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FIRST
SECTION
CASE OF SINICHKIN v. RUSSIA
(Application
no. 20508/03)
JUDGMENT
STRASBOURG
8 April 2010
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 Sinichkin v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
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 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20508/03) 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
Andrey Vladimirovich Sinichkin (“the applicant”), on 12
May 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the Representative of the Russian Federation at the
European Court of Human Rights.
- On
29 May 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 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 1970 and is serving a prison sentence in
correctional colony YuK-25/8 in the Orenburg Region.
- On
24 June 2002 the applicant was arrested on suspicion of aggravated
concerted robbery and taken to the Leninskiy District police station
of the Orsk town police department. He refused legal assistance,
signed a record confirming his refusal and denied the accusations
made. He was released on the same day.
- On
22 July 2002 the applicant was again remanded in custody. He was
charged with aggravated robbery and questioned after he had refused
legal assistance. Police officers allegedly threatened and humiliated
him with a view to extracting a confession from him. The applicant
did not confess. Two days later he was released on a written
undertaking not to leave the town.
- On
23 July 2002 the local bar association appointed counsel M. to
represent the applicant in the criminal proceedings. It appears that
M. was appointed to represent the applicant as legal-aid counsel.
- On
31 October 2002 the Leninskiy District Court of Orsk started
examining the applicant's criminal case. On the same day the
applicant lodged a written request with the trial court, by which he
declined the services of M. and sought leave to represent himself. He
explained that it was a voluntary decision and had not been caused by
financial difficulties. M. submitted to the court that he agreed with
the applicant's request. Having discussed the issue, the court
allowed the applicant's request and granted him leave to represent
himself.
- By a judgment of 10 November 2002, the District Court
found the applicant guilty as charged and sentenced him to thirteen
years' imprisonment. It established that the applicant, together with
his two co-defendants, had attacked, robbed and severely beaten up
the victim. The applicant's role, previously agreed upon by the
co-defendants, consisted, among other things, in threatening the
victim with a knife. The court based its findings on partial
confessions by the applicant's co-defendants, statements by victims
and witnesses and material evidence. It was finally stated in the
judgment that it could be appealed against to the Orenburg Regional
Court within ten days of its pronouncement or, for the detained
defendants, within the same period after receipt of its copy. It was
also stated that if the remanded convicts were submitting an appeal
statement, they had a “right to request to participate in the
examination of the criminal case by the appellate court”.
- On 21 November 2002 the applicant appealed against his
conviction to the Orenburg Regional Court (“the Regional
Court”). He did not dispute that he had taken the money from
the victim but disagreed with the way the trial court had established
the relevant facts, the distribution of roles between him and his
co-defendants and the classification of his own acts. He submitted,
in particular, that the trial court had disregarded his testimony and
statements by witnesses which supported it, in particular, regarding
the trial court's findings about the distribution of responsibility
between him and his co-defendants and the classification of his acts
as a premeditated robbery. In his appeal statement the applicant
neither requested the Regional Court to secure his presence at the
appeal hearing nor sought legal representation. According to the
Government, the applicant's co-defendants who also appealed against
the conviction expressly requested the appellate court to secure
their presence at the appeal hearing.
- According
to the Government, on 25 November 2002 a notification about the
appeal hearing was sent to the remand centre where the applicant was
being held.
- On
19 December 2002 the Regional Court examined the appeals lodged by
the applicant and his co-defendants and upheld the judgment. The
applicant was absent from the appeal hearing and was not represented
before it, while his co-defendants, as well as the prosecutor,
attended the hearing and made submissions.
- By
a judgment of 19 December 2002, the Regional Court dismissed the
applicant's appeal and upheld the conviction.
II. RELEVANT DOMESTIC LAW
A. The Code of Criminal Procedure
1. Scope of examination of the criminal case by the
appeal court
- Under Article 360 of the Code of
Criminal Procedure, which entered into force on 1 July 2002 (“the
CCP”), the appeal court verifies the legality, validity and
fairness of the judgment of the trial court only to the extent to
which it has been complained against and only in respect of those
convicted who are concerned by the appeal. The appeal court is
empowered to reduce the sentence imposed on the convicted person or
to apply the law of a lesser offence. It has no power to impose a
more severe penalty, apply a law on a more serious offence or quash
an acquittal, unless it considers that the conviction was unfair or
that the interests of the parties to the proceedings were violated.
- A
conviction is deemed unfair if the sentence imposed is inconsistent
with the seriousness of the offence, the personality of the convicted
person, or if that sentence, although within the limits of the
relevant Article of the Criminal Code, is unfair in its chosen type
or extent, being either disproportionately lenient or
disproportionately severe A conviction may be reversed when it is
necessary to impose a more severe penalty where the penalty imposed
by the trial court is deemed unfair as being disproportionately
lenient - only when it is requested by the pubic prosecutor, the
victim or the private prosecution (Article 383).
- Under
Article 377 §§ 4 and 5 of the CCP, the appeal instance
may directly examine evidence, including additional material
submitted by parties.
2. Defendant's presence at the appeal hearing
- Under
Article 375 § 2, if a convicted person wishes to participate in
an appeal hearing he or she should indicate that wish in the
statement of appeal.
- Article
376 of the Code provides that upon receipt of the criminal case and
the statements of appeal, the judge fixes the date, time and place
for a hearing. The parties shall be notified of the date, time and
place of the hearing no later than fourteen days before the scheduled
hearing. The court determines whether the remanded convict should be
summoned to the hearing. If the remanded convict has expressed the
wish to be present at the examination of his appeal, he has the right
to participate in person or to state his case via video link. The
manner of his participation in the hearing is to be determined by the
court. A defendant who has appeared before the court shall always be
entitled to take part in the hearing. The failure of persons timely
notified about the date, time and venue of the hearing to appear does
not preclude the court from taking on the examination of the case.
- Under
Article 377, the presiding judge opens the hearing by announcing
which criminal case is to be examined and on whose appeal. He then
announces the composition of the court, the names of persons who are
parties to the proceedings and are present at the hearing and hears
the statements of those who had lodged the appeals and of the
opposing parties. The appeal court is entitled, at the party's
request, to directly examine evidence and additional materials
provided by the parties to support or disprove the arguments cited in
the statement of appeal or in the statements of the opposing party.
3. Legal representation
- The
CCP provides as follows:
Article 51
“1. Participation of legal counsel in the criminal
proceedings is mandatory if:
1) the suspect or the accused has not waived legal
representation in accordance with Article 52 of this Code;
2) the suspect or the accused is a minor;
3) the suspect or the accused cannot exercise his right
of defence by himself owing to a physical or mental handicap;
3.1) the court proceedings are to be conducted [in the
absence of the accused] in accordance with Article 247 § 5 of
this Code;
4) the suspect or the accused does not speak the
language in which the proceedings are conducted;
5) the suspect or the accused faces serious charges
carrying a term of imprisonment exceeding fifteen years, life
imprisonment or the death penalty;
6) the criminal case falls to be examined by a jury
trial;
7) the accused has filed a request for the proceedings
to be conducted [without a hearing] under Chapter 40 of this Code;
2. ...
3. In the circumstances provided for by paragraph 1
above, unless counsel is retained by the suspect or the accused, or
his lawful representative, or other persons on request, or with
consent, of the suspect or the accused, it is incumbent on the
investigator, prosecutor or the court to ensure participation of
legal counsel in the proceedings.”
Article 52
“1. The suspect or 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 suspect or the
accused. The waiver must be filed in writing and must be recorded in
the official minutes of the relevant procedural act.
...”
B. Case-law of the Constitutional Court of the Russian
Federation
- Examining
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 convict's right to legal assistance in such
proceedings may be restricted.”
- That
position was subsequently confirmed and developed 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 is mandatory in situations listed in
Article 51. It further underlined the obligation of courts to secure
participation of defence counsel in appeal proceedings.
C. Case-law of the Supreme Court of the Russian
Federation
- In
a number of cases (decisions of 13 October 2004 and 26 January, 6
April, 15 June and 21 December 2005) the Presidium of the Supreme
Court of the Russian Federation quashed judgments of appeal courts
and remitted cases for fresh consideration on the ground that the
courts had failed to secure the presence of defence counsel in the
appeal proceedings, although it was obligatory for the accused to be
legally represented.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention that the
appellate court had examined his appeal in his absence. The Court
also raised, of its own motion, under Article 6 of the Convention the
issue of lack of free legal representation for the applicant at the
appeal hearing. Article 6, in its relevant parts, reads 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...”
A. Admissibility
- The Court notes 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 submitted that pursuant to Article 375 of the Code of
Criminal Procedure, if a convicted person wished to participate in
the appeal hearing, he or she was to request it expressly in the
appeal statement. They further claimed that on 10 November 2002,
after the pronouncement of the conviction, the first-instance court
had explained to all defendants that they had a right to request the
appellate court to secure their presence at the appeal hearing. A
copy of the judgment of 10 November 2002 obtained by the
applicant in the remand centre also contained that indication.
However, in his appeal statement the applicant had not sought leave
to attend the hearing. Accordingly, on 25 November 2002 a simple
notification about the date of the appeal hearing had been sent to
his remand centre. The applicant had not submitted any other
requests, either to attend the appeal hearing or for a lawyer to be
appointed to represent him there. At the same time, his co-defendants
had expressly requested the appellate court to secure their
attendance and had been able to attend.
- As
regards the issue of representation, the applicant had not been
represented before the trial court, hence a lawyer could not have
been notified about the appeal hearing. The applicant had refused
legal assistance during the trial, as he had had the right to do
under Article 52 of the CCP. The applicant's refusal had not
prevented him from requesting legal assistance at later stages of the
proceedings. Pursuant to Article 51, the authorities could have
insisted on appointing a lawyer for the applicant if, among other
things, he had been charged with offences punishable with more than
fifteen years' imprisonment, or he had no knowledge of Russian or was
mentally disabled. However, he had been charged with an offence
carrying a sentence of up to fifteen years' imprisonment and thus the
authorities could not override his wish to refuse legal
representation. Had the applicant requested a representative, the
authorities would have been obliged to appoint counsel for him
pursuant to Articles 47, 50 and 52 of the CCP. Furthermore, had the
applicant requested his lawyer's presence at the appeal hearing and
had the appellate court disregarded it, those circumstances would
have constituted an unconditional ground for quashing the appellate
court's judgment. Lastly, they noted that the applicant had several
previous convictions and thus had a good knowledge of the
peculiarities of the pre-trial investigation and the proceedings
before the courts.
- The
applicant maintained his position.
2. The Court's assessment
(a) General principles
(i) The rights to participate in the
hearing and to be legally represented
- The
Court reiterates that in the interests of a fair and just criminal
process it is of capital importance that the accused should appear at
his trial (see Lala v. the Netherlands, 22 September 1994, §
33, Series A no. 297 A, and Poitrimol v. France, 23
November 1993, § 35, Series A no. 277 A), and that the duty
to guarantee the right of a criminal defendant to be present in the
courtroom – either during the original proceedings or in a
retrial – ranks as one of the essential requirements of Article
6 (see Stoichkov v. Bulgaria, no. 9808/02, § 56, 24
March 2005).
- The
personal attendance of the defendant does not take on the same
crucial significance for an appeal hearing as it does for the trial
hearing (see Hermi v. Italy [GC], no. 18114/02, §
60, ECHR 2006 XII). In particular, proceedings involving only
questions of law, as opposed to questions of fact, may comply with
the requirements of Article 6, even though the appellant has not been
given the opportunity to be heard in person by the appeal or
cassation court, provided that he has been heard by a first-instance
court (see Monnell and Morris v. the United Kingdom, 2 March
1987, § 30, Series A no. 115, and Sutter v. Switzerland,
22 February 1984, § 30, Series A no. 74). Furthermore, in
appeal proceedings reviewing the case both as to facts and as to law
Article 6 has been interpreted by the Court in several cases as not
always requiring a right to appear in person (see, for example, Fejde
v. Sweden, 29 October 1991, § 33, Series A no. 212 C).
- At
the same time the Court held on several occasions that where an
appellate court has to examine a case as to the facts and the law and
make a full assessment of the issue of guilt or innocence, it cannot
determine that issue without a direct assessment of the evidence
given in person by the accused for the purpose of proving that he did
not commit the act allegedly constituting a criminal offence (see
Dondarini v. San Marino, no. 50545/99, § 27, 6 July
2004; Constantinescu v. Romania, no. 28871/95, § 55,
ECHR 2000 VIII; and Igual Coll v. Spain, no.
37496/04, § 27, 10 March 2009).
- In
sum, in assessing this question regard must be had 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
appeal court, particularly in the light of the issues to be decided
by it and of their importance for the appellant (see Hermi,
cited above, § 62, with further references; Metelitsa
v. Russia, no. 33132/02, § 27, 22 June 2006; and
Belziuk v. Poland, 25 March 1998, § 37, Reports of
Judgments and Decisions 1998 II).
- It
is also 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 Metelitsa and Lala, both
cited above, §§ 28, and 33, respectively). As regards, in
particular, the need for an applicant to be provided with legal-aid
counsel on appeal, the Court has already held that the situation in a
case involving a heavy penalty where an appellant was left to present
his own defence unassisted before the highest instance of appeal,
which has wide powers in the assessment of the case, was not in
conformity with the requirements of Article 6 (see Shulepov v.
Russia, no. 15435/03, § 32, 26 June 2008;
Granger v. the United Kingdom, 28 March 1990, §§
47-48 , Series A no. 174; Maxwell v. the United Kingdom, 28
October 1994, §§ 38-41, Series A no. 300 C; and
Boner v. the United Kingdom, 28 October 1994, §§
38-44 , Series A no. 300 B).
(ii) Waiver
- Lastly,
the Court reiterates that a waiver of a right guaranteed by the
Convention – in so far as it is permissible – must not
run counter to any important public interest, must be established in
an unequivocal manner and must be attended by minimum safeguards
commensurate to the waiver's importance (see Sejdovic v. Italy
[GC], no. 56581/00, § 86, ECHR 2006-II, and Hermi, cited
above, § 73). Moreover, before an accused can be said to have by
implication, through his conduct, waived an important right under
Article 6, it must be shown that he could reasonably have foreseen
what the consequences of his conduct would be (see Talat Tunç
v. Turkey, no. 32432/96, § 59, 27 March 2007, and Jones
v. the United Kingdom (dec.), no. 30900/02, 9 September 2003).
(b) Application of the above principles to
the present case
- 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).
- The
Court would further observe that it does not consider it necessary to
decide whether the absence of the applicant and his counsel, taken
separately, would render the proceedings before the appellate court
unfair. Neither of them was present before the Orenburg Regional
Court, and it is against this background that the Court will
determine the complaint in issue (see Metelitsa, cited above,
§ 30).
- Having
regard to paragraphs 15-17 above, the Court notes that the
jurisdiction of appeal courts in the Russian legal system extends to
both issues of facts and law (see also Sidorova (Adukevich) v.
Russia, no. 4537/04, § 25, 14 February 2008, and
Shulepov, cited above, § 34) and that the Orenburg
Regional Court had the power to fully review the case and consider
additional arguments which had not been examined at the trial. In his
appeal statement the applicant contested his conviction on both
factual and legal grounds, his account of events differing from those
of his co-accused in important aspects (see paragraph 11 above and
compare Metelitsa, cited above, § 31). The appeal
court was thus called upon to make a full assessment of the
applicant's guilt or innocence regarding the charges against him. In
the Court's view, the issues raised by the applicant in his appeal
statement can reasonably be considered to have presented a certain
factual and legal complexity. It also cannot disregard that the
prosecutor and the applicants' co-defendants were present at the
appeal hearing and made submissions to the appeal court. Taking
further into account what was at stake for the applicant, who had
been sentenced to thirteen years' imprisonment, the Court does not
consider that the Orenburg Regional Court could properly determine
the issues before it without a direct assessment of the evidence
given by the applicant either in person or through some form of legal
representation.
- In
so far as the Government may be understood to argue that, by failing
to indicate in his appeal statement his wish to participate in the
appeal hearing and to obtain legal representation, the applicant
waived those rights, the Court considers it necessary to note the
following.
- As
regards the right to take part in the appeal hearing, the Court is
satisfied that the applicant's failure to request to attend did not
constitute an explicit and unequivocal waiver of that right. If
analysed in terms of an implicit waiver, the Court has certain doubts
that the necessary safeguards were in place to make it satisfy the
Convention requirements (see, among other authorities, Talat Tunç,
cited above, § 60). Nonetheless, the Court need not resolve that
issue, because it considers that the proceedings before the Regional
Court in any event fell short of the requirements of fairness for the
following reasons.
- It
follows from the parties' submissions and the documents at the
Court's disposal that at trial the applicant explicitly declined
services of M., who appeared to be legal-aid counsel, and that the
trial court accepted that decision and allowed his request for
self-representation. However, there is no indication that the
applicant waived, explicitly or implicitly and in accordance with the
above-mentioned requirements (see paragraph 35 above), his right to
be represented by legal-aid counsel on appeal (compare Grigoryevskikh
v. Russia, no. 22/03, § 89,
9 April 2009).
- For
the reasons stated in paragraph 38 the Court cannot accept as
decisive the Government's argument that the applicant's
representation on appeal was not mandatory under the domestic law. In
this respect the Court stresses that it is not its role to decide in
the abstract whether the applicable domestic law is compatible with
the Convention or whether it has been respected by the national
authorities, but to assess whether the requirements of Article 6 have
been complied with (see Ringeisen v. Austria, 16 July 1971,
§ 97, Series A no. 13).
- In
so far as the Government further argued that it had been for the
applicant to request appointment of counsel on appeal, the Court
notes that it has already dismissed similar arguments, pointing out
that, according to the applicable norms of the CCP, as interpreted by
the Russian Constitutional Court, the onus to appoint a legal-aid
lawyer rested upon the relevant authority at each stage of
proceedings (see Shulepov, cited above, § 37). In
the Grigoryevskikh judgment (cited above, § 90) it was
specifically emphasised that the effectiveness of the guarantee of
legal representation by default contained in Article 51 of the CCP
would be undermined without a corresponding obligation on the part of
the court to verify in each individual case whether it is lawful to
proceed with the hearing in the absence of legal counsel for the
accused. In that case the Court concluded that it had been incumbent
on the appeal court to verify whether there had been a valid waiver
of legal assistance by the applicant and, if there was none, to
appoint a lawyer as required by Article 51 §§ 1(1) and 3 of
the Code (ibid).
- In
view of the above findings, the Government's submission concerning
the applicant's presumably extensive experience of the applicable
procedures because of his previous convictions is without relevance
for the Court's analysis, particularly having regard to the fact that
the applicant's trial took place shortly after the entry into force
of the new CCP.
- Having
regard to its findings in paragraphs 38-44 above, the Court concludes
that the proceedings before the Orenburg Regional Court fell short of
the requirements of fairness. There has therefore been a violation of
Article 6 § 1 in conjunction with Article 6 § 3 (c) of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Articles 1 and 3 of the Convention
that the two days of his detention in July 2002 had amounted to
inhuman and degrading treatment, because police officers had
humiliated him, and under Article 6 that the domestic courts had
incorrectly assessed the evidence in his case and had refused to
summon certain witnesses on his behalf.
47. However,
having regard to all the material in its possession, and
in so far as these complaints fall within the Court's competence, it
finds that they 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.
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.”
- 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 complaints concerning the
applicant's absence from the appeal hearing on 19 December 2002 and
the authorities' failure to provide him with a legal aid counsel
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 in conjunction with Article 6 § 3 (c) of the
Convention.
Done in English, and notified in writing on 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
