In the case of Krylov v. Russia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 19 February 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
36697/03) 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 Dmitriy Yevgenyevich Krylov (“the
applicant”), on 15 October 2003.
The applicant, who had been granted legal aid, was
represented by Mr N. Tsoy and Ms E. Krutikova, lawyers from the International Protection Centre based in Moscow. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former
Representative of the Russian Federation at the European Court of Human Rights.
The applicant alleged, in particular, that the criminal proceedings against him had been unfair.
On 9 February 2007 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1981 and is currently held
in a detention facility in the Ivanovo region.
On 6 January 2002 he was arrested on charges of several
counts of aggravated murder, robbery, theft, use of forged documents and
failure to report a crime. Another individual, Mr I., was also charged with the
same offences.
On 5 September 2002 the pre-trial investigation
was completed and the applicant began to study the case file with his counsel,
Ms K. The case file comprised four volumes of material totalling 1,214 pages. It
follows from the schedule submitted to the Court that the applicant studied the
case file as follows:
(a) from 11.30 a.m. to 2 p.m. on 10, 11, 12 and 24
September 2002;
(b) from 11.30 a.m. to 1.30 p.m. on 25 and 27
September;
(c) from 11.30 a.m. to 2 p.m. on 2 October;
(d) from 11.30 a.m. to 3 p.m. on 3 October; and
(e) from 11.30 a.m. to 2 p.m. on 8 October.
According to the applicant, the investigator had pressured
him into studying the case file more quickly, promising him additional visits
from his mother as a reward. He had also promised to give him copies of the
case materials but never fulfilled his promise.
On 8 October 2002 the applicant and Ms K. signed a
statement declaring that they had studied the entire case file and had no particular
requests to make.
The trial started on 15 November 2002 in the Ivanovo Regional Court. The court ordered that the applicant and his co-defendant Mr I. be tried by jury.
During the trial the applicant was represented
by counsel Mr S., who had been retained by his mother. According to the
applicant, Mr S. never asked for permission to study the case file.
On 25 December 2002 the jury pronounced the
applicant and his co-defendant guilty of aggravated murder, robbery, theft and
failure to report a crime.
On 9 January 2003 the Ivanovo Regional Court sentenced
the applicant to twenty-three years’ imprisonment.
On 14 January 2003
the applicant lodged an appeal (“кассационная жалоба”).
On 20 January 2003 counsel Mr S. filed appeal submissions on his behalf. On 7
April 2003 the applicant lodged additional appeal submissions together with a
request to attend the hearing.
On 18 February 2003 a local newspaper published
an article describing the offences committed by the applicant.
The appeal hearing was scheduled for 25 June
2003. On 17 June 2003 Mr S. was informed of the hearing date by telegram. In
anticipation of the hearing, the applicant was transported to Moscow and placed
in remand centre IZ-77/3.
On 25 June 2003 the appeal hearing took place in
the Supreme Court of Russia. The applicant participated in the hearing by video
link. Mr S. did not attend.
According to the applicant, he had asked the
court to adjourn the appeal hearing and to appoint counsel on his behalf. The
judges had allegedly replied that there had been no legal basis for his request.
Furthermore, he had filed additional appeal submissions which, according to
him, had been faxed to the Supreme Court by a warder of the remand centre. In
those appeal submissions he had complained, in particular, that he had not been
afforded sufficient time to study the case file. He read the submissions out to
the court. The quality of the video link was poor and the connection was interrupted
several times.
The Government disputed the applicant’s account
of the appeal hearing. They stated that there was no evidence in the case file
of a request to appoint counsel or of the additional submissions allegedly
faxed to the Supreme Court on the day of the appeal hearing.
On the same day the Supreme
Court upheld the judgment of 9 January 2003 on appeal. It held, in
particular, that, by virtue of Article 379 of the Code of Criminal Procedure (see
paragraph 24 below), it had no competence to
examine the factual circumstances of the offences, which had been established
by the jury. It then examined the legal issues raised by the applicant and
found that the investigation and trial had been carried out in accordance with
the procedure prescribed by law.
II. RELEVANT DOMESTIC LAW
Article 51 of the Code of
Criminal Procedure of the Russian Federation (“the Code”, as in force at the
material time) reads, in so far as relevant, as follows:
“1. Participation of legal counsel in the criminal
proceedings is mandatory if:
...
(5) the suspect or the accused faces serious charges
carrying a term of imprisonment exceeding fifteen years, life imprisonment or
the death penalty;
(6) the criminal case falls to be examined in a jury
trial;
...
3. In the circumstances provided for by paragraph 1
above, unless counsel is appointed by the suspect or the accused or his lawful
representative, or other persons at the request or with the consent of the
suspect or the accused, it is incumbent on the investigator, the prosecutor or
the court to ensure the participation of legal counsel in the proceedings.”
Article 52 of the Code provides that a suspect
or an accused may waive his right to legal representation at any stage of the
criminal proceedings. Such a waiver may only be accepted if initiated by the
suspect or the accused. The waiver must be made in
writing and must be recorded in the official record of the relevant procedural step.
The refusal of legal representation does not deprive the suspect or accused of
the right to ask to be assisted by counsel at further stages of the criminal proceedings.
The appointment of counsel does not mean that any of the procedural steps which
have already been taken by that time must be repeated.
Article 373 of the Code provides that the appellate
court examines appeals with a view to verifying the lawfulness, validity and
fairness of judgments.
Article 379 reads as
follows:
“1. A judgment may be quashed on appeal on the
following grounds:
(1) a discrepancy between the findings made in the
judgment and the factual circumstances of the case established by the first-instance
... court;
(2) a breach of criminal procedural law;
(3) incorrect application of the criminal law;
(4) injustice of the judgment.”
2. If the judgment has been adopted following a jury
trial, it may be quashed on the grounds described in subparagraphs 2 to 4 of the
first paragraph of this Article.”
Article 376 of the Code provides that on receipt
of the criminal case file and the statements of appeal, the judge fixes the
date, time and place of the hearing. The parties must be given this information
no later than fourteen days before the hearing is scheduled to take place. The
court determines whether the prisoner should be summoned to attend the hearing.
If the prisoner has expressed the wish to be present at his appeal, he has the
right to participate in person or to state his case via video link. How he participates
in the hearing is to be determined by the court.
Examining the
compatibility of Article 51 of the Code with the Russian Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure, which
describes the circumstances in which the participation of defence counsel is
mandatory, does not contain any indication that its requirements are not
applicable in appeal proceedings or that the prisoner’s right to legal
assistance in such proceedings may be restricted.”
That position
was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. The court found that free legal representation for
the purpose of appellate proceedings should be provided on the same basis as in
the earlier stages of the proceedings, and was mandatory in the situations
listed in Article 51. It further highlighted the obligation of the courts to ensure
the participation of defence counsel in appeal proceedings.
Article 413 of the Code of
Criminal Procedure provides for the possibility of reopening criminal
proceedings on the basis of a finding of a violation of the Convention by the
European Court of Human Rights.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that the criminal
proceedings against him had been unfair. He relied on Article 6 of the
Convention, which reads as follows:
“1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the interests of
justice.
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the accusation against
him;
(b) to have adequate time and facilities for the
preparation of his defence;
(c) 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;
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if
he cannot understand or speak the language used in court.”
A. The parties’ submissions
The applicant submitted that he had been given
insufficient time to study the case file. He had been afforded twenty-two hours
and thirty minutes to study 1,214 pages of documents, or approximately one
minute per page. He had been pressured by the investigator to sign a statement declaring
that he had finished studying the file. Moreover counsel Ms K., who had studied
the case file with him, had later refused to represent him at the trial and her
replacement, Mr S., had had no knowledge of the case file. The applicant had
raised those issues in the appeal submissions he had filed on the day of the
hearing, and had also read them out to the appellate court.
The applicant further submitted that during the
appeal hearing he had not been represented by counsel. His legal services contract
with Mr S. had covered legal representation at the trial stage only, and had not
covered the appeal proceedings. He had had no financial means to pay for legal representation
in connection with his appeal. His request for legal aid counsel had, however, been
rejected and he had been left unassisted. Given that the
case had been complex and involved a severe custodial sentence, and since he
had had no legal training or background, he had been unable to defend himself
effectively.
. Lastly,
the applicant alleged that that there had been many other procedural defects. In
particular, the domestic courts had inaccurately assessed the evidence and had
relied on a forged document, namely a confession that he had never made. His
requests to call several defence witnesses had been rejected. A newspaper
article describing him as a criminal had been published in the local media
before his conviction had been upheld on appeal, and the appeal judges had been
influenced by that publication.
The Government submitted that the applicant and
his counsel had studied the case file from 10 September to 8 October 2002. No
time limitations had been imposed on them and they had been afforded as much
time as they had wished. The applicant’s allegations that he had been pressured
into studying the case file quickly were unsubstantiated. On 8 October
2002 the applicant and his counsel had signed a statement confirming that they
had studied the file in its entirety. They had not complained of having had insufficient
time to study the case file during the trial, nor had they asked for additional
access to it. Moreover, the applicant had not raised the issue in his appeal
submissions of 14 January and 7 April 2003. No other appeal submissions had
been filed by the applicant. His allegation that additional appeal submissions
had been faxed to the Supreme Court on the day of the appeal hearing was
unsubstantiated. The applicant had not therefore exhausted the domestic
remedies available to him.
The Government further submitted that the
applicant’s counsel Mr S. had been informed of the date of the appeal hearing
but had failed to attend. They alleged that the applicant had not asked the appellate
court to appoint him replacement counsel. His allegations to the contrary were
unsubstantiated, as there were no traces of such a request in the case file.
His defence rights had not therefore been violated.
B. The Court’s assessment
1. Admissibility
(a) Impartiality of the court and the presumption of
innocence
The Court will first examine the applicant’s
complaint that a newspaper article, describing him as a criminal and published
while the appeal proceedings were pending, violated his presumption of
innocence and influenced the appeal judges.
. The
Court reiterates that, in certain cases, a virulent press campaign can
adversely affect the fairness of a trial by influencing public opinion and,
consequently, jurors called upon to decide the guilt of an accused (see Craxi
v. Italy (no. 1), no. 34896/97, § 98, 5 December 2002,
with further references). This is so with regard to the impartiality of the
court under Article 6 § 1, as well as with regard to the presumption of
innocence embodied in Article 6 § 2 (see Ninn-Hansen
v. Denmark (dec.), no. 28972/95, ECHR
1999-V, and Anguelov v. Bulgaria (dec.), no. 45963/99, 14 December 2004). At
the same time, the Court notes that press coverage of current events is an
exercise of freedom of expression, guaranteed by Article 10 of the Convention.
If there is a virulent press campaign surrounding a trial, what is decisive is
not the subjective apprehensions of the suspect concerning the impartiality
required of the trial courts, however understandable, but whether, in the
particular circumstances of the case, his fears can be held to be objectively
justified (see Beggs v. the United Kingdom (dec.), no. 15499/10, § 123,
16 October 2012).
. Turning
to the circumstances of the present case, the Court observes, firstly, that it
does not seem that the media coverage of the present case amounted to a
virulent press campaign aimed at hampering the fairness of the trial, nor is
there any indication that the media’s interest in the matter was sparked by the
authorities. The applicant referred to a single publication in the local press describing
the criminal case against him, without submitting a copy of that publication.
. In
addition, it is also significant that the article was published after the
applicant’s conviction at first instance, while his appeal case was pending.
His appeal was to be determined by professional judges, who would have been
less likely than a jury to be influenced by the press campaign against the
applicant on account of their professional training and experience, which
allows them to disregard any external influence. There is no evidence in the
file to suggest that the appeal judges were influenced by the publication in
question (see, for similar reasoning, Mircea v. Romania, no. 41250/02, § 75, 29 March 2007).
It follows that this part of the application
must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3
(a) and 4 of the Convention.
(b) Fair trial
The Government raised the objection of
non-exhaustion of domestic remedies by the applicant with respect to his
complaint about the time he had been given to study the case file. The Court
considers that the issue of exhaustion of domestic remedies is closely linked
to the merits of the applicant’s complaint. Thus, the Court finds it necessary
to join the Government’s objection to the merits of the applicant’s complaint
under Article 6 §§ 1 and 3 (b).
The Court further notes that the applicant’s complaints
under Article 6 §§ 1 and 3 of the Convention are not manifestly
ill-founded within the meaning of Article 35 § 3 (a). It further notes that they
are not inadmissible on any other grounds. They must therefore be declared
admissible.
2. Merits
The applicant raised a number of complaints
relating to various procedural defects in the criminal proceedings against him.
The Court will first examine his complaints relating to the absence of legal representation
in connection with his appeal.
The Court notes that during the trial the
applicant was represented by counsel Mr S., who then assisted him in drafting his
appeal submissions. Mr S. did not, however, attend the appeal hearing
because the applicant no longer had the financial means to pay for his
services. The applicant’s lack of sufficient means to pay
for legal representation is not in dispute in the present case. It is, however,
disputed between the parties whether the applicant
asked for legal aid counsel to be appointed by the appellate court, and whether
the “interests of justice” required that he be granted
legal assistance free of charge.
. There is no need
for the Court to establish whether the applicant asked the appellate court to
provide him with legal aid counsel. The applicant stood trial on charges of
several counts of aggravated murder, robbery, theft, using forged documents and
failure to report a crime, and therefore risked a term of imprisonment
exceeding fifteen years. Article 51 of the Code of Criminal Procedure, as
interpreted by the Russian Constitutional Court, imposed the mandatory legal
representation of defendants who faced criminal charges of that gravity. It was
incumbent on the judicial authorities to appoint a lawyer for the applicant to
ensure the effective enjoyment of his rights, irrespective of whether he had made
a request to that effect (see paragraphs 21, 26 and 27 above). The Court notes that the applicant never unequivocally waived his defence rights. However,
no attempt was made to appoint a lawyer or to adjourn the appeal hearing in
order to ensure that a lawyer was present (see, for
similar reasoning, Shulepov v. Russia, no. 15435/03, §§ 37 and 38,
26 June 2008).
As regards the question whether the “interests of
justice” required that the applicant be provided with counsel in connection
with his appeal, the Court has already examined several similar cases against Russia in which applicants had not been represented during appeal proceedings in a criminal
case. Taking
into account three factors - (a) the wide powers of the appellate courts in
Russia, (b) the seriousness of the charges against the applicants and (c) the
severity of the sentence which they had faced - the Court considered that the
interests of justice demanded that, in order to receive a fair hearing, the
applicants should have had legal representation at the appeal hearing. The
Court therefore found a violation of Article 6 § 1 in conjunction with Article 6
§ 3 (c) of the Convention in these cases (ibid., §§ 34-39; and see
also Potapov v. Russia, no. 14934/03, §§ 21-26, 16 July 2009; Shilbergs v. Russia, no. 20075/03, §§ 120-124, 17 December 2009; and Samoshenkov
and Strokov v. Russia, nos. 21731/03 and 1886/04, §§ 66-71, 22 July 2010).
46. In
the present case, the applicant was tried by jury and the jurisdiction of the appellate
court was therefore limited to legal issues (see paragraphs 20 and 24 above). The legal
issues in the applicant’s case were particularly complex, involving the determination
of the constituent elements of a number of aggravated criminal offences, an assessment
of the degree of liability of two co-defendants, including their level of
personal culpability and the establishment of various mitigating and aggravating
factors. The Court also attaches weight to the fact that the applicant was
assisted by a lawyer when formulating the grounds for his appeal (see paragraph
14 above). It is therefore of the view that,
without the services of a legal practitioner, he was not in a position to
articulate the arguments raised in the appeal statement and could not
competently address the court on the legal issues involved, and thus was unable
to defend himself effectively. Moreover, the appellate court had wide powers in
determining his appeal and its decision was final. Of even greater relevance is
the fact that the applicant had been sentenced to twenty-three years’
imprisonment. For the applicant therefore, the issue at stake was an extremely
important one (see, for similar reasoning, Shilbergs, cited
above, § 122, and Maxwell v. the United Kingdom, 28 October 1994, §§ 38-41, Series A no. 300-C).
Moreover, the Court
reiterates that the exercise of the right to legal assistance takes on
particular significance where the applicant communicates with the courtroom by
video link (see Samoshenkov and Strokov, cited above, § 70; Grigoryevskikh
v. Russia, no. 22/03, § 92, 9 April 2009;
Shulepov v. Russia, no. 15435/03, § 35, 26 June 2008; and, mutatis mutandis, Sakhnovskiy v. Russia [GC], no. 21272/03, § 98, 2 November
2010).
In the present case, the appeal hearing was conducted by video link, which was
yet another factor that should have prompted the appellate court to question
the absence of defence counsel for the applicant.
48. In summary, given
the nature of the proceedings, the wide powers of the appellate court, the
complexity of the legal issues involved, the limited ability of the
unrepresented applicant to present a legal argument and, above all, the
importance of the issues at stake in view of the severity of the sentence, the
Court considers that the interests of justice required that the applicant should
have been granted legal aid for the purpose of being represented by counsel at
his appeal hearing.
49. The Court therefore
finds that there has been a violation of Article 6 § 1 in conjunction with Article
6 § 3 (c) of the Convention.
In view of the above, there is no need to
examine separately the remaining allegations made by the applicant in relation
to the fairness of the trial or the Government’s objection as to non-exhaustion
of domestic remedies in this respect.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained of a violation of
his rights under Articles 3 and 5 of the Convention. Having regard to all the
material in its possession, the Court finds that, in so far as these complaints
fall within its competence, they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) and 4 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.”
A. Damage
The applicant claimed 70,000 euros (EUR) in
respect of non-pecuniary damage.
The Government submitted that the claim was
excessive. In their opinion, the finding of a violation
would constitute sufficient just satisfaction.
. The
Court reiterates that when an applicant has been convicted despite a potential
infringement of his rights as guaranteed by Article 6 of the Convention, he
should, as far as possible, be put in the position in which he would have been
had the requirements of that provision not been disregarded, and that the most
appropriate form of redress would, in principle, be trial de novo or the
reopening of the proceedings, if requested (see Öcalan
v. Turkey [GC], no. 46221/99, § 210 in fine,
ECHR 2005-IV, and Sakhnovskiy v. Russia
[GC], no. 21272/03, § 112, 2 November 2010). The
Court notes, in this connection, that Article 413 of the Russian Code of
Criminal Procedure provides that criminal proceedings may be reopened if the
Court finds a violation of the Convention (see paragraph 28 above).
The Court further finds
that the applicant suffered non-pecuniary damage as a result of the violation
of his right to legal assistance in the appeal
proceedings in his criminal case, which would not be adequately compensated by
the finding of a violation alone. However, the amount of compensation claimed
by the applicant appears to be excessive. Making its assessment on an equitable
basis, it awards the applicant EUR 4,000, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
The applicant did not
claim costs and expenses. Accordingly, there is no call to make an award under
this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join to
the merits the Government’s objection as to non-exhaustion of domestic remedies
with respect to the complaint of the lack of time to study the case file;
2. Declares the complaints concerning the fairness of the criminal proceedings against the applicant
admissible and the remainder of the application inadmissible;
3. Holds that there has been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of
the Convention on account of the absence of legal
assistance in the appeal proceedings;
4. Holds that there is no need to examine the
remaining complaints under Article 6 §§ 1 and 3 of the Convention or the
Government’s objection as to non-exhaustion of domestic remedies in this
respect;
5. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 4,000 (four thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 march 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
