BRINZEVICH v. RUSSIA
Inadmissible
Christos Rozakis
The applicant, Mr Mikhail Vasilyevich Brinzevich, is a Russian national who was born in 1981 and lives in Arkhangelsk. He was represented before the Court by Mr I. Ilyin and Mr M. Sitilin, lawyers practising in Arkhangelsk. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new Representative, Mrs V. Milinchuk. The facts of the case, as submitted by the parties, may be summarised as follows. On 15 October 2003 the Lomonossovskiy District Court of Arkhangelsk convicted the applicant of inflicting grievous bodily harm that had caused the victim’s death and sentenced him to thirteen years and six months’ imprisonment in a high-security colony. As the applicant was indigent, Mr Ilyin was appointed by the local bar association to represent him in the proceedings. On 22 October 2003 Mr Ilyin lodged a statement of appeal. The appeal hearing was initially scheduled for 17 November 2003. On that day the applicant submitted a handwritten statement of appeal to the Arkhangelsk Regional Court. Invoking Article 6 of the Convention, he asked the court to have Mr Ilyin appointed as his counsel at the appeal hearing. By a letter of 17 November 2003, Mr Ilyin and the director of the detention centre where the applicant was being held were advised that the appeal hearing had been adjourned until 5 December 2003. On 5 December 2003 the Arkhangelsk Regional Court examined the case on appeal in the absence of the applicant’s lawyer. It heard submissions by the judge rapporteur and oral submissions by the applicant and the public prosecutor, and upheld the judgment of 15 October 2003. On 19 February 2004 the Arkhangelsk Regional Court rejected Mr Ilyin’s application for supervisory review of the conviction on the ground that the applicant’s right to defence had not been violated by the Regional Court. On 18 March 2004 the President of the Arkhangelsk Regional Court dismissed Mr Ilyin’s appeal against the decision of 19 February 2004. On 26 October 2006 a deputy prosecutor of Arkhangelsk Region lodged an application for supervisory review (надзорное представление) with the Arkhangelsk Regional Court against the conviction on the ground that the applicant’s case had been examined by the Regional Court in the absence of the applicant’s lawyer. On 20 December 2006 the Presidium of the Arkhangelsk Regional Court granted the prosecutor’s application. In particular, the Presidium found as follows: “According to Article 409 § 2 of the Code of Criminal Procedure, an appeal judgment must be quashed if the supervisory-review court finds that the appeal judgment was issued in breach of the requirements of the Code of Criminal Procedure which affected or could have affected the correctness of the judgment. According to Article 47 § 4 (8) of the Code of Criminal Procedure, an accused has the right to legal assistance, which must be provided free of charge in the circumstances described in the Code. In his supplementary statement of appeal of 10 November 2003... [the applicant] requested that the advocate Mr Ilyin take part in the appeal proceedings. The advocate Mr Ilyin did not attend the appeal hearing, despite having been properly notified of its date, time and place. It appears from the Regional Court’s appeal judgment of 5 December 2003 that [the applicant] did not waive his request for participation of the advocate Mr Ilyin in the appeal proceedings. The appeal court did not take measures to ensure the presence of that advocate or to secure participation of another advocate in the appeal proceedings, which fell short of the requirement of Article 50 § 2 of the Code of Criminal Procedure ... This breach is a ground for quashing the appeal judgment concerning [the applicant] and remitting the case for a new appeal hearing. In the new hearing the appeal court must take measures to ensure that parties can exercise their legal rights...” The proceedings are currently pending before the Arkhangelsk Regional Court. Article 50 establishes that the investigator, the prosecutor or the court have a duty to provide the suspect or accused with legal-aid counsel upon his or her request. Article 51 establishes that counsel must imperatively be appointed by the investigator, prosecutor or court if the suspect or accused has not waived his right to legal assistance. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the 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 the appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.” In a number of cases (no. 608п04, decision of 13 October 2004; no. 931п2004пр, decision of 26 January 2005; and no. 144п05, decision of 6 April 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted the cases for fresh considerations on the ground that the courts had failed to secure the presence of defence counsels in the appeal proceedings whereas the legal representation of the accused was obligatory.