CASE OF SHUMIKHIN v. RUSSIA
(Application no. 7848/06)
16 July 2015
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 Shumikhin v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 23 June 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 7848/06) 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 Aleksandr Anatolyevich Shumikhin (“the applicant”), on 26 April 2006.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged that he had not been provided with free legal assistance for the appeal hearing of his criminal case.
4. On 28 November 2013 the complaint concerning the lack of legal assistance at the appeal hearing of the applicant’s criminal case was communicated to the Government and the remainder of the application was declared inadmissible.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1963 and lived prior to his arrest and conviction in the Perm region. He is currently serving a prison sentence in a correctional colony in the Yamalo-Nenetskiy Autonomous region.
6. On 20 February 2005 the police arrested the applicant on suspicion of triple murder and attempted murder.
7. On 21 February 2005 Chusovskiy District Court of the Perm Region ordered that he be placed in detention. The applicant remained in a temporary detention facility in the town of Chusovo until his conviction in June 2005.
8. On 21 June 2005 the Perm Regional Court found the applicant guilty of triple murder and attempted murder and sentenced him to life imprisonment.
9. The applicant was represented by state-appointed counsel at the investigation stage and before the first-instance court.
10. On 29 June 2005 the applicant appealed against his conviction to the Supreme Court of the Russian Federation (“the Supreme Court”).
11. On 14 November 2005, while he was detained in Moscow remand prison no. 2, the applicant asked the Supreme Court to appoint legal counsel to defend him during the appeal proceedings. He also asked to meet counsel prior to the appeal hearing in order to prepare his defence. His request of 14 November 2005 was registered in the register of outgoing correspondence of the remand prison. According to the Government, the applicant’s request never reached the Supreme Court and has therefore not been examined.
12. On 18 November 2005 the Supreme Court examined the applicant’s appeal. The applicant was not assisted by legal counsel at the appeal hearing. The Government acknowledged that the appeal court had not taken measures to ensure that the applicant be provided with free legal assistance for the appeal hearing. The Supreme Court heard the applicant and the prosecutor and modified the legal classification of the applicant’s action. However, that modification had no impact on the applicant’s sentence.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Legal assistance in criminal proceedings
1. Constitution of the Russian Federation
13. The Constitution of the Russian Federation guarantees a defendant in criminal proceedings the right to qualified legal assistance (Article 48) and to a determination of the criminal charge against him in accordance with the principles of adversarial proceedings and equality of arms (Article 123).
2. The Code of Criminal Procedure of the Russian Federation of 18 December 2001, in force from 1 July 2002 (“the CCrP”)
14. Participation of legal counsel in criminal proceedings is mandatory if the suspect or the accused has not refused legal representation. Legal representation is also mandatory if the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Unless counsel has already been retained by the accused, it is incumbent on the investigator or the court to ensure the participation of legal counsel in the proceedings (Article 51).
3. Case-law of the Constitutional Court of the Russian Federation
15. 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 defines the circumstances in which representation by 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.”
16. 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 under 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 representation by defence counsel in appeal proceedings.
B. Procedure for re-opening of criminal proceedings
“1. Court judgments and decisions which have become final must be quashed and proceedings in a criminal case reopened if there are new or newly discovered circumstances.
4. New circumstances are:
(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:
(a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 6 § 3 (c) THEREOF
18. The applicant complained under Article 6 of the Convention that he had not been provided with free legal assistance for the appeal proceedings in his criminal case. 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 ... 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 ...”
19. The Government acknowledged that the appeal proceedings of 18 November 2005 before the Supreme Court of the Russian Federation had fallen short of the guarantees of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) 1 thereof.
20. The applicant maintained his complaint.
21. The Court notes that the Government acknowledged that there had been a violation of Article 6 in the present case. However, the authorities have not provided any redress to the applicant for that violation of the Convention and therefore their acknowledgment is not sufficient to deprive the applicant of his status as a “victim” for the purposes of Article 34 of the Convention (see, for example, Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 66-84, 2 November 2010). He may therefore still claim to be a victim within the meaning of Article 34 of the Convention. The Court further notes that this complaint is not manifestly ill-founded and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
22. The Court reiterates 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. Therefore, it will examine the applicant’s complaints under these provisions taken together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I).
23. The Court takes note of the Government’s acknowledgment of the violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) 1 thereof. In the circumstances of the present case, and having regard to its case-law (see, for example, Shulepov v. Russia, no. 15435/03, §§ 31-39, 26 June 2008, Krylov v. Russia, no. 36697/03, §§ 43-49, 14 March 2013 and, more recently, Shekhov v. Russia, no. 12440/04, §§ 41-47, 19 June 2014) the Court finds no reason to hold otherwise. It therefore concludes that there has been a violation of those provisions.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. 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.”
25. The applicant claimed 500,000 euros (EUR) in respect of non-pecuniary damage.
26. The Government contested the applicant’s claims. They considered that in the event that the Court were to find a violation of the applicant’s rights in the present case, such a finding would constitute an adequate just satisfaction.
27. The Court is of the view that the applicant must have suffered feelings of injustice and frustration as a result of the violation of his right to a fair hearing. However, the amount claimed is excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage.
28. The Court further refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights 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 proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 263, 13 July 2006). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides the basis for the reopening of the proceedings in the event of a finding of a violation by the Court.
B. Costs and expenses
29. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.
C. Default interest
30. 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 application admissible;
2. Holds that there has been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention on account of the absence of legal assistance at the appeal hearing of 18 November 2005;
(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 the currency of the respondent State 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 16 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle Berro