Общественное объединение "Сутяжник"

Главная страница

Новости судебных дел

Судебное дело "Михайлова против России (46998/08) - право на бесплатную юридическую помощь по делам о привлечении к административной ответственности; обязанность суда рассматривать аргументы, основанные на Конвенции"


Меморандум заявителя по делу Михайлова против России о праве на бесплатную юридическую помощь по административным делам (на английском)

 

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.

                                   - 1 -

   


Если вы хотите поддержать нашу деятельность, то введите в поле ниже сумму в рублях, которую вы готовы пожертвовать и кликните кнопку рядом:

рублей.      


Поделиться в социальных сетях:

  Diaspora*

Комментарии:

Добавить комментарий:

Ваше имя или ник:

(Войти? Зарегистрироваться? Забыли пароль? Войти под OpenID?)

Ваш e-mail (не обязателен, если укажете - будет опубликован на сайте):

Ваш комментарий:

Введите цифры и буквы с картинки (защита от спам-роботов):