(Application no. 22/03)
9 April 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 Grigoryevskikh v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 19 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
B. Conditions of the applicant’s detention in IZ-36/2
1. Detention from 22 January to 8 March 2001
2. Detention from 27 August 2001 to 12 July 2002
C. The applicant’s hearing impairment and other health problems
D. The applicant’s property
E. The alleged refusal to grant the applicant leave to attend his mother’s funeral
II. RELEVANT DOMESTIC LAW
A. Detention of Suspects Act
B. The Code of Criminal Procedure
“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;
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.”
“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.
C. 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 convict’s right to legal assistance in such proceedings may be restricted.”
D. Case-law of the Supreme Court
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Submissions by the parties
B. The Court’s assessment
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
Article 6 (right to a fair hearing)
“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 ...”
1. The parties’ submissions
(a) The Government
(b) The applicant
2. The Court’s assessment
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. 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 6,000 (six thousand euros) plus any tax that may be chargeable to the applicant on that amount, 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 9 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge A. Kovler is annexed to this judgment.
CONCURRING OPINION OF JUDGE KOVLER
I share the Chamber’s conclusions that there has been a violation of Article 6 § 1 and Article 6 § 3 (c) of the Convention in this case, but for reasons different to those developed in the Court’s assessment of the appeal hearing before the Supreme Court of Russia.
In the first Russian case concerning a defendant’s participation in a hearing via a video communication system, the Court pointed out that “the physical presence of an accused in the courtroom is highly desirable, but it is not an end in itself: it rather serves the greater goal of securing the fairness of the proceedings, taken as a whole” (see Golubev v. Russia (dec.), no. 26260/02, 9 November 2006).
It is precisely the proceedings “taken as a whole” that should be examined by the Chamber, because, in my opinion, there were three linked elements to the appeal hearing of 13 September 2002: firstly, the applicant was not informed about the date and time of the appeal hearing in due time, or even 14 days in advance as suggested by Article 376 (2) of the Code of Criminal Procedure, but learned of it only on the day of the appeal hearing (see paragraph 23 of the judgment); secondly, he was not represented by a lawyer, yet the prosecutor was present in person in the courtroom (paragraph 13); thirdly, the applicant, who suffered from partial deafness, could not properly follow the appeal hearing by video link (for details, see paragraph 14). In my view, all three of these elements constitute a violation of the right to a fair hearing.
It goes without saying that the applicant’s communication with the court by video link without any representation in the courtroom placed him at a certain disadvantage (see Shulepov v. Russia, no. 15435/03, 24 June 2008, § 35; see also, a contrario, Marcello Viola v. Italy, no. 45106/04, § 75, ECHR 2006 ... (extracts), and Golubev, cited above). The respondent Government’s argument that the participation of a defence lawyer was not mandatory under either of the grounds in Article 51 of the CCP is not relevant in such cases, because Article 52 of the CCP provides that although a suspect or accused may refuse legal assistance at any stage of the criminal proceedings, such a waiver may only be accepted if filed in writing on the accused or the suspect’s own initiative. Even accepting the Government’s argument that the applicant did not submit any petition, either for the appointment of a lawyer or for refusal of legal assistance (this is contradicted by the applicant, see paragraph 73), it is useful to remind ourselves of the Court’s conclusions in another similar Russian case: “the ultimate guardian of the fairness of the proceedings was the judge, who, when confronted with the lawyers’ failure to appear, was required under domestic law to appoint counsel for an accused who was incapable of defending himself due to a physical impairment” (see Timergaliyev v. Russia, no. 40631/02, § 59, 14 October 2008). I am satisfied that the requirements of a fair hearing were secured in the Golubev case. On the contrary, nothing in the present case file indicates that the presiding judge’s attitude was aimed at securing a fair hearing for the applicant. In the circumstances as described in paragraphs 13-14 of the judgment, the lack of real contact with the applicant, combined with other facts mentioned above, reduced Mr Grigoryevskikh’s on-screen appearance at the appeal hearing to a mere formality.