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GENNADIY MEDVEDEV v. RUSSIA - 34184/03 [2012] ECHR 755 (24 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/755.html
Cite as:
[2012] ECHR 755
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FIRST
SECTION
CASE OF GENNADIY MEDVEDEV v. RUSSIA
(Application
no. 34184/03)
JUDGMENT
STRASBOURG
24
April 2012
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 Gennadiy Medvedev
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 3 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34184/03) 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 Gennadiy Semenovich
Medvedev (“the applicant”), on 12 August 2003.
The
applicant, who was granted legal aid, was represented, until 17 May
2010, by Ms K. Moskalenko and Ms O. Preobrazhenskaya,
lawyers practising in Moscow. The Russian Government (“the
Government”) were represented by Ms V. Milinchuk, the
former Representative of the Russian Federation before the European
Court of Human Rights, and subsequently by Mr G. Matyushkin,
Representative of the Russian Federation before the European Court of
Human Rights.
The
applicant alleged, in particular, that his right to defend himself in
person or through legal assistance was impaired during appeal
proceedings.
On
17 September 2007 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). On 6 April
2009 the Court put additional questions to the parties.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1960 and is currently serving a prison sentence
in the Kemerovo Region.
A. The circumstances of the case
1. Criminal proceedings against the applicant
(a) First set of criminal proceedings
against the applicant
On 9 March 2001 the applicant was arrested on suspicion
of murder. He was remanded in custody pending the investigation and
trial. According to the applicant, from 9 March to 4 May
2001 no medical assistance was available to him and from 12 March
to 15 June 2002 he was detained in appalling conditions.
On
3 May 2002 the applicant broke a toe on his right foot. The
fracture caused him severe pain which allegedly rendered him unfit to
attend the trial on 3 and 6 May 2002.
On 15 July 2002 the Kemerovo Regional Court found the
applicant guilty of murder, abduction, disturbance of the peace and
illegal possession of firearms, and sentenced him to eighteen years’
imprisonment. Both the applicant and his lawyer submitted statements
of appeal.
On
5 September 2002 the applicant was allegedly beaten by guards.
He complained to the prosecutor but to no avail.
On
an unspecified date the Supreme Court of the Russian Federation
dismissed the applicant’s request for the appointment of a
lawyer to represent him before the appellate court, noting that “the
applicable rules of criminal procedure [did] not provide for the
appointment of a public defender to represent a defendant in appeal
proceedings”.
On
24 April 2003 the Supreme Court acquitted the applicant on the charge
of disturbance of the peace, upheld the remainder of the verdict and
reduced the applicant’s sentence to seventeen and a half years’
imprisonment. The applicant was not present or represented during the
hearing. The prosecutor was present and made submissions to the
court.
On
14 May 2004 the Yurga Town Court reclassified the applicant’s
conviction in accordance with the latest amendments to the Russian
Criminal Code, reducing his sentence to seventeen years’
imprisonment.
(b) Supervisory review of the appeal
judgment and the second set of criminal proceedings
On
16 November 2007 the Deputy Prosecutor General of the Russian
Federation asked the Presidium of the Supreme Court of Russia for a
supervisory review of the judgment of 24 April 2003 in view of a
violation of the applicant’s right to be represented by a
State-appointed lawyer before the appellate court.
On
28 December 2007 the Supreme Court granted the prosecutor’s
request and remitted the matter for further consideration to the
Presidium of the Supreme Court.
On
an unspecified date the Supreme Court appointed counsel P. to
represent the applicant in the supervisory-review proceedings.
On
12 March 2008 the Presidium of the Supreme Court quashed the
judgment of 24 April 2003 by way of supervisory review and
remitted the matter for fresh consideration. The court expressly
acknowledged the violation of the applicant’s right to legal
assistance. The applicant did not participate in the hearing. Counsel
P. was present and made submissions to the court.
On
27 June 2008 the Town Court again reclassified the applicant’s
conviction in accordance with the latest amendments to the Russian
Criminal Code, reducing his sentence by six months.
On 1 July and 1 October 2008 the Supreme
Court received additional statements of appeal from the applicant
whereby he also requested the court to appoint a public defender to
represent him. The court appointed counsel K. On 15, 16, 22 and
24 September 2008 counsel K. studied the case-file.
The applicant requested to take part in the appeal
hearing in person. On 16 July 2008 the Supreme Court granted him
leave to attend in person and ordered the applicant’s temporary
transfer to a remand prison in Kemerovo (3,742 kilometres away from
Moscow) to ensure his participation in the appeal hearing by means of
video link.
On
1 October 2008 the Supreme Court held the appeal hearing. The
applicant participated in the hearing by means of a video link.
Counsel K. attended the hearing and made submissions to the court.
According to the applicant, he was provided with an opportunity to
communicate with counsel K. prior to the hearing (he did not provide
further detail as regards the time and means of such communication).
The court acquitted the applicant on the charges of disturbance of
the peace and illegal possession of firearms, upheld the remainder of
the verdict and reduced the applicant’s sentence to sixteen
years’ imprisonment. The court further granted counsel K.’s
application for reimbursement of his fee and awarded him 5,967.5
Russian roubles (RUB) – approximately 165.4 euros (as per the
Euro foreign exchange reference rate of the European Central Bank at
1 October 2008) – to be paid by the applicant.
The
applicant provided the following description of the appeal hearing:
“The appeal hearing was conducted by means of a
video link. The video link was of poor quality. The image [quality]
remained unchanged, but there were interruptions in the sound and not
everything that was said was understandable. ... After the court
opened the hearing I was invited to make a statement. Then I asked
the court to admit to the case-file the documents that proved my
innocence. These were the documents showing that secretary G. had not
been present at a number of trial hearings and that my lawyer had
been absent from one of the court hearings. Despite that, the court
hearing had not been adjourned and the court had proceeded with the
examination of the witnesses. The [trial] court had not respected my
right to defend myself and had proceeded with the examination of the
case when I had a fracture [of the toe]. The court interrupted me,
saying that I was deliberately delaying the proceedings and that they
had other cases to consider after mine.
After the judge rapporteur had presented the case I was
invited to present my complaint. However, when I started reading out
my statement of appeal the judge interrupted me, saying that those
issues had been already considered in the previous appeal hearing or
had been submitted in the statements of appeal. The court heard the
prosecutor and [my] counsel, who failed to present any argument in my
defence. He merely suggested that the charges [of illegal possession
of firearms and disturbance of the peace] should be dropped owing to
the expiry of the statutory time-limit for prosecution or
decriminalisation of the offence. Then the judges exited to the
deliberations room without giving me a chance to make my final
statement. When the judges returned and pronounced their decision, I
realised that neither counsel, the prosecutor, nor the court had
studied my case. They were simply giving the appearance of a
hearing.”
2. Comments in the media about the applicant’s
case
According
to the applicant, in 2001 numerous newspapers and television channels
covered his case. In one article the applicant was referred to as “a
gang leader”. The regional officials who were quoted in the
articles expressed the opinion that the applicant was guilty of
murder, thus appearing to rule out the possibility that he had acted
in self-defence.
II. RELEVANT DOMESTIC LAW AND PRACTICE
For a summary of the relevant domestic provisions and
practice, see the case of Sakhnovskiy v. Russia [GC],
no. 21272/03, §§ 31-39, 2 November 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1
AND 3 OF THE CONVENTION
The
applicant complained that in the appeal hearing of 24 April 2003
he had not been represented by counsel. As regards the new appeal
hearing of 1 October 2008, he alleged that the defence provided
by State-appointed counsel had not been effective; that the video
link had been of poor quality and he had been unable to hear and to
follow the court session. Furthermore, he argued that the fee awarded
to counsel by the appellate court had been excessive. The applicant
relied on Article 6 of the Convention, which, in so far as
relevant, reads 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 or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require.”
The
Government contested that argument. They conceded that in the course
of the appeal proceedings which ended on 24 April 2003 the
applicant’s right to defence had been infringed by the
authorities’ failure to appoint legal counsel to represent him.
However, the applicant could no longer claim to be a victim of the
alleged violation. The Supreme Court of the Russian Federation had
expressly acknowledged the violation of the applicant’s rights
and afforded him sufficient redress by quashing the appeal judgment
by way of supervisory review and remitting the matter for fresh
consideration to the appellate court. As regards the new appeal
hearing, the State-appointed lawyer had duly prepared for it and had
discussed the line of defence with the applicant in private. The
video-link equipment had functioned properly, which fact was
confirmed by a certificate issued by the IT department of the Supreme
Court of the Russian Federation dated 24 April 2009.
The
applicant maintained his complaints. He considered that he could
still claim to be the victim of the alleged violations. He continued
to claim that the quality of the video link had been poor and he had
been unable to respond promptly to the arguments of the prosecution.
Counsel K. had demonstrated a slack attitude and the defence he had
provided had been ineffective and perfunctory.
A. Admissibility
As
regards the question of the applicant’s victim status, the
Court reiterates that the reopening of the proceedings by supervisory
review per se may not be automatically regarded as sufficient
redress capable of depriving the applicant of his victim status. To
ascertain whether or not the applicant retained his victim status the
Court must consider the proceedings as a whole, including the
proceedings which followed the reopening. This approach enables a
balance to be struck between the principle of subsidiarity and the
effectiveness of the Convention mechanism. On the one hand, it allows
the States to reopen and examine anew criminal cases in order to put
right past violations of Article 6 of the Convention. On the
other hand, new proceedings must be conducted expeditiously and in
accordance with the guarantees of Article 6 of the Convention. With
this approach supervisory review can no longer be employed as a means
of evading the Court’s review, thereby preserving the
effectiveness of the right of individual petition (see Sakhnovskiy,
cited above, § 83).
The
Court accordingly considers that the mere reopening of the
proceedings by way of supervisory review failed to provide
appropriate and sufficient redress for the applicant. He may
therefore still claim to be a victim within the meaning of Article 34
of the Convention. The Court therefore rejects the Government’s
objection.
The
Court considers that this part of the application raises serious
issues of fact and law under the Convention, the determination of
which requires an examination of the merits. The Court considers
therefore that it is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. No other ground for
declaring it inadmissible has been established.
B. Merits
1. General principles
(a) Assistance by counsel and
participation in the proceedings by means of a video link
The
general principles relating to effective participation in criminal
proceedings are well established in the Court’s case-law and
have been summarised as follows (see Sakhnovskiy, cited
above):
“94. 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, and therefore the applicant’s
complaints under paragraphs 1 and 3 of Article 6 should be examined
together (see Vacher v. France, 17 December 1996, § 22,
Reports of Judgments and Decisions 1996-VI).
95. The Court reiterates that while Article 6
§ 3 (c) confers on everyone charged with a criminal offence the
right to ‘defend himself in person or 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
that connection it must be borne in mind that the Convention is
intended to ‘guarantee not rights that are theoretical or
illusory but rights that are practical and effective’ and that
assigning counsel does not in itself ensure the effectiveness of the
assistance he or she may afford an accused (see Artico v. Italy,
13 May 1980, § 33, Series A no. 37, and Imbrioscia v.
Switzerland, 24 November 1993, § 38, Series A no. 275).
...
97. An accused’s right to communicate
with his lawyer without the risk of being overheard by a third party
is one of the basic requirements of a fair trial in a democratic
society and follows from Article 6 § 3 (c) of the Convention
(see Castravet v. Moldova, no. 23393/05, § 49, 13 March
2007). If a lawyer were unable to confer with his client and receive
confidential instructions from him without such surveillance, his
assistance would lose much of its usefulness, whereas the Convention
is intended to guarantee rights that are practical and effective (see
inter alia the Artico judgment, cited above, §
33).
98. As regards the use of a video link, the
Court reiterates that this form of participation in proceedings is
not, as such, incompatible with the notion of a fair and public
hearing, but it must be ensured that the applicant is able to follow
the proceedings and to be heard without technical impediments, and
that effective and confidential communication with a lawyer is
provided for (see Marcello Viola, cited above).”
(b) Free legal assistance
The
Court has previously summarised its findings concerning the right to
free legal assistance as follows (see Orlov v. Russia,
no. 29652/04, 21 June 2011):
“111. ... The Court has considered in
the context of Article 6 § 3 (e) of the Convention that the term
‘free’ has a clear and determinate meaning: ‘without
payment, gratuitous’, ‘not costing or charging anything,
given or furnished without cost or payment’ (see Luedicke,
Belkacem and Koç v. Germany, 28 November 1978, §
40, Series A no. 29). As to Article 6 § 3 (c), the Court
considered in Croissant v. Germany (25 September 1992, §§ 33
and 34, Series A no. 237-B) that the right to free legal
assistance is not absolute; such assistance is to be provided only if
the accused ‘[does] not [have] sufficient means to pay’.
The Court indicated that appointment of counsel under German law had
been decided solely in the light of the requirement of the interests
of justice rather than any ‘means test’. It thus
concluded that the Croissant case did not concern the issue of
whether Article 6 in all circumstances prevents the State from
subsequently seeking to recover the cost of free legal assistance
given to a defendant who lacked sufficient means at the time of the
trial (paragraph 34 of the judgment).
112. Subsequently, in Morris v. the United
Kingdom (no. 38784/97, § 89, ECHR 2002-I) the Court
found no violation of Article 6 in relation to an offer of legal aid
which was subject to a contribution of GBP 240, bearing in mind the
applicant’s net salary levels at the time. In another case the
Court found no violation of Article 6 of the Convention in relation
to the appointment of public defence counsel, ‘notwithstanding
[the applicant’s] obligation to pay a minor part of the
litigation costs” (see Lagerblom v. Sweden,
no. 26891/95, § 53, 14 January 2003).
113. The Russian Code of Criminal Procedure
did not set up any ‘means test’ to be employed in order
to decide whether free legal assistance should be granted (see
Potapov v. Russia, no. 14934/03, § 23, 16 July
2009). Rather, this matter is decided with reference to the presence
or lack of waiver by a defendant, while accepting cases of mandatory
legal assistance. The CCrP considered counsel’s fees as
‘litigation costs’ to be borne, in general, by the party
concerned. It thus appears that even if a defendant was provided with
‘free’ legal assistance he would still be required to pay
for that after the trial. However, a total or partial exception
remained possible, for instance on account of indigence ... .
114. In this respect the Court considers it
admissible, under the Convention, that the burden of proving a lack
of sufficient means should be borne by the person who pleads it (see
Croissant, cited above, § 37). ...”
2. Application to the present case
It
is not disputed by the Government that the first hearing before the
appellate court, held on 24 April 2003, fell short of the
requirements of Article 6 § 3 (c) of the
Convention. However, they claimed that by ensuring the applicant’s
representation by State-appointed counsel in the second set of appeal
proceedings the national judicial authorities had made reparation for
the violation of the applicant’s rights. The Court will
accordingly focus its analysis on the second set of appeal
proceedings, which ended on 1 October 2008.
The
first appeal judgment was quashed by way of supervisory review by the
Supreme Court specifically because of the breach of the applicant’s
right to legal assistance. The Court concludes accordingly that in
the national authorities’ view the applicant’s case was
complex enough to require the assistance of a professional lawyer. In
view of the seriousness of the charges against the applicant and the
severity of the sentence to which he was liable, the Court sees no
reason to disagree with the Russian authorities.
State-appointed
legal counsel, Mr K., was entrusted with the applicant’s
defence in the appeal proceedings. However, the Court reiterates that
this is not decisive. The Court must consider whether the
arrangements for the conduct of the proceedings, and, in particular,
for the contact between counsel K. and the applicant, respected the
rights of the defence (see Sakhnovskiy, cited above, § 101).
The
Court emphasises that the relationship between the lawyer and his
client should be based on mutual trust and understanding. Of course,
it is not always possible for the State to facilitate such a
relationship: there are inherent time and place constraints for the
meetings between the detained person and his lawyer. Moreover, in
exceptional circumstances the State may restrict confidential
contacts with defence counsel for a person in detention (see Kempers
v. Austria (dec.), no. 21842/03, 27 February 1997, or Lanz v.
Austria, no. 24430/94, § 52, 31 January 2002). Nevertheless,
any limitation on relations between clients and lawyers, whether
inherent or express, should not thwart the effective legal assistance
to which a defendant is entitled. Notwithstanding possible
difficulties or restrictions, such is the importance attached to the
rights of the defence that the right to effective legal assistance
must be respected in all circumstances (see Sakhnovskiy, cited
above, § 102).
In
the present case, it is clear that counsel for the applicant was
appointed well in advance of the appeal hearing and that counsel
studied the file on four dates prior to the hearing (see paragraph 18
above). Furthermore, it appears that the applicant was able to confer
with his counsel. He did not allege before the Court that the time
allowed for such communication had not been sufficient or that the
means of communication had lacked sufficient privacy. Nor did he
suggest in this submissions that he had been unable to discuss the
case with counsel K. or to make sure that the lawyer had knowledge of
the case and prepared arguments on his behalf. Moreover, the Court
discerns nothing in the materials in its possession that would
corroborate the applicant’s allegations that counsel K. had
demonstrated a slack attitude and that the defence he had provided
had been ineffective or perfunctory.
As
regards the applicant’s participation in the appeal hearing by
means of a video link, there is no evidence in the present case that
the video-link system malfunctioned or otherwise prevented the
applicant from following the progress of the hearing or making oral
remarks and putting questions to the participants in the proceedings
when necessary. The applicant’s allegations to the contrary are
not supported by any evidence.
The
Court concludes, accordingly, that the use of a video link to ensure
the applicant’s participation in the appeal hearing was not
detrimental to the effectiveness of that participation.
In
so far as the applicant may be understood to complain about his duty
to reimburse counsel’s fee, the Court observes that the fee of
EUR 165.4 awarded does not appear to be particularly high.
Furthermore, the applicant did not claim that he was unable to bear
such expense, arguing merely that the amount, in his personal view,
appeared to be excessive for the five days’ work involved.
In
the circumstances of the case, the Court, accordingly, finds no basis
in the material before it that would lead it to conclude that the
national authorities’ decision ordering the applicant to
reimburse counsel’s fee was contrary to the standards required
by the Convention.
In
view of the above findings, the Court concludes that the criminal
proceedings against the applicant, as a whole, were fair; during the
second set of appeal proceedings the authorities complied with their
obligation to ensure the applicant’s effective legal
representation, which remedied the defect in the first set of appeal
proceedings, when the applicant had not been present or represented
before the appellate court. Accordingly, there has been no violation
of Article 6 §§ 1 and 3 (c) of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant made a number of complaints under Articles 3, 5, and 6
of the Convention relating to his detention and the criminal
proceedings against him. However, having regard to all the material
in its possession, and in so far as these complaints fall within its
competence, the Court finds that there is no appearance of a
violation of the provisions referred to. It follows that this part of
the application must be rejected as manifestly ill-founded, pursuant
to Article 35 §§ 3 and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the
applicant’s right to effective participation in the criminal
proceedings against him as provided for in Article 6 §§ 1
and 3 (c) of the Convention admissible and the remainder of the
application inadmissible;
Holds that there has been no violation of
Article 6 §§ 1 and 3 (c) of the
Convention;
Done in English, and notified in writing on 24 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
