Постановление Европейского суда по правам человека от 23.04.2009 «Дело Московец (Moskovets) против России» [англ.]

/> 1. Admissibility

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

2. Merits

96. The Court notes at the outset that the applicant's complaint is twofold. First of all, he challenges the lawfulness of the appointment of the lay judges who sat on the bench in his case, and secondly he questions the judicial capacity of the above lay judges after 1 January 2004.
97. 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 requested to examine allegations such as those made in the present case concerning a breach of the domestic rules for appointment of judicial officers. The fact that the allegation in the present case concerned lay judges does not make it any less important as, pursuant to Article 15 of the Code of Criminal Procedure then in force, in their judicial capacity lay judges enjoyed the same rights as professional judges (see paragraph 34 above).
98. The Court observes that the parties' dispute focuses on the extent to which the participation of lay judges Ms D. and Mr S. in the applicant's trial complied with the domestic legislation, notably the Lay Judges Act.
99. The Court notes that in compliance with Section 2 of the Lay Judges Act on 18 September 2002 the St Petersburg City Legislature validated the general list of 514 lay judges assigned to the Krasnogvardeyskiy District Court of St Petersburg (see paragraphs 38 and 42 above). The Court notes, however, that no information on the general lists of lay judges for other district courts of St Petersburg were provided by the Government. Thereafter the president of the City Court had to select from the general lists of the district courts situated in St Petersburg 156 lay judges for each judge of the City Court (see paragraphs 39, 40 and 43 above). In this connection the Court observes, first of all, that on 27 September 2002 the acting president of the City Court conducted the selection only on the basis of the general list of lay judges assigned to the Krasnogvardeyskiy District Court. Besides, only 102 lay judges were selected and there was no further reassignment between the judges of the City Court. The Court further observes that on 11 November 2002 Judge Kurguzov, to whom the applicant's case had been assigned, instead of drawing lots among 156 lay judges in order to select two to sit on the bench for the hearing of the applicant's case, drew lots among six unidentified lay judges and as a result selected lay judges Ms D. and Mr S. Regard being had to the above circumstances, the Court considers that the procedure provided for by the domestic law for selection of lay judges and drawing of random lots for their participation in the applicant's case had been breached on several occasions.
100. The Court reiterates that it has found a violation of Article 6 § 1 of the Convention in other Russian cases in which it had been established that the selection of lay judges had been conducted contrary to the requirements of the Lay Judges Act (see Posokhov v. Russia, No. 63486/00, §§ 40 - 44, ECHR 2003-IV; Fedotova v. Russia, No. 73225/05, §§ 38 - 44, 13 April 2006; Shabanov and Tren v. Russia, No. 5433/02, §§ 28 - 32, 14 December 2006; and, most recently, Barashkova v. Russia, No. 26716/03, §§ 30 - 34, 29 April 2008). There is no reason to reach a different conclusion in the present case, and, therefore, no need to examine further the second aspect of the applicant's complaint concerning the judicial capacity of the lay judges Ms D. and Mr S. after 1 January 200



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