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

In March 2012, the applicant was detained for petty hooliganism and fined 500 rubles for using obscene language. The applicant complained to the ECHR about a violation of the right to a fair trial (Article 6 of the Convention):

“The applicant submitted that in the absence of any prosecuting authority or official [in the administrative proceedings], the burden of proof of the charge rests 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 by the Constitutional Court of Russia ( 09/25/2014 ), but the Constitutional Court refused to satisfy the applicants’ demands. The court stated that the absence of a prosecutor in administrative proceedings does not in itself mean that the functions of prosecution are vested in the 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 must, 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 courts hearing such cases, through the introduction of prosecutorial authorities (a representative of the prosecutor's office or other government body), in those processes where there is an oral hearing

Let us note that the pilot rulings of the ECHR document the presence of structural problems in the state and suggest that the state must take certain legislative measures to avoid repetition of violations; the pilot rulings are adopted so that complaints of the same nature in the ECHR are considered in an expedited and simplified manner.

Comment from Memorial Human Rights Center lawyer Tatyana Glushkova:

The ruling “Karelin v. Russia” obliges Russia to ensure the impartiality of judges hearing cases of administrative offenses. What does it mean?

Currently, the process for such cases is structured as follows: in most cases, the judge and the person being prosecuted (and, possibly, the latter's defense attorney) are in the courtroom. The person involved, naturally, proves his innocence: he expresses some arguments, asks the court to add evidence to the case materials, and 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 conditions, the court must either trust the only available party to the process, or begin to independently collect evidence of the guilt of the person being brought to justice, that is, perform the function of the prosecution. Naturally, in practice the latter always happens. Thus, in the process there is no competition and equality of the parties: what kind of equality can we talk about if one of the parties is the judge considering the case? The ECHR believes that this arrangement of the process violates Article 6 of the European Convention, which guarantees the right to a fair trial. To correct this violation, the Russian Federation may supplement the Code of Administrative Offenses with provisions establishing the mandatory participation in the relevant processes of an official who will support the prosecution. This could be a prosecutor, or 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 only to it. If the authorities of our country come up with another way to ensure the impartiality of judges in trials under the Code of Administrative Offenses, that’s not a problem. For the European Court, the result is important, not the method of achieving it.

But the problem is that even if the Russian State Duma makes appropriate changes to the legislation, it is unlikely that this will seriously affect the ratio of convictions and acquittals in cases of administrative offenses (to understand this, just look at the statistics of acquittals in criminal cases, where the party accusations are always present in court). However, the processes themselves under the Code of Administrative Offenses will become more meaningful, and an element of competition will appear in them. 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 common practice. Sometimes you can hear a lot of interesting things from a procedural opponent.

Unfortunately, it is not possible to appeal cases in connection with the decision of the European Court. The Code of Administrative Offenses (CAO), unlike the Criminal Procedure and Civil Procedure Codes, does not provide for the possibility of reviewing cases based on new and newly discovered circumstances. The only opportunity that those who have been held accountable have is to file a complaint against the decision that has entered into legal force. Such a complaint is submitted to the chairman of the court of the subject where the case was heard, 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 by a court of committing an administrative offense in the absence of the prosecution can try. But there are two problems here. Firstly , Russian courts often refuse to review cases even in cases where there is an ECHR ruling establishing a violation of the Convention in a specific case (an example is the notorious Ageev case ). And the chance of success in a case with reference to a ruling on someone else’s case (even a pilot one) is even lower. Secondly , a complaint against a decision that has entered into legal force can be filed only twice (once to the chairman of a regional court, once to the Supreme Court of the Russian Federation). So if a person has filed a complaint about his case to the ECHR and is now awaiting its consideration, then he should not waste his chances of reviewing the case at the national level ahead of time.