06.04.2013
European Court of Human Rights
5 April 2013
Memorandum from the Applicant
Application No. 46998/08
Mikhailova v Russia
1. Under cover of a letter dated 5 February 2013, the First Section
of the European Court of Human Rights (hereafter "the Court")
provided to the Applicant a copy of the Russian Government's
observations on the above application, and invited the Applicant
to submit written observations in reply by 9 April 2013. This
Memorandum constitutes those observations.
2. The Applicant has no comment to make regarding the national legal
provisions and factual background set out in the Government's
observations, so will proceed to address the Government's answers
to the questions posed by the Court.
Questions to the Parties
3. The questions addressed in the Government's observations are as
follows:
1. Does the present case fall within the scope of Article 35 S: 3 (b)
of the Convention? In particular, did the applicant suffer any
"significant disadvantage"?
2. (a) Was Article 6 of the Convention applicable to the domestic
proceedings in the present case? Was it applicable, under its criminal
or civil limb, to the case under Article 19.3 of the Code of
Administrative Offences (CAO)? As regards the case under Article 20.2
of the CAO:
- Was Article 6 of the Convention applicable under its civil limb
(see, for comparison, Lutz v. Germany, 25 August 1987, S:S: 51-57,
Series A no. 123; Malige v. France, 23 September 1998, S:S: 31-40,
Reports of Judgments and Decisions 1998-VII; Schmautzer v. Austria, 23
October 1995, S:S: 26-28, Series A no. 328-A; and Nilsson v. Sweden
(dec.), no. 73661/01, 13 December 2005)?
- Does it matter that non-payment of a fine imposed in a case under
Article 20.2 may entail conviction and detention under Article 20.25
(see, for comparison, Weber v. Switzerland, no. 11034/84, S: 34, 22
May 1990 see Ravnsborg v. Sweden, no. 14220/88, S: 35, 23 March 1994;
and Schmautzer v. Austria, no. 15523/89, S: 28, 23 October 1995)?
(b) If Article 6 of the Convention was applicable, was the applicant
afforded an adequate opportunity to defend herself in person? Was she
afforded an opportunity to receive legal assistance before and/or
during the trial and/or on appeal before the District Court? Having
regard to various relevant factors (for instance, the seriousness of
the offences, the severity of the possible sentences, the complexity
of the cases and the personal situation of the accused), did the
interests of justice require that legal assistance be provided free of
charge? If yes, was there a violation of Article 6 of the Convention
(cf. Pakelli v. Germany, 25 April 1983, S: 31, Series A no. 64; Benham
v. the United Kingdom, 10 June 1996, S: 61, Reports of Judgments and
Decisions 1996-III), and Gutfreund v. France (dec.), no. 45681/99, 25
April 2002)?
4. The Applicant addresses these questions, and the Government's
observations on them, in turn, below.
Answer to Question 1
5. As appears to be accepted by the Government, the effect of Article
35 S: 3 (b) of the Convention is that:
(1) the Court may declare inadmissible any individual application
where the applicant has suffered no significant disadvantage; however
(2) the Court may not declare such an application inadmissible where
respect for human rights requires an examination of the application on
the merits; and
(3) no case may be rejected under this criterion which has not been
duly considered by a domestic authority.
6. The Applicant therefore needs only to satisfy the Court under any
one of the three criteria for the Application to be declared
admissible (see Finger v. Bulgaria, No. 37346/05, 10 May 2011; and
Flisar v. Slovenia, No. 3127/09, 29 September 2011).
(1) Has the Applicant suffered a "significant disadvantage"?
7. The Government rightly accepts that both objective and subjective
factors are relevant. Disadvantage is hard to measure objectively,
so it is unsurprising that one of the factors looked at in the
Court's case law is the financial impact of the violation alleged
by the applicant. However, it is clear from the precedent of the
Court that financial impact is not necessarily determinative of
the significance of the disadvantage for the purposes of
admissibility. Other (non-financial) repercussions on the
applicant's personal life must also be taken into account:
"...a violation of the Convention may concern important questions of
principle and thus cause a significant disadvantage without affecting
pecuniary interest" (Korolev v. Russia (dec.), No. 25552/05, 1 July
2010).
8. Moreover, provided the belief of the applicant is objectively
reasonable this may be an important factor in the assessment of
"significant disadvantage":
"...applicant's own subjective feeling about the impact of the alleged
violation has to be justifiable on objective grounds." (Rinck v.
France (dec.), No. 18774/09, 19 October 2009)
9. In the present case, the Government argues that the Application is
not in any way relevant to the fine imposed on the Applicant and
that, in any event, the amount of the fine imposed on the
Applicant is insignificant. The Applicant refutes these points.
10. As to the first point, the Government's reliance on Zwinkels v the
Netherlands to argue that the Application is not relevant to the
sanction imposed on the Applicant is ill-founded. In that case,
the applicant's complaint concerned an alleged breach of Article 8
of the Convention as a result of inspectors entering the
applicant's garage without his permission. That complaint was, as
the Court found, not related to the imposition of a fine on the
applicant for employing foreign nationals without a work permit.
Those facts are far from the circumstances of the present case,
where the alleged breaches are of Article 6 of the Convention and
concern whether the Applicant had a fair hearing. The convictions
which resulted from that trial are clearly related to the alleged
violations of Convention rights. The Zwinkels case is simply not
relevant here.
11. As to the second point, the total amount of the fines imposed on
the Applicant in 2007 was 1,000 RUB. That accounts for 25% of the
Applicant's monthly pension in 2007 which, it is submitted, is a
large enough proportion to have a significant impact upon her.
12. Further guidance on whether a fine of this size would meet the
"significance" criterion can be taken from a similar case in which
the applicants were fined the same amount (1,000 RUB) in 2005 as a
result of their participation in a demonstration in Russia
(Berladir and Others v. Russia, No. 34202/06, 10 July 2012). In
Berladir, the Government submitted that the amount was neither
significant nor disproportionate, but otherwise failed to state
why it considered that the applicants had suffered no significant
disadvantage, and made no submissions in relation to the safeguard
clauses. The Court held that:
"...Noting the nature of the issues raised in the present case, which
also arguably concerns an important matter of principle, as well as
the scope of the limitations, the Court does not find it appropriate
to dismiss the present application with reference to Article 35 S: 3
(b) of the Convention."
13. Plainly, in absolute terms, the low financial sum was not
sufficient by itself to render the application in that case
inadmissible. The same should apply here.
14. Further, there are other non-financial factors which are of
significance to the Applicant in ways which are objectively
justified within the meaning of Rinck. The administrative
convictions have had a chilling effect on the Applicant who has
now stopped attending mass actions (i.e. the Applicant has, as a
direct consequence of the convictions, felt unable to exercise her
right to freedom of expression and right of freedom of assembly).
Thus, contrary to the observations of the Government, the
convictions have had a very significant negative impact on the
Applicant's position.
15. Therefore, it is submitted that the Applicant has demonstrably
suffered a "significant disadvantage" within the meaning of the
Convention as applied by the Court.
(2) Does respect for human rights require an examination of the
Application on the merits?
16. The Court has consistently interpreted this provision as
compelling it to continue the examination of a case when it may
raise questions of a general character affecting the observance of
the Convention. Such questions of a general character would arise,
for example, where there is a need to clarify a State's
obligations under the Convention or to induce the State to resolve
a structural deficiency affecting other persons in the same
position as the applicant (see Korolev v. Russia (dec.), Id.).
17. Some circumstances where this safeguard has been held to apply are
as follows:
(1) where there is a potential systemic problem in the national system
(Finger v. Bulgaria, Id.); and
(2) where a decision of principle on the issue in question was needed
(Nicoleta Gheorghe v Romania, No. 23470/05, 3 April 2012).
18. The Application already sets out in some detail why it is argued
that the process against the Applicant was a criminal one as
opposed to an administrative one. The Government argues the
opposite in its observations, but seemingly only bases its
argument upon the national law terminology, i.e. it is designated
`administrative' in national law, so that means it must be
`administrative'. If, as is submitted, the Applicant is correct on
this point, the serious defects identified in the fairness of that
process in terms of a failure to provide free legal representation
mean that the Applicant's case evinces a structural deficiency
likely to affect other individuals in the same position as the
Applicant.
19. The Applicant's case is, by its nature, one which concerns
clarification of the extent of Russia's obligations under the
Convention. It is submitted that the Article 6 issues raised are
important ones of principle which have the potential to clarify
Russia's Convention obligations and to have a significant impact
on all individuals subject to the jurisdiction of the Russian
courts. The issue in question relates to a systemic failing:
Russia's treatment of proceedings which are properly classified as
criminal proceedings as administrative proceedings in its domestic
laws. Regardless of the extent of the direct financial
disadvantage imposed on the Applicant, the case should be examined
on its merits.
20. An additional feature of the present case which supports the
argument that this is one which requires examination on the merits
is the political context of the criminal process brought against
the Applicant. She was detained by a police officer and
subsequently sanctioned because of attempted participation in an
opposition demonstration. The ability of Russia to use force, in
the form of criminal sanctions (thinly disguised as administrative
sanctions) to prevent the exercise of democratic freedoms of
expression and assembly (rights protected by Articles 10 and 11 of
the Convention respectively) is, it is submitted, a matter of
significant wider public interest and of direct relevance to a
great many individuals other than the Applicant.
21. Also of importance are developments since the Applicant's
administrative conviction. On 8 June 2012, the maximum fine
applicable to the Article 20.2 CAO offence for which the Applicant
was held liable was increased from 1,000 RUB to 20,000 RUB (i.e. a
twenty-fold increase). However, Russia still classifies the
offence as administrative and provides no free legal assistance.
So, individuals who now find themselves in the exact same
situation as the Applicant found herself continue to be
disadvantaged by Russia's breaches of the Convention and, in fact,
the direct financial disadvantage to such people is potentially
much greater. Were the maximum fine to be imposed on the Applicant
today, it would constitute five times her monthly pension.
22. There has been recent academic comment on the current trend in
Russia for offences which should properly be classified as
criminal to be reclassified by legislators as administrative (see
the comments of Professor Leonid Golovko, acting department head
of the criminal process, justice and prosecutorial supervision of
the Law Faculty of Moscow State University and a member of the
International Association of Penal Law, at
http://www.kommersant.ru/doc/2130874 (reproduced as Attachment
1)). People accused of committing such "administrative" offences
will find themselves subject to the same disadvantages as the
Applicant was in this case.
23. Accordingly, respect for human rights should require an
examination of the present application on the merits.
(3) Was the Applicant's case properly heard in the domestic Courts?
24. The circumstances of the case have already been set out in detail
in the Application and in the Court's Statement of Facts. For
present purposes it is necessary to highlight that:
(1) The Applicant sought free legal assistance in the proceedings
before the Justice of the Peace but her request was rejected as not
being prescribed by domestic law;
(2) The Applicant again sought free legal assistance in the
proceedings before the District Court but her request was rejected as
not being prescribed by domestic law;
(3) The District Court also rejected the Applicant's appeal based on
the procedural irregularity (failure to provide free legal assistance)
before the Justice of the Peace, but the appeal was rejected without
the Applicant's Convention arguments being addressed in the court's
decision;
(4) The Deputy Chief Justice of Saint-Petersburg City Court refused to
allow an extraordinary appeal on the basis that free legal
representation was not prescribed by domestic law, with the decision
ignoring the Applicant's Convention arguments;
(5) The Deputy Chief Justice of the Supreme Court of the Russian
Federation refused to allow an extraordinary appeal, with the decision
ignoring the Applicant's Convention arguments.
25. Even from this short summary, it is quite clear that the failure
of the first-instance court to address the Applicant's Convention
arguments (relying instead on whether free legal representation
was prescribed under national law) has been compounded by the
failure of the upper tribunals to address the Applicant's
Convention arguments in their decisions.
26. The question of admissibility is closely related to the substance
of the complaint. There are clear parallels with the case of Fomin
v Moldova, No. 36755/06, 11 October 2011. That case, like (in this
aspect) the present case, concerned an alleged failure by the
national courts to give sufficient reasons. Whilst, in the present
case, the Applicant made submissions on Convention arguments in
adversarial proceedings, the domestic courts failed to deal in any
manner with the Applicant's arguments in their decisions. Where a
court finds an argument irrelevant it should set out why in its
decision. That has not been done in the present case, at any
level, which gives rise to a strong inference that the courts have
consciously chosen to ignore the Applicant's valid Convention
arguments and/or that the Applicant's Convention arguments were
not within the scope of the examination conducted by those courts.
It is submitted that this gives rise to a violation of Article 6
S: 1 (see further the arguments set out in the Application).
27. The Government relies upon the fact that, when rejecting the
Applicant's requests for free legal assistance, both the Justice
of the Peace and the District Court noted that, in her
applications, the Applicant raised Convention/international law
rights. However, simply noting that the Applicant had raised such
issues does not mean that the court has properly heard those
arguments. As the Government appears to accept, the courts failed
to give the Applicant's Convention arguments any consideration, as
the courts ruled that provision of free legal assistance was not
prescribed by domestic law.
28. Accordingly, the issue which is the subject of this Application
(i.e. whether Russian domestic law should provide free legal
representation in cases of the kind brought against the Applicant
by the Russian Government in order to comply with the Convention)
has not been heard by a domestic tribunal.
Conclusion on Question 1
29. As set out above, the Court should not declare this Application
inadmissible as:
(1) the Applicant has suffered a significant disadvantage;
(2) in any event, respect for human rights requires an examination of
the Application on the merits; and
(3) in any event, the Applicant's case has not been duly considered by
a domestic tribunal
30. Further, or in the alternative, the admissibility of the case
should be considered at the same time as the merits (as was done
in Fomin, Id.).
Answer to Question 2(a)
31. As the Government recognises, the Applicant's case under Article 6
is contingent upon a finding that the offences with which she was
charged should be classified as "criminal charges" under the
Convention.
32. The Court's case law has established a methodology for assessing
whether a particular charge can be classified as "criminal" (see
Engel v. the Netherlands, No. 5100-5102/71, 5354/72 and 5370/72, 8
June 1976; Ravnsborg v. Sweden, No. 14220/88, 23 March 1994;
Benham v. the United Kingdom, No. 19380/92, 10 June 1996; Weber v.
Switzerland, No. 11034/84, 22 May 1990; Putz v. Austria, No.
18892/91, 22 February 1996; Schmautzer v Austria, No. 15523/89, 23
October 1995; T v. Austria, No. 27783/95, 14 November 2000).
33. First, the Court will treat the charge as "criminal" if the
national law of the Contracting States defines the charge as such.
In the present case, Russia classifies the offences under Articles
19.3 and 20.2 of the CAO as "administrative" and not "criminal".
34. Second, if the charge is not defined as "criminal" in national
law, the Court will examine the substantive reality of the
procedure in question, based on two alternative criteria: (i) the
nature of the offence, and/or (ii) the degree of severity of the
penalty that the person concerned risks incurring.
35. The Court has clarified that these criteria are not cumulative but
alternative. The Court has pointed out that for Article 6 to apply
by virtue of the words "criminal charge" it suffices that the
offence in question should by its nature be "criminal" from the
point of view of the Convention, or should have made the person
concerned liable to a sanction which, in its nature and degree of
severity, belongs in general to the criminal sphere (Lutz v
Germany, No. 9912/82, 25 August 1987). The concept of a "criminal
offence" is an autonomous concept and its analysis is not bound by
the classification in domestic law (Malige v France, No. 27812/95,
23 September 1998). The Court has also established in numerous
cases that the criminal nature of the offence and the severity of
the penalty are sufficient to establish that the offence which the
applicant is accused of may be classified as criminal for the
purposes of the Convention even if not classified as such in
domestic law. Each of the following offences have previously been
considered as criminal offences by the Court despite their
classification in domestic law:
(a) road traffic offences punishable by fines or restrictions imposed
on a driving licence (Schmautzer, Id.; Malige, Id.; Lutz, Id.),
(b) tax surcharge proceedings (Bendenoun v France, No. 12547/86, 24
February 1994; Jussila v Finland, No. 73053/01, 23 November 2006),
(c) customs law (Salabiaku v France, No. 10519/83, 7 October 1988),
(d) competition law (Societe Stenuit v France, No. 11598/85, 27
February 1992),
(e) financial proceedings (Guisset v France, No. 33933/96, 26
September 2000),
(f) minor offence of accusing your neighbour of causing a nuisance
without justification, punishable with a maximum fine of SKK 3,000
(approx. EUR 90) and with an imposed fine of EUR 9 (Lauko v Slovakia,
No. 26138/95, 2 September 1998).
36. Moreover, in certain circumstances, the nature and degree of
severity of the penalty alone, may bring the matter into the
criminal sphere (Ravnsborg, Id.).
(1) The nature of the offences for which the Applicant was convicted
37. In evaluating whether the offences under Article 19.3 and Article
20.2 of the CAO would be considered as "criminal" based on the
nature of the offence, according to established case law, it is
submitted that the Court needs to take into account the following
factors:
(a) The general character of the provision. This is whether the rule
is of general binding character, as opposed to rules addressed
exclusively to a specific group, e.g. lawyers, soldiers (see
Bendenoun, Id.; Demicoli v Malta, No. 13057/87, 27 August 1991; Ozturk
v Germany, No. 8544/79, 21 February 1984). A general legal provision
should cover all citizens and not a given group of citizens with a
particular status.
(b) Whether the body instituting the proceedings is a public body.
Sanctions that are not ordered by an administrative authority but that
are mandatory according to the relevant statute cannot be described as
administrative sanctions (Malige, Id.).
(c) The purpose of the penalty. This refers to whether the legal rule
has a punitive or deterrent character, as opposed to, for example, a
pecuniary compensation for damage (Bendenoun, Id.; Ozturk, Id.).
(d) The charge imposed followed conviction for a criminal offence. The
Court considers that a measure which had traditionally been regarded
as an administrative measure under national law (in Nilsson v Sweden,
No. 73661/01, 13 December 2005, the withdrawal of a driving licence to
protect road safety) constituted a "criminal" sanction because it was
imposed on the ground of a criminal conviction.
(e) The procedures involved in the making and implementation of the
measure (Malige, Id.). Some administrative offences are dealt with via
administrative criminal procedures. This factor helps to determine the
very nature of the offence (Schmautzer, Id.).
(f) Whether the imposition of a penalty is dependent upon a finding of
a guilt (Benham, Id.).
(g) Whether the Court can verify how comparable procedures are
classified in other Contracting States (Ozturk, Id.).
38. In the present case, all of the following factors point in favour
of the offences under Articles 19.3 and 20.2 of the CAO being
properly classified as "criminal":
(1) The rules are of general binding character. They apply potentially
to all Russian citizens and not to a given group with a particular
status. In this respect, the present case is very similar to the
unanimous judgment in Lauko where the Court analysed the criminal
nature of "minor" offences under Slovakian law (in that particular
case, the minor offence of unjustified accusation, see above). In
Lauko, the Court concluded that the general character of the legal
provision together with the deterrent and punitive purpose of the
penalty imposed on him, showed that the offence was criminal in
nature.
(2) The proceedings in this case are instituted by the Russian Justice
of the Peace which is a public body with statutory powers (per Article
22 of the CAO).
(3) The rules have a punitive and deterrent character. This is
supported by the definition of "administrative penalty" under the CAO.
Article 3.1 of the CAO defines administrative penalty as "a punitive
measure for committing an administrative offence, established by the
state". Moreover, several procedural guarantees, in particular the
presumption of innocence (Article 1.5 of the CAO), are indicative of
the criminal nature of these charges. In this case, Article 19.3 of
the CAO was enforced by the Russian authorities to prevent the
Applicant's participation in a march. When detained, the Applicant had
not yet participated in any march but the police acted on the belief
that she was intending to participate in an opposition march. It
follows that the enforcement of Article 19.3 CAO against the Applicant
had both a punitive character, i.e. punishing her for her intention to
participate in a march, and a deterrent character, i.e. deterring her
from participation in the march in question and in future marches. See
also Lauko above.
(4) The imposition of a penalty under Articles 19.3 or 20.2 of the CAO
is dependent upon a finding of a guilt. Article 2.1 CAO provides that
"a wrongful, guilty action (omission) of a natural person or legal
entity which is administratively punishable under this Code or the
laws on administrative offences of subjects of the Russian Federation
shall be regarded as an administrative offence" (emphasis added).
(2) The degree of severity of the penalty that the person concerned
risks incurring
39. In general, the Court has found that "deprivations of liberty
liable to be imposed as a punishment, except those which, by their
nature, duration or manner of execution cannot be appreciably
detrimental" belong to the criminal sphere (Engel, Id.).
40. Whether a potential imprisonment is deemed "appreciably
detrimental" depends on the circumstances of the case. In Engel,
the Court considered that the charges in question were
disciplinary by their nature because, among other factors, they
were confined to soldiers only. The Court then ruled that a 2-day
arrest was too short a duration to be classified as criminal. By
contrast, a potential 3 to 4 months committal to a disciplinary
unit would belong to the `criminal' sphere.
41. In Weber, the Court ruled that a fine of 500 Swiss francs,
convertible to 10 days imprisonment, for breach of confidentiality
in a judicial proceeding should be regarded as `criminal'. The
rationale being that what was at stake was sufficiently important
to warrant classifying the offence with which the applicant was
charged as a criminal one under the Convention.
42. The Court has held in some cases that there is no need to examine
the nature and degree of severity of the penalty as it considered
that the relative lack of seriousness of a penalty at stake cannot
divest an offence of its inherently criminal character (Ozturk,
Id.). The Court classified as `criminal' a fine imposed by the
Maltese House of Representatives on a journalist for breach of
privilege and defamation, which was confirmed by the Maltese
Constitutional Court (Demicoli, Id.). The maximum level of the
fine in this case was 500 Maltese lira or imprisonment of up to 60
days or both.
43. In the present case, the maximum fine that could be imposed was
1,000 RUB or 15 days of administrative arrest for the Article 19.3
CAO offence, and 1,000 RUB for the Article 20.2 CAO offence. A
failure to pay a fine imposed under either Article 19.3 or 20.2
CAO could result in imprisonment for up to 15 days. In light of
the Engel, Demicoli and Weber judgments described above, it is
submitted that the fine imposed on the Applicant, which could also
entail imprisonment of several days, is sufficiently severe to
make the sanction criminal in nature.
The Government's observations
44. Rather than engage with the question posed by the Court, the
Government has instead argued that the present case is
indistinguishable from Gutfreund v France (dec.), No. 45681/99, 12
June 2003. In that case, the applicant's entire complaint
concerned the procedure for applying for legal aid (the applicant
alleged bias on the part of the judge who decided his legal aid
application). That procedure did not concern the determination of
a criminal charge against him, or of his civil rights and
obligations, within the meaning of Article 6 S: 1. The legal aid
office's decision had no bearing on the decision as to guilt, as
the determination of the criminal charge was left to the relevant
criminal court. The Court accordingly held unanimously that that
provision was inapplicable. Further, the applicant in Gutfreund
actually did appoint a lawyer to represent him after legal aid was
refused, so the refusal of legal aid could not be said to have had
any bearing on his ability to secure legal representation or
therefore on the outcome of case (S:35 in the Gutfreund decision
of 12 June 2003).
45. In the present case, the complaint is very different, being that
the denial of free legal representation in proceedings of a
criminal nature prevented the Applicant from being legally
represented and therefore infringed the Applicant's Article 6
rights, in particular her right to a fair hearing. The
Government's reliance on Gutfreund in this context is misplaced.
Answer to Question 2(b)
46. The Court has held that domestic courts must have "regard to the
object and purpose of [Article 6 S: 3(c)]", which states a
defendant has the right 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 (Pakelli v. Germany, No. 8398/78,
25 April 1983). In Pakelli, the Court noted that the object and
purpose of the article necessitates that it be read not as a
choice between allowing the accused to defend themselves in person
or through legal counsel, but that "a `person charged with a
criminal offence' who does not wish to defend himself in person
must be able to have recourse to legal assistance of his own
choosing." In other words, the accused has the fundamental human
right to choose whether they prefer to present their case by
themselves or through legal counsel. A tribunal cannot make this
decision for the accused. It is submitted that this proposition
holds true even if domestic law allows an accused to appear in
person to defend themselves.
47. In Pakelli, the Court further held that "it goes without saying
that the personal appearance of the appellant would not have
compensated for the absence of his lawyer: without the services of
a legal practitioner, Mr. Pakelli could not have made a useful
contribution to the examination of the legal issues arising ..."
48. In Ezeh and Connors v. The United Kingdom, Nos. 39665/98 and
40086/98, 9 October 2003, the Court reached the same conclusion,
holding that an accused was "denied the right to be legally
represented in the proceedings before the prison governor" in
violation of Article 6 when the "governor excluded the applicants'
legal representation." The Convention violation for excluding
legal counsel was "irrespective of whether they could have
obtained the services of a lawyer free of charge."
49. In Zdravko Stanev v. Bulgaria, No. 32238/04, 6 November 2012, the
Court highlighted that even an educated man cannot be deemed
prepared to represent himself personally before a tribunal and
that the "interests of justice demanded that, in order to receive
a fair hearing, the applicant ought to have benefited from free
legal representation during the proceedings before the Sliven
Regional Court." In the words of the Court:
"[A]lthough it is not in dispute that the applicant had a university
degree, there is no suggestion that he had any legal training, and
while the proceedings were not of the highest level of complexity, the
relevant issues included the rules on admissibility of evidence, the
rules of procedure, and the meaning of intent. In addition, the Court
notes that the applicant was charged with a criminal offence which
involved in impugnment of a senior member of the judiciary and which
called into question the integrity of the judicial process in
Bulgaria. . . . As such, a qualified lawyer would undoubtedly have
been in a position to plead the case with greater clarity and to
counter more effectively the arguments raised by the prosecution. The
fact that the applicant, as an educated man, might have been able to
understand the proceedings does not alter the fact that without the
services of a legal practitioner he was almost certainly unable to
defend himself effectively." (emphasis added)
50. It is submitted that the case law is consistent and clear that the
interests of justice and compliance with Article 6 necessitates
that an accused in a criminal proceeding who wants legal
representation must have access to it, and that an individual
cannot be considered to have had an adequate opportunity to defend
herself merely because they were present and permitted to speak at
a hearing.
The Government's observations
51. In the present case, the Government relies upon the fact that (1)
the Applicant was able to participate in the proceedings and (2)
the proceedings are "simple" (according to the criteria set out in
Gutfreund v France, No. 45681/99, 25 April 2002) as showing that
the interests of justice did not require that legal assistance be
provided free of charge. In both aspects, the reliance is
misplaced.
52. It is not correct to describe the proceedings before the Justice
of the Peace or District Court as "simple". The court procedure
involved the Applicant being called before a judge to give full
oral and written submissions. The Applicant was also entitled to
call and cross-examine witnesses. The nature of the offences of
which the Applicant was accused was criminal.
53. The Applicant is not a lawyer. She was placed in an emotionally
charged situation as she faced two charges of a criminal nature
with a possible sentence of imprisonment. Although she could
physically appear before the judge, submit written and oral
statements, and cross-examine witnesses, as an elderly person with
no legal background, she could not do this effectively without
legal assistance. Although the Applicant was able to find some
assistance in formulating written submissions for the hearing, she
was however devoid of any effective assistance before the courts
because she was unable to afford legal assistance, and was
therefore unable to effectively present her argument, cross
examine witnesses and function effectively at the hearings.
54. In such a case, it is submitted that it is in the interests of
justice to provide an accused with a legal representative who can
effectively take care of the legal and emotional burden, can
present the accused's case calmly and dispassionately, making use
of his/her legal training to focus on making the legally important
points required to found a successful defence.
55. Had the Applicant had access to legal assistance, she would
arguably have tried to defend her other rights that were violated
in this case, including her rights to freedom of expression, to
freedom of association and to peaceful assembly (Articles 10 and
11 of the Convention, as have been cited by the applicants in
Lashmankin v Russia, No. 57818/09, and 14 other joined
applications currently before the Court). Having been deprived of
legal assistance, she was not aware that she could claim these
rights. Her case was therefore likely to have been conducted
differently had she had access to a lawyer.
56. The fact that the Applicant lacked the sufficient means to pay for
qualified legal representation herself and that the Russian
authorities refused her free legal assistance was therefore a
crucial factor affecting the fairness of the trial. This principle
of `fairness', which has been recognised by the Court (see McVicar
v. the United Kingdom, No. 46311/99, 7 August 2002), should have
meant that in this case the Applicant received the assistance of a
lawyer. The fact that she did not benefit from any legal
assistance was a prejudice which, it is submitted, violated
Article 6 of the Convention.
The Application is manifestly ill-founded?
57. At the end of its observations, the Government requests that the
Court acknowledge that the Application is manifestly ill-founded
within the meaning of Article 35 S: 3 (a) of the Convention and so
should be dismissed in accordance with Article 35 S: 4. No
arguments are put forward in the body of the Government's
observations to justify this request and it is hard to imagine
what the basis for this request is.
58. The Application is not one which on a preliminary examination of
its substance does not disclose any appearance of a violation of
the rights guaranteed by the Convention, with the result that it
can be declared inadmissible without proceeding to a formal
examination on the merits. Indeed, the Court has already completed
just such a preliminary examination and raised no question of the
Application being manifestly ill-founded in its questions to the
parties.
59. Accordingly, the Applicant submits that the Court should dismiss
the Government's request under Article 35 S: 3 (a).
AND I SUBMIT:
1. Articles 35 S: 3 (a) and (b) of the Convention do not apply to the
Application. The Application is admissible.
2. Article 6 of the Convention was applicable to the domestic
proceedings in the present case, under the criminal limb.
3. The Applicant was not afforded an adequate opportunity to defend
herself in the domestic proceedings and the interests of justice
require that she should have been provided with legal assistance
free of charge. The failure of Russia to provide such assistance
violated the Applicant's right under Article 6 S: 3 (c) of the
Convention, and the defect was such that the Applicant's right to
a fair hearing under Article 6 S: 1 of the Convention was also
violated.
CLAIMS FOR JUST SATISFACTION
With regard to just satisfaction claims, the Applicant asks for
compensation of:
1. RUB 1,000 in respect of pecuniary damage caused by ordering the
Applicant to pay fines of RUB 500 under Article 19.3 of the CAO
and RUB 500 under Article 20.2 of the CAO;
2. EUR 10,000 in respect of non-pecuniary damage;
3. RUB 5,136 in respect of the costs and expenses incurred by
Applicant in order to obtain redress (cost of travel of the
representative of the Applicant from Moscow to St. Petersburg to
meet with the Applicant in order to discuss the current
communication - electronic tickets for 12 March 2013 and 14 March
2013 are at Attachments 2 and 3).
ANTON BURKOV
List of attachments:
1. Article at http://www.kommersant.ru/doc/2130874.
2. Receipts of paid fines of RUB 500 under Article 19.3 of the CAO
and RUB 500 under Article 20.2 of the CAO.
3. Electronic travel ticket dated 12 March 2013.
4. Electronic travel ticket dated 14 March 2013.
5. Mikhailova's bank account details.
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