How to Win Unpromising Cases: April’s ‘Strasbourg Session’ in Moscow

posted 16 May 2011, 07:15 by Rights in Russia   [ updated 16 May 2011, 07:16 ]
Vera Vasileva, 22/04/11


· The Courts · Human Rights Defenders

Organised by the International Protection Centre, these regular discussions examine recent experience in applications to the European Court of Human Rights (ECtHR). The International Protection Centre was represented at the April session by defence lawyers Karinna Moskalenko, Anna Polozova, Anna Stavitskaya and Maria Samorodkina. They met for the traditional round-table discussion on 21 April at Moscow’s Independent Press Centre.

The principal subjects discussed were how to proceed with complaints about judicial decisions taken in Russia, focusing on decisions reached by an unlawfully constituted jury and the approach to taking civil lawsuits before the ECtHR in Strasbourg. The Russian authorities should not regard complaints to the Court by its citizens as undesirable, said Karinna Moskalenko in her opening remarks. They are beneficial since they help “to improve the quality of work, both in Russia’s courts and law-enforcement agencies, and, overall, improve the functioning of the entire administrative system”.

Lawyers from the International Protection Centre, she continued, usually have to work with difficult and apparently “hopeless” cases. “There are very few people in Russia who are serious about being defence lawyers,” she remarked. “As a result, we must not stop even when all the means of defence have been exhausted within Russia.”

A graphic example is the case of Alexander Savin.

The case of Alexander Savin

Alexander Savin is director of the Orthodox Non-Commercial Partnership and a client of Centre lawyer Anna Polozova. On 23 March 2011 the Russian Federation Supreme Court upheld the supervisory complaint (nadzornaya zhaloba) lodged by Anna Polozova and set aside the guilty verdict brought against Alexander Savin by an unlawfully constituted jury.

Almost two years earlier Savin was sentenced to 24 years in a strict regime penal colony by the Moscow Region Court. He was accused of committing several robberies and murders in the Moscow Region, supposedly as part of an organised criminal gang. After his appeal was rejected on 30 June 2009 Savin was sent to Kharp, a penitentiary institution above the Arctic Circle in the Yamalo-Nenets Autonomous District. This was the very same penal colony, incidentally, where Khodorkovsky’s co-defendant, the head of MFO Menatep Platon Lebedev, was formerly held.

The sentence passed on Savin was unlawful because substantive and flagrant infringements of the law occurred during the selection of the jury. One of the jurors, for example, took part in the judicial proceedings and in reaching the verdict when he had already been excluded, on the orders of the Moscow Region administration, from the list of those put forward as jurors. After sentence had been passed this juror was re-admitted to the list of prospective jurors, thereby correcting, supposedly, an error committed earlier. Adopted retrospectively, which is not acceptable, this decree does not nullify the offence committed by his participation in the trial.

When the jury was being chosen from among those called for jury service, moreover, the principle of random selection was violated. Three of the jurors, it turned out, were neighbours and knew one another. Another juror concealed evidence of his criminal record. Yet another came to court on the day of the verdict in a state of alcoholic intoxication and was incapable of taking part in the administration of justice. Another juror voted on his behalf and helped the man raise his arm when needed.

Alexander Savin does not admit his guilt. His lawyer Anna Polozova is also of the opinion that he is innocent. She thinks it possible she may now represent her client during a new examination of this criminal case before the Moscow Region Court.

“The Supreme Court knows that a court cannot be regarded as lawful when one of the jurors has been disqualified,” said Karinna Moskalenko, commenting on the situation. “They realise how repugnant this will appear to the European Court of Human Rights where the complaint has been registered. As a type of violation that infringes the right to a fair trial the unlawful constitution of a court is the most difficult to prove. When it is proven, however, it is an effective argument at the European Court.”

With the help of the International Protection Centre Alexander Savin has submitted a complaint to the ECtHR in Strasbourg about the violation of several of his rights under the European Convention: Article 6 (right to a fair trial); Article 5 (right to liberty and personal safety); Article 3 (prohibition of torture), this relates to conditions at Moscow’s pre-trial detention centres); and Article 8 (right to respect for private and family life), this relates to Savin’s despatch to a remote penal colony.

Polozova’s account of the Savin case led to a discussion among the assembled defence attorneys as to whether the prisoner had now lost his status as a victim under Article 6 (right to a fair trial) of the European Convention. Savin had not lost this right, they concluded, since he had yet to be acquitted.

Lawyers from the IDC believe that the Presidium of the RF Supreme Court has committed a further violation of Article 5 (right to liberty and personal safety) by first setting aside the conviction and then imposing custody on Savin as a measure of restraint. By law this should be a decision taken by the court of first instance in response to a petition from the relevant State organisation, for example, the prosecutor’s office. Yet no one petitioned that Savin be placed in custody as an appropriate measure of restraint.

The Sutyagin case

Defence attorney Anna Stavitskaya reminded her audience of another criminal case, against her client the scientist Igor Sutyagin, in which an unlawfully composed jury had also issued a verdict. A complaint about this case was submitted to the European Court as far back as 2002. Subsequently it was communicated, i.e. recognised as admissible, and the ECtHR asked questions of Russia’s representatives and Sutyagin’s counsel and received replies. As of now, however, the case has not yet been examined by the Court.

“It was discovered that one of the jurors considering charges against a man accused of espionage worked for the country’s Foreign Intelligence Service,” Stavitskaya told the meeting. “He said nothing about this during the selection process. He told people that he was the head of a Russian-Polish joint venture.” This juror, moreover, was not on the lists of the Moscow City Court but of the Moscow District Military Court and therefore had no right to serve on a jury in the former jurisdiction. There was more than one such “special” juror on the Sutyagin case, Stavitskaya believed.

Experience shows that women predominate on juries and there are few businessmen. The latter simply have no time to take part in court proceedings. The jury selected to hear the Sutyagin case, however, contained only two women while the men, if one could trust the statements they made, were almost all involved in business.

Sutyagin’s defence lawyer also recalled that invented grounds had been invoked to dismiss jurors first selected to take part in the trial. “We told the European Court of Human Rights that the jury was unlawfully composed and brought forward our arguments. This had been made possible, we added, because the parties were not admitted to the very first selection of jurors,” said Stavitskaya. “Defence and prosecution should be present and observe how this supposedly random selection takes place.”

In her view the ECtHR decision on this case is now important not so much for Igor Sutyagin, who is today at liberty, but as a precedent for all who may apply to Strasbourg concerning juries and cases linked to charges of espionage.

“We have known for many years how juries are selected in Russia. We don’t like it because there is no transparency at all,” Karinna Moskalenko said in conclusion. “Attempts by defence attorneys to ask questions always encounter resistance. However, we must be able to question jurors, in particular, about whom they had preliminary talks with in court. We must demand greater transparency. The preliminary selection of jurors as presently practiced emasculates the entire principle of random choice. Yet the jury [and its selection] represents civil society in the making and is our future.”

Improving civil cases at Strasbourg

Centre attorney Maria Samorodkina then discussed how lawyers dealing with civil cases could make best use of their complaints to the European Court of Human Rights.

The main provision within the Convention that guarantees the property rights of private individuals and legal entities is to be found in the additional Protocol to the Convention (Protocol 1), 20 March 1052. Article 1 (protection of property) of the Protocol reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

“The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

There were certain approaches that must be avoided, Samorodkina explained, if the ECtHR is not to consider a complaint inadmissible.

One, plaintiffs should be aware that Article One “defends only that property which has already been acknowledged by the State. The European Court can only consider a violation of someone’s right to property if there have been property rights but they have subsequently been infringed in some fashion,” Samorodkina told her audience. “When the right to property has not yet arisen, or the claim to such a right is disputed, the European Court will indubitably refuse to examine the case.”

It is interesting to note that the ECtHR considers the application of law within a particular country when resolving such issues, i.e. it studies the domestic legislation of the plaintiff’s homeland. This is one way in which the Court’s approach to civil cases differs to that adopted when it examines criminal cases. When the ECtHR issues a ruling on complaints about the handling of criminal cases, as we know, the Court does not examine these cases in substance.

Two, in submitting a complaint to Strasbourg a defence lawyer must be aware that the concept of the right to property applied by the European Court differs radically from the concept as applied in Russia. To be more exact, the concept is much broader and, extends above and beyond personal property and real assets to embrace court decisions, pension rights, the right of home-owners to charge rent, and economic interests linked to the conduct of business. As understood by the Court this also extends to the right to take up one or another occupation and, even, the legitimate expectations that certain conditions will be met in an individual situation. With reference to the last two points in Maria Samorodkina’s list, Karinna Moskalenko reminded her listeners of the case of Judge Olga Kudeshkina.

The European Court of Human Rights recognised that depriving Kudeshkina of her status as a judge was an infringement of her rights as defined by Article 10 of the European Convention (freedom of expression). Russia, however, has still not restored Kudeshkina’s right to practice as a judge. In Moskalenko’s opinion Kudeshkina now has grounds for making a new application to the ECtHR concerning the infringement of her rights under Article One of Protocol One.

“A ruling has already been issued that the judge was deprived of her right to practice in violation of the norms of the European Convention,” said Moskalenko. “In Russia judges are appointed for life and Kudeshkina had a legitimate expectation, therefore, that she would be paid a stable salary until she reached pensionable age.”

The next Strasbourg session will be held in May. Discussion is expected to continue about civil cases brought before the European Court of Human Rights.
Translated by John Crowfoot