Communicated on 31 August 2017
THIRD SECTION
Application no. 58138/09
Mikhail Nikolayevich MIRONOV against Russia
and 2 other applications
(see list appended)
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Application no. 58138/09, Mironov v. Russia
3. On 16 August 2005 the Municipality of the Gdovskiy District of the Pskov Region issued a decision to sell a land plot to the applicant. His father, who was the head of the Municipality, and he concluded a sale contract with regard to this land plot.
4. In June 2007 the prosecutor of the Pskov Region brought civil proceedings against the applicant before the Gdovskiy District Court of the Pskov Region seeking to have the sale invalid. At the same time he initiated criminal proceedings against the applicant’s father for selling land plots to his relatives at the underestimated price and charged him with abuse of powers.
5. On 25 December 2007 the Justice of the Peace of the Court Circuit No. 3 of the Gdovskiy District dismissed the prosecutor’s claim.
6. On 10 June 2008 the Gdovskiy District Court sitting as a single judge formation presided by judge A. quashed the decision of 25 December 2007 and declared the sale null and void.
7. Meanwhile, the criminal case against the applicant’s father was referred to the Gdovskiy District Court for trial by three judges; one of them was judge A.
8. On 7 July 2008 judge A. withdrew himself from the criminal case. His withdrawal statement read as follows:
“Please be advised that I have examined the civil claim against [the applicant] filed by the prosecutor of the Pskov Region who sought to declare the land plot sale invalid. The writ of indictment in the criminal case contains facts which have already been considered in civil proceedings [against the applicant]. Thus, I have already made point that the sale of the land plots to the accused’s relatives was unlawful. In view of the above, please accept my withdrawal as I cannot sit as a judge ... in this criminal case.”
9. On 21 July 2008 the Pskov Regional Court referred the criminal case to another court. It held that the Gdovskiy District Court comprises only three judges, therefore, it could not allow judge A.’s withdrawal.
10. On 10 October 2008 the Pskov Regional Court quashed the decision of 10 June 2008 on the ground that neither the applicant, nor his lawyer attended the hearing on 10 June 2010 and remitted the case to the Gdovskiy District Court for a fresh examination.
11. The applicant lodged a challenge against judge A. referring to judge A.’s withdrawal statement. He noted that he had a legitimate doubt as to his impartiality.
12. On 18 November 2008 judge A. considered the applicant’s challenge and dismissed it. He held that a withdrawal of a judge in a criminal case could not be a ground for a challenge against a judge in a civil case according to the Code of Civil Procedure.
13. On 26 January 2009 the Gdovskiy District Court sitting in a single‑judge formation and presided by judge A. quashed the decision of 25 December 2007 and allowed the prosecutor’s claim.
2. Application no. 17749/11, Zubkov v. Russia
14. On unspecified date the applicant sued a public hospital for failure to provide him with subsidised drugs.
15. On 15 April 2010 the Moscovskiy District Court of Kazan allowed his claim in part. It held that the applicant’s general practitioner had not prescribed him all necessary drugs recommended by a cardiologist. The hospital lodged an appeal.
16. On 3 June 2010 the Supreme of the Republic of Tatarstan, sitting in a panel of three judges, which included judge Kh., presiding the panel, judges R. and V., quashed the decision of 15 April 2010 and remitted the case for a fresh examination. It held that the first instance court had ignored the fact that the applicant’s doctor had prescribed him drugs which had been equivalent to those recommended by the cardiologist.
17. On 21 July 2010 the Moskovskiy District Court of Kazan, referring to the depositions of the hospital’s representative and an opinion of an independent cardiologist, held that the doctor had prescribed the applicant all drugs recommended by the cardiologist or equivalent drugs and dismissed his claim. The applicant lodged an appeal and a challenge against judge Kh. stating that she had already sat in the panel at the appellate court on 3 June 2010.
18. On 6 September 2010 his appeal was examined and rejected by a panel of the Supreme Court of the Republic of Tatarstan composed of judges Kh., F. and G. Judge Kh. acted as president and rapporteur in the examination of the applicant’s appeal. Judges F. and G. considered the applicant’s challenge against judge Kh. and rejected it without indicating any reasons.
3. Application no. 27906/17, Vedernikov and OOO TVBTS v. Russia
19. On 1 October 2013 the applicants sued a private company claiming to protect their rights to some intellectual property.
20. On 8 April 2014 the Moscow City Commercial Court dismissed their claim.
21. On 2 December 2014 the Ninth Commercial Court of Appeal (hereinafter “the Court of Appeal”) sitting in a panel of three judges including presiding judge V., judges Lav., and Lev., quashed this decision and dismissed their claim again on other grounds.
22. On 25 March 2015 the Intellectual Property Court quashed the decision of 2 December 2014, remitted the case for a fresh examination to the Court of Appeal and instructed it to analyse a statement on falsified evidence and to request other evidence supporting or refuting allegations in this statement.
23. On 4 September 2015 the applicants lodged a challenge against judges V., Lav. and Lev. stating that they had already participated in the examination of their case.
24. On 7 September 2015 the president of the Court of Appeal rejected the applicants’ challenge holding that they had not proved that the judges were directly or indirectly interested in the outcome of the case or that there were other circumstances raising doubts as to their impartiality.
25. On 14 September 2015 the Court of Appeal sitting in a panel of three judges, including presiding judge V., judges Lav. and Lap., quashed the decision of 8 April 2014 but ignored the Intellectual Property Court’s instruction about the statement on evidence.
26. On 18 December 2015 the Intellectual Property Court quashed the decision of 14 September 2015, remitted the case for a fresh examination to the Court of Appeal and instructed it to examine the merits of the case and to establish whether the applicants had any rights to the intellectual property in question and when they had acquired them, whether the defendants had tried to misuse this intellectual property, indicate in the minutes of the hearing its decision as to Mr Vedernikov’s statement on falsification of evidence.
27. The applicants lodged a challenge against judges V., Lav. and Lap. stating that they were biased for the reasons described above.
28. On 2 March 2016 the president of the Court of Appeal rejected the applicants’ challenge on the same grounds as on 7 September 2015.
29. On 5 May 2016 a panel of three judges of the Court of Appeal including presiding judge V., judges Lav. and Lap. quashed the decision of 8 April 2014 and dismissed the applicants’ claim. The applicants challenged this decision stating that the judges had failed to comply with the Intellectual Property Court’s instructions and that the same panel of judges had examined the case for the third time, therefore, they had legitimate doubts as to judges’ impartiality.
30. By decision of 3 October 2016, as upheld by the Supreme Court of Russia on 8 December 2016, the Intellectual Property Court upheld the decision of 5 May 2016. It stated that the Court of Appeal had complied with its instructions and, referring to the provisions of the Code of Commercial Procedure, rejected the applicants’ arguments on biased judges.
B. Relevant domestic law and practice
1. Code of Civil Procedure: provisions on impartiality
31. A judge may not take part in the consideration of any case if he or she:
- has previously acted in the case, whether as a prosecutor, courtroom secretary, representative, witness, expert, specialist or interpreter;
- has a parental or other close family relationship with any of the parties or their representatives;
- has a personal direct or indirect interest in the case or for any other reason, his or her impartiality may be called into doubt.
32. A case may not be assigned to judges who are relatives (Article 16).
33. A judge who examined a case at a first instance court may not sit at an appellate court considering this case. A judge who ruled on a case at an appellate court may not consider this case at a first instance court (Article 17).
34. A withdrawal of a judge from a case shall be reasoned and submitted before examining the merits of the case. A withdrawal in the course of examination of the case is impossible unless a person who requests withdrawal or the court have become aware of reasons for withdrawal during examination of the case on merits (Article 19).
35. In case of withdrawal, the court takes into account the opinion of parties to the proceedings and a person who wants to withdraw from the case. A challenge against a judge sitting in a single judge formation is considered by this judge. If a case is assigned to a panel of judges, this panel shall rule on the challenge against the judge in absence of this judge. In case of a challenge against several or all judges, all judges shall decide by a simple majority vote (Article 20).
2. Code of Civil Procedure: provisions on presiding judge
36. A judge sitting in a single judge formation shall act as a presiding judge. When a case is assigned to a panel of judges at a district court, one of its judges or its president shall be the presiding judge. As to other courts, a judge, president or deputy president of the relevant court shall assume the functions of a presiding judge (Article 156).
37. A presiding judge shall provide guidance at the hearings, contribute to comprehensive assessment of evidence and facts of the case and eliminate everything which is irrelevant to the case. A presiding judge shall also ensure discipline at a hearing. His or her orders are binding for all parties to the proceedings and persons attending the hearing.
3. Code of Commercial Procedure: provisions on impartiality
38. A judge may not take part in the consideration of and shall withdraw from any case if he or she:
- has previously acted in the case as a judge and his or her participation in re-examination of the case is not in line with the Code of Commercial Procedure;
- has previously acted in the case as a prosecutor, assistant of a judge, courtroom secretary, representative, expert, specialist, interpreter or witness, judge of a foreign court or arbitration panel;
- is a relative of a party to the proceedings or of his or her representative;
- has a personal direct or indirect interest in the case or for any other reason, his or her impartiality may be called into doubt;
- has had a subordinate relationship with or has been otherwise dependent on any of the parties or his or her representative;
- has expressed opinions publicly or has made statements on the merits of the case.
39. A case may not be assigned to judges who are relatives (Article 21).
40. Articles 22, 24 and 25 of the Code of Commercial Procedure contain provisions similar to those provided for in Articles 17, 19 and 20 of the Code of Civil Procedure described above.
41. A cassation court (including the Intellectual Property Court) may quash or change a decision of an appellate court and remit the case for a fresh examination to this appellate court stating that the case shall be considered by a different panel of judges, if the decision is not in line with effective procedural law under Article 288 of the Code or if the appellate court has drawn wrong conclusions when assessing facts of the case or evidence. It also may quash or change a decision of an appellate court and remit the case for a fresh examination to other appellate court located in the same court circuit if the cassation court examines the case for the second time and the appellate court’s conclusions are unsupported by the facts of the case or evidence (Article 287).
4. Case-law of domestic courts
42. Pursuant to Ruling no. 12 of the Supreme Commercial Court of Russia of 17 February 2011, when a case is remitted for a fresh examination, as a general rule, the same formation of the appellate court shall consider the case, unless the cassation court prescribes otherwise (point 3.13).
43. According to decisions nos. 2501-О and 465-О-О of the Constitutional Court of Russia, the courts shall determine whether a judge was biased based on particular circumstances of each case. In case of any doubts as to the impartiality of the judge, the higher court may remit the case for a fresh examination to a different judicial formation of the relevant lower court.
COMPLAINTS
44. The applicants complain under Article 6 of the Convention that the judges who considered their cases were biased.
QUESTIONS TO THE PARTIES
Were the courts which dealt with the applicants’ cases, as required by Article 6 § 1 of the Convention? Did the judges provide sufficient reasons when rejecting the applicants’ challenges?
Appendix
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
58138/09
26/07/2009
Mikhail Nikolayevich MIRONOV
12/08/1981
Pskov
Russian
Ivan Valeryevich POPOV
17749/11
21/02/2011
Vladimir Nikolayevich ZUBKOV
26/03/1936
Kazan
Russian
27906/17
02/04/2017
Konstantin VEDERNIKOV
24/11/1978
Riga
Stateless
OOO TVBTS
03/05/2006
Riga
Inessa SHULTE
Full & Egal Universal Law Academy