Communicated on 15 November 2017
THIRD SECTION
Application no. 57491/16
Viktor Ivanovich NALIVAYKO against Russia
and 4 other applications
(see list appended)
SUBJECT MATTER OF THE CASES
The present applications raise, inter alia, various types and aspects of issues relating to the impartiality requirement under Article 6 § 1 of the Convention in relation to proceedings under the federal Code of Administrative Offences (CAO).
57491/16: After a traffic accident a police officer (who turned out to be a colleague of the other party’s relative) compiled an administrative-offence record against the applicant and then convicted him of the offence under Article 12.14 § 3 of the CAO and sentenced him to a fine of 500 Russian roubles (RUB), which was the maximum statutory penalty for this offence.[1] The applicant unsuccessfully sought judicial review of his conviction.
33819/17: The applicant was convicted under the CAO by judge M. This judgment was set aside on appeal. At the retrial judge M. refused to withdraw, re-examined the case and convicted the applicant again. The applicant appealed. The appeal court upheld the conviction. Later on, a judge reviewing the case stated that the quashing had been based on a “violation that [had not allowed] for a thorough, complete and objective examination of the case as required by Article 30.7 § 1(4) of the CAO”.
39949/17: An official of the Traffic Control Inspectorate compiled an administrative-offence record in respect of the applicant, then found him guilty of this offence and imposed a fine of RUB 5,000. This decision was then upheld on judicial review.
46218/17: An official of the regional office of the Federal Competition Authority compiled an administrative-offence record against the applicant, a chief officer of a State-owned “unitary enterprise”, accusing him of an offence relating to the public-purchase regulations. On 3 October 2016 the deputy chief officer of the same Office then convicted the applicant of the offence and sentenced him to a fine of RUB 30,000. The applicant unsuccessfully sought judicial review before a district court and then before a regional court.
63230/17: A traffic police officer compiled an administrative-offence record against G., a truck driver. A chief officer then sentenced him to a fine of RUB 4,000. In separate proceedings another officer compiled an administrative-offence record against the applicant for offences under Article 12.21.1 §§ 5 and 6 of the CAO. A chief officer then held a hearing and on 24 June 2016 sentenced the applicant (as the driver’s employer) to fines of RUB 150,000 and 200,000. The first fine was then confirmed on judicial review; the second charge was reclassified and the fine was reduced by the appeal court (judgments of 22 November 2016 as upheld on appeal on 15 February 2017).
QUESTIONS tO THE PARTIES
57491/16:
1. Having regard to the financial liability which arose for the applicant from the recognition of his guilt in the traffic accident in the CAO proceedings, did he sustain a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention in relation to his complaints under Article 6 of the Convention (compare Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, §§ 97-98, 4 March 2014, and Mikhaylova v. Russia, no. 46998/08, §§ 62-63, 19 November 2015)? Was his “case” “duly considered” by the traffic officer and the courts (compare Fomin v. Moldova, no. 36755/06, §§ 20 and 34, 11 October 2011; Flisar v. Slovenia, no. 3127/09, § 28, 29 September 2011; and C.M. v. Switzerland, no. 7318/09, §§ 21-27, 17 January 2017, with further references)?
2. Was the charge against him determined by an independent and impartial “tribunal”? If not, did the first-instance or appeal court provide a full re-hearing of the case and thereby provide redress for this alleged shortcoming (see also Karelin v. Russia, no. 926/08, §§ 58-84, 20 September 2016)?
3. Did the applicant have a fair hearing as required by Article 6 § 1 of the Convention, inter alia, as regards an adequate opportunity to have knowledge of and contest witness R.’s statement mentioned in the first‑instance judgment?
33819/17:
1.1. Has the applicant exhausted domestic remedies, as required by Article 35 § 1 of the Convention, as regards judge M.’s participation in the retrial? In particular, given the scope of Article 29.2 § 1 of the CAO, did the applicant have a prospect of success in lodging a procedural challenge (see also Article 29.3) against the judge on account of his repeated participation in the case and his active role (by way of summoning witnesses and the victim of the offence)? Does the fact that such challenge would be examined by the very same judge raise an issue (compare with A.K. v. Liechtenstein, no. 38191/12, §§ 79-84, 9 July 2015, and A.K. v. Liechtenstein (no. 2), no. 10722/13, § 66, 18 February 2016)? Was the applicant required to raise – instead or in addition – a related argument on appeal against conviction? Did such an argument have a prospect of success and give basis for providing adequate redress, for instance by way of setting aside the first‑instance judgment (Article 30.7 § 1(4); see also Decision no. 630-O-O of 27 May 2010 by the Constitutional Court)?
1.2. Having regard to the trial judge’s actual role at the retrial as well as the nature and scope of the appeal court’s conclusions resulting in its decision to set aside the trial judgment, was the charge against the applicant then re-determined by an “impartial tribunal” as required by Article 6 § 1 of the Convention (compare with Marguš v. Croatia [GC], no. 4455/10, § 86, ECHR 2014 (extracts); OOO ‘Vesti’ and Ukhov v. Russia, no. 21724/03, §§ 70-85, 30 May 2013; Vaillant v. France, no. 30609/04, §§ 34-35, 18 December 2008; Mancel and Branquart v. France, no. 22349/06, §§ 39‑40, 24 June 2010; and Golinelli and Freymuth v. France, nos. 65823/01 and 65273/01, §§ 44-46, 22 November 2005)?
2. Did the applicant have a fair hearing as required by Article 6 §§ 1 and 3 of the Convention? In particular, was he afforded an adequate opportunity – in particular during the retrial – to put forward a defence and to contest the adverse evidence such as the adverse testimonies given before or during the trial (namely, by Dzh., So., Fo.); expert evidence commissioned by the traffic police at the investigative stage of the proceedings (inter alia, by way of examining O. at the (re)trial or on appeal)?
39949/17:
Was the charge against the applicant determined by an independent and impartial “tribunal” as required by Article 6 § 1 of the Convention? Was the alleged defect then cured in the judicial-review proceedings (see Marčan v. Croatia, no. 40820/12, §§ 34-36, 10 July 2014)? In particular, did the courts have full jurisdiction as regards questions of fact and law and actually provide a complete re-hearing, which resulted in a re-determination of the charge against the applicant?
46218/17:
Was the requirement of objective impartiality under Article 6 § 1 of the Convention complied despite the absence of any prosecuting party from the hearing before the district court (compare with Weh and Weh v. Austria, (dec.), no. 38544/97, 4 July 2002, and Karelin v. Russia, no. 926/08, 20 September 2016)? In particular:
- Were the proceedings before the Competition Authority of a (quasi-) judicial nature? Was the applicant afforded an opportunity to make submissions, adduce evidence or challenge adverse evidence prior to the decision of 3 October 2015 or on judicial review?
- What was the Competition Authority’s statutory role in the judicial‑review proceedings under the CAO?
63230/17:
1. As regards the case concerning Article 12.21.1 § 6 of the CAO, has the applicant complied with the six-month rule under Article 35 § 1 of the Convention? What is the relevant date to be taken into account? In particular:
- Did Russian law provide at the time for a right to be served ex officio (by an appeal or first-instance court) with an appeal decision in a CAO case (Article 30.8 of the CAO)? If not, did the applicable regulations make it clear when the full text of an appeal decision was to be finalised and made available to the defence?
- Was the appeal decision read out in full on 15 February 2017 in the presence of the defence? When was the text of the appeal decision finalised and made available to the defence in the present case?
2. Was the requirement of objective impartiality under Article 6 § 1 of the Convention complied despite the absence of any prosecuting party from the hearings before the courts in both sets of proceedings against the applicant (compare with Weh and Weh v. Austria, (dec.), no. 38544/97, 4 July 2002, and Karelin v. Russia, no. 926/08, 20 September 2016)? In particular:
- Were the proceedings before the chief officer of the traffic police of a (quasi-) judicial nature? Was the applicant afforded an opportunity to make submissions, adduce evidence or challenge adverse evidence prior to the decision of 24 June 2016 or on judicial review?
- What was the traffic police’s statutory role in the judicial-review proceedings under the CAO?
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
57491/16
20/09/2016
Viktor Ivanovich NALIVAYKO
01/02/1950
Voronezh
33819/17
21/04/2017
Ilya Sergeyevich ATOPSHEV
05/08/1988
Gagino
39949/17
20/05/2017
Sergey Ivanovich MORARU
15/08/1977
Belgorod
46218/17
06/06/2017
Ilgiz Gilfandinovich NUREYEV
17/05/1973
Izhevsk
63230/17
15/08/2017
Aleksey Veniaminovich YEPANCHINTSEV
12/09/1958
Snezhnyy
[1] Less than 10 euros
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