European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

 

 

CASE OF BUCHA AND OTHERS v. RUSSIA

 

(Applications nos. 46354/11 and 8 others - see appended list)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

 

 

STRASBOURG

 

11 February 2020

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Bucha and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Alena Poláčková, President,
          Dmitry Dedov,
          Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 21 January 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in nine applications 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”). The applicants’ details are provided in the Appendix to this judgment.

2.  The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3.  On 2 February 2018 notice of the complaints under Article 6 of the Convention was given to the Government and the remainder of the applications was declared inadmissible.

4.  The Russian Government objected to the examination of certain applications by a Committee. Having considered the Government’s objection, the Court rejects it.

5.  The Government of Moldova did not exercise their right under Article 36 § 1 of the Convention and Rule 44 of the Rules of Court to intervene in the present case in relation to application no. 46354/11.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Application no. 46354/11

6.  The applicant, an unemployed Moldovan national, was temporarily residing in Moscow in April 2011. He appeared before a justice of the peace charged with a traffic offence under Article 12.15 § 4 of the Code of Administrative Offences (CAO) for driving on the wrong side of the road. The offence was punishable by a fine of 5,000 Russian roubles (RUB – approximately 122 euros (EUR) at the time) and/or licence suspension of between four and six months. On 7 April 2011 the justice of the peace held a trial hearing and heard evidence from the applicant, who pleaded not guilty. The court also heard evidence from officer A., who had witnessed the traffic offence and, as appears from the available material, had then compiled the offence record against the applicant. By a judgment of the same date, the justice of the peace found the applicant guilty and suspended his driving licence for four months.

7.  According to the applicant, the justice of the peace only read out publicly the operative part of the judgment and no full copy was ever made available (to others) in the court registry or otherwise.

8.  The applicant appealed to the Timiryazevskiy District Court of Moscow and sought the appointment of legal aid counsel. Soon afterwards, he left Russia and returned to Moldova. According to the applicant, he was not notified in advance of the date and time of the appeal hearing at his address in Moldova.

9.  On 22 April 2011 the District Court upheld the judgment. The applicant was absent from the appeal hearing. The appeal decision reads as follows:

“The defendant has not attended the appeal hearing. He was notified of the appeal hearing properly, as confirmed by a signed receipt (расписка) in the case file (page 45). The court thus finds it possible to examine the case in his absence ... Having examined the case file, the court concludes that he was rightly found guilty of the offence ...”

B.  Application no. 35794/14

10.  The applicant (who was unemployed at the time) appeared before a justice of the peace charged under Article 12.26 § 1 of the CAO for refusing to undergo an alcohol test. The offence was punishable by a fine of RUB 30,000 (approximately EUR 730 at the time) and licence suspension of eighteen months to two years.

11.  At the trial, in reply to a question from the justice of the peace, the applicant stated that he “need[ed] no counsel”. Thereafter, the justice of the peace informed him of his right against self-incrimination and right to retain counsel. The applicant then acknowledged the acts imputed to him and pleaded guilty. By a judgment of 18 September 2013 the justice of the peace sentenced him to a fine of RUB 30,000 and suspended his driving licence for eighteen months.

12.  The applicant appealed to the Volskiy District Court of the Saratov Region, pleading not guilty. At a hearing on 21 October 2013, in reply to a question from the judge, the applicant stated that he “need[ed] no counsel”. On the same date the court upheld the judgment.

13.  The applicant sought a review of the above decisions. On 26 December 2013 they were upheld by the Saratov Regional Court and on 13 February 2014 by the Supreme Court of Russia.

C.  Application no. 11998/16

14.  The applicant, who was apparently unemployed at the time, was accused of a traffic offence under Article 12.26 of the CAO. Having heard his representative (Mr Vologin), on 26 May 2015 a justice of the peace sentenced the applicant to a fine of RUB 30,000 and suspended his driving licence for twenty-one months. The applicant drafted a statement of appeal and lodged it with the Volskiy District Court of the Saratov Region. Having heard Mr Vologin, on 24 July 2015 the District Court upheld the judgment. The applicant then sought a review of the above decisions and lodged related statements of appeal that he had drafted. After considering the appeal in a written procedure, on 25 August and 7 December 2015 the Saratov Regional Court and Supreme Court of Russia upheld the decisions.

D.  Application no. 26928/16

15.  The applicant (who was unemployed at the time) appeared before a justice of the peace charged with an offence under Article 12.7 § 2 of the CAO punishable (alternatively) by up to fifteen days’ detention, a fine of RUB 30,000 or one to two hundred hours’ community service. He was accused of driving his vehicle on 3 November 2016 without a licence (it having been suspended in earlier separate proceedings). Disagreeing with the accusation, the applicant made a note in the offence record indicating that he had not been driving his vehicle but had been waiting for his child outside it.

16.  According to the Government, at 11 a.m. on 23 November 2016 the justice of the peace made a telephone call to the applicant’s number. A report of this telephone conversation was admitted to the case file, but has not been provided to the Court. According to the applicant, he received a telephone call informing him that the trial hearing was listed for 24 November 2016.

17.  On 23 November 2016 the justice of the peace examined the offence record and other written material submitted by the police. He found the applicant guilty and sentenced him to a fine of RUB 30,000. The justice of the peace heard no oral representations from any officials or witnesses. The relevant parts of the trial judgment read as follows:

“[The defendant’s] guilt is confirmed by the following [case material]: the offence record ...

[The applicant] has not attended the trial hearing; he was informed of the date and place of that hearing in a proper manner. He has not submitted any objection or request for adjournment ... The justice of the peace thus finds it possible to examine the case in the defendant’s absence.”

18.  The applicant appealed to the Volskiy District Court of the Saratov Region arguing, inter alia, that he had been informed by telephone that a hearing was listed for 24 November 2016 (and not 23 November 2016). The applicant maintained his version of events and pleaded not guilty.

19.  It appears that on 29 December 2016 the District Court held a hearing and heard evidence from the applicant and a traffic police officer. The latter stated that he had seen the applicant’s vehicle move and then stop, and that the applicant had then got out of the vehicle. Thereafter, a report acknowledging his removal from the vehicle (протокол об отстранении от управления транспортным средством) and an offence record had been compiled. On 29 December 2016 the District Court upheld the trial judgment, stating as follows:

“The justice of the peace listed a hearing for 23 November 2016. The defendant did not then attend that hearing. A telephone notification was (had been) made to the available telephone number as regards the place and time of the hearing. Therefore, the defendant had been properly informed.”

20.  On 31 January 2017 the Saratov Regional Court upheld the lower courts’ judgments. On 10 April 2017 the Supreme Court of Russia upheld them on review.

E.  Application no. 51539/16

21.  The applicant appeared before a justice of the peace charged under Article 12.8 § 1 of the CAO with drink driving. The offence was punishable by a fine of RUB 30,000 and licence suspension of eighteen months to two years. According to the Government, the applicant was assisted at the trial by “defender” Dz. (see also paragraph 33 below), who “was only absent from the hearing on 29 April 2016”. By a judgment of 29 April 2016 a justice of the peace sentenced the applicant to a fine of RUB 30,000 and suspended his driving licence for eighteen months. The applicant appealed. On 24 May 2016 the appellate court held a hearing, at which the applicant was assisted by Mr Vologin. On the same date the court upheld the judgment.

F.  Application no. 53834/16

22.  The applicant, who was apparently unemployed at the time, was accused of a traffic offence under Article 12.7 § 2 of the CAO. Having heard evidence from the applicant and Mr Vologin, by a judgment of 31 January 2017 a justice of the peace sentenced the applicant to a fine of RUB 30,000. The applicant drafted a statement of appeal and lodged it with the Volskiy District Court of the Saratov Region. On 2 March 2017 the court upheld the judgment. The applicant then drafted statements of appeal for further review and lodged them with the Regional Court and then the Supreme Court of Russia. After considering the case in a written procedure, on 4 April and 14 June 2017 those courts upheld the lower courts’ decisions.

G.  Application no. 63744/16

23.  The applicant was accused of a traffic offence under Article 12.26 of the CAO. At a hearing before a justice of the peace on 29 March 2016 he pleaded not guilty. Another hearing was listed for 6 April 2016. He was notified of the trial hearing but chose not to attend. Prior to the hearing the applicant’s representative (Mr Vologin) telephoned the court to say that he was “on his way to the court”. By a judgment of 6 April 2016 the justice of the peace sentenced the applicant to a fine of RUB 30,000 and suspended his driving licence for eighteen months. In its judgment the court stated that in Mr Vologin’s telephone message to the court he had not specified when and where he had been “on his way” from or lodged any formal request for adjournment for any valid reason.

24.  Mr Vologin drafted and lodged a statement of appeal on behalf of the applicant. Having heard Mr Vologin and some witnesses, on 21 June 2016 the Volskiy District Court of the Saratov Region upheld the judgment. The appellate court noted that Mr Vologin had not lodged a formal request for adjournment or obtained a written authority form from the applicant (having announced his involvement in the case in an oral submission at the first hearing before the justice of the peace). The applicant then drafted statements of appeal for further review and lodged them with the Regional Court and then the Supreme Court of Russia. After considering the case in a written procedure, on 14 July and 28 September 2016 those courts upheld the lower courts’ decisions.

H.  Application no. 73372/16

25.  The applicant appeared before a justice of the peace charged with an offence under Article 12.7 § 2 of the CAO punishable by up to fifteen days’ detention, a fine of RUB 30,000 or one to two hundred hours’ community service. He was accused of driving his vehicle on 3 November 2016 without a licence (it having been suspended in earlier separate proceedings).

26.  The applicant pleaded guilty at the trial. By a judgment of 21 June 2016 the justice of the peace convicted him and imposed a fine of RUB 30,000.

27.  The applicant appealed to the Volskiy District Court of the Saratov Region. It appears that he chose not to attend the appeal hearing. On 15 July 2016 the District Court upheld the judgment.

I.  Application no. 64788/17

28.  The applicant appeared before a justice of the peace charged under Article 12.26 § 1 of the CAO for refusing to undergo a breathalyser test. He was assisted by Mr Vologin.

29.  It appears that both the applicant and his representative attended the trial hearings. For unspecified reasons, neither of them attended the last hearing on 24 March 2017. By a judgment of that date the justice of the peace sentenced the applicant to a fine of RUB 30,000 and suspended his driving licence for twenty-two months. The applicant appealed to the Engels District Court of the Saratov Region.

30.  On 27 April 2017 the District Court held a hearing, at which a public prosecutor made representations. It appears that the applicant chose not to attend. It was indicated in the appeal decision that the appellate court had proceeded to a full re-examination of the case under Article 30.6 of the CAO.

31.  On the same date the court upheld the judgment.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

32.  Article 25.1 of the CAO provides that a person who is being prosecuted for an administrative offence has a right to study the case file, adduce evidence and “have legal assistance from a defender”.

33.  Article 25.5 of the CAO provides that a “defender” (защитник) may take part in the proceedings for the purpose of providing legal assistance to the defendant. A defender may be an advocate (адвокат) or “another person”.

34.  For a summary of other relevant provisions of domestic law and practice, see Mikhaylova v. Russia (no. 46998/08, 19 November 2015), and Karelin v. Russia (no. 926/08, 20 September 2016).

THE LAW

I.  JOINDER OF THE APPLICATIONS

35.  Given their common factual and legal background, the Court decides that the applications should be joined under Rule 42 § 1 of the Rules of Court.

II.  ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

36.  Relying on Article 6 of the Convention, the applicants complained about the unavailability of free legal assistance at various stages of the court proceedings against them (see Appendix). Some applicants also raised other complaints pertaining to the overall fairness of the proceedings and/or the requirement of objective impartiality on account of the lack of a prosecuting party at the court hearings (see Appendix).

37.  The relevant parts of Article 6 read as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... Judgment shall be pronounced publicly ...

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;

(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; ...”

A.  Admissibility

38.  Firstly, the Court accepts that Article 6 of the Convention applies in the present case under its criminal limb. In this connection, it takes into account that the penalties imposed on the applicants, namely detention or a monetary fine alone or in combination with suspension of their driving licence, were punitive and deterrent in nature (compare Mikhaylova, cited above, § 64; Yegorov and Others v. Russia [Committee], nos. 77208/16 and 4 Others, § 10, 28 May 2019; and Atyukov v. Russia [Committee], no. 74467/10, § 25, 9 July 2019).

39.  Secondly, the Government argued in respect of application no. 46354/11 that by failing to bring review proceedings under Article 30.12 of the CAO after the appeal proceedings in his case, the applicant had not exhausted domestic remedies. Having regard to its case-law (see Smadikov v. Russia (dec.), no. 10810/15, 31 January 2017, and compare Annenkov and Others v. Russia, no. 31475/10, §§ 107-10, 25 July 2017), the Court considers that he was not required to use the review procedure. It therefore dismisses the Government’s objection.

40.  The Court notes that the complaints relating to the lack of free legal assistance in the CAO cases and the other complaints listed in the Appendix to this judgment are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds.

41.  It follows that these complaints must therefore be declared admissible.

B.  Merits

42.  The applicants in the present case were accused of traffic offences punishable by a fine, of up to RUB 30,000 in the majority of cases, and/or licence suspension for various periods of time. One offence (see paragraphs 15 and 26 above) was punishable by detention.

43.  Each applicant raised before the Court a complaint pertaining to the right to free legal assistance at the trial, appeal or review stage of the court proceedings.

44.  The right to legal assistance “free of charge” under Article 6 § 3 (c) of the Convention” is subject to two conditions: (i) the defendant must show that he lacks sufficient means to pay for legal assistance; and (ii) the “interests of justice” must require that legal aid be granted. The relevant criteria pertaining to that second condition include the facts of the case as a whole, including not only the situation obtaining at the time the decision on the application for legal aid is taken, but also that obtaining at the time the national court decides on the merits of the case; the gravity of the charge, the severity of the statutory penalty at stake, the complexity of the case and the personal situation of the defendant seen with regard to the capacity of the particular accused to present his case - for example, on account of unfamiliarity with the language used in court and/or the particular legal system - were he not granted legal assistance. When applying the “interests of justice” requirement, the test is not whether the absence of legal aid has caused “actual damage” to the presentation of the defence, but a less stringent one: whether it appears “plausible in the particular circumstances” that the lawyer would be of assistance. In principle, where deprivation of liberty is at stake, the interests of justice call for some form of legal aid by legal representation or assistance (see Mikhaylova, cited above, §§ 78-82).

45.  In Mikhaylova (cited above, § 94), while reiterating that Article 6 § 3 (c) of the Convention leaves to the Contracting States the choice of the means of ensuring that the right to legal assistance is secured in their judicial systems, the Court noted that Russian law made no provision for any form of legal assistance or legal aid in CAO proceedings.

46.  In view of the above, there was no domestic “means test” applied in respect of the applicants, who ensured their own defence in the court proceedings, and this consideration therefore has no decisive bearing on the present case (see, however, paragraphs 60-62 below as regards the applicants who were represented or assisted in the proceedings). At the same time, it is noted that some applicants were unemployed at the time of the domestic proceedings. Taking this into consideration, the Court will focus on the “interests of justice” as to the applicants who were not represented in the domestic proceedings.

1.  Applications nos. 26928/16 and 73372/16

47.  The Court notes that the applicant in application no. 26928/16 stood trial for an offence punishable by a large fine, community service or detention (see paragraph 15 above). More importantly, the offence was alternatively punishable by detention, which would start immediately after the trial and, as the case might be, prior to any appeal review of the fairness of the trial proceedings (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 179-99, 10 April 2018). Where deprivation of liberty is at stake, the interests of justice in principle call for legal representation, and if the defendant cannot pay for it himself public funds must be made available (see Benham v. the United Kingdom, 10 June 1996, § 61, Reports of Judgments and Decisions 1996‑III, and Mikhaylova, cited above, § 82). Therefore, even though the applicant was not subjected to any pre-trial deprivation of liberty and the accusation against him did not appear to raise any particularly complex factual or legal issues, the Court considers that he was adversely affected by the lack of any legal aid. Indeed, the Government have not made any convincing argument to the contrary.

48.  In view of the foregoing considerations, and having regard to its findings in Mikhaylova (see paragraph 45 above), the Court is not satisfied that the lack of any form of legal aid at any stage, namely for the purpose of the trial proceedings, was compatible with the requirements of Article 6 §§ 1 and 3 (c) of the Convention. The adverse effect of the above shortcoming was intensified due to the following considerations. Even accepting that the applicant was informed of the correct date of the trial hearing (see paragraph 16 above), it follows from the Government’s submissions to the Court that the notification was made, at the earliest, only a few hours before the hearing.

49.  The applicant in application no. 73372/16 was also accused of an offence punishable by detention. He pleaded guilty at the trial, albeit without the benefit of legal advice (see paragraph 26 above). Similarly, the Court is not satisfied that the lack of any form of legal aid, namely for the purpose of the trial proceedings, was compatible with the requirements of Article 6 §§ 1 and 3 (c) of the Convention.

50.  In view of the nature and scope of the above finding, the Court finds it unnecessary to determine whether there has also been a violation of Article 6 § 1 of the Convention on account of the lack of a prosecuting party.

2.  Application no. 35794/14

51.  The Court notes that the applicant stood trial for an offence punishable by a large fine and a lengthy licence suspension (see paragraph 10 above).

52.  Firstly, the Court dismisses the Government’s argument that the applicant validly waived his right to (free) legal assistance by declaring that “he need[ed] no counsel” (see paragraphs 11-12 above). Firstly, the waiver at the trial was made prior to the notification of the right to retain counsel. In any event, in the absence of any specific provision on free legal assistance in CAO cases, the waiver was devoid of purpose and cannot adversely affect the applicant’s standing to raise a related complaint under Article 6 § 3 (c) of the Convention.

53.  Next, the Court observes that after being informed of his right to remain silent the applicant chose to plead guilty, without the benefit of legal advice. It is also noted that following his conviction the applicant chose to contest the charge, in substance changing his line of defence to a not guilty plea. He subsequently pursued this line of defence in his applications for review of the lower courts’ decisions. In the Court’s view, the guilty plea does not affect the applicant’s complaint relating to the lack of free legal assistance either.

54.  Having regard to the applicable principles (see paragraph 44 above), the Court considers that the unavailability of free legal assistance in any form and at all stages of the court proceedings, taken as a whole, was in breach of Article 6 §§ 1 and 3 (c) of the Convention.

3.  Application no. 46354/11

55.  Firstly, the Court observes that the applicant was informed of his procedural rights and afforded an opportunity to have access to the case material. Therefore, even though the judge refused to provide him (free of charge) with copies of the case material, he was not prevented from arranging to obtain copies of the documents and otherwise preparing his defence on that account. Furthermore, it is noted that the trial judge took the initiative of requiring the attendance of the officer who had witnessed the offence and then instituted proceedings against the applicant by compiling the offence record in respect of him. This contributed to the overall fairness of the proceedings since the applicant was given an opportunity to examine that officer.

56.  Next, the Court notes that the applicant, a foreign national who was unemployed at the time of the CAO proceedings, was temporarily present in Russia. Having said that, the Court is not satisfied that the “interests of justice” required the provision of free legal assistance in the present case. The applicant was accused of an offence punishable by a relatively small fine of RUB 5,000 or a relatively short licence suspension of four to six months. It has not been suggested, and the Court does not find it established, that the risk of being suspended from driving as a result of the impugned proceedings exposed him to a situation particularly affecting his livelihood (see, mutatis mutandis, Milosavljev v. Serbia, no. 15112/07, § 61, 12 June 2012, and Andonoski v. the former Yugoslav Republic of Macedonia, no. 16225/08, § 36, 17 September 2015). Having regard to the general principles listed in paragraph 44 above, the Court considers that there has been no violation of Article 6 § 3 (c) of the Convention in respect of the applicant.

57.  Having said that, the Court notes that the officer who witnessed the offence and then instituted proceedings against the applicant by compiling the offence record attended the trial, apparently at the trial judge’s initiative. However, under the CAO he was not a party to the proceedings and did not have the formal task of presenting the charge and, foremost, presenting the adverse evidence against the defendant. The Court has previously found that the lack of a prosecuting party in the context of oral hearings resulting in the determination of administrative charges constitutes a serious shortcoming in breach of the objective impartiality requirement of Article 6 § 1 of the Convention (see Karelin, cited above, §§ 69-84). It notes that the essential factual and legal elements of the present case and the case of Karelin (§§ 59-68) are similar. In the light of the parties’ submissions in the present case, the Court sees no reason to depart from its earlier judgment. There has therefore been a violation of Article 6 § 1 of the Convention as regards the trial hearing.

58.  In view of the nature and scope of the above finding, the Court finds it unnecessary to examine the applicant’s remaining complaints under Article 6 of the Convention.

4.  Application no. 11998/16

59.  The applicant complained about the lack of free legal assistance for the purpose of the review proceedings before the Regional Court and then the Supreme Court of Russia (see paragraph 14 above). The Court reiterates that the current two-layer review procedure under Article 30.12 of the CAO is, as a rule, not considered a remedy to be exhausted before lodging an application with the Court, and is usually not taken into account for the purpose of the six-month rule under Article 35 § 1 of the Convention (see Smadikov, cited above). However, the Court does not need to determine whether the above consideration signifies that Article 6 of the Convention is inapplicable to such proceedings, which may, indeed, result in a re‑determination of the charge against the defendant.

60.  In his complaint before the Court the applicant has provided no details regarding his financial situation at the material time. It is also noted in this connection that he was assisted by Mr Vologin at the trial and on appeal. It appears that the latter had no law degree or other type of relevant training but had gathered some experience in CAO cases relating to various types of traffic offences, which enabled him to provide “assistance” for minor offences of this type. It remains unclear, however, whether the applicant paid for Mr Vologin’s “assistance”, which could also be indicative of him having “sufficient means”, within the meaning of Article 6 § 3 (c) of the Convention, to choose and appoint his own lawyer instead.

61.  Therefore, while as indicated above there was no “means test” applicable at the domestic level, the Court considers that by omitting to specify this and, foremost, whether he paid for Mr Vologin’s services, the applicant has failed to substantiate before the Court his complaint relating to the lack of free legal assistance under the CAO, namely in review proceedings. Accordingly, there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the applicant.

5.  Applications nos. 51539/16, 53834/16, 63744/16 and 64788/17

62.  The Court notes that the applicants were also assisted or represented by Mr Vologin at certain court hearings and had no legal assistance at other hearings, which they complained about to the Court. For the reasons stated above, the Court concludes that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of them either.

63.  Nevertheless, the Court will now examine the remaining complaints raised by these applicants.

64.  As to application no. 53834/16, regarding his complaint about the lack of a prosecuting party at the trial and appeal hearings, in view of its finding in Karelin, the Court concludes that there has been a violation of Article 6 § 1 of the Convention.

65.  As to application no. 64788/17, having regard to its findings in Karelin, the Court concludes that there has been a violation of Article 6 § 1 of the Convention on account of the lack of a prosecuting party at the trial hearing(s) but no violation of that provision as regards the appeal hearing (at which the public prosecutor was present and made representations).

66.  As to application no. 63744/16, the applicant also complained that the trial court had examined the case in the absence of his representative, who had been late for the hearing (see paragraph 24 above). It is uncontested that the defence attended the first hearing and that the applicant then waived his right to be present at the second trial hearing but appointed a representative for that purpose. It was up to the privately retained representative to arrange to be present at the hearing on time and comply with the applicable formal requirements, such as a formal adjournment request or a written authority form. In addition, the Court observes that the representative lodged a statement of appeal and that the appellate court proceeded to a full re-examination of the case against the applicant, which included hearing witnesses. Taking the proceedings as a whole, the Court considers that the defence was afforded an adequate opportunity to put forward a defence. There has therefore been no violation of Article 6 of the Convention in the present case.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION (AS REGARDS APPLICATIONS Nos. 46354/11, 35794/14, 26928/16, 53834/16, 73372/16 AND 64788/17)

67.  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.”

A.  Damage

68.  The applicants claimed the amounts listed in the Appendix.

69.  The Government contested the claims.

70.  The Court considers that the claims in respect of pecuniary damage have not been sufficiently substantiated and/or do not bear a sufficient causal link to the violation(s) found. The Court therefore rejects these claims. On the other hand, in respect of non-pecuniary damage it awards the relevant applicants the amounts indicated in the Appendix (compare Yegorov and Others, cited above, § 19).

B.  Costs and expenses

71.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicant in application no. 46354/11 the sum of 850 euros (EUR), covering costs under all heads.

C.  Default interest

72.  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.  Decides to join the applications;

 

2.  Declares the complaints listed in the Appendix admissible;

 

3.  Holds that there has been a violation of Article 6 of the Convention in applications nos. 46354/11, 35794/14, 26928/16, 53834/16, 73372/16 and 64788/17;

 

4.  Holds that there is no need to examine the remaining complaints under Article 6 of the Convention;

 

5.  Holds that there has been no violation of Article 6 of the Convention in applications nos. 11998/16, 51539/16, 63744/16 and 64788/17 (for one aspect);

 

6.  Holds

(a)  that the respondent State is to pay the applicants the amounts listed in the Appendix, within three months, 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 those amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

7.  Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 11 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                                  Alena Poláčková
       Registrar                                                                              President

 

APPENDIX