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





Russia, No. 41461/02, § 107, 24 July 2008).

II. Other alleged violations of the Convention

44. Lastly, the applicant complained that the District Court had refused to call several witnesses on his behalf and that the domestic courts had committed other gross violations of the domestic law.
45. However, having regard to its finding made in paragraph 42 that the fundamental defects in the composition of the bench which had tried the applicant undermined the fairness of the criminal proceedings against him, the Court considers it unnecessary to examine further the applicant's complaints pertaining to the domestic courts' alleged failure to summon defence witnesses and to comply with requirements of the domestic procedural law. It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

III. Application of Article 41 of the Convention

46. Article 41 of the Convention provides:
"If 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."

A. Damage

47. The applicant asked for the judgment of 27 December 2002, as upheld on appeal on 14 November 2003, to be quashed and his case re-examined by the domestic courts. He did not claim any compensation in respect of pecuniary and non-pecuniary damage.
48. The Government noted that it was not the Court's task to re-examine the facts of the applicant's case. It was for the domestic courts to issue a decision in his criminal case.
49. In this connection, the Court notes that in the present case it has found a violation of Article 6 § 1 of the Convention. Inasmuch as the applicant's claim relates to the finding of that violation, the Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see {Ocalan} v. Turkey [GC], No. 46221/99, § 210 in fine, ECHR 2005-IV, and Popov v. Russia, No. 26853/04, § 264, 13 July 2006). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention (see paragraph 28 above).
50. The Court further observes that the applicant did not submit a claim for compensation for pecuniary or non-pecuniary damage. Accordingly, the Court considers that there is no call to award him any sum on that account.

B. Costs and expenses

51. The applicant did not claim any amount for the costs and expenses incurred before the domestic courts and before the Court. Consequently, the Court does not make any award under this head.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the composition of the bench admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the absence of any legal grounds for the participation of the lay judges S. and B. in the administration of justice in the applicant's case;
3. Holds that there is no need to examine separately the complaint under Article 6 § 1 of the Convention pertaining to the extension of the lay judges' term of office by the President's Decree



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