Постановление Европейского суда по правам человека от 30.07.2009 «Дело Ананьев (ananyev) против России» [англ.]


EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ANANYEV v. RUSSIA
(Application No. 20292/04)
JUDGMENT*
(Strasbourg, 30.VII.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 {Vajic}*, President,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 7 July 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. 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.

2. 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.

3. 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.

4. 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).

5. 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
6. The applicant was born in 1965 and is currently serving a prison sentence in the Smolensk region.

A. First trial and ensuing appeal proceedings
7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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
14. 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.

15. 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
16. 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.

17. On 29 January 2007 the applicant's case was assigned to Ms D. as counsel. The applicant was informed accordingly.

18. 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.

19. 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.

20. 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.

21. 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
22. 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.

23. 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.

24. 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.

25. 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.

26. 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
27. 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."
28. 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.

29. 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
30. 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..."
31. 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.

32. 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
33. 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).

34. 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
35. The Court notes at the outset that the requirements of Article 6 § 3 are to be seen as particular aspects of the

3 Comments

John Doe

March 27, 2018 at 8:00 am Reply

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John Doe

March 27, 2018 at 8:00 am Reply

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John Doe

March 27, 2018 at 8:00 am Reply

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