(Application no. 20292/04)
30 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 Ananyev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 7 July 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. First trial and ensuing appeal proceedings
B. Review of the applicant's conviction
C. New appeal proceedings
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Criminal Procedure
B. Case-law of the Constitutional Court of the Russian Federation
“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 convicted person's right to legal assistance in such proceedings may be restricted.”
“The aim of Article 258 § 3 of the Code of Criminal Procedure is to secure the proper administration of criminal justice and to prevent the disturbance of order in the courtroom by a defendant. Even though this rule allows for the removal of the defendant from the courtroom as a way of dealing with his unruly conduct, it does not deprive him of the right to participate in a hearing and conduct his defence in accordance with the applicable rules. Its purpose is to prevent the abuse of the rights granted to the defendant.
The defendant's right to be present at his trial should not be understood as being guaranteed even when he disturbs order in the courtroom or obstructs the proper administration of justice or the enjoyment by other parties of their procedural rights guaranteed by the Constitution of the Russian Federation. When deciding to remove the defendant from the courtroom... the [judge] must indicate the factual circumstances of the defendant's unruly conduct and sufficiently justify the finding that the defendant's removal from the courtroom was necessary.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“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 or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”
1. General principles
(a) Exclusion from the trial
(b) Appeal proceedings
Nevertheless, a State cannot be held responsible for every shortcoming of a lawyer appointed for legal-aid purposes. It follows from the independence of the legal profession that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal-aid scheme or be privately financed. The Court considers that the competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (Kamasinski v. Austria, 19 December 1989, § 67, Series A no. 168,).
II. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 2,000 (two 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;
Done in English, and notified in writing on 30 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina