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THIRD
SECTION
CASE OF TIMERGALIYEV v. RUSSIA
(Application
no. 40631/02)
JUDGMENT
STRASBOURG
14
October 2008
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 Timergaliyev v. Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Corneliu
Bîrsan,
Anatoly Kovler,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 23 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40631/02) 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 Firdavis Favizovich
Timergaliyev (“the applicant”), on 5 September 2002.
- The
applicant, who has been granted legal aid, was represented before the
Court by Ms K. Moskalenko and Ms O. Preobrazhenskaya, lawyers with
the International Protection Centre in Moscow. The Russian Government
(“the Government”) were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, that he had been ill-treated by the
police and that the criminal proceedings against him had been unfair.
- On
17 December 2004 the Court decided to communicate the complaints
concerning the alleged ill-treatment and unfair trial to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- 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 1968. He is currently serving a prison sentence
in the Sverdlovskiy Region.
A. The applicant's arrest and alleged ill-treatment
- Late
on the night of 11 May 2001 the applicant was arrested by the police
at the scene of crime on suspicion of having set fire to his mother's
flat. His mother died in the fire and another person, M., received
serious injuries. The applicant was taken to the police department of
the village of Dinas in the Sverdlovskiy Region.
- According
to the applicant, at the police department one of the policemen
kicked him twice in the chest.
- On 12 May 2001 the applicant was examined by a doctor,
who noted a bruise on his head. The applicant stated that he had also
complained about pain in the chest but his chest had not been
examined.
- After
the examination the applicant was transferred to the police
department of the town of Pervouralsk. According to the applicant, at
the police department he was kicked in the legs, kidneys, chest and
ribs by two policemen.
- On
the same day the applicant was questioned by the investigator. He
denied involvement in the arson and stated that he had been attacked
by three strangers who had assaulted him and had set fire to the
flat. He was subsequently put in a cell in the temporary detention
unit of Pervouralsk.
- On
15 May 2001 Mr L. was appointed as legal aid counsel for the
applicant. The applicant asked the investigator and Mr L. to arrange
a medical examination. The investigator refused his request.
- On
16 May 2001 the applicant was escorted to detention facility no. 1
in Yekaterinburg. However, he was not admitted to the detention
facility because he did not have a medical certificate. He was
brought back to Pervouralsk.
- On
18 May 2001 he was escorted to detention facility no. 1 in
Yekaterinburg where for the second time he was refused admittance
without a medical certificate. On his return to Pervouralsk, he was
examined by a doctor, who noted a bruise on his chest. On the same
day a chest X-ray was performed. On 18 November 2004 all X-ray
photographs revealing no injuries, including the X-ray photograph of
the applicant's chest, were destroyed by the medical staff of
Hospital No. 1. The certificate issued by the chief physician of
Pervouralsk Hospital No. 1 on 16 February 2005 confirmed that the
X-ray had revealed no injury to the applicant's chest.
- On
21 May 2001 the applicant was accepted to detention facility no. 1
in Yekaterinburg where he was examined by a doctor. The doctor noted
two bruises on the applicant's forehead and a bruise on his chest.
When asked by the doctor about the origin of the bruises, the
applicant replied that they had been received outside detention
facility no. 1. He signed a statement that he had no complaints and
that there was no need for an investigation.
B. Investigation of the alleged ill-treatment
- On
27 June 2001 the applicant complained to the prosecutor, alleging
ill-treatment.
- On 2 July 2001 the Pervouralsk town prosecutor refused
to open criminal proceedings. Having reviewed the reports on the
applicant's arrest and questioning, he found that the applicant's
head had already been injured when the police arrived at the crime
scene. The applicant had himself stated to the investigator that he
had been assaulted by strangers before the arrest, which provided
sufficient explanation for his injuries. There was no evidence that
he had been ill-treated by the police.
- Following the communication of the application, an
internal inquiry was conducted in January 2005. On 26 January 2005
the head of the Criminal Investigations Unit of the Sverdlovskiy
Regional Department of Internal Affairs found that the applicant had
himself affirmed that he had been beaten by strangers prior to the
arrest. The strangers had been identified and questioned. They were
the applicant's neighbours, who had come running to put out the fire
in his flat. They had tried to rescue the applicant's mother from the
burning flat, however the applicant had attempted to stop them and
subsequently attacked them with an axe. They had had to use force to
disarm him. A fight had followed, in the course of which the
applicant had been injured. Those facts had been taken into account
by the prosecutor who had refused to open criminal proceedings,
finding that the allegations of ill-treatment by the police had been
unsubstantiated.
C. The applicant's trial
- On
an unspecified date the case was referred for trial to the
Sverdlovskiy Regional Court, where Mr R. was appointed as legal aid
counsel for the applicant.
- The
applicant stated that on 21 November 2001 he had asked the court to
provide him with a hearing aid and arrange a meeting with counsel. No
response had been received. The Government claimed that no such
requests had been made.
- On
5 December 2001 the Sverdlovskiy Regional Court, in one hearing,
found the applicant guilty of aggravated murder, causing bodily harm
and intentional destruction of others' property and sentenced him,
taking account of his previous criminal record, to eighteen years'
imprisonment in a high-security colony.
- On
19 December 2001 the applicant lodged an appeal, challenging
statements by witnesses and the accuracy of their reflection in the
trial record. He advanced the defence of irresistible impulse and
asked the court to adopt a different legal characterisation of the
imputed offence. He also asked to be given an opportunity to be
present at the appeal hearing. On 14 January 2002 he lodged
annex no. 1 to his grounds of appeal, concerning the interpretation
of the facts.
- On
26 February 2002 the Supreme Court of the Russian Federation held, in
an interim decision, that the applicant should be present at the
hearing.
- On
5 April 2002 the applicant asked the Supreme Court to appoint legal
aid counsel for him.
- On
22 April 2002 the applicant submitted annex no. 2 to his grounds of
appeal, in which he complained of procedural shortcomings of the
trial, including ineffective representation by counsel L. and R., who
had never backed his requests and applications. He further complained
that the trial court had refused to provide him with a hearing aid
and that counsel R. had failed to support his request to that effect.
He also submitted that he had been ill-treated on the day of the
arrest and alleged that the investigator had withdrawn the medical
certificate of 21 May 2001 and his X-ray photograph from the
case file. Finally, he asked the Supreme Court to inform lawyers from
Moscow bar association no. 10, the International Protection Centre
and the Human Rights Centre Memorial about the date of the appeal
hearing.
- On
29 April 2002 the applicant lodged annex no. 3 to his grounds of
appeal, in which he asked, in particular, for legal representation
before the appeal court, indicating that he had no legal training and
was “half deaf”.
- On
13 May 2002 the Supreme Court sent telegrams to Pervouralsk bar
association no. 1, Moscow bar association no. 10, the International
Protection Centre and the Human Rights Centre Memorial, informing
them that the appeal hearing in the applicant's case would be held on
27 May 2002 at 10 a.m. The telegrams indicated that attendance was
not mandatory.
- On
27 May 2002 the Supreme Court of the Russian Federation held the
appeal hearing and upheld the judgment of 5 December 2001. The
applicant was present but not represented. The appeal judgment was
silent on the issue of providing the applicant with a hearing aid. As
regards the applicant's right to defence, the judgment read as
follows:
“It follows from the case materials that [the
applicant] was represented by counsel Mr L. during the pre-trial
investigation and counsel Mr R. during the trial. He did not refuse
the services of these counsel. There are no reasons to believe that
they defended his interests improperly, nor do the grounds of appeal
indicate any such reasons.”
- On
29 May 2002 the applicant complained to the Presidium of the Supreme
Court of the Russian Federation about, in particular, the appeal
court's refusal to provide him with legal representation. On 9 August
2002 Judge Galiullin responded that there were no grounds to launch
supervisory review proceedings in respect of the judgments in his
case.
- A certificate of 6 June 2003 issued by a doctor of the
medical unit of facility no. I-299 indicates that the applicant
suffers from chronic bilateral sensorineural hearing impairment.
II. RELEVANT DOMESTIC LAW
- The
RSFSR Code of Criminal Procedure (in force until 1 July 2002)
establishes that the investigator or the court is to provide the
suspect or the accused with legal aid counsel at his request. In
cases where counsel chosen by the accused is not available for a long
period of time, the investigator or the court may suggest that the
accused choose another counsel or, as an alternative, appoint another
counsel for the accused (Article 48).
- Counsel must imperatively be appointed by the
investigator or the court if, in particular, the accused is mute,
deaf or blind or if he cannot defend himself due to a physical or
mental impairment (Article 49).
- The Supreme Court notifies participants in criminal
proceedings of dates of appeal hearings at their request.
Non-appearance by participants who have been notified of the date of
the appeal hearing does not preclude examination of the case (Article
336).
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
- The
Government disputed that Ms Moskalenko and Ms Preobrazhenskaya
were duly authorised to submit observations on the applicant's
behalf. They argued that the applicant's signature on the power of
attorney had been forged by Ms Moskalenko and Ms Preobrazhenskaya.
They produced copies of documents from the criminal case file. In
their opinion, the applicant's signatures in those documents were
clearly different to the eye from the signature in the power of
attorney. Moreover, the power of attorney was not valid because it
had not been certified by the director of the detention facility
where the applicant was held, as required by Article 53 of the Code
of Civil Procedure. Such certification was the only means of
confirming the authenticity of the applicant's signature.
- The
applicant confirmed the authenticity of his signature in the power of
attorney and maintained that he had authorised Ms Moskalenko and
Ms Preobrazhenskaya to represent his interests before the Court.
He claimed that the signatures on the documents produced by the
Government had been forged.
- As
regards the Government's suspicion that the power of attorney had
been forged by the applicant's representatives, the Court presumes
that both parties to the proceedings, the applicant and the
Government alike, act in good faith; a claim seeking to rebut this
presumption should be supported by sufficient evidence (see Khudobin
v. Russia, no. 59696/00, § 74, ECHR 2006 ...
(extracts)). The applicant confirmed the authenticity of his
signature in the power of attorney, which, in the Court's opinion, is
sufficient to dispel the suspicion of forgery. In any event, the
Government did not produce convincing evidence that the application
or any submissions on the applicant's behalf had been lodged
fraudulently or without the applicant's knowledge. Therefore, the
Court is not persuaded that the divergence between the applicant's
signatures is sufficient, by itself, to cast doubt on the
authenticity of his signature in the power of attorney. The Court is
therefore satisfied of the applicant's intention to be represented by
Ms Moskalenko and Ms Preobrazhenskaya.
- In
so far as the Government claimed that the applicant's form of
authority should have been certified by the head of the detention
facility where he was held, the Court reiterates that it has on many
occasions rejected a similar argument by the Government, emphasising
that “pursuant to Rule 45 of the Rules of Court, a written
authority is valid for the purposes of proceedings before the Court.
Neither the Convention nor the Rules of the Court require any form of
certification of that document” (see Khudobin v. Russia,
no. 59696/00, § 73, ECHR 2006 ... (extracts);
Nosov v. Russia (dec.), no. 30877/02, 20 October 2005;
Moiseyev v. Russia (dec.), no. 62936/00, 9 December
2004; and Isayeva and Others v. Russia (dec.),
nos. 57947/00, 57948/00 and 57949/00, 19 December 2002).
- The
Court is satisfied that Ms Moskalenko and Ms Preobrazhenskaya
were duly authorised to represent the applicant. The Government's
objection on this point must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- Under
Articles 2 and 3 of the Convention the applicant complained that he
had been ill-treated by the police. Since the applicant's life does
not appear to be, or to have been, imperilled, the Court considers
that Article 2 finds no application in the present case. It will
examine the complaint from the standpoint of Article 3 of the
Convention which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government argued that the applicant had never been beaten by the
police. He had received injuries in the fight with his neighbours
prior to the arrest.
- The
applicant submitted that he had been beaten by the police after the
arrest. The medical certificate of 12 May 2001 had only noted the
injury to the head, while the medical certificate of 18 May 2001 had
also described a bruise on his chest. In the applicant's opinion,
this proved that the bruise on the chest had been received after the
arrest.
-
The Court reiterates that allegations of ill-treatment must be
supported by appropriate evidence. To assess this evidence, the Court
has adopted the standard of proof “beyond reasonable doubt”,
but has added that such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Labita v. Italy [GC], no.
26772/95, § 121, ECHR 2000-IV). Where an individual is
taken into police custody in good health but is found to be injured
at the time of release, it is incumbent on the State to provide a
plausible explanation of how those injuries were caused, failing
which a clear issue arises under Article 3 of the Convention (see,
among other authorities, Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999-V).
- Turning
to the particular circumstances of the case, the Court observes that
prior to his arrest the applicant had been involved in a fight with
his neighbours. The neighbours testified that the applicant had been
injured in the fight. The medical certificates described a head
injury and a bruise to the applicant's chest. The applicant conceded
that the head injury had been received prior to the arrest. Referring
to the fact that the bruise on his chest had not been recorded in his
medical record until several days after the arrest, he affirmed that
that bruise had been caused by his ill-treatment at the police
station. The Court is not persuaded by this argument. It transpires
from the applicant's submissions that he had for the first time
complained of pain in the chest several hours after his arrest (see
paragraph 9 above). It is therefore probable that the bruise could
have been also received in the fight. The Court cannot establish
beyond reasonable doubt that it was received after the arrest.
- Finally,
the Court observes that the authorities investigated the applicant's
allegations of ill-treatment, regrettably only after the
communication of the application, and provided an explanation for his
injuries (see paragraphs 17 and 18 above). There is no reason to
believe that that investigation did not meet the requirements of
Article 3, given that the applicant never complained before the
domestic authorities or the Court that it had been ineffective or
otherwise inadequate.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 § 3 (c)
- Under
Article 6 of the Convention the applicant complained that he had not
been provided with a hearing aid, that State-appointed counsel L. and
R. had been ineffective and that he had had no legal assistance at
the appeal hearing. 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 ...
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...”
A. Admissibility
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant submitted that due to his hearing impairment his ability to
hear and follow the proceedings had been significantly reduced.
During the trial and in his grounds of appeal he had asked the
domestic courts to provide him with a hearing aid, to no avail. He
further submitted that State-appointed counsel L. and R. had remained
passive during the investigation and trial. They had not backed his
applications to the court and had not supported his requests for a
hearing aid. He had not been provided with legal assistance for an
appeal hearing. In his grounds of appeal he had asked the court to
adopt a different legal characterisation of the imputed offence. It
was a legally complex argument and he had had difficulty in expanding
on it, being hard of hearing and unassisted.
- The
Government claimed that the applicant had never asked the trial court
to provide him with a hearing aid. Nor had he refused the assistance
of counsel L. and R. Counsel R. had been active during the trial, he
had put questions to the witnesses and had participated in the oral
pleadings. The applicant had not explained why that assistance had
been ineffective. The appeal court had informed the lawyers indicated
by the applicant about the date and time of the appeal hearing. The
appeal court had not been responsible for their failure to appear. In
accordance with Article 336 of the Code of Criminal Procedure the
default of the participants who had been notified of the date of the
appeal hearing did not preclude the examination of the case (see
paragraph 33 above).
2. The Court's assessment
- The Court states at the outset that a person charged
with a criminal offence should, as a general principle based on the
notion of a fair trial, be entitled to be present at the
first-instance trial hearing. However, the attendance of the
defendant in person does not necessarily take on the same
significance for the appeal hearing. Indeed, even where an appellate
court has full jurisdiction to review the case on questions of both
fact and law, Article 6 does not always entail a right to be present
in person. Regard must be had in assessing this question to, inter
alia, the special features of the proceedings involved and the
manner in which the defence's interests are presented and protected
before the appellate court, particularly in the light of the issues
to be decided by it and their importance for the appellant (see
Helmers v. Sweden, judgment of 29 October 1991, Series A no.
212-A, p. 15, §§ 31-32; Belziuk v. Poland, judgment
of 25 March 1998, Reports 1998-II, p. 570, § 37;
Pobornikoff v. Austria, no. 28501/95, § 24, 3
October 2000; and Kucera v. Austria, no. 40072/98, § 25,
3 October 2002).
- The
right of an accused under Article 6 to effective participation in his
or her criminal trial generally includes not only the right to be
present, but also to hear and follow the proceedings. Such rights are
implicit in the very notion of an adversarial procedure and can also
be derived from the guarantees contained, in particular, in
sub-paragraph (c) of paragraph 3 of Article 6 – “to
defend himself in person” (see, among others, Barberà,
Messegué and Jabardo v. Spain, judgment of 6 December
1988, Series A no. 146, pp. 33-34, § 78; Stanford v. the
United Kingdom, judgment of 23 February 1994, Series A no.
282-A, pp. 10-11, § 26; and S.C. v. the United Kingdom,
no. 60958/00, § 28, ECHR 2004-IV). “Effective
participation” in this context presupposes that the accused has
a broad understanding of the nature of the trial process and of what
is at stake for him or her, including the significance of any penalty
which may be imposed. The defendant should be able, inter alia,
to explain to his own lawyers his version of events, point out any
statements with which he disagrees and make them aware of any facts
which should be put forward in his defence (see, for example,
Stanford, cited above, p. 11, § 30; V. v. the United
Kingdom [GC], no. 24888/94, §§ 85, 89, 90, ECHR
1999-IX; and S.C. v. the United Kingdom, cited above, §
29). The circumstances of a case may require the Contracting States
to take positive measures in order to enable the applicant to
participate effectively in the proceedings (see Liebreich v.
Germany (dec.), no. 30443/03, 8 January 2008).
- As regards, more particularly, the situations where
the hearing of the accused is impaired, the Commission found that
that could not as such be allowed to block the prosecution or lead to
the conclusion that an accused with such a handicap could not have a
fair trial (see Roos v. Sweden, no. 19598/92, Commission
decision of 6 April 1994). In the Roos case the Commission
noted that the applicant had had a hearing aid and had been
represented, and concluded that he had been able to hear and follow
the proceedings.
- In
the case of Stanford v. the United Kingdom the Court found no
violation arising from the fact that the accused could not hear some
of the evidence given at trial due to poor acoustics in the
courtroom, in view of the fact that his counsel, who could hear
everything that was said and was able to take his client's
instructions at all times, chose for tactical reasons not to bring
the accused's hearing difficulties to the attention of the trial
judge at any stage throughout the six-day hearing (see Stanford,
cited above, §§ 24-32).
- In a recent decision in the case of Liebreich v.
Germany (cited above) the Court declared inadmissible the
applicant's complaint that he could not participate effectively in
the appeal hearing due to the effect on him of antidepressant
medications he was being treated with. The Court took into account
that the applicant had been represented by a lawyer whom he could
freely consult during the proceedings and that prior to the hearing
the German court had obtained information from the doctor treating
the applicant on the issue of whether he was fit to plead. The Court
also reviewed the record of the hearing and concluded that the
applicant had participated effectively in the proceedings.
- The
opposite conclusion was reached in the case of Cuscani v. the
United Kingdom, where the applicant could not follow the
proceedings due to his poor command of English. The Court criticised
the English courts for their implicit reliance on counsel's statement
that the applicant's command of English was adequate to understand
the proceedings. It held that the onus was on the trial judge to
reassure himself that the absence of an interpreter would not
prejudice the applicant's full involvement in the proceedings and
found a violation in view of the judge's failure to make his own
assessment of the applicant's need for interpretation facilities (see
Cuscani v. the United Kingdom, no. 32771/96, §§
38-40, 24 September 2002).
- Turning
to the circumstances of the present case, the Court observes that the
applicant is hard of hearing. He submitted a medical certificate
indicating that he suffers from chronic bilateral hearing impairment
(see paragraph 30 above). The Court is therefore persuaded that the
applicant's ability to hear and follow the proceedings was reduced.
The Government do not contest this fact.
- It
is disputed between the parties whether the applicant brought his
hearing difficulties to the attention of the trial judge. The Court
deplores the fact that neither party has substantiated its
allegations by producing a copy of the petition for a hearing aid or
a copy of the trial record. Accordingly, the Court finds itself
unable to verify whether the applicant took steps to make his hearing
difficulties known. The failure to submit a copy of the trial record
also prevents the Court from assessing whether the applicant alerted
the trial court to the alleged ineffectiveness of his counsel.
- The
Court further notes that the applicant submitted a copy of his
grounds of appeal in which he complained that his hearing was
impaired and asked for a hearing aid. The Court is therefore
satisfied that the appeal court was put on clear notice that the
applicant had hearing problems. It is also to be noted that the
applicant was convicted at the first level of jurisdiction of
aggravated murder and sentenced to eighteen years' imprisonment. The
applicant's submissions before the appeal court covered both points
of fact and points of law. The applicant contested his conviction,
sought re-characterisation of the criminal offence relying on the
defence of irresistible impulse and pleaded for a reduction in
sentence. His personal and full involvement in the appeal proceedings
was therefore a matter of crucial importance for him. In such
circumstances the appeal court was bound out of fairness to take
additional steps before examining the case, to reassure itself that
the applicant's hearing impairment would not prejudice his effective
participation in the appeal hearing (compare Cuscani, cited
above, § 38, and Vaudelle v. France, no. 35683/97,
§ 59, ECHR 2001 I). However, the appeal court did not
consider taking any steps to ensure that the applicant could follow
the proceedings before it. It proceeded with the hearing without
requesting a medical opinion as to whether the applicant's impairment
allowed him to hear the proceedings or considering the possibility of
making arrangements for the provision of a hearing aid.
- The
Court also attaches weight to the fact that the applicant was
unrepresented before the appeal court. The present case is therefore
different from the cases of Roos, Stanford and
Liebreich (cited above in paragraphs 52 to 54) where the
fact that the applicants were assisted by counsel whom they could
freely consult during the proceedings led the Court to find no
violation of Article 6 §§ 1 and 3 (c). It is true that the
appeal court could not be held responsible for the omission of the
applicant's lawyers, who had been properly notified of the date and
time of the appeal hearing. However, the ultimate guardian of the
fairness of the proceedings was the judge, who, when confronted with
the lawyers' failure to appear, was required under domestic law to
appoint counsel for an accused who was incapable of defending himself
due to a physical impairment (see paragraph 32 above). The Court
reiterates that under Article 6 § 3 (c) of the Convention the
accused is entitled to have a lawyer assigned by the court of its own
motion “when the interests of justice so require” (see
Vaudelle, cited above, § 59, and Padalov v.
Bulgaria, no. 54784/00, §§ 54 and 55, 10
August 2006). Given that the applicant's hearing impairment
undermined his ability to participate effectively in the proceedings,
the interests of justice demanded that in order to receive a fair
hearing the applicant should have had the benefit of legal
representation during the proceedings before the appeal court.
- Having
regard to the above considerations, the Court concludes that there
has been a violation of Article 6 § 1 of the Convention taken in
conjunction with Article 6 § 3 (c).
IV. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
- Lastly,
the applicant complained under Article 6 of the Convention that there
had been various breaches of the criminal procedure committed by the
trial court which had resulted in his unjust conviction.
- It
is not the Court's function to deal with errors of fact or law
allegedly committed by a national court unless and in so far as they
may have infringed rights and freedoms protected by the Convention
(see, among other authorities, Čekić
and Others v. Croatia (dec.), no.
15085/02, 9 October 2003). The Court has examined the
complaints as submitted by the applicant. However,
having regard to all the material in its possession, it finds that
those complaints 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 Article 35 §§ 3 and 4
of the Convention.
V. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the failure to
provide the applicant with a hearing aid, ineffectiveness of the
counsel during the trial and the failure to appoint counsel for the
appeal hearing admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention taken in conjunction with Article 6 §
3 (c) of the Convention on account of the failure to provide the
applicant with a hearing aid and the failure to appoint counsel for
the appeal hearing.
Done in English, and notified in writing on 14 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
