THIRD SECTION
\nDECISION
\nApplication no.\u00a06427\/05
\nEmmin Gusseynogly GASANOV
\nagainst Russia<\/p>\n
The European Court of Human Rights (Third Section), sitting on 9\u00a0January 2018 as a Committee composed of:<\/p>\n
Luis L\u00f3pez Guerra, President,
\nDmitry Dedov,
\nJolien Schukking, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 24 January 2005,<\/p>\n
Having regard to the observations submitted by the respondent<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The 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.<\/p>\n 2.\u00a0\u00a0The Russian Government (\u201cthe Government\u201d) 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.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0In 2004 the Kirovskiy Regional Court (\u201cthe Regional Court\u201d) brought a claim against the applicant before the Leninskiy District Court of Kirov (\u201cthe District Court\u201d). It claimed compensation for damage resulting from a car accident involving a court vehicle and the applicant\u2019s car.<\/p>\n 5.\u00a0\u00a0On 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.<\/p>\n 6.\u00a0\u00a0The 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\u2019s impartiality as a court which was subordinated to the Regional Court.<\/p>\n 7.\u00a0\u00a0The appeal case file materials were passed on to the Nizhegorodskiy Regional Court (\u201cthe Appeal Court\u201d) for examination.<\/p>\n 8.\u00a0\u00a0On 12 October 2004 the Appeal Court dismissed the applicant\u2019s claim. It held, in particular, that the District Court had examined all the circumstances of the case and the parties\u2019 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.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 9.\u00a0\u00a0Article 16 of the Code of Civil Procedure (\u201cthe CCP\u201d) provides that a judge may not take part in the consideration of a case if he or she:<\/p>\n – has previously acted in the case, whether as a prosecutor, courtroom secretary, representative, witness, expert, specialist or interpreter;<\/p>\n – has a parental or other close family relationship with any of the parties or their representatives;<\/p>\n – 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.<\/p>\n 10.\u00a0\u00a0A case may not be assigned to judges related to each other.<\/p>\n 11.\u00a0\u00a0A 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).<\/p>\n 12.\u00a0\u00a0A court must refer a case to a different court if:<\/p>\n – 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;<\/p>\n – both parties ask the court to examine the case before a court in the place where most of the evidence is located;<\/p>\n – it transpires that a case has been taken up by a court in breach of the jurisdiction rules;<\/p>\n – 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).<\/p>\n 13.\u00a0\u00a0An appeal court reviews the factual and legal grounds underlying a first-instance court\u2019s 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\u2011instance court, and it upholds the factual and legal findings of the first\u2011instance court or establishes new facts or applies new law. An appeal court may review a first-instance court\u2019s decision in full, if so required by the law (Article 347).<\/p>\n 14.\u00a0\u00a0A first-instance court\u2019s 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\u00a0\u2012 regardless of the arguments presented in the grounds of appeal \u2012 if the case has been examined by a court constituted in breach of the law (Article\u00a0364).<\/p>\n 15.\u00a0\u00a0In 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\u2019s 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).<\/p>\n COMPLAINT<\/strong><\/p>\n 16.\u00a0\u00a0The 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.<\/p>\n THE LAW<\/strong><\/p>\n 17.\u00a0\u00a0The applicant complained that there had been a violation of his right to an independent and impartial tribunal. He referred to Article 6 \u00a7 1 of the Convention, which provides, in so far as relevant:<\/p>\n \u201cIn the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing…\u201d<\/p>\n 18.\u00a0\u00a0The 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\u2019s decision had been reviewed by an independent appeal court located in another region.<\/p>\n 19.\u00a0\u00a0The applicant maintained his complaint.<\/p>\n 20.\u00a0\u00a0The Court reiterates that there are two aspects to the requirement of \u201cimpartiality\u201d for the purposes of Article 6 \u00a7 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\u00a0June 1996, \u00a7\u00a7 30-31, Reports of Judgments and Decisions 1996\u2011III, and Findlay v. the United Kingdom, 25 February 1997, \u00a7 73, Reports 1997\u2011I).<\/p>\n 21.\u00a0\u00a0However, the Court does not see the need to make a conclusive finding about whether or not the first\u2011instance 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\u00a0December 1992, \u00a7 34, Series A no.\u00a0247\u2011B, and Ranson v.\u00a0the\u00a0United Kingdom (dec.), no.\u00a014180\/03, 2\u00a0September 2003).<\/p>\n 22.\u00a0\u00a0The 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\u2019s case\u2011law 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 \u201cfull jurisdiction\u201d 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.\u00a0the\u00a0Netherlands, 26 August 1997, \u00a7\u00a052, Reports 1997\u2011IV, and Kingsley v.\u00a0the United Kingdom [GC],no.\u00a035605\/97, \u00a7 32, ECHR 2002\u2011IV).<\/p>\n 23.\u00a0\u00a0The 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\u2019 depositions and the parties\u2019 submissions. In doing so, the court entirely reviewed the applicant\u2019s 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\u2019s 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, \u00a7 50, ECHR 2001\u2011II).<\/p>\n 24.\u00a0\u00a0Accordingly, 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 \u00a7\u00a7 3 and 4.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 1 February 2018.<\/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 Luis L\u00f3pez Guerra
\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