FIRST SECTION
CASE OF EDUARD ROZHKOV
v. RUSSIA
(Application no.
11469/05)
JUDGMENT
STRASBOURG
31 October 2013
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 Eduard Rozhkov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 8 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
11469/05) 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 Eduard Vasilyevich Rozhkov (“the
applicant”), on 25 February 2005.
The applicant was represented by Mr Pashukov, a
lawyer practising in Sochi. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
The applicant alleged, in particular, that he was not legally represented at the appeal hearing of
6 October 2004.
On 17 February 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1969 and lives in Krasnodar.
On 26 January 2004 the applicant was charged with
murder. He was assisted by legal counsel and pleaded guilty to a lesser charge
of manslaughter. On 5 August 2004 the Novokubansk District Court of Krasnodar
Region convicted the applicant as charged and sentenced him to ten years’
imprisonment.
On 14 August 2004 the applicant and his counsel submitted
their statements of appeal in which they requested the appeal court to
reclassify the offence as manslaughter and challenged the findings of fact made
by the trial court.
On 15 September 2004 the appeal hearing was adjourned
as the applicant and his lawyer had not been notified of the appeal hearing fourteen
days in advance.
. The
Government produced a typed summons issued by the Krasnodar Regional Court on 22
September 2004, by which the applicant and his counsel were to be informed of the
appeal hearing scheduled for 6 October 2004. According to the Government,
a copy of this summons was sent to the lawyer’s address.
On 6 October 2004 the Krasnodar Regional Court
upheld the judgment of 5 August 2004. A representative of the prosecution and
the applicant, but not his counsel, attended the appeal hearing.
II. RELEVANT DOMESTIC LAW
A. Relevant domestic law
The Code of Criminal
Procedure of the Russian Federation, in force from 1 July 2002, provides as
follows:
Article 51. Mandatory participation of defence counsel
“1. participation
of a defence counsel in criminal proceedings shall be mandatory, if:
1) a suspect or accused has not waived defence
counsel as per Article 52 of this Code ...
3. If, in the instances
specified in paragraph 1 of this Article, no defence counsel has been retained
by the suspect or defendant, his representative, or by other persons acting on
instructions from or subject to the consent of the suspect or accused, the
inquiry officer, investigator, prosecutor, or court shall ensure participation
of defence counsel in the criminal proceedings.”
Article 52. Waiver of defence counsel
“1. A suspect or defendant shall have the right to
waive a defence counsel at any moment of the proceedings in the criminal case.
Such waiver shall be permitted only upon the initiative of the suspect or
defendant. A waiver of defence counsel shall be filed in writing and be entered
into the record of the relevant procedural action ...”
B. Case-law of the Constitutional Court
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 shall not be 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 in the same
conditions as for earlier stages in the proceedings and that it 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained under Article 6 §§ 1
and 3 (c) of the Convention that the Krasnodar Regional Court had failed to
ensure his counsel’s presence at the appeal hearing, while the prosecutor had
attended it and had made oral submissions. The relevant parts of Article 6
provide 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. Submissions by the parties
The Government firstly submitted
that the applicant had only petitioned the appeal court for his personal
attendance at the appeal hearing, but not that of his lawyer. They further
submitted that the applicant’s counsel had been informed of the date of the
appeal hearing but had failed to appear. The applicant had not asked the appeal
court to appoint a replacement counsel or to adjourn the hearing. The applicant’s
lawyer had filed written submissions in which he had exhaustively presented his
arguments. The applicant’s defence rights had not therefore been violated.
The applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) General principles
The Court notes at the outset that the
requirements of Article 6 § 3 of the Convention 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).
As regards Article 6 § 3 (c), the Court
reiterates that, while it confers on everyone charged with a criminal offence
the right to “defend himself ... through legal assistance ...”, it does not
specify the manner of exercising this right. It thus leaves to the Contracting
States the choice of the means of ensuring that it is secured in their judicial
systems, the Court’s task being only to ascertain whether the method they have
chosen is consistent with the requirements of a fair trial (see Quaranta
v. Switzerland, 24 May 1991, § 30, Series A no. 205).
In a number of cases, the Court has already
ruled that the State authorities may be responsible for ensuring that
defendants in criminal proceedings are legally represented in appeal
proceedings. The factors relevant to the determination of the scope of this
obligation include: (a) the scope of the jurisdiction of the appeal court
in question (whether it extended to both legal and factual issues, whether the
court was empowered to fully review the case and to consider additional
arguments which had not been examined in the first-instance proceedings); (b) the
seriousness of the charges against the applicant; and (c) the severity of
the sentence which the applicant faced (see Maxwell v. the United Kingdom,
28 October 1994, § 40, Series A no. 300-C; Shilbergs v. Russia,
no.20075/03, § 123, 17 December 2009; Potapov v.
Russia, no. 14934/03, § 24, 16 July 2009; Shulepov v. Russia, no. 15435/03, §§ 34-39, 26 June 2008; and Shugayev
v. Russia, no. 11020/03, §§
53-60, 14 January 2010).
(b) Application of these principles to the present
case
The Court had already noted that the
jurisdiction of appeal courts in the Russian legal system extends to both
issues of facts and law (see, for example, Sidorova (Adukevich) v. Russia,
no. 4537/04, § 25, 14 February 2008, and Shulepov v. Russia, cited
above). In his appeal statement the applicant contested his conviction on both
factual and legal grounds. The Krasnodar Regional Court was thus called upon to
make an assessment of the applicant’s guilt or innocence within the scope of
the grounds of appeal. 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 was
present at the appeal hearing and made submissions to the appeal court.
In so far as the Government may be understood to
argue that by failing to indicate in his appeal statement his wish to ensure
attendance by his lawyer at the hearing (see paragraph 15 above) the applicant
had waived this right, the Court considers it necessary to note the following.
It follows from the parties’
submissions and the documents at the Court’s disposal that at trial the
applicant was assisted by counsel of his choice. The same counsel joined the
applicant in his appeal against the conviction. This conclusion is supported by
the fact that the Krasnodar Regional Court had accepted the counsel’s appeal
statement and allegedly sent a summons to his address to inform him of the
appeal hearing. There is no indication that the applicant waived, explicitly or
implicitly and in accordance with the above-mentioned requirements (see
paragraph 11 above), his right to be assisted by counsel on appeal.
Having regard to the wording of Article 51 of
the Russian Code of Criminal Procedure (see paragraph 11 above), as well as the
Russian Constitutional Court’s interpretation of that legal provision (see
paragraphs 12-13 above), the Court observes that the applicant’s
representation on appeal was mandatory under domestic law. In so far as the
Government argued that it had been for the applicant to seek leave for his
counsel to appear before the appeal court, the Court notes that, apart from the
fact that the Government did not point to any legal provision which supported
their reading of the applicant’s obligation, it has already held on a number of
occasions that the effectiveness of the guarantee of legal representation by
default contained in Article 51 of the Code of Criminal Procedure would be
undermined without a corresponding obligation on the part of the courts to
verify in each individual case whether it is lawful to proceed with a hearing
in the absence of legal counsel for the accused (see Grigoryevskikh v. Russia,
no. 22/03, § 90, 9 April 2009).
The Court therefore concludes that it was 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 of Criminal Procedure or to
adjourn the examination of the appeal. Given the seriousness of the charges
against the applicant and the severity of the sentence to which he had been
liable, the court’s compliance with this guarantee took even greater importance.
The Court therefore finds that there has been a
violation of Article 6 § 1 in conjunction with Article 6 § 3 (c)
of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also alleged violations of his
rights in the course of the preliminary investigation and trial, as well as a lack
of effective remedies and discrimination. He relied in this respect on Articles
1, 2, 3, 5, 8, 13, 14 and 17 of the Convention. Having regard to all the
material in its possession, the Court finds that, in so far as these complaints
fall within its competence, 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 manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) 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 10,000 euros (EUR) in
respect of non-pecuniary damage.
The Government submitted that his claims were
excessive.
The Court accepts that the applicant suffered
distress and frustration which cannot be compensated for solely by the finding
of a violation. Making its assessment on an equitable basis, the Court awards
the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaint concerning the
applicant’s counsel’s absence from the appeal hearing admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 in conjunction
with Article 6 § 3 (c) of the Convention;
3. 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 4,000 (four
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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 31 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
