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FIRST
SECTION
CASE OF POTAPOV v. RUSSIA
(Application
no. 14934/03)
JUDGMENT
STRASBOURG
16 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 Potapov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 25 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14934/03) 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 Vyacheslav Anatolyevich
Potapov (“the applicant”), on 20 March 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the then Representative of the Russian Federation
at the European Court of Human Rights.
- On
31 August 2006 the Court declared the application partly inadmissible
and decided to communicate to the Government the complaint concerning
the alleged failure to provide the applicant with legal assistance.
It 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 considered the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and is serving a sentence of imprisonment
in the Novosibirsk Region.
- The
applicant was arrested on suspicion of murder. Legal aid counsel was
appointed to represent him. The applicant and his accomplice were
accused of having unlawfully entered the victim's flat and having
robbed him. The applicant was also charged with having wounded the
victim with a knife, causing the victim's death.
- On
11 October 2001 the Novosibirsk Regional Court appointed another
legal aid counsel to represent the applicant at the trial. The
applicant admitted the relevant facts, while giving a version of the
events which differed from that of his accomplice. In particular, he
made admissions to the effect that he had wounded the victim in a
fight and had then taken his belongings in order to simulate a
robbery.
- On
16 October 2001 the Regional Court convicted the applicant of
murder and robbery and sentenced him to seventeen years'
imprisonment. In his points of appeal to the Supreme Court of the
Russian Federation the applicant challenged the admissibility and
assessment of evidence by the trial court. He asked the court to
ensure his attendance at the appeal hearing.
- The
applicant asked for legal assistance with a view to preparing for the
appeal hearing. No response was received. On 20 June 2002 the
Supreme Court granted the applicant leave to appear in person.
- On
31 October 2002 the Supreme Court upheld the applicant's
conviction on appeal. The applicant was not represented. According to
the applicant, the hearing was conducted by means of a
videoconferencing facility (VCF). The Government, however, submitted
that the applicant “had been present at the hearing”.
- The applicant lodged a request dated 22 August 2003
for supervisory review of his conviction. This request was received
by the Supreme Court on 26 September 2003. In another request
dated 31 October 2002, received by the Supreme Court on 26 September
2003, the applicant challenged the appeal decision of 31 October
2002. He alleged that he had not been afforded an opportunity to be
present at the appeal hearing and had not been provided with the
assistance of counsel. By a decision of 25 May 2004, a Supreme Court
judge rejected his request.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- For
a summary of the relevant domestic law and practice, see the Court's
judgment in Shulepov v. Russia, no. 15435/03, §§
17-20, 26 June 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention that the
Supreme Court's failure to provide him with legal assistance in the
appeal proceedings had resulted in his conviction being upheld by the
decision of 31 October 2002.
- Article
6 reads, in the relevant parts, as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ...
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
Government argued that the applicant had not exhausted domestic
remedies in that he had not applied for supervisory review of the
appeal decision of 31 October 2002 after the Constitutional Court had
issued its decision of 18 December 2003 (no. 497-O) in an
unrelated case. The applicant's earlier requests had been against the
conviction on various grounds and only one request concerned the
appeal decision.
- The
applicant submitted that he had applied for supervisory review of
both the trial and the appeal judgments.
- The
Court need not determine the exact contents of the applicant's
requests for supervisory review (see paragraph 11 above), since it
has already examined and dismissed a similar argument by the
Government in Shulepov v. Russia (no. 15435/03, §§
22-24, 26 June 2008). The Court sees no reason to reach a different
conclusion in the present case. In any event, the Court finds it
doubtful that it was open to the applicant to lodge a fresh
application for supervisory review after the previous one had been
rejected.
- The Court concludes 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. Submissions by the parties
- The
Government acknowledged that the authorities' failure to examine the
applicant's request for the assistance of counsel in the appeal
proceedings had not been justified. They also pointed out that
Russian law and judicial practice did not and do not determine the
matter of free legal representation on the basis of any means test
(“insufficient means to pay for legal assistance”) or
“the interests of justice”. The only condition for such
representation was the absence of a waiver by the defendant of legal
representation. They further explained that at the relevant time most
Russian courts considered that representation in appeal proceedings
was not required under Russian law. Lastly, they indicated that the
authorities had acted with due diligence because despite the
applicant's refusal he had been provided with counsel during the
preliminary investigation and at the trial.
- The
applicant maintained his complaint.
2. The Court's assessment
- The
Court reiterates that the requirements of Article 6 § 3 are
particular aspects of the right to a fair trial guaranteed by Article
6 § 1, and therefore the applicant's complaint should be
examined under both provisions (see Vacher v. France, 17
December 1996, § 22, Reports of Judgments and Decisions
1996 VI). The manner in which the above provisions are to
be applied in relation to appellate or cassation proceedings depends
upon the particular features of these proceedings; account must be
taken of the domestic proceedings as a whole and the role of the
appellate or cassation court therein (see Twalib v. Greece,
judgment of 9 June 1998, § 46, Reports of Judgments and
Decisions 1998-IV).
- Turning
to the circumstances of this case, the Court first observes that the
parties disagreed as to whether defence rights had been adequately
secured during the preliminary investigation and at the trial.
However, in so far as relevant here, the Court is satisfied that the
applicant was provided with legal assistance before and during the
trial and that such representation was not manifestly ineffective.
Second, it is not without relevance that the applicant admitted the
relevant facts at the trial, though putting forward a version of
events which differed from that of his accomplice.
- The
Court does not need to verify whether the applicant had sufficient
means to pay for legal assistance since the Supreme Court failed to
take any decision on his request for legal assistance and, in any
event, as confirmed by the Government, no means test was applicable
under Russian law for deciding on a legal aid request in criminal
proceedings.
- The
Court has now to determine whether the interests of justice required
that the applicant be afforded free legal assistance on appeal. The
Court observes in that connection that the applicant drafted his
statement of appeal without the benefit of legal advice. Nor was he
represented at the appeal hearing. His appeal raised a number of
points contesting inter alia the trial court's decision on the
admissibility of certain pieces of evidence and the court's
assessment of the evidence. Given the gravity of the charges against
the applicant and the heavy custodial sentence to which he was
liable, the Court considers that the assistance of a lawyer was
essential for the applicant, as a lawyer would have been able to draw
the appeal court's attention effectively to any substantial argument
in the applicant's favour which might influence the court's decision.
Therefore, in the Court's point of view, the interests of justice
demanded that the applicant should have had legal assistance at this
stage of the proceedings.
- In
view of the above findings, the Court does not find it necessary to
ascertain whether the applicant was brought to the appeal hearing or
participated in it from the detention centre by means of the
videoconferencing facility.
- In
view of the above considerations the Court finds that the appeal
proceedings before the Supreme Court did not comply with the
requirements of fairness. There has therefore been a breach of
Article 6 § 1 in conjunction with Article 6 § 3
(c) of the Convention.
II. 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 2,000,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government submitted that the claims were unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it finds that the applicant suffered non-pecuniary damage,
which would not be adequately compensated by the finding of a
violation alone. However, the amount claimed by the applicant appears
to be excessive. Making its assessment on an equitable basis, it
awards the applicant EUR 1,000, plus any tax that may be
chargeable.
- The
Court further reiterates that when an applicant has been convicted
despite a potential infringement of his rights as guaranteed by
Article 6 of the Convention, he should, as far as possible, be put in
the position in which he would have been had the requirements of that
provision not been disregarded, and that the most appropriate form of
redress would, in principle, be the reopening of the relevant
proceedings, if requested (see Somogyi v. Italy, no. 67972/01,
§ 86, ECHR 2004-IV). The Court notes, in this
connection, that Article 413 of the Code of Criminal
Procedure provides that criminal proceedings may be reopened if
the Court has found a violation of the Convention.
B. Costs and expenses
- The
applicant made no claim in respect of costs and expenses. The Court
makes no 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
- Declares the complaint concerning the
unavailability of free legal representation admissible;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (c) 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 1,000 (one
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 16 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
