AS TO THE ADMISSIBILITY OF
by Yuriy MAKHLYAGIN
The European Court of Human Rights (First Section), sitting on 1 October 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 28 October 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Yuriy Petrovich Makhlyagin, is a Russian national who was born in 1983. He is in a detention facility in the Sverdlovsk Region. He is represented before the Court by Mr A. Babushkin, a lawyer practising in Moscow. The respondent Government were represented by Mr P. Laptev and then Mr G. Matyushkin, respectively former and actual Representatives of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. Proceedings in 2003
The applicant was arrested and charged with murder and manslaughter. He retained a lawyer, Mr Sh., to represent him at the pre-trial stage of the criminal proceedings. On unspecified dates during the investigation the applicant confronted Ms L., an eyewitness, and Mr S., a witness.
The case was tried by the Krasnoturyinsk District Court of the Sverdlovsk Region.
The applicant was represented by Mr Sh. at the trial. On 4 April 2003 the court listed a hearing for 21 April 2003 and indicated that the applicant was accused of manslaughter.
At the hearings on 21 April and 5 May 2003 the District Court heard a number of witnesses, except for witnesses L and S. On the latter date, the court convicted the applicant of murder and manslaughter and sentenced him to eighteen years’ imprisonment. The trial judgment contained a notice that if the applicant appealed against it, he had “a right to apply to participate in the appeal hearing”.
In May 2003 the applicant and his counsel submitted statements of appeal to the Sverdlovsk Regional Court. The applicant asked the appeal court for “a re-examination of the case” under Articles 386 and 387 of the Code of Criminal Procedure. He also asked L and other witnesses to be called so that they could be questioned anew in his presence. The applicant challenged the findings of fact made by the trial court and affirmed that the murder had been committed by L.
By a letter of 18 June 2003 the Regional Court informed the applicant and Mr Sh. that an appeal hearing had been scheduled for 2 July 2003. On 23 June 2003 the District Court dispatched a letter notifying the applicant and Mr Sh. that an appeal hearing had been listed for 2 July 2003. According to the text of the letter, “the parties’ presence at the hearing [was] not obligatory”.
On 26 June 2003 the applicant requested the appeal court to admit Mr Kh., a lawyer of his choice, as counsel in the appeal proceedings. His request was not examined.
On 2 July 2003 the Regional Court upheld the judgment on appeal. Neither the applicant nor his lawyer was present at the hearing. The prosecutor was present and made oral submissions to the court.
On 16 June 2004 the Tagilstroyevskiy District Court of Nizhniy Tagil amended the judgment of 5 May 2003 and reduced the applicant’s sentence to seventeen years’ imprisonment. On 6 August 2004 the Regional Court upheld this decision.
B. Reopening of the case in 2007
On an unspecified date the Prosecutor General lodged a supervisory-review request before the Presidium of the Regional Court.
On 26 September 2007 the Presidium of the Regional Court heard the prosecutor and the applicant (by video link), and set aside the judgment of 2 July 2003. The court found as follows:
“Article 48 of the Constitution guarantees a right to adequate legal assistance. In the circumstances defined by the law such assistance is provided free of charge.
Article 51 § 3 of the Code of Criminal Procedure requires provision of legal assistance for persons having no opportunity or insufficient means to retain counsel.
It transpires from the case file that Mr Makhlyagin was represented by Mr Sh. at the trial.
The appeal court established that the applicant had not retained counsel and had not had the opportunity to do so.
On 9 June 2003 he wrote to the Sverdlovsk Regional Bar Association asking for counsel in the appeal proceedings. This request was forwarded to the Sverdlovsk Regional Court, which received it on 30 June 2003.
The appeal court rejected the applicant’s request...
A notification sent to Mr Sh. was not appropriate, since it indicated that his presence at the appeal hearing was not mandatory.
The above circumstances resulted in a violation of the applicant’s defence rights.”
The Presidium of the Regional Court also set aside the decisions of 16 June and 6 August 2004.
C. A fresh appeal hearing
On an unspecified date, the applicant was notified that an appeal hearing would be held on 24 October 2007.
On 5 October 2007 he asked the Regional Court to call and question a new witness who had allegedly come up with new exculpatory evidence. He also asked the Regional Court not to process his statements of appeal lodged in 2003 but “to examine the criminal case following the standard procedure applicable in appeal proceedings”.
On 9 October 2007 the applicant asked the Regional Court to admit Mr Babushkin as counsel in the appeal proceedings and reiterated his request for a re-examination of the case.
The applicant also sought access to the materials in his criminal case file. On 10 October 2007 he asked the Regional Court to ensure his access to the file, indicating that it was necessary for him to be able to lodge a new statement of appeal.
On an unspecified date legal-aid counsel was appointed. It appears that the applicant had no consultation with him; the latter did not study the case file or submit a statement of appeal.
On 24 October 2007 the Regional Court heard the prosecutor, the applicant (by video link) and legal-aid counsel. The appeal court concluded that the applicant had withdrawn his statement of appeal and waived his right of appeal. The court discontinued the proceedings. This decision was final and not amenable to appeal.
D. Supervisory review and a new appeal hearing
On 28 October 2008 the deputy Prosecutor General sought a supervisory review of the appeal decision of 24 October 2007. By a ruling of 4 February 2009 the Presidium of the Regional Court quashed the above decision and ordered a new appeal hearing. It held that the applicant had not been empowered to withdraw in October 2007 the statement of appeal submitted by his counsel Sh. in 2003; the appeal court had not informed counsel Sh. about the appeal hearing; the appeal court had misinterpreted the applicant’s request made in October 2007 to quash the trial judgment; and the appeal court had not examined his request to have a Mr B called as a witness. The supervisory review court concluded that the appeal court had violated the applicant’s right of appeal.
On 25 March 2009 the Regional Court set aside the trial judgment of 5 May 2003, noting that it was based on an inadequate assessment of evidence, including various statements made by witness L. The appeal court thus ordered a retrial, which is pending.
- under Article 6 §§ 1 and 3 of the Convention that his lawyer, Mr Sh., had been ineffective at the trial; that the applicant had not been brought to the appeal hearing or afforded legal assistance for it, while the prosecutor had been present and had made submissions to the appeal court; the courts had wrongly assessed certain witnesses’ testimonies and that the court of appeal had refused to (re)examine certain witnesses.
- under Article 6 § 3 (b) of the Convention that he had not had sufficient time to prepare his defence in view of the fact that the decision of 4 April 2003 did not mention the charge of murder although he was subsequently convicted of murder and manslaughter.
- under Article 6 § 3 (c) of the Convention that the trial court had not examined witness L at the hearing on 5 May 2003 and had refused to re-examine witness S on 21 April 2003.
The applicant complained under Article 6 of the Convention that the 2003 criminal proceedings against him, taken as a whole, had been unfair (see “Complaints” section above, point 1). He alleged in particular that he had not been given an opportunity to be present at the appeal hearing, nor had he been represented at that hearing.
Subsequently, the applicant also complained that he had been denied a right of appeal against the judgment of 5 May 2003 due to the appeal court’s allegedly arbitrary decision to discontinue the proceedings in October 2007. He also alleged that the above proceedings were otherwise deficient (see the “Complaints” section above, point 2).
The Court will examine these complaints under Article 6 of the Convention and Article 2 of Protocol No. 7, which read in the relevant parts as follows:
Article 6 (right to a fair hearing)
“1. In the determination of...any criminal charge against him, everyone is entitled to a fair...hearing...
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(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;...”
Article 2 of Protocol No. 7 (right of appeal in criminal matters)
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal... ”
A. Submissions by the parties
The Government submitted that the “re-examination” asked for by the applicant in his statement of appeal in 2003 concerned a retrial by a first-instance court and thus could not amount to a request to be brought before an appeal court as provided for under Article 375 of the Code of Criminal Procedure, in force at the time. No other such request had been made by the applicant or his counsel in 2003. Nor had he substantiated that a request for Mr Sh.’s participation had been submitted to the appeal court. The applicant and his counsel had been properly apprised of the appeal hearing but had chosen not to attend it. Subsequently, the Government submitted with reference to the supervisory review ruling of 4 February 2009 and the appeal decision of 25 March 2009 that the alleged violations of the applicant’s rights had been remedied at the national level.
The applicant maintained his complaint.
B. The Court’s assessment
The Court considers that before examining the complaints submitted, it should first determine, in the light of the subsequent developments, whether the applicant may still claim to be a victim within the meaning of Article 34 of the Convention.
The Court observes in this respect that in 2007 the supervisory review court acknowledged that the applicant’s defence rights had been violated in the 2003 appeal proceedings. A new appeal hearing was ordered. However, in October 2007 the Regional Court considered that the applicant did not want to pursue the appeal proceedings, and discontinued them.
Subsequently, in February 2009 the supervisory review court quashed the 2007 decision by the Regional Court to discontinue the appeal proceedings. The supervisory review court concluded that in 2007 the Regional Court had violated the applicant’s right of appeal noting, inter alia, that the applicant had not been empowered to withdraw in October 2007 the statement of appeal submitted by his counsel Sh. in 2003 and that the appeal court had misinterpreted the applicant’s request.
In the resumed appeal proceedings, on 25 March 2009 the Regional Court set aside the trial judgment of 5 May 2003 and ordered a retrial. The retrial is pending.
The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).
Having regard to the findings made by the supervisory review courts in 2007 and 2009 and the recent appeal court’s decision to order a full retrial, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breaches of the Convention (see, for a similar reasoning, Ponushkov v. Russia, no. 30209/04, § 71, 6 November 2008).
It follows that the applicant can no longer claim to be a “victim” of the alleged violations of Article 6 of the Convention and Article 2 of Protocol No. 7 within the meaning of Article 34 of the Convention and that these complaints must be rejected pursuant to Articles 34 and 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Nielsen Christos Rozakis