyvdinskiy District Court upheld the judgments on appeal. The District Court discerned no irregularities as regards the appointment of Ms\u00a0G. to the office of justice of the peace.<\/p>\n

E. Appointment of Ms Ch. to office<\/strong><\/p>\n

21. On 26\u00a0May 1990 Ms Ch. was elected to the office of judge of the Syktyvkar Town Court.<\/p>\n

22. On 22\u00a0December 1999 the Judicial Qualifications Board granted Ms\u00a0Ch.\u2019s application for resignation and terminated her judicial status.<\/p>\n

23. On 26\u00a0August 2010 the President of the Supreme Court of the Komi Republic appointed Ms Ch. as acting justice of the peace in Vylgort for a period of up to one year.<\/p>\n

24. On 11\u00a0January 2011 the President of the Supreme Court relieved Ms\u00a0Ch. of her duties of office of acting justice of the peace.<\/p>\n

F. Kulakov v. Russia, application no.\u00a021727\/11<\/strong><\/p>\n

25. On 21\u00a0September 2010 the applicant was arrested by the police for leaving the scene of a road traffic accident and refusal to take a breath test.<\/p>\n

26. On 15\u00a0October 2010 justice of the peaceCh. delivered two judgments, finding the applicant in violation of road traffic rules and sentenced him to administrative detention. The applicant appealed, arguing, inter alia, that Ms Ch. had been appointed to the office in contravention of the applicable laws.<\/p>\n

27. On 17\u00a0November the Syktyvdinskiy District Court of the Komi Republic upheld both judgments of 15\u00a0October 2010 on appeal. The court discerned no irregularity as regards Ms Ch.\u2019s appointment to the office of justice of the peace.<\/p>\n

G. Agiyeva v. Russia, application no.\u00a022996\/11<\/strong><\/p>\n

28. On 7\u00a0October 2010 Justice of the Peace Ch. allowed an action lodged by Yu. against the applicant and reduced the amount of monthly maintenance Yu. had to pay as child support for the parties\u2019 minor daughter. The applicant appealed, arguing, inter alia, that Ms Ch. had been appointed to her office in contravention of the applicable laws.<\/p>\n

29. On 8\u00a0December 2010 the District Court upheld the judgment of 7\u00a0October 2010 on appeal. The court discerned no irregularity as regards Ms\u00a0Ch.\u2019s appointment to the office of justice of the peace.<\/p>\n

II. RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n

30. Section 11(2) of the Judicial System Act(Federal Constitutional Law No.\u00a01-FKZ on the Judicial System of the Russian Federation, enacted on 31\u00a0December 1996) specified, at the relevant time, that only retired judges who had served for at least ten years could be appointed as an acting judge in accordance with the procedure set out in the Judicial Status Act.<\/p>\n

31. Section 7(1) of the Judicial Status Act (Law of the Russian Federation No.\u00a03132-1 on Judicial Status, enacted on 26\u00a0June 1992) provided at the material time that the president of a higher court, subject to the prior approval of the judicial qualifications\u2019 board, could appoint a retired judge as an acting judge for a period of up to one year.<\/p>\n

32. In its ruling no. 16-P of 16 July 2009 concerning the compliance of section 7(1) the Judicial Status Actthe Constitutional Court of the Russian Federation reiterated that only retired judges who had served for at least ten years could be appointed as acting judges (section 3.2 of the said ruling).<\/p>\n

THE LAW<\/strong><\/p>\n

I. JOINDER OF THE APPLICATIONS<\/p>\n

33. In accordance with Rule\u00a042\u00a0\u00a7\u00a01 of the Rules of the Court, the Court decides to join the applications, given their similar factual and legal background.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n

34. The applicants complained that their cases had not been examined by a \u201ctribunal established by law\u201d. Ms Lodygina also argued that the appellate court had not responded to her complaint as regards the lawfulness of appointment of Ms G. to office. The applicants relied on Article 6\u00a0\u00a7\u00a01 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n

\u201c1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a … hearing … by [a] … tribunal established by law.\u201d<\/p>\n

35. The Government contested that argument. They pointed out that Ms\u00a0G. and Ms Ch. had been appointed to the office of justice of the peace in strict accordance with the procedure set out in the Judicial Status Act, which, at the relevant time, had not specified that a retired judge had to have served at least ten years to be re-appointed to office.<\/p>\n

36. The applicants maintained their complaints. They alleged numerous irregularities as regards the re-appointment of Ms\u00a0G. and Ms\u00a0Ch. to office. In particular, relying on the Judicial System Act (see paragraph 30 above), they pointed out that neither Ms\u00a0G. nor Ms\u00a0Ch. had completed ten years\u2019service at the date of their retirement and, accordingly, should not have been re-appointed asjustices of the peace.<\/p>\n

A. Admissibility<\/strong><\/p>\n

37. The Court observes thatthe applicants\u2019 complaint was raised in respect of (1) the proceedings concerning determination of their civil rights and obligations (applications nos.\u00a053466\/10 and 22996\/11) and (2) the proceedings classified by the domestic legislation as administrative (applications nos.\u00a047737\/10, 61884\/10 and 21727\/11). It further observes that the Government did not object as to the applicability of Article\u00a06 of the Convention to the administrative proceedings in question. Regard being had to its well-established case-law on the application of Article\u00a06 of the Convention under its criminal limb (see Menesheva v. Russia, no. 59261\/00, \u00a7\u00a7\u00a094-98, ECHR 2006\u2011III), the Court does not reason otherwise. It considers that Article\u00a06 of the Convention applies.<\/p>\n

38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

B. Merits<\/strong><\/p>\n

39. The Court reiterates that,under Article 6 \u00a7 1 of the Convention, a \u201ctribunal\u201d must always be \u201cestablished by law\u201d. This phrase reflects the principle of the rule of law which is inherent in the entire system of the Convention and its Protocols. The phrase \u201cestablished by law\u201d covers not only the legislation concerning the establishment and jurisdiction of a tribunal (see Lavents v. Latvia, no. 58442\/00, \u00a7 114, 28 November 2002), but also the composition of the bench in each case (see Buscarini v.\u00a0San\u00a0Marino (dec.), no. 31657\/96, 4 May 2000, and Posokhov v. Russia, no.\u00a063486\/00, \u00a7\u00a039, ECHR 2003 IV). A \u201ctribunal\u201d referred to in Article\u00a06\u00a0\u00a7\u00a01 of the Convention must also satisfy a series of other conditions, including the independence of its members and the length of their terms of office, impartiality and the existence of procedural safeguards (see Co\u00ebme and Others v. Belgium, nos. 32492\/96, 32547\/96, 32548\/96, 33209\/96 and 33210\/96, \u00a7 99, ECHR 2000-VII).<\/p>\n

40. Turning to the circumstances of the present case, the Court notes that the national legislationsets forth a number of requirements to be satisfied by a retired judge in order to be re-appointed temporarily for an office. In particular, as established by the Judicial System Act and confirmed by the Constitutional Court, only retired judges who have served for at least ten years can be re-appointed as acting judgesin accordance with the procedure set out in the Judicial Status Act (see paragraphs 30 and 32 above). The Court notes that the said Federal Constitutional Law was in force at the relevant time and its provisionsshould have been applied to the re\u2011appointment of retired judges Ms\u00a0G. and Ms\u00a0Ch. to the office of justice of the peace. However, the Court discerns nothing in the Government\u2019s submissions to support their argument that the re-appointment of Ms\u00a0G. and Ms\u00a0Ch. to the office was in compliance with the legislative requirements. Prior to their retirement, Ms\u00a0G. and Ms\u00a0Ch. had served in office for approximately eight years and nine and a half years respectively. Nevertheless, despite the insufficient length of service, both of them were re-appointed to serve as justices of the peace. Neither the domestic courts nor the Government referred to any domestic provision that would justify the exemption from the rule set forth by the Federal Constitutional Law. The Government\u2019s argument that the Judicial Status Act, at the relevant time, did not indicate the requirement as to the minimum term of office necessary for the re-appointment of a retired judgehas no bearing in the circumstances of the case. As noted above, the requirement as regards the minimum term of office for a retired judge to be re-appointed was clearly provided for by the Judicial System Act in force at the relevant time.<\/p>\n

41. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article\u00a06\u00a0\u00a7\u00a01 of the Convention. A bench composed of these justices of the peace cannot be considered \u201ca tribunal established by law\u201d.<\/p>\n

42. In view of the above finding, the Court does not consider it necessary to examine Ms Lodygina\u2019s allegation that the appellate court failed to respondto a certain argument in her statement of appeal.<\/p>\n

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

43. Article 41 of the Convention provides:<\/p>\n

\u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n

A. Damage<\/strong><\/p>\n

44. The applicants\u2019 claims in respect of pecuniary and non-pecuniary damage are summarised in the table below:<\/p>\n\n\n\n\n\n\n\n\n\n
Application no.<\/td>\nPecuniary damage (Russian roubles)<\/td>\nNon-pecuniary damage (euros \u2013 EUR)<\/td>\n<\/tr>\n<\/thead>\n
47737\/10<\/td>\n10,000 (amount of the fine imposed)<\/td>\n45,500<\/td>\n<\/tr>\n
53466\/10<\/td>\n<\/td>\n8,000<\/td>\n<\/tr>\n
61884\/10<\/td>\n<\/td>\n14,000<\/td>\n<\/tr>\n
21727\/11<\/td>\n<\/td>\n8,000<\/td>\n<\/tr>\n
22996\/11<\/td>\n<\/td>\n5,000<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

45. The Government considered that there was no causal link between Mr Shaykhatarov\u2019s claims in respect of pecuniary damage and the violation alleged. They further submitted that the applicants\u2019 claims in respect of non\u2011pecuniary damage were excessive and unreasonable.In any event, the Government considered that the applicants\u2019 rights under Article\u00a06 of the Convention had not been violated and that no compensation should be awarded to them.<\/p>\n

46. The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicants did not have the benefit of the guarantees of Article 6 \u00a7 1 of the Convention. It cannot speculate as to what the outcome of the proceedings compatible with Article 6 \u00a7 1 might have been, had the requirements of this provision not been violated (compare Menchinskaya v. Russia, no. 42454\/02, \u00a7\u00a046, 15 January 2009; and Popov v. Russia, no. 26853\/04, \u00a7\u00a0260, 13 July 2006). It therefore rejects Mr Shaykhatarov\u2019s claim in respect of pecuniary damage. As tothe applicants\u2019 claims in respect of non-pecuniary damage, the Court awards each of them\u00a0EUR 2,500.<\/p>\n

B. Costs and expenses<\/strong><\/p>\n

47. Mr Kulakov and Ms Agiyeva did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award them any sum on that account.<\/p>\n

48. Mr Shaykhatarov, Ms Lodygina and Mr Valiyev claimed EUR\u00a05,000, EUR\u00a02,500 and EUR\u00a01,500 respectively for the costs and expenses incurred before the Court. They requested that the said amounts should be paid directly into the bank account of Mr Mezak and Mr Laptev.<\/p>\n

49. The Government submitted that the applicants had failed to substantiate their claims. They had not produced any receipts, payment orders, etc. to show that they had actually incurred those expenses. The Government considered that the applicants\u2019 claims should be dismissed.<\/p>\n

50. Regard being had to the documents in its possession and to its case\u2011law, the Court considers it reasonable to award the sum of EUR\u00a01,000 to Mr\u00a0E.\u00a0Mezak and EUR\u00a01,000 to Mr A. Laptev. The said awards are to be paid directly into the representatives\u2019bank accounts.<\/p>\n

C. Default interest<\/strong><\/p>\n

51. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Decides to join the applications;<\/p>\n

2. Declares the applications admissible;<\/p>\n

3. Holdsthat there has been a violation of Article 6\u00a0\u00a7\u00a01 of the Convention on account of the consideration of the applicants\u2019 cases by the tribunal not established by law;<\/p>\n

4. Holdsthat there is no need to examine the remainder of the complaints under Article 6 of the Convention, as regards application no.\u00a053466\/10;<\/p>\n

5. Holds<\/p>\n

(a) that the respondent State is to pay the applicants, within three monthsthe following amounts,to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:<\/p>\n

(i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each of the applicants;<\/p>\n

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, as regards applications nos. 47737\/10, 53466\/10 and 61884\/10. EUR\u00a01,000 of this sum is to be paid directly into the bank account of Mr A. Laptev and EUR\u00a01,000 is to be paid directly into the bank account of Mr E. Mezak;<\/p>\n

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n

6. Dismissesthe remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 15 January 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Fato\u015f Arac\u0131 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Helen Keller
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n

_____________<\/p>\n

APPENDIX<\/strong><\/p>\n

Details of the applications<\/u><\/p>\n\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication\u00a0no.<\/strong><\/td>\nDate of introduction<\/strong><\/td>\nApplicants\u2019 details (name, date of birth, place of residence)<\/strong><\/td>\n<\/tr>\n<\/thead>\n
1. <\/strong><\/td>\n47737\/10<\/td>\n28\u00a0July 2010<\/td>\nVladimir Sayakhatdinovich Shaykhatarov<\/strong><\/p>\n

14\u00a0February 1954<\/p>\n

Pazhga, Komi Republic<\/td>\n<\/tr>\n

2. <\/strong><\/td>\n53466\/10<\/td>\n22\u00a0July 2010<\/td>\nValentina Nikolayevna Lodygina<\/strong><\/p>\n

29\u00a0November 1956<\/p>\n

Syktyvkar, Komi Republic<\/td>\n<\/tr>\n

3. <\/strong><\/td>\n61884\/10<\/td>\n7\u00a0October 2010<\/td>\nRuslan Gaptelkhamitovich Valiyev<\/strong><\/p>\n

26\u00a0July 1981<\/p>\n

Vylgort, Komi Republic<\/td>\n<\/tr>\n

4. <\/strong><\/td>\n21727\/11<\/td>\n9\u00a0March 2011<\/td>\nPavel Aleksandrovich Kulakov<\/strong><\/p>\n

31\u00a0January 1975<\/p>\n

Vylgort, Komi Republic (prior to conviction)<\/td>\n<\/tr>\n

5. <\/strong><\/td>\n22996\/11<\/td>\n24\u00a0March 2011<\/td>\nLyudmila Vladimirovna Agiyeva<\/strong><\/p>\n

19\u00a0March 1985<\/p>\n

Vylgort, Komi Republic<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n