CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 octobre 2010

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He was represented before the Court by Mr S. Belozertsev and Mrs K. Moskalenko, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The applicant's arrest and pre-trial proceedings At about 10 pm on 23 May 2000 police arrested the applicant in the apartment building in which he lived. According to the arrest report, the applicant was arrested on suspicion of illegal acquisition and storage of narcotic drugs on a large scale but not for the purpose of sale, an offence under Article 228 §1 of the Criminal Code (see “Relevant domestic law” below). On 24 May 2000 criminal proceedings were instituted against the applicant under Article 228 § 1 of the Criminal Code. On 26 May 2000 the applicant was charged. On the same date investigator S. in charge of the applicant's case ordered him to be placed in pre-trial detention. It appears that the applicant remained in detention until his conviction on 4 September 2000 and that he was detained in remand prison no. 48/3 of Moscow. He alleged, in general terms, that the conditions of his detention there had been poor and that he had not been provided with adequate medical assistance. On 1 July 2000 the charges against the applicant were reclassified as illegal acquisition, storage of narcotic drugs on a “particularly large scale” for the purpose of sale, and transportation and sale of drugs, an offence under Article 228 § 4 of the Criminal Code (see “Relevant domestic law” below). In particular, he was accused of having acquired 0.56 g of heroin for the purpose of sale and having sold a part of it (0.08g ) to R. at about 5 pm on 23 May 2000. He had kept the remaining drugs (0.48g) until his arrest by the police at 10 pm the same day. The drugs had been found on him after he had been brought to the police station. The applicant alleged that he had only learnt about the reclassification of the charges on 17 July 2000 when he and his lawyers read the materials of the criminal case file. The applicant also alleged that during the pre-trial proceedings he had asked to see a priest but the investigator had dismissed his request. On 24 July 2000 the applicant's case was referred to the Nikulinskiy District Court of Moscow (“the Nikulinskiy District Court”) for trial. 2.     The trial Between July and September 2000 the Nikulinskiy District Court, composed of one professional judge, Mr Bobkov, and two lay judges, Ms   Matuzova and Mr Rubtsov, examined the charges against the applicant. The applicant was represented by two counsel. At the trial the applicant submitted that he had been a drug addict since 1996. However, he had never supplied drugs to R. or to anybody else. On 23 May 2000 he had met R. twice, at 5 pm and at 10 pm. At their first meeting R. had suggested that they go for a walk, but he had refused. At 9   pm he had received a pager message from R. saying that he was on his way over. They had met at 10 pm in the apartment building in which the applicant lived. R. had offered to sell him heroin for 200 roubles, but he (the applicant) had refused. Afterwards police had arrested him and brought him to the police station where they had found some heroin in his pockets. He had bought those drugs from a woman. He explained that at the second meeting with R. he had had heroin in his pocket because just before that meeting he had taken drugs. The trial court heard several witnesses, among which were R. and the two police officers who had arrested the applicant after his meeting with R. Witness R. submitted that during the last month before his arrest he had been buying drugs from the applicant. At 5 pm on 23 May 2000 he had gone to the applicant's home and had bought drugs from him. The police had arrested him when he was coming out of the apartment building in which the applicant lived. They had found on him heroin which he had bought from the applicant. He had told the police that he had bought those drugs from a person called “Petr” and had given them the numbers of his mobile phone and his pager and had said that he could indicate where that person lived. He had also agreed to cooperate with the police in the arrest of the drug dealer “Petr” and participate in a sting operation by posing as a buyer of drugs. The police officers had given him 200 roubles. He had arranged a meeting with the applicant at around 10 pm on 23 May 2000. The applicant did not appear for a long time. Then, the applicant had sent him a pager message saying that he (the applicant) was probably being surveyed. The applicant had asked him to give him a sign when the coast was clear. He (R.) had done so. When the applicant had approached him, the police had arrested him. He had not bought any drugs from the applicant. Police officers B. and S. submitted that in spring 2000 they had received information that a young man residing at the address which later turned out to be the applicant's address had been supplying drugs. They had started to survey the apartment building in question. At 5 pm on 23 May 2000 they had arrested R. on whom they found heroin. R. had said that he had bought heroin from a young man called “Petr” and had indicated the latter's address and a phone number. Later they had established that “Petr” had been Petr Aleksandrovich Sevastyanov, the applicant. R. had agreed to cooperate with police in the arrest of the applicant. An order for a sting operation had been issued and R. had been given 200 roubles in cash. R. had arranged a meeting with the applicant at 9.50 pm. on 23 May 2000 at the latter's apartment building. They had gone there with R. and two other police officers. The applicant had not appeared at the arranged time. He had sent to R. a pager message saying that he was being surveyed. Later he had sent another message asking R. to give him a sign when the coast was clear. R. had done so. The applicant had come out of his flat and approached R. At that moment he had noticed the police officers. He had tried to escape but police had arrested him. R. had not bought any heroin from the applicant. The applicant had been brought to the police station where a packet of heroin had been found in his pocket. The applicant had explained that he had bought those drugs from a woman called “Luda”. The applicant had submitted that on 23 May 2000 he had not sold any drugs to R., but had given them to R free of charge. Witness T. stated that on 23 May 2000 he had been invited to the police station where he had seen the police take a packet containing powder out of the applicant's trouser pocket . The applicant had explained that the packet contained heroin, which he had bought from a young girl called “Luda”. After having examined other evidence, the Nikulinskiy District Court held that it had had complete confidence in the statements by witness R., who had no criminal record, had not been registered with either a drugs counsellor or a psychiatrist, had positive references and had given detailed and coherent evidence. His statements had been confirmed by police officers B. and S. and witness T. The Nikulinskiy District Court further held that the applicant's guilt had been proven by the statements by R., police officers B. and S. and witness T., and by other evidence examined during the trial. It came to the conclusion that the applicant had illegally acquired 0.56 g of heroin, a part of which (0.08 g) he had sold to R. On 4 September 2000 the Nikulinskiy District Court found the applicant guilty of illegal acquisition and storage of narcotic drugs on a particularly large scale for the purpose of sale and of illegal sale of drugs and sentenced him to eight years' imprisonment. 3.     The appeal proceedings On 7 September 2000 the applicant's lawyer appealed against the judgment of 4 September 2000 to the Moscow City Court (“the City Court”). Subsequently the applicant and his lawyer filed additional grounds of appeal. They complained, in particular, that the applicant had been convicted on the basis of evidence given by R., acting as a police agent and by two police officers. They further complained that lay judge Rubstov 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. 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 powers of lay judge Rubtsov. The results of the inquiry carried out by the Supreme Court Justice Department in respect of the powers of lay judge Rubstov 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 Administration of the Gagarinskiy District 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 Rubstov) 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 preserved. Nevertheless, lay judge Rubstov had in his possession the card of the 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 of 23.01.97 No. 41, of 12.12.98 No. 64, of 02.01.00 No.37, of 25.01.00 No.103 extended the powers of the previously selected lay judges until the adoption of the Federal Law on the selection of lay judges and the compilation of common lists of lay judges.”   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 confirmed by the evidence examined during the trial. Regarding the allegedly unlawful composition of the trial court, the appeal court held that the powers of lay judge Rubstov had been extended in accordance with the Presidential decrees. The court also noted that the fact that lay judge Rubstov worked for the court as a clerk had not prevented 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.   4. Supervisory review proceedings On 13 February 2002 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 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 had to be classified under Article 228 § 1 of the Criminal Code as illicit procurement and storage of drugs without intent to sell. The Supreme Court amended the judgment of 4 September 2000 and the decision of 3 April 2001, convicted the applicant under Article 228 § 1 of the Criminal Code 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. B.     Relevant domestic law 1.   Provisions governing the selection of lay judges and their participation in the examination of criminal cases Article 15 of the Code of Criminal Procedure of 1960, which was applicable until the entry into force of the new Code of Criminal Procedure on 1 July 2002, 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 the professional judge. The Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction in the Russian Federation, which was applicable to criminal proceedings between 10 January 2000 and 1 January 2004, provided in Article 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. Article 2 of that law 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 powers of lay judges on the list were valid for five years. Article 3 of that law provided that the following persons could not be selected as lay judges: persons who had unquashed convictions, 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. Articles 5 and 6 of that law provided that the president of the respective court had to draw at random a certain number of lay judges from the list. Lay judges to sit in a particular case were to be drawn at random by the professional judge who would hear the case from those drawn at random by the president of the court. Article 9 of that law provided that lay judges had to 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. The Supreme Court's ruling on the selection of lay judges of 14 January 2000, in force until 5 August 2002, provided that the president of a given court had to draw at random 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 at random 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. The President's 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. 2. Criminal Code of the Russian Federation of 1996   At the material time illicit procurement or storage of drugs without intent to sell was punishable under Article 228 § 1 of the Code. Illicit procurement or storage of drugs with intent to sell and the sale of drugs in “particularly large” quantities were punishable under Article 228 § 4 of the Code. COMPLAINTS   1.     The applicant complained under Article 6 of the Convention that: (a)     the Nikulinskiy District Court that had convicted him on 4   September 2000 could not be considered to have been “established by law”. In particular, Mr Rubstov, who had been sitting in his case as a lay judge, had no powers to do so, since he had not been on the list of lay judges selected to sit in cases examined by the Nikulinskiy District Court. (b)     lay judge Rubstov had not been independent vis-à-vis the professional judge sitting in his case since he worked at the Nikulinskiy District Court as a clerk and had not been discharged of his functions during the applicant's trial; (c)     the trial court had convicted him of sale of drugs on the basis of evidence given by R., who had acted in collaboration with the police, and two policemen involved in the staged purchase of drugs; (d)     for nine days after his arrest he had not been not provided with a lawyer; he and his lawyers had learnt about the reclassification of the charges against him only on 17 July 2000 and had not had sufficient time to prepare a defence; he had not been allowed to see one of his representatives between 1 and 3 September 2000 and during the preparation of the grounds of appeal; he and his lawyers had not been allowed to make a final speech after the speech of the prosecutor during the trial; the trial court had refused to order the comparative expert examination of the heroin confiscated from R. and of heroin found in the applicant's pocket and to examine the fingerprints on the packets of heroin; the prosecution had not provided to the trial court and to the defence the information which they had allegedly received prior to the applicant's arrest concerning a young man involved in the sale of drugs and to which they had referred during the trial; the court had refused to request from the telephone company and to add to the case file the record of pager messages by which, according to the prosecution, R. had arranged the meeting with the applicant; (e)     the length of the criminal proceedings against him had been unreasonable. 2.     The applicant further complained under Article 3 of the Convention that the conditions of his detention in remand prison no. 48/3 of Moscow had been inhuman and that he had not been provided with adequate medical assistance there. 3.     The applicant also complained under Article 5 that his arrest on 23   May 2000 and his detention between 24 and 25 July 2000 had been unlawful, that there had been no grounds to keep him in custody and that after his arrest he had not been brought before a judge. 4.     The applicant further complained under Article 9 that during his pre-trial detention the investigator refused his request to see a priest. 5.     Finally, he complained under Article 14 of discrimination against him on the grounds of his drug addiction. THE LAW 1.     The applicant complained under Article 6 of the Convention that the criminal proceedings against him had been unfair. In particular, he alleged that lay judge Rubtsov had had no powers to sit in his case and that he had not been independent vis-à-vis the professional judge sitting in his case since he had been employed by the Nikulinskiy District Court and had not been discharged of his functions during the examination of the applicant's case. He further alleged that his conviction of drug offences had been unlawful since it had been based on statements by R., who had acted as a police agent, and the two police officers who had taken part in the police covert operation. Article 6 of the Convention, in so far as relevant, provides as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.” (a)     Allegedly unlawful participation of lay judge Rubstov in the applicant's trial The Government submitted that lay judge Rubstov had been competent to sit in the applicant's case. In particular, according to a letter by the President of the Nikulinskiy District Court of Moscow in 1991 the local representative body had approved a list of lay judges of the Gagarinskiy District Court of Moscow. Lay judge Rubstov had been on that list. That letter stated that at present the Gagarinskiy District Court of Moscow was called the Nikulinskiy District Court of Moscow. Subsequently, the term of office of lay judge Rubstov had been extended by the Presidential decrees. Between September and November 2000 lay judge Rubstov had taken part in the examination of criminal and civil cases in the Nikulinskiy District Court for 17 days, that is, more than the maximum period of 14 days provided for by law. That had been due to a difficult situation which existed before new lists of lay judges had been compiled. However, the applicant's case had been the first one on the list of cases in which lay judge Rubstov had sat. Therefore, on the date of the applicant's trial the maximum period of 14 days had not been attained. The applicant argued that the Government had not provided any document confirming the selection of Mr Rubstov to sit in cases examined by the Nikulinskiy District Court. According to him, the Gagarinskiy District Court of Moscow and the Nikulinskiy District Court of Moscow were two different courts which had two distinct addresses. Therefore, the selection in 1991 of Mr Rubstov to sit as a lay judge in the Gagarinskiy District Court had not provided him with powers to sit in cases heard by the Nikulinskiy District Court. The applicant further referred to a letter of the President of the Nikulinskiy District Court from which it followed that in April 1999 there had been 10 lay judges in the Nikulinskiy District Court and which included a list of those judges. However, Mr Rubstov had not been on that list. Furthermore, lay judge Rubstov had already started to sit in cases examined by the District Court in January 2000. Therefore, by the date of the applicant's trial he had sat in cases for more than 14 days. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. (b)     Alleged lack of independence of lay judge Rubstov The Government submitted that Article 3 of the Law on Lay Judges (see “Relevant domestic law” above) provided an exhaustive list of persons who could not be selected as lay judges. Staff of the registries of district courts were not included on that list. Moreover, by an order of 5 January 2000 the President of the Nikulinskiy District Court had discharged Mr Rubstov of his functions in the Nikulinskiy District Court for the period of his participation in the examination of cases as a lay judge. Therefore, he had not been dependent on the professional judge sitting in the applicant's case. The applicant argued that the order to which the Government had referred had not been included in the criminal case file. Therefore, he had doubts as to the authenticity of that document. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. (c)     Allegedly unlawful conviction of sale of drugs as a result of police incitement The Government submitted that the Supreme Court convicted the applicant of illegal acquisition and storage of heroin for his own use. At the trial the applicant had admitted that he had been using drugs since 1996 and that on the date of his arrest the police had found on him heroin which he had acquired for his own use. Therefore, the organisation by the police of the sting operation had had no impact on the applicant's acquisition of drugs for his own use. The applicant argued that initially he had been convicted of illegal acquisition of drugs for the purpose of sale and of sale of drugs. Subsequently, following the supervisory review of his case, his actions had been reclassified into illegal acquisition and storage of drugs for his own use. His initial conviction of sale of drugs had been based, to a large extent, on the results of the sting operation. The Court observes that initially the applicant was convicted of sale of drugs to R., which took place during their first meeting on 23 May 2000. It has been established by the domestic courts that at that moment R. had not yet been acting in collaboration with police. Subsequently the supervisory review court amended the applicant's conviction into illegal acquisition and storage of heroin for his own use having found that the criminal case file had not contained any evidence which would allow it to be established with sufficient credibility that the applicant had acquired the drugs for the purpose of sale and that he had sold them. Therefore, the Court agrees with the Government that the organisation by the police of the sting operation had had no impact on the applicant's acquisition of drugs for his own use. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     The Court has finally examined the remainder of the applicant's complaints as set out above under point 1 (d) and (e) and points 2-5. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant's complaints concerning the allegedly unlawful composition of the trial court and the alleged lack of independence of the trial court. Declares inadmissible the remainder of the application.   Søren Nielsen   Christos Rozakis   Registrar   President