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Karinna Moskalenko: "A triumph of justice! But is it a triumph of justice? "

27 December 2012 

Karinna Moskalenko 
On 26 December 2012 the Presidium of the Russian Supreme Court, having considered the argument of Chief Justice V.M. Lebedev, passed one of the most progressive rulings of recent times on cases in which an infringement of the right to fair trial had been found by the European Court.

The meeting of the Presidium of the Russian Supreme Court began at 10:00 am with a hearing of the case of Timur Idalov. On 22 May 2012 a ruling on this case had been made by the European Court of Human Rights, which had considered the application by Timur Idalov and found violations of a host of European Convention rules.

Among other violations, the ECtHR found that Timur Idalov suffered degrading treatment, that his pre-trial detention was unjustified and excessively long in duration, and that rulings made by the courts on pre-trial restrictions failed to meet the requirements of the European Convention.

Finally, the main finding of the Court was that there had been a violation of Timur Idalov's right to a fair trial. He had been removed from the courtroom for making numerous complaints and objections against the actions of the presiding officer, which the Khamovnichesky court believed constituted disorderly conduct in a court in session. What stands out is the fact that Timur Idalov was removed from the courtroom until the end of the trial, including during the questioning of witnesses and closing arguments. Timur Idalov was not even returned to the courtroom for the defendant's final statement.

The European Court found the court ruling to be disproportionate and noted that several norms relating to Article 6 of the European Convention had been broken. For example, that the case was heard in absentia and Timur Idalov was thereby deprived of the right to defend himself in person and to examine witnesses who gave testimony in the case. The Court found other violations of the rights of Timur Idalov. The European Court explicitly noted in its ruling that as the case was at the stage of a cassation hearing, the Russian courts still had the opportunity to restore the infringed rights of Timur Idalov, by one means only: to submit the case for a new trial. But the rights of the applicant were not restored as the cassation instance did not do this.

The main point of contention in the hearing by the Presidium of the Russian Supreme Court was the insistence by the spokesperson for the Russian General Prosecutor’s Office that there were no legal grounds for the verdict in the case of Timur Idalov to be overturned. The interests of Timur Idalov were represented by Moscow City Bar Association lawyers Maria Samorodkina and Karinna Moskalenko, as they had been in the European Court. The position of the lawyers was categorical: the only remedial measures possible in this case would be to overturn all court rulings made to date and allow Timur Idalov to exercise his rights as the accused in a new hearing of the case.

The Presidium of the Russian Supreme Court listened carefully to the parties and to Timur Idalov himself, who took part in this hearing via video link. The session of the Presidium was drawn out. Curiosity gradually mounted in the waiting room: "Could it be that the Presidium of the Russian Supreme Court will overturn the verdict?" wondered the defence. They began to argue over the impending decision.

On the whole, expectations were most pessimistic. Prior to that hearing, and in spite of rulings by the European Court, the Presidium of the Russian Supreme Court had refused to overturn verdicts, as had happened in the cases against Sutyagin, Fedorenko, and in other cases. However, in this case the key component of the European Court ruling had been that the only way to restore the infringed rights of the complainant would be to overturn the verdict and conduct a mandatory retrial. It should also not be forgotten that that ruling was made by the Grand Chamber of the European Court.

If the Presidium of the Russian Supreme Court were found to share the view of the General Prosecutor's Office, this would lead to an intractable conflict of positions between the European Court and the Supreme Court of Russia, and mean that there had ipso facto been an outright failure to implement a ruling of the European Court. This offered some hope that the Presidium of the Russian Supreme Court would not share the position of the General Prosecutor.

When the glow of debate and the tension of expectations had reached their limits, and the lawyers had concocted an emotive title for the devastating article they planned to write (we will not deny that catchy titles had already been put about for our own interview: 'The collapse of the judicial system' and the like), a bell rang, genially inviting us to proceed into the Presidium Chamber of the Russian Supreme Court. And suddenly, out of the blue, came something both expected and unexpected: a summation by Presidium members to the effect that all court rulings in the Idalov case were to be overturned – even all of the rulings on pre-trial restrictions...

It is a triumph of justice! But is it a triumph of justice? We won’t jump to any conclusions. I believe that the ruling by the Presidium of the Russian Supreme Court regarding Timur Idalov has been a very serious step towards the integration of the Russian courts into the functioning system of standards of international justice. No one can predict the manner in which the case will be heard in a new trial in the court of first instance. Nevertheless, I felt impelled to talk of a triumph for the rule of law in this, albeit isolated, yet highly significant test case.