19.03.2013
European Court of Human Rights
Memorandum
Application No. 46998/08
Mikhailova v Russia
The authorities of the Russian Federation were informed by the
European Court of Human Rights (hereinafter - the European Court) on
12 October 2012 about the application "Mikhailova v Russia" which was
submitted to the European Court in accordance with Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter - the Convention).
The European Court, in accordance with Rule 54(2)(b), asked the
authorities of the Russian Federation to provide comments and answer
the following questions:
1. Whether the case falls within the scope of Article 35(3)(b) of the
Convention? In particular, whether the applicant suffered a
"significant disadvantage"?
2. (a) Whether Article 6 of the Convention applies to domestic court
proceedings in the present case?
Whether it applies, in its criminal or in its civil aspect, to the
court proceedings about the administrative offence in accordance to
clause 19.3 of the Code of Administrative Offences of the Russian
Federation?
As for the court proceedings about the administrative offences in
accordance to clause 20.2 of the Code of Administrative Offences of
the Russian Federation:
- Whether article 6 of the Convention applies in its civil aspect?
(please 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 "328-A"; Nilsson v.
Sweden, No. 73661/01, 13 December 2005).
- Does it matter that the failure to pay the fine imposed in
accordance with clause 20.2 of the Code of Administrative Offences of
the Russian Federation can lead to prosecution and to administrative
arrest under clause 20.25 of the Code of Administrative Offences of
the Russian Federation? (please see for example, Weber v. Switzerland,
No. 11034/84, S: 34, 22 May 1990; Ravnsborg v. Sweden, No. 14220/88,
S: 35, 23 March 1994; Schmautzer v. Austria, No. 15523/89, S: 28, 23
October 1995).
(b) If Article 6 of the Convention applies, whether the applicant was
provided with a reasonable opportunity to defend herself? Whether she
was given the opportunity to receive legal advice before and/or during
the hearings in the Court of first instance and/or in the appeal
court? Taking into account the various relevant facts of the case (for
example, seriousness of the offence, severity of possible punishment,
the complexity of the case and the personal circumstances of the
defendant), whether it was required in the interests of justice to
provide legal aid? If so, whether a violation of Article 6 of the
Convention took place? (please see 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, No. 45681/99, 25 April 2002).
Applicable provisions of National law (as amended in force at the
relevant time)
Federal Law No. 54-FZ dated 19 June 2004 "On meetings, rallies,
demonstrations, marches and pickets" (extract)
Clause 2. Main definitions
The following main definitions are used for the purposes of this
Federal Law:
1) Public event - an open, peaceful, accessible to everyone, carried
out in the form of meeting, rally, demonstration, march and picket, or
campaign in various combinations of these forms carried out by the
citizens of the Russian Federation, the political parties and other
public associations and religious organisations, including the usage
of vehicles. The purpose of the public event is a freedom of
expression and opinions formation, also making demands on the various
issues of political, economic, social and cultural sides of the
country and foreign policy issues;
...
5) March - the mass walk of citizens along specified routes in order
to attract attention to any problems;
...
Clause 7. Notice about a public event
1. Notice about a public event (except for meetings and pickets held
by one party) is submitted by the organiser in writing to the
executive government body of the constituent entity of the Russian
Federation or local government body not earlier than 15 days and not
later than 10 days before the public event. If the picket is carried
by a group of individuals a notice about the public event can be made
no later than three days before it will take place.
...
Code of Administrative Offences of the Russian Federation (extract)
* Clause 19 .3. Fa ilure to follow a lawful order of a militiaman, a
military serviceman, an officer of the bodies for control over the
traffic of narcotics and psychotropic substances, an officer of
the bodies for carrying functions of control and supervision in
the migration field, or an officer of the body or institution of
the criminal punishment system
*
1. Failure to follow a lawful order or demand of a militiaman, a
military servicemen or an official of the of the body or
institution of the criminal punishment system in connection with
discharge of their official duties related to maintenance of
public order and security, as well as impeding the discharge by
them of their official duties -
* shall entail the imposition of an administrative fine in the
amount of from five hundred rubles to one thousand rubles or
administrative arrest for a term of up to fifteen days.
* Clause 20.2 Violation of the established procedure for arranging
or conducting a meeting, rally, demonstration, marches or picket
...
2. Violation of the procedure established for conducting a meeting,
rally, demonstration, march or picket -
shall entail the imposition of an administrative fine on the
organisers thereof in the amount of from one thousand rubles to two
thousand rubles; and on the participants thereof in the amount of from
five hundred rubles to one thousand rubles.
* Clause 20.25. Nonpayment of the administrative fine or willful
departure from the place of serving the administrative arrest
1. Failure to pay the administrative fine within the time limit fixed
by this Code -
shall involve the imposition of the double amount of the unpaid
administrative fine or an administrative arrest for a period of up to
fifteen days.
...
* Clause 25.1. Person who is on trial in connection with a case
concerning an administrative offence
1. A person who is on trial in connection with a case concerning an
administrative offence shall be entitled to familiarize themselves
with all the materials of the case, to give explanations, to present
evidence, to make petitions and objections, to have the legal
assistance of a defense counsel, as well as to enjoy other procedural
rights in compliance with this Code.
...
Factual background
On 25 November 2007 Mikhailova V.N. participated in the march which
took place at Mayakovskaya Street in the City of St. Petersburg. The
abovementioned public event was held without notification of the
executive government body and in violation of the provisions of clause
7 of the Federal Law No.54-FZ dated 19 June 2004 "On meetings,
rallies, demonstrations, marches and pickets".
These actions were the grounds for detention of the applicant by the
officers of the internal affairs body and the drawing up of a report
about committing the administrative offence under Part 1 of Clause
19.3 and Part 2 of Clause 20.2 of the Code of the Administrative
Offences of the Russian Federation (hereinafter - the CoAO).
On the same day, the report about the administrative offense was sent
to the Justice of Peace of the Judicial District Number 201 of the
City of St. Petersburg.
On 25 November 2007 the Justice of Peace of the Judicial District
Number 201 of the City of St. Petersburg took the cases on and
scheduled the hearing of the cases on the same day, and the
appropriate court decisions were made by the Justice of Peace. The
applicant had explained to her her rights under Part 1 of Clause 25.1
of the CoAO.
On 25 November 2007 Mikhailova V.N. made an application to postpone
the hearing of the case because it was necessary for the defender to
participate in the case.
The Justice of Peace allowed these applications and the hearing of the
case was postponed until 28 November 2007.
On 27 November 2007 Mikhailova V.N. made an application to postpone
the hearing of the case because it was necessary to receive the
materials of the case and also a video record.
The Justice of Peace allowed these applications and hearing of the
cases was postponed until 5 December 2007.
On 28 November 2007 Mikhailova V.N. made an application to be provided
with legal aid.
On 5 December 2007 the hearing of the cases was postponed until 19
December 2007 because of the applicant's motion to compel witnesses to
attend.
The Justice of Peace of the Judicial District Number 201 of the City
of St. Petersburg in a decision dated 19 December 2007 dismissed the
applicant's motion to be provided legal aid. Noting, inter alia, that,
in her application "Mikhailova V.N. refers to the regulations of the
Convention on Human Rights, as well as the European Court of Human
Rights", the Justice of Peace denied the motion because the rules of
the Code of the Administrative Offence of Russian Federation says that
the legal aid is not required to be given to a person against whom
administrative actions are brought.
The Justice of Peace of the Judicial District Number 201 of the City
of St. Petersburg in a decision dated 19 December 2007 ordered that
the applicant was guilty in committing the administrative offence
under Part 2 of Clause 20.2 of the CoAO and sentenced her to
punishment in the form of an administrative fine in the amount of 500
rubles.
The Justice of Peace of the Judicial District Number 201 of the City
of St. Petersburg in a separate decision dated 19 December 2007
ordered that the applicant was guilty in committing the administrative
offence under Part 1 of Clause 19.3 of the CoAO and sentenced her to
punishment in the form of an administrative fine in the amount of 500
rubles.
On 26 December 2007 the applicant filed an appeal against the decision
of the Justice of Peace in the Court of Dzerzhinsky District of St.
Petersburg.
On 19 February 2008 Mikhailova V.N. made an application to be provided
with legal aid and also made an application to compel the attendance
of witnesses.
On 19 February 2008 the Court of Dzerzhinsky District of St.
Petersburg allowed the application to compel the attendance of
witnesses. The applicant's motion to be provided legal aid was
dismissed.
On 11 March 2008 the applicant made an application to the Court of
Dzerzhinsky District of St. Petersburg to attach video files to the
materials of the case, and also made an application additional to the
previous applications for the provision of legal aid.
The Court of Dzerzhinsky District of St. Petersburg allowed the
application about attaching video files to the materials of the case.
On 11 March 2008 the Court of Dzerzhinsky District of St. Petersburg
dismissed the applicant's additional motion to be provided with legal
aid. Noting, inter alia, that, in support of her application
"Mikhailova V.N. refers to the rules of international law which
guarantee the provision of legal aid in the administrative cases" the
Court of Dzerzhinsky District of St. Petersburg dismissed the
applicant's motion for legal aid because the CoAO, as opposed to the
Criminal Procedure Code of the Russian Federation, does not provide
the right for legal aid. The Court pointed out that the applicant has
a right to decide by herself about her participation in the hearings,
in accordance with the provisions of the Administrative Code, which
right had been explained to her.
In a decision dated 17 March 2008 the Court of Dzerzhinsky District of
St. Petersburg upheld the decision of the Justice of Peace of the
Judicial District Number 201 of the City of St. Petersburg dated 19
December 2007 in full.
Answer to the Question No.1
In accordance with Article 35(3)(b) of the Convention, the European
Court shall declare inadmissible any individual application submitted
under the provisions of Article 34 if the Court finds that the
applicant has not suffered a significant disadvantage, unless the
principle of respect of human rights, as they are defined in the
Convention and in the Protocols to it, requires consideration of the
merits of the case, and provided that examination cannot be denied on
this basis of any case which has not been properly examined by the
domestic court.
In order to define whether the application falls within the scope of
Article 35(3)(b) of the Convention, the European Court should decide
whether the applicant has suffered significant disadvantage, whether
the hearing of the case is required because of the respect for human
rights and whether the case was properly examined by the national
court. (please see Korolev v. Russia (Decision), No. 25551/05 dated 1
July 2010; Rinck v. France (Decision), No. 18774/09, dated 19 October
2010).
Whether the applicant has suffered significant damage?
The European Court assesses the gravity of the violation, taking into
account the subjective perception of the applicant as well the
objective circumstances of the particular case (please see Holub v.
The Czech Republic (Decision), No. 24880/05, 14 December 2010). As for
the objective circumstances of the case, then the damage should not be
measured in abstract terms, and even minor material damage may be
significant in light of the specific conditions in which a person, and
the economic situation in the country or region in which he/she lives.
(please see Burov v. Moldova (Decision), No. 38875/03, S:S: 26 - 29,
14 June 2011). For the subjective basis of the case the Court has
stated that the damage includes not only the monetary aspect, but also
the importance of the case for the applicant (please see Havelka v.
the Czech Republic (Decision), No. 7332/10, 20 September 2011).
Firstly, the authorities of the Russian Federation notes that this
application does not provide information about causing any damage to
the applicant in the material aspect of Article 35(3)(b) of the
Convention in relation to the imposition of administrative penalties
on the applicant. Thus, in the present case, the decision of the
European Court in Zwinkels v. the Netherlands (No. 16593/10, 9 October
2012, S: 25) that "the application is not in any way relevant to the
fine imposed on the applicant" should be applied. Therefore, there is
no material aspect in the present case.
In any case, the amount of fines imposed on the applicant, amounting
to 1,000 rubles (less than 25 Euros), according to the case-law allows
the European Court to conclude that the applicant did not suffer any
significant disadvantage (please see Burov v. Moldova, mentioned
above; UHL v. the Czech Republic (Decision) No. 1848/12, 25 September
2012; Ionescu v. Romania (Decision) No. 36659/04, 1 June 2010). In UHL
v. the Czech Republic, the Court decided that "the loss of the amount
[47 Euros], is not a significant damage".
In addition, this application is similar to a case Shefer v. Russia
(decision dated 13 March 2012, No. 45175/04) in which the court stated
that "the objections of the applicant limited to general references to
her "meager salary"... there are no specific arguments with respect to
her personal circumstances".
As for the importance of the case for the applicant, the authorities
of the Russian Federation stress that the materials of the application
do not contain information that the fact of finding the applicant
liable for committing the administrative offence would have a negative
impact on her position. The present case is very different, for
example, from the case Luchninova v. Ukraine (Order dated 9 June 2011,
application No. 16347/02 S:S: 49, 50) in which the European Court
found that the causing of significant disadvantage to the applicant
can relate to the fact that the finding that the applicant had
committed an administrative offence was the reason for her dismissal.
Whether the respect of the human rights is a basis for hearing of this
case?
Article 35(3)(b) of the Convention obliges the Court to examine the
case, in any event, if it is required on the basis of respect for
human rights. This principle applies, if the case is affected by a
general issue which affects compliance with the Convention (Shefer v.
Russia, mentioned above).
The European Court has frequently decided that the examination of the
applications on the basis of respect for human rights is not required
if the issues raised in the applications have already been the subject
of examination by the Court (Bazelyuk v. Ukraine (Decision) dated 27
March 2012, No. 49275/08; Jancev v. The former Republic of Macedonia,
dated 4 October 2011, No. 18761/09).
Regarding the issues raised in the present application, there is a
well-established case law of the European Court on the application of
Clause 6 of the Convention for "administrative" proceedings (Sergey
Zolotukhin v. Russia dated 10 February 2010, No. 14939/03; Lutz v.
Germany, dated 25 August 1987, No. 9912/82; Schmautzer v. Austria
dated 23 October 1995, No. 15523/89; Menesheva v. Russia, dated 9
March 2006, No. 59261/00), as well as providing legal aid (Benham v.
The United Kingdom dated 10 June 1996, No. 19380/92; McVicar v. The
United Kingdom, dated 7 May 2002, No. 46311/99).
Therefore, the authorities of the Russian Federation believe that
under the meaning of Article 35(3)(b) of the Convention concerning
respect for human rights the examination of the application is not
required.
Whether the case had been properly heard in the domestic court?
Article 35(3)(b) of the Convention does not allow the Court to refuse
to examine an application on the basis of the criteria of
inadmissibility if the case was not properly heard by the national
court (Bazelyuk v. Ukraine, mentioned above).
The applicant's cases about administrative offenses had been heard by
the courts of first and appellate instances. During the trial,
Mikhailova V.N. filed numerous number of motions, which were
considered by the court, and most of them were accepted (allowed). As
to the refusal of an application for legal aid, the courts based their
decision on the fact that the rules of the Administrative Code do not
provide for the provision of advocate to a person brought before the
court in relation to administrative liability. In this situation, we
should mention the decision in a case Korolev v. Russia (mentioned
above) in which the European Court, recognizing that the applicant's
case was duly considered by the national court pointed out that "the
original claims made to the authorities were considered by the Courts
of two instances... His subsequent claim ... was rejected by the
District Court on the grounds of not complying with domestic
procedural requirements. The claimant has not complied with these
requirements ... This situation is not a denial of access to the
justice system, which may be imputed by the authorities".
In addition, it is necessary to mention that the applicant's
allegations that the courts, when considering applications for legal
aid, did not consider her references to the provisions of the
Convention do not correspond to reality and are contradicted by the
content of the decision dated 19 December 2007 by the Justice of Peace
of the Judicial District Number 201 of the City of St. Petersburg and
the decision dated 11 March 2008 made by the Court of Dzerzhinsky
District in which the applicant's motions were dismissed.
Thus, the case of the applicant was duly examined by the national
court and comply with the meaning of Article 35(3)(b) of the
Convention.
Based on what is said above, the authorities of the Russian Federation
believe that all three conditions of the criteria of inadmissibility
under Article 35(3)(b) of the Convention are met and, therefore, this
application should be declared inadmissible.
Answer to the Question No.2
When determining the applicability in a particular case the provisions
of Article 6 of the Convention, the European Court establishes whether
there is a "criminal charge" or whether "civil rights" are affected
(Escoubet v. Belgium, dated 28 October 1999, No. 26780/95, S: 31).
First, the authorities of the Russian Federation stress that this
application contains allegations of violations of the applicant's
rights which are guaranteed by Article 6 of the Convention only in the
criminal context.
Accordingly in this case it is possible to use the conclusion of the
European Court in Escoubet v. Belgium case (mentioned above, S: 39),
in which the Court, while recognizing the non-applicability of Article
6 of the Convention, stated that the applicant did not submit any
materials about the fact that his "civil rights" were infringed.
In addition, to a large extent the approach of the European Court used
in the case Gutfreund v. France, (dated 12 June 2003, No. 45681/99)
may apply to the present case.
In that case, firstly the Court pointed out that "the applicant's
application is only about providing legal aid".
The European Court further found that Article 6 of the Convention in
the criminal aspect did not apply to this case because of the
following reasons.
"Provision of legal aid relates exclusively to providing legal
assistance to the applicant and not to establish guilt, or measuring
the penalty. It also does not apply to legal or factual circumstances
of the case".
The Court, referring to the earlier decision on the admissibility of
the same application, said that based on the amount of the fine and
the nature of the proceedings, "the interests of justice do not
require the provision of legal assistance to the applicant" (more
detailed analysis of the decision of the case is given below).
"Despite of the denial to provide legal aid to the applicant, in light
of the possible results and the nature of the proceedings, the
applicant could either appear in person before a court, or be
represented by an advocate".
"The denial to provide legal aid is not the decisive factor in
bringing the applicant to... liability".
Upon recognition of the fact that Article 6 of the Convention does not
apply in the civil context, the Court stated the following.
"...The Court will first decide the question of whether the alleged
"right" for legal aid is recognized by the national law or by the
Convention".
Again referring to the decision on the admissibility of the same
application, the Court decided that "in the present case, the
Convention does not guarantee the provision of legal aid to the
applicant..."
"Thus, the question, whether it is possible in the present case to
claim about the presence of this right, shall be resolved only by
reference to the provisions of national law".
After analyzing the appropriate provisions of the French law, the
Court concluded that the national legislation does not establish a
right for legal aid.
"The applicant ... did not have the right, which undoubtedly has been
recognized by national law".
Once again, emphasizing the small amount of the fine and the
"simplicity" of the proceedings, the Court indicated that the denial
of providing legal aid "did not affect the applicant's right to
justice".
As in Gutfreund v. France this application also relates to the
examination by national courts of an applicant's motions for legal
aid. The relevant national legislation, the Code of the Administrative
Offences of the Russian Federation, does not provide the right to
provide legal assistance to the person brought to Court over an
administrative offence. However the applicant in accordance with
Clause 25.1 of the CoAO had the right to decide independently about
the participation of the defendant in the proceedings. The amount of
fines imposed on the applicant (under 25 Euros), is inconspicuous.
Proceedings in administrative cases are "simple", according to the
criteria set out in the decision of the European Court in the case
Gutfreund v. France dated 25 April 2002 on admissibility (please see
below).
Taking into consideration the arguments, the authorities of the
Russian Federation believe that, in the present case, Article 6 of the
Convention does not apply.
However, it must be emphasized that the applicant in the
administrative offense cases was given the entire set of procedural
rights under the CoAO, which were brought to her attention and of
which she took full advantage.
As stated above, in the facts of the case and in the answer to the
first question of the European Court, during the national proceedings
Mikhailova V. N. filed numerous motions which were considered by the
court, and most of them were accepted. A motion for providing legal
aid to the applicant was denied because under the rules of the Code of
the Administrative Offences of the Russian Federation there is no
requirement to provide an advocate to a person brought to Court in
relation to an administrative liability. In this case, the applicant
had the right by herself to decide about the involvement of the
defendant in the trial.
On the issue of providing to the applicant legal aid in the interests
of justice based on the facts of the case, the Russian authorities
believe that it necessary again to refer to the case Gutfreund v.
France (decision on admissibility).
In the mentioned decision, the Court, recognizing the unacceptability
of the application about violation of Article 6(3)(c) of the
Convention, stated that the interests of justice do not require the
provision of legal assistance to the applicant based on the fact that
the participation of the defendant is not required under the national
law, the amount of the fine imposed on the applicant, and the fact
that the proceedings in their nature are "simple" and accessible to
the applicant, even if he/she does not have extensive knowledge of the
legal profession.
The above approach of the European Court is fully applicable to the
present case for the following reasons.
As stated above provisions of the Code of the Administrative Offences
of the Russian Federation does not require the mandatory participation
of the defendant in administrative offences cases.
The amount of fines imposed on the applicant is small, considering and
following the practice of the European Court.
Proceedings in the cases about the administrative offences may be
considered as "simple" according to the same criteria as in this case
Gutfreund v. France - "hearing of the case is in oral form,"
"participation of the representative is not required", the person who
was taken to the court "personally participates in the hearings and
provides any arguments as a defense which are necessary ".
In addition, in the decision Mata Jara v. Spain (dated 4 May 2000, No.
43550/98) about the admissibility of the application, the European
Court, along with the above mentioned criteria, noted that "nothing
can prevent the applicant to challenge or deny the facts that he was
charged with ... despite the fact of the absence of an advocate. "
In addition, the authorities of the Russian Federation would like to
draw the attention of the European Court to the written materials
submitted by the applicant to the national courts which were also
signed by the applicant (written explanations on the merits of the
case and many other motions). The content of these documents and the
language used in them allow us to conclude that the applicant was
familiar with the applicable provisions of national law, and was able
to defend herself in person during hearing of the administrative
offences cases.
Based on what is stated above, and representing the interests of the
Russian Federation in accordance with the Regulation on the
Representative of the Russian Federation at the European Court of
Human Rights, appointed by the Order of the President of the Russian
Federation, dated 29 March 1998, No. 310,
I REQUEST:
to acknowledge the application of Valentina Nikolaevna Mikhailova
about the alleged violation of her rights guaranteed by Article 6 of
the Convention, as inadmissible within the meaning Article 35(3)(b) of
the Convention.
to acknowledge that provisions of Article 6 of the Convention are not
applicable in the present case.
if the European Court finds that the Mikhailova's application is
admissible, and considers that Article 6 of the Convention apply, to
acknowledge that the application is manifestly unsatisfied with the
meaning of Article 35(3)(a) of the Convention and to dismiss it in
accordance with Article 35(4) of the Convention.
Annexes comprise 42 pages.
G.O.Matushkin
60938327v2
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