THIRD SECTION
\nCASE OF REVTYUK v. RUSSIA
\n(Application no. 31796\/10)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n9 January 2018<\/p>\n
FINAL
\n09\/04\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Revtyuk v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Chamber composed of:<\/p>\n Helena J\u00e4derblom, President, Having deliberated in private on 5 December 2017,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 31796\/10) 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 a Russian national, Mr Aleksandr Vasilyevich Revtyuk (\u201cthe applicant\u201d), on 22 April 2010.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms O.Solod, a lawyer practising in St\u00a0Petersburg. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.<\/p>\n 3.\u00a0\u00a0The applicant alleged that the courts which had ordered and extended his detention on remand had not been impartial.<\/p>\n 4.\u00a0\u00a0On 1 December 2016 the above complaint was communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1984 and lives in Toksovo.<\/p>\n 6.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 7.\u00a0\u00a0On 2 October 2009 the applicant was arrested on suspicion of raping K., who was employedat the Vasileostrovskiy District Court in St\u00a0Petersburg as an assistant to Judge N., and who also was the daughter of that court\u2019s former president,Judge\u00a0K., who carried on working as a judge at that time.<\/p>\n 8.\u00a0\u00a0On 4 October 2009 Judge R. of the Vasileostrovskiy District Court remanded the applicant in custody. He rejected a challenge for bias which the applicant\u2019s lawyer raised in respect of the entire composition of the District Court because of a link between the alleged victim and the judges of that court. On 26 October 2009 the St Petersburg City Court upheld the detention order on appeal, rejectinga challenge by the applicant as unsubstantiated.<\/p>\n 9.\u00a0\u00a0On 30 November 2009 a deputy president of the City Court referred an application by an investigator for an extension order to the Oktyabrskiy District Court for consideration. The District Court granted the application on the following day. On 11 December 2009 the City Court upheld that decision on appeal. However, on 31 March 2010 the Supreme Court of Russia determined that the decision to refer the application to another district court had been invalid, because the City Court\u2019s deputy president had decided on the change of venue of his own initiative without hearingwhat the defendant\u2019s opinion on that issue was.<\/p>\n 10.\u00a0\u00a0On 30 December 2009 a further extension was granted by the President of the Vasileostrovskiy District Court, Judge Sh., who again rejected a challenge for bias by the applicant. On 26 January 2010 the City Court upheld the extension order on appeal. By a separate decision of the same date, it upheld the rejection of the challenge in respect of Judge Sh.:<\/p>\n \u201cThe available material indicates that the court considered the challenge for bias in accordance with the established procedure, and upon review of the parties\u2019 arguments found no grounds for the challenge; the stated grounds fall outside of the scope of Article\u00a061 of the Code of Criminal Procedure, as they do not indicate the presiding judge\u2019s interest in any predetermined outcome of the case …<\/p>\n In addition, when considering the challenge in respect of the presiding judge, the court had regard to the opinion of the prosecutor, who declared at the hearing on 30\u00a0December 2009 that there were no legal grounds for allowing the challenge …in particular because the hearing did not touch upon the defendant\u2019s guilt; it was not an examination of the merits of the case, but a hearing [on the remand matter].\u201d<\/p>\n 11.\u00a0\u00a0On 27 January and 27 February 2010 extension orders were issued by judges of the Kalininskiy District Court, which had territorial jurisdiction over the area where the applicant was detained. Those orders were upheld on appeal on 25\u00a0March and 8 April 2010.<\/p>\n 12.\u00a0\u00a0On 11 March 2010 the case against the applicant was referred to the Vasileostrovskiy District Court for trial and allocated to its President, Judge\u00a0Sh. On 23\u00a0March 2010 Judge Sh. allowed the applicant\u2019s challenge for bias in respect of the entire composition of that court, holding as follows:<\/p>\n \u201cIt has been established that the injured party in the criminal proceedings [K.] works as an assistant to the Vasileostrovskiy District Court\u2019s Judge [N.], and that her father [Judge K.] is a judge of the Vasileostrovskiy District Court. It follows that circumstances exist leading the defendant and his counsel to believe that [Judge Sh.] and all the judges of the Vasileostrovskiy District Court are, either directly or indirectly, interested in the outcome of the criminal case.<\/p>\n In order to ensure an impartial examination of the criminal case, the challenge … must be allowed and the case referred to the President of the St Petersburg City Court for determination of the territorial jurisdiction.\u201d<\/p>\n 13.\u00a0\u00a0Continuingthe same decision, Judge Sh. extended the applicant\u2019s detention until 12 May 2010. On the last day of the extended period the Presidium of the City Court, by way of supervisory review, quashed the decision of 23\u00a0March in part in relation to the detention matter,on the grounds that an extension could not have been granted by a judge who had recused himself. The Presidium extended the applicant\u2019s detention until 12\u00a0August 2010.<\/p>\n 14.\u00a0\u00a0On 15 April 2010 a deputy president of the City Court determined that the trial would be held in the Petrogradskiy District Court. On 31\u00a0March 2011 the Petrogradskiy District Court found the applicant guilty of rape and sentenced him to five years and six months\u2019 imprisonment.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 15.\u00a0\u00a0Articles 61-63 of the Code of Criminal Procedure describe situations in which a judge cannot sit on the bench in a particular case. The judge must withdraw if he is an injured party in that criminal case, if he has already participated in that criminal case in a different capacity, if he is a relative of any participant in the criminal proceedings, or \u201cif there are other circumstances which give reason to believe that [the judge] is personally, either directly or indirectly, interested in the outcome of the criminal case\u201d.<\/p>\n 16.\u00a0\u00a0Article 65 establishes the procedure for considering challenges for bias. If the criminal case or an application for preventive measures has been assigned to a single-judge formation, a challenge in respect of the judge must be considered by the judge himself (Article 65 \u00a74).<\/p>\n 17.\u00a0\u00a0The Constitutional Court has consistently refused to find that Article\u00a065 \u00a74 is incompatible with the Constitution, holding that the requirements to decide on the challenge in compliance with Articles 61-63 and to give a reasoned decision based on specific factual elements of the case are sufficient guarantees against its arbitrary application. In addition, \u201cthe fairness and impartiality of the judge\u2019s decision areguaranteed by the entire system of criminal law measures and procedures, including control by the hierarchically superior courts\u201d (decisions no. 237-O-O of 19 March 2009, no. 1807-O of 21 November 2013, no. 1048-O of 29 May 2014, no.\u00a02082-O of 29 September 2015, and no. 115-O of 28 January 2016).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 4 OF THE CONVENTION<\/p>\n 18.\u00a0\u00a0The applicant complained that the decisions on his pre-trial detention had not been issued by an impartial tribunal, because the injured party had been an employee of the Vasileostrovskiy District Court and a family member of Judge K. of that court. The applicant alleged a violation of Article 5 \u00a7 4 of the Convention, which reads as follows:<\/p>\n \u201cEveryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\u201d<\/p>\n 19.\u00a0\u00a0The Government submitted that Judge K. had had the status of a witness in the criminal proceedings and had not taken part in those proceedings in his judicial capacity. For the avoidance of doubt, further extension orders had been issued by different courts in St Petersburg, and the trial venue had been moved to the Petrogradskiy District Court. The Government claimed that the judicial position of the victim\u2019s father had not been a sufficient reason for declaring the proceedings unlawful.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 20.\u00a0\u00a0The Court considers that the application 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.\u00a0\u00a0Merits<\/strong><\/p>\n 21.\u00a0\u00a0The Court reiterates that, even though the wording of Article 5 \u00a7 4 of the Convention, which enshrines the right \u201cto take proceedings [in] a court\u201d, is different from that of Article 6 \u00a7 1 in that it does not contain an explicit mention of that court\u2019s independence and impartiality, it would be inconceivable to suppose that the provision relatingto such a fundamental issue as the freedom from an arbitrary deprivation of libertywould not require, as a fundamental guarantee, the independence and impartiality of the court (see D.N. v.\u00a0Switzerland [GC], no. 27154\/95, \u00a7 42, ECHR\u00a02001\u2011III; Lavents v. Latvia, no. 58442\/00, \u00a7 81, 28 November 2002; B\u00fclb\u00fcl v.\u00a0Turkey, no.\u00a047297\/99, \u00a7\u00a7 26-28, 22 May 2007; Ramishvili and\u00a0Kokhreidze v.\u00a0Georgia, no.\u00a01704\/06, \u00a7 133, 27 January 2009; and Ali\u00a0Osman \u00d6zmenv. Turkey, no. 42969\/04, \u00a7 85, 5 July 2016).<\/p>\n 22.\u00a0\u00a0It is of fundamental importance in a democratic society that the courts inspire confidence in the public and, above all, as far as criminal proceedings are concerned, in the accused. To that end, a tribunal must be \u201cimpartial\u201d both from a subjective standpoint, implying the absence of the personal conviction or interest of a given judge in a particular case, and under an objective test,meaningthat it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges\u2019 personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect, even appearances may be of a certain importance. When deciding whether, in a given case, there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Kyprianou v. Cyprus [GC], no.\u00a073797\/01, \u00a7\u00a7 118-19, ECHR 2005\u2011XIII, and Morice v. France [GC], no.\u00a029369\/10, \u00a7\u00a7 73-78, ECHR 2015).<\/p>\n 23.\u00a0\u00a0In the instant case, the applicant stood accused of a sexual assault on K., a female employee of the Vasileostrovskiy District Court who was an assistant to Judge N. of that court and also the daughter of Judge K. of that court who had also been its former president. Both Judge K. and Judge N. had the status of witnesses in the criminal proceedings against the applicant, but they were not involved in those proceedingsin their judicial capacity. Nevertheless, the applicant\u2019s fear of a lack of impartiality stemmed from the fact that their colleagues\u2013 full-time judges of the criminal section of the Vasileostrovskiy District Court \u2013 remanded him in custody and subsequently extended his detention. As there was no complaint regarding the personal conduct of those judges, the case must therefore be examined from the perspective of the objective impartiality test. More specifically, the Court must address the question of whether hierarchical or other links with other actors in the proceedings may objectively justify misgivings as to the impartiality of the tribunal (see Micallef v. Malta [GC], no. 17056\/06, \u00a7 97, ECHR 2009).<\/p>\n 24.\u00a0\u00a0The Court has previously dealt with cases in which the fear of a lack of impartiality related to the perception that a judge would not be impartial if the matter involved another member of the same court. In one case, the Court found that judges\u2019working relationship with a colleaguewho was the brother of a party to a civil dispute,and a friendship between one of them and that same colleague,did not suffice to make an objective observer legitimately fear that they would not regard their oath made upon taking judicial office as taking precedence over any social commitments (see A.K.\u00a0v. Liechtenstein, no. 38191\/12, \u00a7 75, 9 July 2015).In a more relevant context of criminal proceedings, the Court considered that,where a trial concernedan applicant\u2019s responsibility for the death of a judge\u2019s daughter, andwhere that trial was presided over by that judge\u2019s colleague from the same court, the situation prompted objectively justified doubts as to the impartiality of all the judges of the trial court (see Mitrov v.\u00a0the\u00a0former Yugoslav Republic of Macedonia, no. 45959\/09, \u00a7\u00a055, 2\u00a0June 2016).<\/p>\n 25.\u00a0\u00a0The latter case is similar to the present one, where judges were called upon to take decisions in respect of the applicant, who had been charged with assaulting the daughter of their colleague. Although the available information about the relationships that had formed between the judges of the Vasileostrovskiy District Court is not as detailed as it was in the Mitrov case (see, in particular, Mitrov, cited above, \u00a7\u00a7 53 and 54), the applicant\u2019s misgivings as to the impartiality of the court must be held to be objectively justified in the light of the court president\u2019s decision to allow his challenge for bias against the entire composition and move the trial to another district court in St Petersburg (see paragraph 12 above). However, that decision concerned the trial stage and could be sufficient to satisfy the requirements of Article 6 \u00a7 1, whereas the applicant\u2019s complaint related to the pre-trial stage of the proceedings and was formulated under Article 5 \u00a7 4 of the Convention.<\/p>\n 26.\u00a0\u00a0At the pre-trial stage a total of five decisions regarding the detention on remand were issued, of which the first and third were given by Judge R. of the Vasileostrovskiy District Court and its President, Judge Sh., respectively (see paragraphs 8 and 10 above). On each occasion the applicant filed a challenge for bias, and on each occasion it was rejected as unsubstantiated. In accordance with Article 65\u00a74 of the Russian Code of Criminal Procedure (see paragraph 16 above), the challenges were decided by the same judges who were being challenged. The Court has already found that the procedure by which judges did not actually decide, but merely appeared to decide, on challenges for bias against themselves was incompatible with the requirement of impartiality (see A.K. v. Liechtenstein, cited above, \u00a7\u00a7\u00a076-84, and A.K. v. Liechtenstein (no. 2), no. 10722\/13, \u00a7 66, 18 February 2016). This finding applies a fortiori in the circumstances of the present case, where the judges considered and rejected challenges which concerned themselves,thereby breaching the fundamental principle of justice that no one should be a judge in his own cause (nemo judex in causa sua).<\/p>\n 27.\u00a0\u00a0That being said, the Court reiterates that a possibility certainly exists whereby a higher court may, in some circumstances, make reparation for defects that took place in first-instance proceedings (see Kyprianou, cited above, \u00a7 134). The Russian Constitutional Court has also considered that a measure of control by higher courts is an important guarantee against the risk of arbitrary decisions on challenges for bias (see paragraph 17 above). The City Court, acting as a court of appeal, had the power to quash the detention or extension orders issued by the VasileostrovskiyDistrict Court on the grounds that that court had not been sufficiently impartial; such a decision could have a legal basis in the \u201cother circumstances\u201d clause under Article 61 \u00a72 of the Code of Criminal Procedure (see paragraph 15 above), which was later relied upon to change the venue of the trial. However, on neither occasion did the City Court carry out an independent analysis of the applicant\u2019s arguments as to the District Court\u2019s alleged lack of impartiality, and each time it endorsed the District Court judge\u2019s self-assessment as being impartial (see paragraphs 8 and 10 above). Moreover, the language of the City Court\u2019s decision of 26\u00a0January 2010 indicatedthat the requirement of impartiality of the tribunaldid not apply at the pre-trial stage with the same force, if at all, as it would during the hearing on the merits. This approach is incompatible with the Convention requirement that the \u201ccourt\u201d referred to in Article 5 \u00a7 4 should meet the same stringent standards of independence and impartiality (see the case-law cited above in paragraph\u00a021).<\/p>\n 28.\u00a0\u00a0In view of the above considerations, the Court finds that the applicant\u2019s misgivings as to the perceived lack of impartiality of the judges of the Vasileostrovskiy District Court were objectively justified, and that the procedure for deciding on his challenges for bias was fundamentally flawed. By contrast, the other three extension orders issued by other district courts in St Petersburg did not give rise to any comparable issues.<\/p>\n 29.\u00a0\u00a0There has accordingly been a violation of Article 5 \u00a7 4 of the Convention in respect of the detention orders issued by the Vasileostrovskiy District Court, and no violation of Article 5 \u00a7 4 in respect of the other detention orders.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 30.\u00a0\u00a0Article 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 31.\u00a0\u00a0The applicant claimed 3,987.86 euros (EUR) in respect of pecuniary damage, an amount representing his loss of earnings during the entire detention period, and EUR 21,000 in respect of non-pecuniary damage. He did not claim any costs or expenses.<\/p>\n 32.\u00a0\u00a0The Government submitted that Article 41 should be applied in accordance with the Court\u2019s established case-law.<\/p>\n 33.\u00a0\u00a0As regards the applicant\u2019s claim for lost income, the Court cannot speculate as to what the course of the detention proceedings might have been had the requirements of Article 5 \u00a7 4 been complied with. It perceives no causal link between the violation found and the pecuniary damage alleged, and rejects the applicant\u2019s claim for compensation under this head (see A.K. v. Liechtenstein, cited above, \u00a7 89, and Chmel\u00ed\u0159 v. the Czech Republic, no.\u00a064935\/01, \u00a7 74, ECHR 2005\u2011IV). On the other hand, it awards the applicant EUR 5,000 in respect of non-pecuniary damage.<\/p>\n 34.\u00a0\u00a0The 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.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 5 \u00a7 4 of the Convention in respect of the detention orders issued by the Vasileostrovskiy District Court, and no violation of Article 5 \u00a7 4 in respect of the other detention orders;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention,EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 9 January 2018, 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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Helena J\u00e4derblom
\nBrankoLubarda,
\nLuis L\u00f3pez Guerra,
\nDmitry Dedov,
\nPere Pastor Vilanova,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nJolienSchukking, judges,
\nand Fato\u015f Arac\u0131, DeputySection Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n