The ECHR, in a pilot decision, called for reforming administrative proceedings in Russia

On September 20, the European Court of Human Rights (ECtHR) issued a pilot judgment in the case of Karelin vs. Russia (No. 926/08), which considers the actual absence of the prosecution in proceedings on administrative offenses as a violation of the right to a fair trial under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In March 2012 the applicant was arrested for disorderly conduct and fined 500 rubles for using profanity. The applicant complained to the ECtHR about the violation of the right to a fair trial (Article 6 of the Convention):

“The applicant argued that, in the absence of any prosecution authority or official [in the administrative process], the burden of proof for the prosecution lies solely with the judge, who has no choice but to seek, on his own initiative, arguments refuting the applicant's arguments. This fact cannot but upset the balance in the assessment of evidence, as well as the practical implementation of the principle of equality of arms and adversarial process.”

Two years ago, a similar complaint was considered in the Constitutional Court of Russia (09/25/2014), but the Constitutional Court refused to satisfy the applicants' claims. The Court stated that the absence of a prosecutor in administrative proceedings does not in itself mean that the functions of prosecution are assigned to a judge.

The ECtHR recognized in this case a violation of the Right to a Fair Trial (Article 6 of the Convention) and, due to the systemic nature of the problem, considered it necessary to indicate the general measures necessary to prevent other similar violations in the future.

The Court considers that Russia should, first of all, by adopting appropriate legislative and/or other measures, adopt in its domestic legal system a mechanism that provides sufficient guarantees to ensure the impartiality of the courts hearing such cases, by introducing prosecution authorities (a representative of the prosecutor's office or other public body), in those processes where there is an oral hearing

It should be noted that the pilot judgments of the ECtHR fix the presence of structural problems in the state and suggest that the state must take certain legislative measures to avoid repetition of violations, pilot judgments are adopted so that complaints of the same nature are considered in the ECHR in an expedited and simplified manner.

Commentary of Tatyana Glushkova, lawyer of the Human Rights Center "Memorial":

The judgment "Karelin v. Russia" obliges Russia to ensure the impartiality of judges considering cases of administrative offenses. What does it mean?

Currently, the process in such cases is structured as follows: in most cases, the judge and the person being prosecuted (and possibly the latter's lawyer) are in the courtroom. Involved, of course, proves his innocence: expresses some arguments, asks the court to attach evidence to the case file, interrogate witnesses. But there is no prosecutor in the courtroom, so there is no one to refute the arguments of the accused and prove his guilt. In such circumstances, the court must either trust the only available party to the process, or begin to independently collect evidence of the guilt of the person held accountable, that is, perform the function of the prosecution. Naturally, in practice the latter always happens. Thus, there is no competition and equality of the parties in the process: what kind of equality can we talk about if one of the parties is the judge considering the case? The ECtHR believes that such a structure of the process violates Article 6 of the European Convention, which guarantees the right to a fair trial. In order to correct this violation, the Russian Federation may supplement the Code of Administrative Offenses with provisions fixing the mandatory participation in the relevant processes of an official who will support the prosecution. This can be as a prosecutor, as well as any other representative of the authorities: for example, an official who drew up a protocol on an administrative offense. This is the most obvious way to solve this problem, but the ECHR does not limit Russia to only them. If the authorities of our country come up with a different way to ensure the impartiality of judges in the processes under the Code of Administrative Offenses, it will not be a problem. What matters to the Court is the result, not the way it is achieved.

But the problem is that even if the Russian State Duma introduces appropriate changes to the legislation, this is unlikely to seriously affect the ratio of convictions and acquittals in cases of administrative offenses (to understand this, it is enough to look at the statistics of acquittals in criminal cases, where the party charges are always present in court). However, the processes themselves under the Code of Administrative Offenses will become more meaningful, they will have an element of competition. It will be more interesting for the public to observe such processes. I say this based on my experience in conducting cases of administrative offenses in Yekaterinburg, where the participation of the prosecution in such cases is a common practice. Sometimes you can hear a lot of interesting things from a procedural opponent.

Unfortunately, it will not be possible to appeal cases in connection with the decision of the European Court. The Code of Administrative Offenses (CAO), in contrast to the Code of Criminal Procedure and the Code of Civil Procedure, does not provide for the possibility of reviewing cases on new and newly discovered circumstances. The only possibility that those who have been brought to justice have is to file a complaint against the decision that has entered into force. Such a complaint is submitted to the chairman of the court of the subject where the case was considered, and then to the Supreme Court of the Russian Federation. There is no time limit for filing such complaints, so theoretically anyone who has ever been found guilty of an administrative offense in the absence of the prosecution can try. But there are two snags here. Firstly, Russian courts often refuse to review cases even when there is an ECtHR ruling establishing a violation of the Convention in a particular case (an example is the notorious Ageev case ). And the chance of success in a case with reference to a decision on someone else's case (even a pilot one) is even lower. Secondly, a complaint against a ruling that has entered into force can be filed only twice (once to the chairman of the regional court, once to the Supreme Court of the Russian Federation). So if a person filed a complaint with the ECtHR in his case and is now waiting for its consideration, then he should not waste his chances on revising the case at the national level ahead of time.