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Постановление Европейского суда по правам человека от 09.07.2009 "Дело "Илатовский (Ilatovskiy) против Российской Федерации" [рус., англ.]





n that day and federal laws did not envisage any prolongation of the term of office for lay judges elected before the Lay Judges Act became binding. The President's Decrees could not serve as the legal basis for the extension of the term of office as they could not run contrary to federal laws.

B. The Court's assessment

1. Admissibility

35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

36. The Court reiterates that the phrase "established by law" covers not only the legal basis for the very existence of a "tribunal" but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), No. 31657/96, 4 May 2000). The Court is therefore required to examine allegations such as those made in the present case concerning a breach of the domestic rules for the appointment of judicial officers. The fact that the allegation in the present case concerned lay judges, does not make it any less important as, by virtue of Article 6 of the Code of Criminal Procedure then in force, in their judicial capacity lay judges enjoyed the same rights as professional judges.
37. The Court observes that it has found violations of Article 6 § 1 of the Convention in a number of cases against Russia pertaining to the appointment of lay judges (see, for example, Posokhov v. Russia, No. 63486/00, §§ 40 - 44, ECHR 2003-IV, and Fedotova v. Russia, No. 73225/01, §§ 41 - 44, 13 April 2006). The finding of a violation was made against the background of "the apparent failure to observe the requirements of the Lay Judges Act regarding the drawing of random lots and two weeks' service per year" and the domestic authorities' admission that there had been no lists of lay judges before Regional Legislatures approved lists of lay judges established under the new Lay Judges Act. The combination of these circumstances led the Court to conclude that the courts which heard the applicant's case had not been tribunals "established by law".
38. Turning to the facts of the present case, the Court notes that the parties disagreed whether the lay judges S. and B. had been elected to serve in the Primorskiy District Court in compliance with the RSFSR Judicial System Act and Courts Election Act and whether, at the time of passing the judgment of 27 December 2002, the status of lay judges S. and B. had been governed by the President's Decrees by which the lay judges' term of office had been extended or by the more recent Russian Lay Judges Act. The Court therefore, firstly, has to decide whether the essential requirements of the procedure for selection of lay judges, as laid down in the RSFSR Judicial System and Court Election Acts of 1981, were respected and then it has to proceed to the examination of the lawfulness of the extensions of the lay judges' term of office by the President's Decrees.
(a) Selection of lay judges S. and B.: legal basis and procedure followed
39. The Government, relying on a copy of a certain "Supplement to list No. 1", submitted that Mr S. had been elected to serve in the Primorskiy District Court in 1991. In this respect, the Court observes that the presented "Supplement" does not contain any indication that the individuals, including Mr S., enclosed in the list had, in fact, been selected to serve as lay judges in the Primorskiy District Court (see paragraph 7 above). The "Supplement" merely lists the names of eleven persons, their home address and place of work. The Government did not refer to any other source of information on the basis of which their assertion regarding the content of the "Supplement" could be verified. The Court observes - and this was not disputed by



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