BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF ANANYEV v. RUSSIA
(Application
no. 20292/04)
JUDGMENT
STRASBOURG
30
July 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ananyev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 7 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20292/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Sergey Mikhaylovich
Ananyev (“the applicant”), on 22 April 2004.
- The
applicant, who had been granted legal aid, was represented by Ms O.
Preobrazhenskaya and Ms K. Moskalenko, lawyers practising in Moscow.
The Russian Government (“the Government”) were
represented by Mr P. Laptev and Ms V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, that he had not been present or
represented at the trial hearing and had not been represented at the
appeal hearing, in violation of Article 6 §§ 1
and 3 (c) and (d) of the Convention.
- On
13 September 2006 the President of the First Section decided to
give notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and is currently serving a prison sentence
in the Smolensk region.
A. First trial and ensuing appeal proceedings
- On
22 December 2002 the applicant was arrested on suspicion of murder.
Subsequently he was committed to stand trial by the Glinkovskiy
District Court of the Smolensk Region. The trial was fixed for
22 July 2003.
- In
the morning of 22 July 2003 the applicant had a talk with legal-aid
counsel appointed to represent him. He was dissatisfied with the
result of that discussion and so refused counsel's services in
writing.
- The
first witness on the stand was the applicant's sister. The applicant
had an altercation with her and the judge ordered that he be escorted
out of the room.
- The
applicant was brought back into the courtroom to make his final
submissions. After that the judge declared the trial at an end and
announced that the verdict would be handed down on 24 July 2003.
- On
24 July 2003 the judge delivered the judgment, finding the applicant
guilty of murder and sentencing him to fifteen years' imprisonment in
a high-security colony.
- On
28 July 2003 the applicant filed grounds of appeal. He submitted, in
particular, that the entire trial had been conducted in his absence,
that he had not been represented and, as a consequence, had not been
able to defend himself. He asked that his case be re-heard and that a
different legal-aid lawyer be appointed to represent him before the
appeal court.
- On
11 November 2003 the Smolensk Regional Court held the appeal hearing.
The applicant was present but not represented, as he had requested.
The Regional Court dismissed the appeal, finding that the conviction
had been lawful and justified. In the Regional Court's view, there
had been no violation of the applicant's right to defend himself
because he had voluntarily refused the services of legal-aid counsel
before the trial.
B. Review of the applicant's conviction
- On
15 June 2004 the Fokinskiy District Court of Bryansk reviewed
the applicant's conviction in the light of recent amendments to the
Russian Criminal Code and held that the applicant should serve a
prison sentence in a colony with less strict conditions of detention.
- On
27 December 2006 the Presidium of the Smolensk Regional Court
quashed by way of supervisory review the appeal judgment of
11 November 2003. The Presidium found that the applicant's right
to legal representation had been infringed in the appeal proceedings
and remitted the case for fresh examination by the appeal court.
C. New appeal proceedings
- On
23 January 2007 the judicial authorities asked the President of
the Smolensk Regional Bar Association to appoint counsel to represent
the applicant in the proceedings before the appeal court.
- On
29 January 2007 the applicant's case was assigned to Ms D. as
counsel. The applicant was informed accordingly.
- On
31 January 2007 the Smolensk Regional Court scheduled the appeal
hearing for 13 February 2007. On the same day Ms D. studied the
applicant's case file.
- On
6 February 2007 the applicant informed the Regional Court of his
decision not to participate in the appeal hearing. In his motion he
further questioned the effectiveness of his legal representation
referring to the state-appointed lawyer's failure to meet him to
prepare his defence.
- On
13 February 2007 the Smolensk Regional Court examined the case
and upheld the applicant's conviction. Ms D. was present. She did not
file any grounds of appeal and appeared to make oral submissions to
the court on the basis of the grounds of appeal originally filed by
the applicant. The applicant did not attend. The appeal court noted,
inter alia, that the trial judge's decision to remove the
applicant, who had disturbed order in the courtroom and made threats
to persons present there, had been lawful and justified.
- On
the same day the Smolensk Regional Court granted Ms D.'s request
for the payment of her legal fees in the amount of 2,200 roubles and
ordered the applicant to pay those expenses.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Criminal Procedure
- Article
51 of the Code of Criminal Procedure of the Russian Federation (the
“Code”, in force from 1 July 2002) provides for mandatory
legal representation if the accused faces serious charges carrying a
term of imprisonment exceeding fifteen years, life imprisonment or
the death penalty. Unless counsel is retained by the accused, it is
the responsibility of the investigator, prosecutor or the court to
appoint a lawyer to represent him or her.
- As
provided for in Article 52 of the Code, the accused may refuse legal
assistance at any stage of criminal proceedings. Such a waiver may
only be accepted if made on the own initiative of the accused. The
waiver must be filed in writing and recorded in the official minutes
of the relevant procedural act. The investigator, prosecutor or the
court might decide not to accept the waiver. The accused does not
forfeit the right to subsequently ask for appointment of a lawyer to
represent him in the criminal proceedings.
- Pursuant
to Article 258 of the Code, the penalties the judge may impose on any
person, including the defendant, who acts in a manner that disturbs
order in the courtroom are (1) a warning, (2) removal from the
courtroom, or (3) a fine. Article 258 § 3
establishes that the trial, including the parties' closing arguments,
may be conducted in the defendant's absence. In such a case, the
defendant must be brought back to the courtroom to make the final
submissions. The judgment must always be pronounced in the
defendant's presence.
- Article
373 of the Code provides that the appeal court's role is to review a
conviction with a view to verifying its lawfulness, validity and
fairness. Under Article 377 of the Code, the appeal court may examine
evidence, including additional material submitted by the parties,
directly.
- Article 413 of the Code set out that the criminal
proceedings may be re-opened on the basis of a finding of a violation
of the Convention made by the European Court of Human Rights.
B. Case-law of the Constitutional Court of the Russian
Federation
- In a case in which it examined the compatibility of
Article 51 of the Code of Criminal Procedure with the Constitution,
the Constitutional Court ruled as follows (decision no. 497-O of 18
December 2003):
“Article 51 § 1 of the Code of Criminal
Procedure, which describes the circumstances in which the
participation of defence counsel is mandatory, does not contain any
indication that its requirements are not applicable in appeal
proceedings or that the convicted person's right to legal assistance
in such proceedings may be restricted.”
- That view was subsequently confirmed and expanded upon
in seven decisions delivered by the Constitutional Court on 8
February 2007. It found that free legal assistance for the purpose of
appellate proceedings should be provided on the same conditions as
during the earlier stages in the proceedings and was mandatory in the
situations listed in Article 51. It further underlined the obligation
of the courts to secure the participation of defence counsel in
appeal proceedings.
- With
respect to the compatibility of Article 258 of the Code of
Criminal Procedure with the Constitution, the Constitutional Court
has ruled as follows (decision no. 3710 of 20 October 2005):
“The aim of Article 258 § 3 of the
Code of Criminal Procedure is to secure the proper administration of
criminal justice and to prevent the disturbance of order in the
courtroom by a defendant. Even though this rule allows for the
removal of the defendant from the courtroom as a way of dealing with
his unruly conduct, it does not deprive him of the right to
participate in a hearing and conduct his defence in accordance with
the applicable rules. Its purpose is to prevent the abuse of the
rights granted to the defendant.
...
The defendant's right to be present at his trial should
not be understood as being guaranteed even when he disturbs order in
the courtroom or obstructs the proper administration of justice or
the enjoyment by other parties of their procedural rights guaranteed
by the Constitution of the Russian Federation. When deciding to
remove the defendant from the courtroom... the [judge] must indicate
the factual circumstances of the defendant's unruly conduct and
sufficiently justify the finding that the defendant's removal from
the courtroom was necessary.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant complained under Article 6 of the Convention that the
proceedings against him were unfair because he was neither present
nor represented at the trial and was not represented on appeal. The
relevant parts of Article 6 read as follows:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by a ... tribunal...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him...”
- The
Government did not make any comments in respect of the applicant's
complaint about his exclusion from the trial. As regards the
authorities' failure to appoint a legal-aid lawyer to represent him
in the first set of appeal proceedings, the Government conceded that
it could have affected their fairness. In this respect, they
submitted that the Russian authorities had taken measures to remedy
the violation of the applicant's rights set out in Article 6 at
the domestic level and the applicant had lost his victim status. In
particular, on 27 December 2006 the Presidium of the Smolensk
Regional Court had quashed by way of supervisory review the judgment
of 11 November 2003 precisely on the ground that the applicant
had not been represented before the appeal court. On 29 January
2007 Ms D. as counsel was appointed to represent the applicant,
who was informed of that fact accordingly. When informing the appeal
court that he would not be taking part in the appeal hearing, the
applicant did not waive the services of Ms D. She duly and diligently
prepared for the appeal hearing and provided a proper defence of the
applicant's interests before the appeal court.
- The
applicant maintained his complaints. He submitted that after being
removed from the courtroom he was unable to participate in the
examination of witnesses and the assessment of other evidence, in
violation of Article 6 of the Convention. Nor had the court
appointed a lawyer to represent him during the trial despite his
requests. In response to the Government's submissions regarding his
victim status, the applicant argued that the measures taken by the
Russian authorities did not constitute adequate redress. According to
the applicant, such redress should have included monetary
compensation since the appeal judgment had not been quashed until
three years later. Nor had his rights been restored in full. Merely
appointing a lawyer to represent him during the appeal hearing had
not been sufficient to restore his rights.
A. Admissibility
- The
Court notes that the Government's argument relating to the loss of
victim status by the applicant is closely linked to the merits of his
complaints under Article 6 §§ 1 and 3 (c)
and (d) of the Convention. Accordingly, the Court finds it
necessary to join it to the merits of the applicant's complaint and
will revert to it subsequently (see Sakhnovskiy
v. Russia, no. 21272/03, §§
34-36, 5 February 2009).
- The
Court further notes that the applicant's complaints under
Article 6 §§ 1 and 3 (c) and (d)
of the Convention are not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention and that they are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
1. General principles
- The
Court notes at the outset that the requirements of Article 6 § 3
are to be seen as particular aspects of the right to a fair trial
guaranteed by Article 6 § 1, and therefore the applicant's
complaints under Article 6 §§ 1 and 3 should be examined
together (see Vacher v. France, 17 December 1996, § 22,
Reports of Judgments and Decisions 1996-VI).
- While
it is of capital importance that a defendant in criminal proceedings
should be present during his or her trial, proceedings held in the
absence of the accused are not incompatible with the Convention if
the person concerned can subsequently obtain from a court which has
heard him a fresh determination of the merits of the charge, in
respect of both law and fact (see, among other authorities, Sejdovic
v. Italy [GC], no. 56581/00, § 82 in fine, ECHR
2006 II).
- The
proceedings as a whole could be said to have been fair if the
defendant was allowed to appeal against the conviction in absentia
and entitled to attend the hearing in the court of appeal entailing
the possibility of a fresh factual and legal determination of the
criminal charge (see Jones v. the United Kingdom (dec.),
no. 30900/02, 9 September 2003).
- Neither
the letter nor the spirit of Article 6 of the Convention prevents a
person from waiving of his own free will, either expressly or
tacitly, the entitlement to the guarantees of a fair trial. However,
if it is to be effective for Convention purposes, a waiver of the
right to take part in the trial must be established in an unequivocal
manner and be attended by minimum safeguards commensurate to its
importance. Furthermore, it must not run counter to any important
public interest (see, among other authorities, Sejdovic cite
above, § 86 in fine, ECHR 2006 II).
- The
Court has also held that before an accused can be said to have
implicitly, through his conduct, waived an important right under
Article 6 of the Convention, it must be shown that he could
reasonably have foreseen what the consequences of his conduct would
be (see Jones, cited above).
- The
Convention leaves Contracting States wide discretion as regards the
choice of the means calculated to ensure that their legal systems are
in compliance with the requirements of Article 6. The Court's task is
to determine whether the result called for by the Convention has been
achieved. In particular, the procedural means offered by domestic law
and practice must be shown to be effective where a person charged
with a criminal offence has neither waived his right to appear and to
defend himself nor sought to escape trial (see Sejdovic, cited
above, § 83).
- Although
not absolute, the right of everyone charged with a criminal offence
to be effectively defended by a lawyer, assigned officially if need
be, is one of the fundamental features of a fair trial (see Poitrimol
v. France, 23 November 1993, § 34, Series A no. 277 A).
A person charged with a criminal offence does not lose the benefit of
this right merely on account of not being present at the trial (see
Mariani v. France, no. 43640/98, § 40, 31 March
2005). It is of crucial importance for the fairness of the criminal
justice system that the accused be adequately defended, both at first
instance and on appeal (see Lala v. the Netherlands, 22
September 1994, § 33, Series A no. 297 A, and
Pelladoah v. the Netherlands, 22 September 1994, § 40,
Series A no. 297 B).
2. Application of the above principles to the instant
case
- In
deciding whether the criminal proceedings against the applicant were
fair, the Court will examine them as a whole (see Edwards v. the
United Kingdom, 16 December 1992, § 34, Series A no. 247 B).
(a) Exclusion from the trial
- Turning
to the circumstances of the present case, the Court notes that during
the trial the applicant was excluded from the courtroom for making
threats against persons present in court. The judge directed that the
applicant should be brought back to the courtroom at the end of the
trial to make his final submissions. As a result, all the evidence,
including, but not limited to, the testimony of the witnesses, was
examined in his absence. At that point of the proceedings, the
applicant was not represented by a lawyer whose services he had
previously waived.
- The
Court observes at the outset that it is essential for the proper
administration of justice that dignity and order in the courtroom be
the hallmarks of judicial proceedings. The flagrant disregard by a
defendant of elementary standards of proper conduct neither could nor
should have been tolerated.
- The
Court accepts that the applicant's behaviour was of such a nature
that it might have been justifiable to remove him from the courtroom
and to continue the trial in his absence. However, it remained
incumbent on the presiding judge to establish that the applicant
could have reasonably foreseen what the consequences of his conduct
would be (see Jones, cited above).
- The
Court discerns nothing in the materials in its possession to show
that the applicant was made aware of the consequences of his removal
from the courtroom, and, in particular, of the fact that, if the
court decided to proceed to try him in his absence, it would do so
without appointing counsel to represent him. In such circumstances,
the Court is unable to conclude that, notwithstanding his disruptive
and unruly behaviour, the applicant had unequivocally waived his
right to be present or represented by counsel at the trial. His
removal from the courtroom meant that he was not in a position to
exercise either of those rights when the judge decided to proceed
with the examination of the evidence in his absence.
- Accordingly,
the Court must now determine whether the appeal court made reparation
for the violation of the applicant's right to be present and to
defend himself at his trial (see De Cubber v. Belgium, 26
October 1984, § 33, Series A no. 86).
(b) Appeal proceedings
- The
Court observes that in Russia the jurisdiction of appeal courts
extends both to legal and factual issues. The Regional Court thus had
the power to fully review the case and to consider additional
arguments which had not been examined in the first-instance
proceedings. It would have also been open to the applicant to ask the
Regional Court to question witnesses or examine other evidence.
- Given
the seriousness of the charges against the applicant and the severity
of the sentence to which he was liable, as well as the precariousness
of his situation as a result of his removal from the courtroom, the
Court considers that the assistance of a legal-aid lawyer at this
stage was essential for the applicant, as the lawyer would be able
effectively to draw the appeal court's attention to any substantial
argument in the applicant's favour which might influence its
decision.
- The
Court further notes that, under the Russian Constitutional Court's
interpretation of the Russian Code of Criminal Procedure, the onus of
appointing a legal-aid lawyer lay on the relevant authority at each
stage of the proceedings. Thus it was incumbent on the judicial
authorities to appoint a lawyer for the applicant to ensure that he
received effective protection of his rights.
- The
Government have acknowledged that the first set of appeal
proceedings, which ended on 11 November 2003, failed to provide
full guarantees in respect of legal assistance. However, they
contended that this procedural defect had been rectified since the
relevant appeal judgment had been quashed by way of supervisory
review on 27 December 2006 and the applicant had subsequently
been provided with legal aid at a new appeal hearing.
- In this respect, the Court reiterates that the
appointment of defence counsel in itself does not necessarily settle
the issue of compliance with the requirements of Article 6 § 3
(c). A mere nomination does not ensure effective assistance since a
lawyer appointed for legal-aid purposes may be prevented from
performing, or shirk his or her duties. If they are notified of the
situation, the authorities must either replace the lawyer or oblige
him or her to fulfil those duties (see Artico v. Italy, 13 May
1980, § 33, Series A no. 37).
Nevertheless, a State cannot be held responsible for every
shortcoming of a lawyer appointed for legal-aid purposes. It follows
from the independence of the legal profession that the conduct of the
defence is essentially a matter between the defendant and his
counsel, whether counsel be appointed under a legal-aid scheme or be
privately financed. The Court considers that the competent national
authorities are required under Article 6 § 3 (c) to intervene
only if a failure by legal-aid counsel to provide effective
representation is manifest or sufficiently brought to their attention
in some other way (Kamasinski v. Austria, 19 December 1989, §
67, Series A no. 168,).
- Turning
to the circumstances of the present case, the Court notes that the
State-appointed legal counsel, Ms D., took certain steps to prepare
the applicant's defence pending the appeal hearing. She studied his
case file and then attended the appeal hearing, where she made oral
submissions to the court on the applicant's behalf on the basis of
the grounds of appeal lodged by the applicant.
- The
Court further notes that, even though she had ample opportunity to do
so, Ms D. never met or otherwise communicated with the applicant.
Similarly, even though the applicant made the appeal court aware of
that situation, it took no measures to remedy that shortcoming. The
Court does not accept the Government's argument that the applicant
failed to ask the appeal court to replace Ms D. The said shortcoming
was manifest and the onus was on the domestic authorities to
intervene.
- In
the circumstances of the case, the Court considers that the lack of
personal contact with the applicant and the absence of any discussion
with him in advance of the hearing, combined with the fact that the
State-appointed lawyer did not prepare any grounds of appeal of her
own and pleaded the case on the basis of grounds of appeal lodged
some four years earlier by the applicant, irreparably impaired the
effectiveness of the legal assistance provided by Ms D.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the Smolensk Regional Court failed to ensure the
applicant's effective legal representation in the appeal hearing on
13 February 2007.
(c) Conclusions
- In
view of the above findings, the Court concludes that the criminal
proceedings against the applicant were unfair. The applicant's right
to be present and to defend himself at the trial has been infringed.
This defect was not cured on appeal owing to the authorities' failure
to ensure the applicant's effective legal representation before the
appeal court.
- Accordingly, the applicant may therefore still claim
to be a victim within the meaning of Article 34 of the Convention.
The Court therefore rejects the Government's objection under this
head and finds that there has been a violation of Article 6 §§ 1
and 3 (c) and (d) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
- The
applicant further complained under Article 6 §§ 2
and 3 of the Convention that the trial court had used
inadmissible evidence and that the judge had been biased against him
because he had previously convicted him on two other counts.
- However,
having regard to all the material in its possession, the Court finds
that the events complained of do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded pursuant to Articles 35 § 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 300,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government submitted that there had been no violation of the
applicant's rights set out in the Convention. In any event, they
considered the applicant's claims excessive and suggested that the
acknowledgment of a violation would constitute adequate just
satisfaction.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. The Court considers that the applicant suffered
non-pecuniary damage, which would not be adequately compensated by
the finding of a violation alone. Making its assessment on an
equitable basis, it awards the applicant EUR 2,000, plus any tax
that may be chargeable. The Court further notes that Article 413
of the Russian Code of Criminal Procedure provides that criminal
proceedings may be reopened if the Court finds a violation of the
Convention.
B. Costs and expenses
- The
applicant also claimed compensation, without specifying the amount,
for the legal advice provided by his representatives on a pro bono
basis in the proceedings before the Court.
- The
Government submitted that the applicant had failed to substantiate
his claims for compensation of costs and expenses and that they
should be rejected in full.
- According to the Court's case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. In the present case, the
amount of EUR 850 has already been paid to the applicant by way
of legal aid. In such circumstances, the Court does not consider it
necessary to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government's objection
concerning the victim status of the applicant and rejects it;
- Declares the complaint concerning unfairness of
the criminal proceedings against the applicant admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (c) and (d) of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 30 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
