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FIRST
SECTION
CASE OF SABIROV v. RUSSIA
(Application
no. 13465/04)
JUDGMENT
STRASBOURG
11 February
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sabirov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13465/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Radmir Rinatovich
Sabirov (“the applicant”), on 5 November 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged that his detention from 9 October to
5 December 2003 had been unlawful and that his defence by
state-appointed legal counsel was ineffective before the cassation
court.
- On
2 May 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1982 and lives in Sharan, Bashkortostan
Republic.
- On
an unspecified date the applicant was charged with disorderly
conduct. On 25 April 2003 he signed an undertaking not to leave the
town.
- On
8 July 2003 the Justice of the Peace of the Sharanskiy District of
the Bashkortostan Republic found the applicant guilty as charged and
sentenced him to one year and nine months’ imprisonment,
conditionally suspended for two years. It ordered the applicant to
remain in the town until the conviction became final. The applicant
and the prosecutor appealed.
- On
19 August 2003 the Sharanskiy District Court of the
Bashkortostan Republic upheld the applicant’s conviction on
appeal. It revoked the suspension of the sentence, however. On the
same day the applicant was taken into custody.
- Further
to a cassation appeal lodged by the applicant, on 9 October 2003 the
Supreme Court of the Bashkortostan Republic quashed the District
Court’s judgment of 19 August 2003 and remitted the case
to the District Court for fresh examination. The Supreme Court noted
that the District Court had failed to observe the procedure
pertaining to the presentation of the final submissions by the
parties and to classify the conviction in full compliance with the
applicable substantive law.
- The
applicant remained in custody. He allegedly complained to the
director of the remand prison that his continued detention was not
based on a judicial decision and asked to be released. The director
responded by informing him that a certain “Judge K.” had
told him not to release the applicant until further notice. The
applicant also complained to the Supreme Court of the Bashkortostan
Republic but received no reply.
- On
5 November 2003 the District Court fixed an appeal hearing for
13 November 2003. Neither the applicant nor his counsel attended
the hearing. As regards the applicant’s detention, the court
noted as follows:
“The preventive measure, notably placement of [the
applicant] in custody, should remain unchanged.”
- According
to the applicant, he received a copy of the decision of 5 November
2003 on 25 November 2003. Therefore, he considered that he had
missed the ten-day time-limit for challenging the decision in
question and did not lodge an appeal against it.
- On
5 December 2003 the District Court upheld the applicant’s
conviction on appeal and revoked the suspension of his conditional
sentence. The applicant was represented by Mr G., state-appointed
counsel. Both the applicant and the prosecutor appealed.
- The
Supreme Court scheduled a hearing for 17 February 2004. On
29 January 2004 the court dispatched summonses to the parties,
including the applicant and his counsel, notifying them of the date
and time of the hearing.
- On
17 February 2004 the Supreme Court held the cassation hearing. It
heard the prosecutor and granted his request to reclassify the
charges against the applicant. It found the applicant guilty of
battery and sentenced him to one year, eight months and fifteen days’
imprisonment. The applicant was neither present nor represented.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention pending determination of the criminal
charge by the court
- A
defendant can be remanded in custody or his detention can be extended
only on the basis of a judicial decision (Russian Constitution,
Article 22). The court should make the relevant decision upon a
reasoned request by the prosecutor or the investigator supported by
appropriate evidence (Code of Criminal Procedure, Article 108 § 3)
or of its own motion (Code of Criminal Procedure, Article 108 § 10).
- When considering a cassation appeal lodged by one of
the parties to the criminal proceedings, the cassation court is
required to decide whether or not a preventive measure, including
placement in custody, should be applied pending a new hearing (Code
of Criminal Procedure, Article 388 § 1).
- The
Supreme Court of Russia provided the following interpretation of the
relevant parts of Article 388 § 1 (Resolution
no. 28 “on application of the rules set forth in the
Russian Code of Criminal Procedure governing appeal and cassation
proceedings, adopted on 23 December 2008, as amended):
“23. When quashing the verdict or any
other judicial act and remitting the matter for fresh consideration
to the trial or appeal court or to the prosecutor, the cassation
court should, if asked by the prosecutor or of its own motion, decide
whether to apply a preventive measure in respect of the defendant who
is held in custody, the aims [of this decision] being the protection
of the rights and legal interests of the parties to the proceedings
and the proper conduct of the court hearing within a reasonable time.
The court may impose any of the preventive measures authorised by
[law] provided it ensures that the said aims are achieved.
When deciding to extend the defendant’s
detention..., the cassation court should specify... the exact
time-limit of the [detention]. If, on the date of the decision, the
earlier imposed detention period has not expired and this period is
sufficient to secure the above-mentioned aims, [the court] should
indicate... that the previously imposed detention will remain
unchanged. In any event, [the court] should state the reasons for its
decision.”
B. Presence in court
- The
failure of a party, who has been duly notified of the date, time and
place of the cassation hearing, to attend the hearing should not
preclude the court from proceeding with the examination of the case
(Code of Criminal Procedure, Article 376 § 4).
- If
a convicted person wishes to take part in the appeal hearing, he or
she must indicate this request in his statement of appeal (Code of
Criminal Procedure, Article 375 § 2).
- If
the court is unable to proceed owing to the absence of a party
summoned to court, it must adjourn the hearing (Code of Criminal
Procedure, Article 253 § 1).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his detention from 9 October to
5 December 2003 was unlawful. He relied on Article 5 of the
Convention, which reads, in so far as relevant, as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court[.]”
- The
Government contested that argument. They submitted that the appeal
judgment had been quashed by the Supreme Court of the Bashkortostan
Republic on procedural grounds which did not affect the lawfulness of
the applicant’s detention pending a new appeal hearing.
Furthermore, the lawfulness of the applicant’s detention had
been subsequently confirmed by the decision of 5 November 2003
in which the court ordered that the applicant remain in custody
pending the appeal hearing.
- The
applicant maintained his complaints. He argued that on 9 October
2003 the Supreme Court had quashed the appeal judgment in full.
Accordingly, after that date there had been no court order
authorising his detention and he should have been released pending a
new appeal hearing. As regards the court order of 5 November
2003 which indicated that the preventive measure imposed earlier
should remain unchanged, the applicant considered it to be in
contravention of the applicable rules of criminal procedure since no
such measure had ever been imposed on him.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. General principles
27. The Court
reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. While, in
the first place, it is normal for the national authorities, notably
the courts, to interpret and apply domestic law, it is otherwise in
relation to cases where, as under Article 5 § 1,
failure to comply with that law entails a breach of the Convention.
In such cases the Court can and should exercise a certain power to
review whether national law has been observed (see, among other
authorities, Douiyeb v. the Netherlands [GC], no.
31464/96, §§ 44-45, 4 August 1999).
Furthermore, the “lawfulness” of detention under
domestic law is not always the decisive element. The Court must in
addition be satisfied that detention during the period under
consideration was compatible with the purpose of Article 5 § 1
of the Convention, which is to prevent persons from being deprived of
their liberty in an arbitrary fashion (see, among most recent
authorities, Bakhmutskiy v. Russia,
no. 36932/02, § 109, 25 June 2009).
2. The applicant’s detention from 9 October
to 5 November 2003
- The
Court observes that on 19 August 2003 the applicant was taken
into custody pursuant to the appeal judgment rendered by the
Sharanskiy District Court which revoked his conditional sentence.
However, on 9 October 2003 the Supreme Court of the
Bashkortostan Republic quashed the appeal judgment of 19 August
2003 and remitted the matter to the Sharanskiy District Court for
fresh consideration.
- The
Court notes that it is undisputed by the Government that on 9 October
2003 the appeal judgment of 19 August 2003 was quashed in full.
Accordingly, it rejects their argument that such quashing had no
consequences as far as the applicant’s detention was concerned.
- The
Court further notes that the domestic rules of criminal procedure
required that the Supreme Court decide whether the applicant should
remain in custody pending the new appeal hearing (see paragraph 18
above). However, the Supreme Court failed to do so. As a result, from
9 October to 5 November 2003 the applicant was deprived of
liberty for almost a month in the absence of a court order or any
other legal ground.
- It follows that the applicant’s detention during
the period in question was not “lawful” or “in
accordance with a procedure prescribed by law”. There
has accordingly been a violation of Article 5 § 1
of the Convention on account of the applicant’s detention from
9 October to 5 November 2003.
3. The applicant’s detention from 5 November
to 5 December 2003
- The
Court observes that on 5 November 2003 the Sharanskiy District
Court, when fixing the date of the appeal hearing for 5 December
2003, noted that the preventive measure imposed on the applicant
“should remain unchanged”.
- In
this connection the Court reiterates that a court’s decision to
maintain a custodial measure would not breach Article 5 § 1
provided that the trial court “had acted within its
jurisdiction ... [and] had the power to make an appropriate order”.
However, “the absence of any grounds given by the judicial
authorities in their decisions authorising detention for a prolonged
period of time may be incompatible with the principle of the
protection from arbitrariness enshrined in Article 5 § 1
(see Khudoyorov v. Russia, no. 6847/02, § 135 in
fine, ECHR 2005 X (extracts)).
- The
Court accepts that on 5 November 2003 the District Court acted
within its powers in deciding to maintain the applicant’s
detention pending the appeal hearing. The Court can even concede that
the District Court indicated, albeit implicitly, that the applicant
was to remain in custody until the day on which the appeal hearing
was to be held, namely, until 5 December 2003. However, the
Court cannot but notice that the District Court failed to indicate
any reason for ordering the extension of the applicant’s
detention. As a result, the applicant remained unaware as to the
grounds of his detention after 5 November 2003. The District
Court’s failure to give reasons for its decision was made all
the more regrettable by the fact that the applicant had by then spent
almost a month in custody without a valid judicial decision (see
paragraph 31 above).
- Having
regard to the above, the Court considers that the District Court’s
decision of 5 November 2003 did not comply with the requirements
of clarity, foreseeability and protection from arbitrariness, which
together constitute the essential elements of the “lawfulness”
of the detention within the meaning of Article 5 § 1.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 5 § 1 of the Convention on
account of the applicant’s detention from 5 November to
5 December 2003.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that his state-appointed counsel had failed to
appear before the cassation court. He relied on Article 6 of the
Convention, which, in so far as relevant, reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by [a] ... tribunal established by law.
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself ... 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[.]”
- The
Government opined that the State had not been responsible for the
failure of the applicant’s counsel to appear before the
cassation court. On 29 January 2004 the Supreme Court of the
Bashkortostan Republic had sent out summonses both to the applicant
and his counsel informing them of the date and time of the cassation
hearing. It had been open to the applicant to ask the court to ensure
his and his counsel’s presence in court. However, he had failed
to do so. Accordingly, the judicial authorities had not been required
to ensure their presence in court.
- The
applicant maintained his complaint.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- As
the requirements of paragraph 3 are to be seen as particular aspects
of the right to a fair trial guaranteed by paragraph 1 of Article 6,
the Court will examine the applicant’s complaints under both
provisions taken together (see, among many other authorities, Van
Geyseghem v. Belgium [GC], no. 26103/95, § 27,
ECHR 1999-I).
- The
Court reiterates that, while it confers on everyone charged with a
criminal offence the right to “defend himself ... through legal
assistance ...”, Article 6 § 3 (c) does not specify the
manner of exercising this right. It thus leaves to the Contracting
States the choice of the means of ensuring that it is secured in
their judicial systems, the Court’s task being only to
ascertain whether the method they have chosen is consistent with the
requirements of a fair trial (see Quaranta v. Switzerland,
24 May 1991, § 30, Series A no. 205).
- The
Court has previously held that the appointment of defence counsel in
itself does not necessarily settle the issue of compliance with the
requirements of Article 6 § 3 (c). The Convention is intended to
guarantee not rights which are theoretical or illusory, but rights
which are practical and effective. Thus, mere nomination does not
ensure effective assistance since a lawyer appointed for legal aid
purposes may be prevented from performing, or shirk his or her
duties. If they are notified of the situation, the authorities must
either replace the lawyer or oblige him or her to fulfil those duties
(see, for example, Kahraman v. Turkey, no. 42104/02, § 35
in fine, 26 April 2007).
- Nevertheless,
a State cannot be held responsible for every shortcoming on the part
of a lawyer appointed for legal aid purposes or chosen by the
accused. It follows from the independence of the legal profession
from the State that the conduct of the defence is essentially a
matter between the defendant and his counsel, whether counsel be
appointed under a legal-aid scheme or be privately financed (see
Cuscani v. the United Kingdom, no. 32771/96, § 39,
24 September 2002). The competent national authorities are required
under Article 6 § 3 (c) to intervene only if a failure by
legal-aid counsel to provide effective representation is manifest or
sufficiently brought to their attention in some other way (see
Kamasinski v. Austria, 19 December 1989, Series A no. 168, §
65, and Daud v. Portugal, 21 April 1998, Reports of
Judgments and Decisions 1998-II, § 38).
- Turning
to the circumstances of the present case, the Court observes that on
17 February 2004 the Supreme Court of the Bashkortostan Republic
held the cassation hearing in the applicant’s absence. In this
connection the Court notes that the applicant did not dispute the
Government’s assertion that, having been notified of the
cassation hearing, he had not asked the Supreme Court to ensure his
presence in court. However, in the Court’s opinion, the
applicant’s waiver of the right to be present at the hearing in
person did not relieve the judicial authorities of the responsibility
to take steps necessary to provide for the effectiveness of his
defence.
- The
Court further observes that state-appointed counsel G., failed to
appear before the Supreme Court on 17 February 2004. Nor did he
ask the court to adjourn the hearing or communicate to the court the
reasons for his inability to attend. In the Court’s opinion,
counsel G. did not perform his duties properly with respect to the
applicant’s defence and his failure to do so was manifest to
the Supreme Court. Accordingly, in such circumstances, it was
incumbent on the court to intervene, especially in view of the
prosecutor’s presence and his request for reclassification of
the charges against the applicant.
- Lastly,
the Court notes that, while the Government claimed that the applicant
should have asked the court to ensure his counsel’s presence in
court, and in the absence of a such request, the cassation court bore
no responsibility for the shortcomings on the part of state-appointed
counsel G., they did not refer to any provision in the Russian rules
of criminal procedure that would justify their assertion.
Accordingly, the Court rejects the Government’s argument that
the Supreme Court was not required to act in response to counsel G.’s
failure to appear.
- Having
regard to the above, the Court concludes that the Supreme Court of
the Bashkortostan Republic failed to ensure that the applicant’s
defence by state-appointed counsel was effective. Accordingly, there
has been a violation of Article 6 §§ 1 and
3 (c) of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention on account of the applicant’s
detention from 9 October to 5 November 2003 and from
5 November to 5 December 2003;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (c) of the Convention on
account of state-appointed counsel’s failure to appear before
the cassation court;
Done in English, and notified in writing on 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
