Expert Conclusion on the Judgment of the Moscow City Court and Definition of the Supreme Court of the Russian Federation

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"Independent Expert-Law Council"Conclusion

On December 16, 1999, the Moscow City Court found V.I.Moiseyev guilty of violating Article 275 of the Penal Code of the Russian Federation, confiscated his property and sentenced him to 12 years of imprisonment in a high-security correction facility. In the opinion of the Judicial Board, V.I.Moiseyev, a Soviet and later Russian national, committed high treason in the form of espionage from 1992 to 1998, transferring data containing state secrets to the South Korean Intelligence Service and collecting other data for the purpose of transferring it to the foreign intelligence service with the intent of damaging the external security of the Russian Federation.

The Judicial Board on Criminal Cases of the Supreme Court of the Russian Federation, dated July 25, 2000, ruled that the sentence passed by the Moscow City Court on December 16, 1999 with regard to V.Moiseyev be canceled and that the case be referred for reconsideration to the same court with a different judge composition. The ruling made on July 25, 2000 noted that the court of first instance, regardless of Article 314 of the Criminal Procedure Code of the RSFSR, "has not pointed what data and documents, when exactly had been transferred by Moiseyev" to the foreign intelligence service; the conclusions made by the Moscow City Court "have a non-concrete character" and were made "without taking into account all the circumstances of the case". The cassation instance pointed out the necessity for an extra evaluation of the experts' conclusions on the secret level of the data and ordered court "to establish which, from those mentioned in the sentence data and documents,...could be regarded as state secrets in accordance with laws in effect at that time regarding state secrets". The cassation instance was added to the list of the circumstances that should be checked and reviewed, those "arguments written in the accused's and his advocate's appeals ", given in the first pages of the cassation ruling.

The Moscow City Court started to consider the case after canceling the sentence but the judge composition has been changed several times.

Having been acquainted with the judgment passed by the Moscow City Court on December 16, 1999, the ruling made by the Judicial Board on Criminal Cases of the Supreme Court of the Russian Federation dated July 25, 2000 and other materials, it is my honor to present below conclusions on the questions which are before me.

Are the orders of the Judicial Board on Criminal Cases of the Supreme Court of the Russian Federation binding for the Moscow City Court which examined Moiseyev's case as a court of first instance?

The answer to this question is plainly 'yes.'

Under part 1, Article 352 of the Criminal Procedure Code of RSFSR, "orders made by a court examining a case in cassation order are binding in┘the second examination of the case by the court." The binding character of respecting the orders of the cassation instance court to the court of first instance can also be confirmed by the contents of paragraph 1 of point 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation ╧ 5 dated 23 August 1988 (in resolution addition ╧ 11 dated 21 December 1993 and ╧ 10 dated 15 October 1996); in paragraph 2 of the same point, the resolution court of second instance is ordered to delineate in a cassation ruling "all the necessary directives concerning the elimination of all exposed defects...in the inquest."

Illegal directives of the cassation instance cannot be carried out, such as predetermining the question of guilt of accused ones, and qualification actions and punishment (part 2 of Article 352 of the Criminal Procedure Code RSFSR). Cassation rulings containing these kinds of directives should be reconsidered under a supervision order, but no such directives appear in the ruling passed by the Judicial Board on Criminal Cases of the Supreme Court of the Russian Federation, dated July 25, 2000.

I should note that according to the directive of the Judicial Board on Criminal Cases of the Supreme Court of the Russian Federation, a required check and estimation of arguments contained in the accused Moiseyev's and his lawyers U.P.Gervis, A.U.Yablokov, K.A.Moskolenko's appeals are included in the inquest of this case.

The sanction for not carrying out an order of cassation is cancellation of the judgment, according to paragraph 2 of part 2 of Article 243 of the RSFSR Code of Criminal Procedure and can be justified either because of an inquest being unilateral or because of an inquest's incompleteness.

Can the composition of judges of the court of first instance be changed after the beginning to examine a case with a different judicial composition?

Under part 4 of Article 47 of the Constitution of the Russian Federation "no person can be deprived of their right to examine their own case in that court and with that judge in whose jurisdiction the case was referred by law".

Invariability of judicial composition in an inquest is an inquest's most important general feature (Article 241 of the Code of Criminal Procedure of the Russian Federation). It is connected to both the above Constitutional statement and also by the rights of the defendant and the plaintiff. It is necessary to consider that the accused has a right to be judged without unreasonable suspension (subparagraph "c" of point 3 of Article 14 of the International Covenant on Civil and Political Rights) and the victim has a right to access to justice (Article 52 of the Constitution of the Russian Federation). The suspension in the case examination caused by the change in the composition of the judges after the start of the case's examination encroaches on the rights of both the accused and the victim.

Disregarding the requirement of judicial invariability is absolutely forbidden by law except for 3 very specific instances provided for in the Code of Criminal Procedure:

A judge is challenged (Articles 59-62 of the Code of Criminal Procedure of the RSFSR);

A reserved assessor is substituted for a lay one (Article 242 of the Code of Criminal Procedure of the RSFSR);

A judge is replaced "who is deprived of the possibility of continuing to participate in an inquest" (Article 241 of the Code of Criminal Procedure of the RSFSR).

The foundation for a change in judicial composition mentioned in Article 241 of the Code of Criminal Procedure of the RSFSR includes 2 of the above mentioned exceptions and also other cases of when a judge cannot possibly continue to participate in an inquest. These "other cases" can not be expanded. In this case, we are talking only about some exceptional circumstances: a suspension of judicial power; reassignment to another judicial district; grave chronic disability; death. All other extensions of these bases for removing a judge from examining a case in his jurisdiction are violations of judicial independence and unaccountability (part 1 of Article 120 of the Constitution of the Russian Federation, part 2 of Article 5 of the Federal Constitutional Law "On Judicial System of the Russian Federation," dated December 31, 1996, points 4 and 5 of Article 1 of the Law of the Russian Federation "On Status of Judges in Russian Federation" dated June 26, 1992) and acts of illegal interference in a judge's activity (part 5 of Article 5 of the Federal Constitutional Law, dated December 31, 1996, Article 10 of Law of the Russian Federation, dated June 26, 1992).

In case of a grave disability the question of altering judicial composition-and as a consequence, the question of the renewal of the inquest from its preparatory part-can not be decided without taking into account the positions of the judge and both sides involved. Of primary importance is the accused kept in prison who suffers the most from the suspension in the case. So, in part 5 of the Constitutional Court of the Russian Federation resolution, dated July 2, 1998, ╧ 20-p on the case, which regards the check of accordance to the Constitution of some statements of Articles 331 and 464 of the Code of Criminal Procedure of RSFSR in connection with some nationals' complaints, said: "Suspending┘a case examination...the court in fact indefinitely postpones the fulfilment of justice. In these situations, the objectively apparent obstacles to further advancement of a case and the impossibility of appealing such decisions of the court of first instance...cause a risk of unreasonable and illegal suspension in passing the final decision. Constitutional rights violated in this case...after passing the final decision on the case...can not still be restored". Following this decision of the Constitutional Court of the Russian Federation, the suspension of a case examination in light of the original judge's removal from office and the subsequent change of judicial composition can be appealed in Court of Appeal (Cassation).

A case given to some definite judge for consideration can not be arbitrarily taken from him by the Chairman of Court, his Deputy or Presiding judge and transferred to other judge.

A case can be taken from one investigator and transferred to another investigator only by officials who are in charge of leading the investigation procedures-the chief of the investigation section (part 2 of Article 127 1 of the Code of Criminal Procedure of RSFSR), a prosecutor (points 5 and 9 of Article 211 of the Code of Criminal Procedure of RSFSR)-and only in accordance with a special legal directive concerning the limit of the procedural independence of investigator. Thus, the act of transferring a case from one investigator to another has a procedural but not administrative character.

Having transferred a case to a specific judge for examination, the Chairman of Court, his Deputy and the Presiding judge lose any lawful possibility of replacing the officials who will examine the essence of the case. The status of these officials is the same with the status of the judge who is charged with examining the case (article 12 of the Federal Constitutional Law dated 31 December 1996, part 1 Article 2 of the Law of the Russian Federation dated 26 June 1992); these officials have no authority to transfer cases from one judge to another; it is written neither in the norms of the Criminal Procedure Code RSFSR, nor in Articles 37-39 and others of the Laws of RSFSR "On Judicial System of the RSFSR" dated 8 July 1981. A judge is not subordinate to other judges, no matter what position they take in the judicial system; the latter do not conduct any administrative or procedural leading functions in regard to their colleagues.

Under the international legal acts in accordance with part 4 of Article 15 of the Constitution of the Russian Federation to the Russian, in the judicial system, everybody is equal in the face of law and court; anyone examined in a criminal investigation has a right to fair and public hearing in a reasonable period of time by a competent, independent and even-handed court created under law (Articles 7,8,10 of Universal Declaration on Human Rights, Article 14 of the International Covenant on civil and political rights, Article 6 of the European Convention on human rights and fundamental freedoms). The Constitutional Court of the Russian Federation under points 4 and 5 of the resolution, dated March 16, 1998, ╧ 9-p on the case about checking the accordance to the Constitution of Article 44 of the Code of Criminal Procedure of RSFSR and Article 123 of the Civil Procedure Code of the RSFSR in connection with some nationals' complaints, stressed: "┘..the examination of the case should be conducted by legally established, but not arbitrary chosen, judicial composition, without prejudice, from all sides and objectively. To banish an arbitrary choice of a judge of the court, the law...should fix...a definite procedural mechanism┘., and also prove the right to appeal a decision made as an act of court".

Thus, the change of judicial composition, without foundation and order as defined by procedural law, and without finding out the opinion of the sides and without passing a motivated act of the court-in particular the change of judicial composition by a decision of the Chairman of Court (or acting Chairman of Court), his Deputy or Presiding judge in "working order", but not by the decision that let the sides appeal it in the cassation instance-is illegal and can be a form of interference in fulfilment of justice; in any case, such actions severely violate the right of the accused to an examination of his case in reasonable time by competent court.

The sanction for an arbitrary change of judicial composition is the cancelling of the sentence in light of the act's essential violation of the Criminal Procedure Law (part 3 of Article 342, part 1 of Article 345 of the Code of Criminal Procedure of RSFSR). There is a pretext for checking the accordance to Constitution of the Russian Federation of some statements of Article 241 of the Code of Criminal Procedure of RSFSR in connection with its interpretation admitted in practice part 1 of Article 46 and part 1 of Article 47.

11 January 2001

A member of the
Independent Expert-Law Council,
Jurist emeritus, Judicial Doctor S.A.Pashin

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