Постановление ЕСПЧ от 19.11.2015 <Дело Михайлова (Mikhaylova) против России> (жалоба N 46998/08) [англ.] Часть 2

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  1. Merits

 

(a) General principles

  1. The Court reiterates that the rights set out in Article 6 § 3 (c) of the Convention are elements of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 (see Imbrioscia v. Switzerland, 24 November 1993, § 37, Series A no. 275).
  2. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008).
  3. The right to free legal assistance under Article 6 § 3 (c) of the Convention is subject to two conditions. Firstly, the applicant must lack sufficient means to pay for legal assistance. Secondly, the «interests of justice» must require that legal aid be granted.
  4. The Court takes into consideration several factors to determine whether the interests of justice required that legal aid be granted in the domestic proceedings. This is to be judged by reference to the facts of the case as a whole, having regard, inter alia, to the seriousness of the offence, the severity of the possible sentence, the complexity of the case and the personal situation of the applicant (see Quaranta v. Switzerland, 24 May 1991, §§ 32 — 36, Series A no. 205; Zdravko Stanev v. Bulgaria, no. 32238/04, § 38, 6 November 2012); and Guney v. Sweden (dec.), no. 40768/06, 17 June 2008).
  5. For instance, as regards legal assistance in appeal proceedings in criminal cases, the Court took into account three factors: (a) the wide powers of the appellate courts; (b) the seriousness of the charges against the applicants; and (c) the severity of the sentence they faced — the Court considered that the interests of justice demanded that, in order to receive a fair hearing, the applicants should have had legal assistance/representation in the appeal proceedings (see Krylov v. Russia, no. 36697/03, § 45, 14 March 2013, with further references).
  6. While the requirements of a fair hearing are strictest concerning the hard core of criminal law, the guarantees of the limb of Article 6 applying to criminal law do not necessarily apply with their full stringency to other categories of cases falling under that head and which do not carry any significant degree of stigma. The Court therefore accepted that an oral hearing may not be required in all cases in the criminal sphere (see Jussila [GC], cited above, § 43).
  7. The Court has held that 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, where the applicant faced a three-month prison sentence). However, the Convention does not set any particular threshold in terms of the length of such deprivation of liberty. Moreover, the above is not to say that public funds do not have to be available where deprivation of liberty is not at stake (see, for example, Barsom and Varli v. Sweden (dec.), nos. 40766/06 and 40831/06, 4 January 2008).
  8. Article 6 § 3 (c) does not specify the manner in which this right is to be exercised. 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 Sakhnovskiy v. Russia [GC], no. 21272/03, § 95, 2 November 2010).
  9. Lastly, the Court finds it pertinent to note by way of comparison that even outside the criminal law sphere Article 6 § 1 may compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for effective access to court (see Steel and Morris v. the United Kingdom, no. 68416/01, § 61, ECHR 2005-II).

(b) Application of the principles in the present case

  1. The Court observes at the outset that the applicant’s grievance relates to the absence of free legal assistance at the trial and appeal stages of the proceedings. Thus, the present case does not concern the question of legal assistance after arrest (see A.V. v. Ukraine, no. 65032/09, § 59, 29 January 2015), or for the purposes of supervisory review.
  2. The Court also notes that the applicant’s complaint before the Court arises from the allegedly unsatisfactory state of domestic law. In this connection, the Court reiterates that in cases arising from individual petitions its task is not to review the relevant legislation or an impugned practice in the abstract. Instead, it must confine itself, as far as possible, without losing sight of the general context, to examining the issues raised by the case before it. Here, therefore, the Court’s task is not to review, in abstracto, the compatibility with the Convention of the above procedure, but to determine, in concreto, the effect of the interference on the Convention right in the circumstances of the case (see, as a recent authority, Nejdet and Perihan v. Turkey [GC], no. 13279/05, §§ 68 — 70, 20 October 2011).
  3. It is noted that Article 25.5 of the CAO provided at the material time that a person who was subject to proceedings under the CAO could receive legal assistance from his or her counsel (an advocate or another person). The Government conceded that neither the Code itself nor the judicial practice at the time interpreted this provision as securing an enforceable right to obtain legal assistance free of charge, if appropriate, under conditions. This Court will examine this case with the benefit of the detailed findings made recently by the Russian Constitutional Court in reply to the applicant’s complaint.
  4. As regards the question of sufficient means to pay for legal assistance (see paragraph 78 above), since the applicant’s grievance arises from the state of domestic law rather than its application to the particular situation, it is clear that a «means test» was not and could not be applied at the domestic level. For its part, having regard to the available information, the Court is ready to assume that the applicant would satisfy such a test.
  5. Thus, it remains for the Court to determine whether «the interests of justice» required that legal assistance be provided to the applicant free of charge for the purpose of the administrative offence proceedings on two charges against her.

(i) The charge under Article 19.3 of the CAO

  1. It is noted that the applicant ran a risk of receiving a sentence of up to fifteen days’ detention. In this context, the Court is not oblivious to the requirement under Russian law that administrative detention was to be applied only in «exceptional circumstances» (see paragraph 30 above). However, this is a question to be decided by a domestic judge in each given case, and thus cannot, as such, weigh in the analysis of whether legal assistance should have been made available free of charge, to comply with the requirements of Article 6. It does not appear that the applicant fell within the excluded categories of people on whom administrative detention could not be imposed as a possible statutory penalty. Thus, the Court considers that a lot was at stake for the applicant (see, by way of comparison, Mato Jara v. Spain (dec.), no. 43550/08, 4 May 2000).
  2. As to other factors (such as the seriousness of the offence, the seriousness of the specific charge, and the complexity of the case against the applicant), the Court observes that she faced an accusation for one episode relating to her resistance to an order from the police. Arguably, a proper determination of this charge could require, inter alia, that the lawfulness of the officer’s order be ascertained (with particular reference to other legislation such as the Public Gatherings Act and the Police Act), or legal conclusions to be drawn on account of the defendant’s exercise of her freedom of assembly or freedom of expression (see, by way of comparison, Nemtsov, cited above, §§ 76 — 77 and § 93; Malofeyeva, cited above, §§ 117 — 118; Navalnyy and Yashin v. Russia, no. 76204/11, § 73, 4 December 2014; and Makhmudov v. Russia, no. 35082/04, § 83, 26 July 2007). Although the Court accepts that the applicant’s submissions before the domestic courts were not devoid of substance, this could not have been reliably assumed in advance as far as a question of legal aid was concerned. In any event, any possibility of legal aid being ruled out by law, the question of the applicant’s possibly (in)sufficient knowledge of law was not and is not a relevant consideration. In so far as the applicant’s personal situation may be relevant, the Court rather notes that the applicant was a pensioner, with no legal or other relevant training.
  3. Be that as it may, the gravity of the penalty suffices for the Court to conclude that the applicant should have been given legal assistance free of charge since the «interests of justice» so required.
  4. It appears that the Russian Constitutional Court stated, in the same vein, that the federal legislator was empowered to set out means of access to free legal assistance without impinging upon the essence of this right; that this right could acquire «constitutional significance» in a situation where the degree of intrusion into constitutional rights or freedoms, by way of prosecution under the CAO, became comparable to measures prescribed by criminal law (see paragraph 22 above).
  5. For its part, the Court reiterates that Article 6 § 3 (c) 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’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Sakhnovskiy [GC], cited above, § 95). However, the applicant could not benefit from legal assistance during the trial hearing, nor did she obtain another form of assistance, for instance, a legal consultation or assistance/representation before a court hearing or for the purpose of drafting an appeal, or a combination of the above (see for comparison Benham, cited above, § 63). Lastly, no question arises as to whether an appeal or further proceedings, given their scope of review and practical arrangements, would have been a remedy for the unavailability of legal assistance (see for comparison Toeva v. Bulgaria (dec.), no. 53329/99, 9 September 2004, and Khrabrova v. Russia, no. 18498/04, § 52, 2 October 2012). In fact, no free legal assistance was made available in these proceedings either.
  6. The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

(ii) The charge under Article 20.2 of the CAO

  1. As regards the gravity of the statutory penalties, the Court observes that at the material time the only statutory penalty was a fine of up to RUB 1,000 (or EUR 28), which was relatively low, even by national standards.
  2. The Court also observes that the case concerned one event, for which the relevant legal elements, including the corpus delicti, were relatively straightforward. At the same time, the Court notes that the determination of the charge required that the applicable rules and the acts punishable under Article 20.2 of the CAO be determined and assessed with reference to, and on the basis of, other legislation such as the Public Gatherings Act (see paragraphs 28 and 36 above), and, eventually, with reference to legal considerations on account of the defendant’s exercise of her freedom of assembly and/or freedom of expression (see, by way of comparison, Kasparov and Others, § 90, and Berladir and Others, § 61, both cited above). Arguably, this task was capable of disclosing some degree of complexity where the applicant had no requisite legal training or knowledge.
  3. In particular, it was relevant to determine whether the public gathering did or did not comply with the notification requirement under the Public Gathering Act (see paragraph 36 above), and that the defendant took part in this demonstration. It is also observed that the CAO did not require in the circumstances the participation of a public prosecutor, who would present the case against the defendant before a judge (see Malofeyeva, cited above, § 116). While the police were in charge of compiling the administrative offence file before transmitting it to a court, it appears that the accusation against the defendant was then both presented and examined by the judge dealing with the case (ibid.).
  4. In the present case the Court attaches importance to the fact that the proceedings against the applicant directly related to her exercise of the fundamental freedoms protected under Articles 10 and 11 of the Convention. Thus, it cannot be assumed that little was at stake for the applicant.
  5. It is also noted that the applicant could not benefit from legal assistance during the trial hearing, nor did she obtain another form of assistance, for instance, a legal consultation or assistance/representation before a court hearing or for the purpose of drafting an appeal, or a combination of the above.
  6. Lastly, the Court considers that, for the purpose of complying with Article 6 of the Convention, it should be preferable that the pertinent factual and legal elements (such as the means test and the question of «the interests of justice») be first assessed at the domestic level when the issue of legal aid is decided, especially when, as in the present case, a fundamental right or freedom protected under the Convention is at stake in the domestic proceedings in question. However, in view of the state of the national law, no such assessment was made at the domestic level (see also the Court’s findings in paragraph 94 above).
  7. Therefore, having examined all relevant elements and despite the low amount of the statutory fine, the Court concludes that in the particular circumstances of the case the «interests of justice» required availability of free legal assistance. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

 

  1. Application of Article 41 of the Convention

 

  1. 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.»

 

  1. Damage

 

  1. The applicant claimed 28 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.
  2. The Government contested the claims as unreasonable.
  3. The Court does not discern any causal link between the procedural violation found and the pecuniary damage alleged (the amount of the fine); it therefore rejects this claim. On the other hand, having regard to the violation of Article 6 of the Convention in the CAO cases, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

 

  1. Costs and expenses

 

  1. The applicant also claimed EUR 128 for the costs and expenses incurred before the Court.
  2. The Government contested the claim.
  3. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court grants the claim, plus any tax that may be chargeable to the applicant.

 

  1. Default interest

 

  1. 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. Declares the application admissible;
  2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention as to the case under Article 19.3 of the Russian Code of Administrative Offences;
  3. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention as to the case under Article 20.2 of the Russian Code of Administrative Offences;
  4. Holds

(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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 128 (one hundred and twenty-eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

President

Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate concurring opinion of Judge Pinto de Albuquerque joined by Judge Dedov is annexed to this judgment.

A.S.

S.N.

CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE JOINED BY JUDGE DEDOV

 

  1. I subscribe to the majority’s finding of a violation of Article 6 §§ 1 and 3 (c) of the European Convention on Human Rights (the Convention). But the reasoning provided by the majority is not entirely convincing. Worse still, the majority have failed to see the broader picture of the systemic failure of the Russian legal system to deal with the problem raised by the applicant in the present case. This case presented an excellent opportunity for the European Court of Human Rights (the Court) to provide much needed guidance to the Russian authorities on the general measures that should be taken to prevent similar situations, in view of the insufficient efforts made by the Russian Constitutional Court to address that systemic failure. The purpose of my opinion is to help the Russian authorities define and implement a human-rights-compatible solution to this problem — which the majority chose to omit.
  2. The applicant was charged with two different offences: the offence of failure to comply with a lawful order given by a public official, as set out in Article 19.3 of the Code of Administrative Offences («CAO»), and the offence of participation in a public gathering which had not been notified in advance to the authorities, as provided for in Article 20.2 of the CAO. Given that both charges against the applicant arose from the same event, I will proceed to examine whether the interests of justice required that the applicant should have had an opportunity to obtain free legal assistance for this case taken as a whole. A formalistic approach to the facts, separating the two imputed offences, would hinder the adequate consideration of the substance of the case.

 

Lack of free legal assistance in CAO proceedings

 

  1. The most important criterion to consider in deciding whether free legal assistance should be provided to a defendant in a criminal or administrative offence procedure is the severity of the penalty <*>. The Government referred to the criterion of the penalty as applied in concreto («The amount of the fines imposed on the applicant is insignificant in view of the Court’s case-law as well») <**>. This criterion is evidently not relevant to determining whether it is in the interest of justice to afford free legal assistance to the defendant, for the simple reason that when a lawyer is appointed it is not yet possible to know what the penalty will be in concreto. The relevant criterion is obviously the penalty applicable in abstracto to the offence. In the case of multiple offences imputed to a defendant, as a result of the same set of facts, the most severe applicable penalty is the one to be considered for the purposes of deciding on the need for free legal assistance.

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<*> As the majority rightly pointed out, the punitive character of the administrative offence procedure under the CAO is plain to see, in particular when it refers to the presumption of innocence as an overarching principle of this procedure (Article 1.5 CAO) and to the «punitive measure for committing an administrative offence, established by the State» (Article 3.1 CAO).

<**> Page 11 of the Government’s observations.

 

  1. In the present case, the applicant was liable to a sentence of up to fifteen days’ detention in respect of the charge under Article 19.3 of the CAO. The legal possibility that imprisonment may be imposed as an alternative to the fine referred to in Article 19.3 of the CAO suffices to trigger the need for legal assistance, if necessary provided free of charge. Moreover, the applicant was also accused of another, less serious, offence. Under Article 20.2 of the CAO at the material time, the only statutory penalty was a fine of up to RUB 1,000 (EUR 28), which represented 25% of the applicant’s monthly pension in 2007 <*>. Although under Russian law administrative detention was to be applied only in «exceptional circumstances» (see paragraph 30 of the judgment), the applicant did not fall within the excluded categories of people on whom such detention could not be imposed as a statutory penalty. In this context, the decisive factor to be weighed in the analysis of whether legal assistance should have been made available free of charge, in order to comply with the requirements of Article 6 of the Convention, is the fact that failure to pay a fine within a time-limit entails, under Article 20.25 CAO, statutory imprisonment of up to fifteen days. Thus, the fact that Article 20.25 constitutes in itself a separate administrative offence, which gives rise to a separate judicial case, is entirely irrelevant.

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<*> In Berladir v. Russia (no. 34202/06, 10 July 2012) the Court had already accepted that a fine of the same amount was not sufficient in itself to render the application inadmissible. Furthermore, the maximum fine applicable to the Article 20.2 CAO offence was increased from RUB 1,000 to RUB 20,000 on 8 June 2012. Thus, individuals who now find themselves in the exact same situation as the applicant face a potentially much greater direct financial disadvantage.

 

  1. In the light of Article 6 of the Convention, legal assistance is required as a basic procedural safeguard for defendants when they face charges carrying, directly or indirectly, a prison sentence <*>. For the purposes of securing an adequate defence strategy, it makes no difference to the nature of the safeguard whether the offence is directly or indirectly punishable by imprisonment. Any distinction between prison as an alternative penalty or as a subsidiary penalty would be purely artificial, in terms of the necessary procedural guarantees in a fair criminal trial. Thus, if a prison term of fifteen days is applicable, either as an alternative to a fine (as in the case of Article 19.3 of the CAO) <**> or as a subsidiary penalty in the event of failure to pay a fine (as in the case of Article 20.2, in conjunction with Article 20.25) <***>, it is evidently necessary to secure to the defendant the basic procedural safeguard of legal assistance. Whenever the defendant does not have the financial means to pay for legal assistance in such cases, it must be publicly funded.

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<*> A person charged with a criminal offence punishable by a prison sentence who does not want to defend himself or herself in person must be able to have recourse to legal assistance of his or her own choosing. That was the finding in the ground-breaking case of Pakelli v. Germany, no. 8398/78, 25 April 1983.

<**> For a case concerning an offence punishable by an alternative penalty of imprisonment that the Court treated under the criminal limb of Article 6, see Demicoli v. Malta, no. 13057/87, § 34, 27 August 1991.

<***> For a case concerning an offence punishable by a subsidiary prison term which the Court took under the criminal limb of Article 6, see Weber v. Switzerland, no. 11034/84, § 34, 22 May 1990.

 

  1. This is not to say that I do not attach importance to the fact, invoked by the majority, that the proceedings against the applicant directly related to her exercise of the fundamental freedoms protected under Articles 10 and 11 of the Convention. As to the Article 19.3 CAO charge, I note that the applicant faced an accusation for one episode relating to her resistance to an order from the police. Arguably, a proper determination of this charge could require, inter alia, that the lawfulness of the officer’s order be ascertained with particular reference to other legislation such as the Public Gatherings Act and the Police Act, or that legal conclusions be drawn on account of the defendant’s exercise of her freedom of assembly or freedom of expression <*>. The same applies to the charge under Article 20.2 of the CAO. Ultimately, both charges related to the defendant’s exercise of her freedom of assembly and/or freedom of expression and therefore were capable of involving some degree of complexity <**>. At this juncture, it must also be taken into account that the applicant was a pensioner and had no legal training or knowledge <***>. In sum, the delicate nature of the subject matter of the charges and the relative complexity of the case, in both its facts and legal aspects, are factors of importance in order to determine the need for free legal assistance, but they only enhance and reinforce the conclusion reached on the basis of the assessment of the severity of the imposable penalties.

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<*> See Navalnyy and Yashin v. Russia, no. 76204/11, § 73, 4 December 2014; Nemtsov v. Russia, no. 1774/11, §§ 76 — 77 and § 93, 31 July 2014; Malofeyeva v. Russia, no. 36673/04, §§ 117 — 118, 30 May 2013; and Makhmudov v. Russia, no. 35082/04, § 83, 26 July 2007.

<**> See Kasparov and Others v. Russia, no. 21613/07, § 90, 3 October 2013, and Berladir and Others, cited above, § 61.

<***> It goes without saying that the applicant’s personal appearance did not compensate for the absence of a lawyer, since she was in no position to plead the case effectively and counter the arguments raised against her (see Zdravko Stanev v. Bulgaria, no. 32238/04, 6 November 2012). While the proceedings were not of the highest level of complexity, the relevant issues included, among others, the exercise of constitutional freedoms and the meaning of her intent to disobey.

 

  1. Furthermore, it should not be overlooked that, while the police were in charge of compiling the administrative offence file before transmitting it to a court, the accusation against the defendant was both presented and examined by the judge dealing with the case. In a procedure where the judge also assumes the function of a prosecutor, notifying the charges to the defendant, and there is no one to assist the latter in terms of legal advice, the individual’s procedural position is particularly deficient <*>. In other words, where justice is a one-man-show, the risk of a miscarriage is much higher. In such a situation, legal assistance is an imperative of justice. Hence, it should be provided freely if and when the defendant does not have the financial means to afford a lawyer. Again, this is only one additional factor that reinforces the above-mentioned conclusion about the need to provide free legal assistance in the framework of CAO proceedings.

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<*> See Malofeyeva, cited above, § 116.

 

  1. Lastly, no question arises as to whether an appeal or further proceedings, given their scope of review and practical arrangements, would have been a remedy for the unavailability of legal assistance <*>. In fact, no free legal assistance was made available in the appeal proceedings either. In reality, both the Justice of the Peace and the District Court failed to give the applicant’s Convention arguments any consideration, as the courts ruled that the provision of free legal assistance was simply not prescribed by domestic law. It appears that the Russian Constitutional Court stated that the right to free legal assistance had «constitutional significance» in a situation where the degree of intrusion into constitutional rights or freedoms, by way of prosecution under the CAO, became comparable to measures prescribed by criminal law (see paragraph 22 of the judgment). Unfortunately, the Russian Constitutional Court has not yet drawn all the necessary conclusions from this reasoning in terms of the required protection of defenceless defendants in CAO proceedings who are charged with offences punishable directly or indirectly by imprisonment, of which the present case offers a good example. The foregoing considerations are sufficient to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

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<*> See, by way of comparison, Toeva v. Bulgaria (dec.), no. 53329/99, 9 September 2004, and Khrabrova v. Russia, no. 18498/04, § 52, 2 October 2012.

 

General remedies to resolve the systemic failure in CAO proceedings

 

  1. Under Article 46 of the Convention, the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects.

The Court has previously examined applications relating to administrative offence proceedings under Russian law and found violations of Article 6 of the Convention, in particular having regard to the fairness requirement <*>. The present case has disclosed a violation under Article 6 of the Convention on account of the state of domestic legislation and judicial practice concerning the right to legal assistance in administrative offence cases. It is also noted that there are a number of pending applications before the Court raising similar issues. To put it in Convention terms, the applicant’s case evinces a structural deficiency likely to affect other individuals in the same position as her.

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<*> See Menesheva v. Russia, no. 59261/00, §§ 94 — 100, ECHR 2006-III; and the above-cited cases of Malofeyeva, §§ 97 — 120; Kasparov and Others, §§ 36 — 69; Nemtsov, §§ 81 — 94; and Navalnyy and Yashin, §§ 76 — 85.

 

  1. In this context, the Court should have indicated the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist <*>. The Court’s concern should have been to facilitate the rapid and effective suppression of a malfunction in the national system of human-rights protection and, for that reason, it should have considered that general measures at the national level are undoubtedly called for in the execution of the present judgment <**>.

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<*> See Stanev v. Bulgaria [GC], no. 36760/06, § 255, 17 January 2012; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, ECHR 2009; and Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V.

<**> See Driza v. Albania, no. 33771/02, § 125, ECHR 2007-V.

 

Thus, the respondent State should, through appropriate and timely measures taken by the legislative and/or judicial powers, secure in its domestic legal order a mechanism which allows individuals to obtain legal assistance in CAO proceedings whenever the person does not have sufficient means to pay for it and the interests of justice so require, and in particular whenever imprisonment is applicable, as either a principal or an alternative or subsidiary penalty.

 

Individual remedies in respect of the applicant’s convictions

 

  1. The Court has repeatedly reiterated that when an applicant has been convicted despite an infringement of his rights guaranteed by Article 6 of the Convention he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, where requested <*>.

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<*> See  v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010.

 

  1. Unlike Article 413 of the Russian Code of Criminal Procedure, the CAO does not expressly provide for a possibility that the proceedings may be reopened if the Court finds a violation of the Convention. Nevertheless, the question whether it is appropriate and practicable to reopen the domestic proceedings in order to put an end to the violation found by the Court and to redress the adverse effects of this violation does not fall within the discretion of the respondent State. In other words, the respondent State should use all legal avenues available in the domestic legal order to suppress the negative effects of the conviction and sentence which are in breach of the Convention and, if this suppression is not possible within the existing legal framework, it should introduce a legal mechanism to reopen the proceedings for that purpose.

 

Conclusion

13. The statutory penalty of fifteen days’ detention, which was directly applicable to the Article 19.3 CAO charge and indirectly applicable to the Article 20.2 CAO charge, suffices for it to be concluded that the applicant, who was a pensioner with no legal knowledge, should have been given legal assistance free of charge, since the «interests of justice» so required. This conclusion is reinforced by the relative complexity of the subject matter of the case and by the fact that the trial judge also assumed prosecutorial functions. In order to redress the violation of Article 6 §§ 1 and 3 (c) of the Convention and to fully comply with the obligations resulting from Article 46 of the Convention, the respondent State should adopt remedies of both an individual and a general nature, as emphasised above.

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