CASE OF ZAGORODNIY v. UKRAINE
Remainder inadmissible;Violation of Art. 6-1 and 6-3;Pecuniary and non-pecuniary damage - finding of violation sufficient
Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger
5. The applicant was born in 1962 and lives in the town of Dimitrov, Ukraine. 6. Prior to November 2000 the legal representation of defendants in criminal proceedings could be conducted only by a licensed advocate. The advocate’s rights and obligations, and the required standards of professional competence and conduct were set forth in a separate Act of Parliament (see paragraphs 39 to 42 below). Other persons, including those holding a university law degree, were excluded from providing legal representation in criminal cases. 7. On 16 November 2000 the Constitutional Court found the relevant provisions of the Code of Criminal Procedure unconstitutional and the parliament introduced relevant amendments to the Code in June 2001 (see paragraphs 37 and 38 below). 8. On 4 August 2004 the applicant was involved in a traffic accident, in which his car collided with another car. On the next day, criminal proceedings concerning the accident were instituted against the applicant. 9. On 9 November 2004 the applicant signed an agreement with Mr M. for legal representation in the above-mentioned criminal proceedings. The latter was a lawyer, who held a university degree in law and who had a private legal practice, but who was not a licensed advocate. 10. On 16 November 2004 the investigator allowed Mr M. to act as defence counsel. 11. On 5 August 2005 the Dimitrov Local Court (“the Dimitrov Court”) held a committal hearing in the case and decided to remit the case for additional investigation on the grounds that the applicant’s right to mount a defence had been breached during the pre-trial investigation. The court noted that, in accordance with Article 44 of the Code of Criminal Procedure, the right to provide legal assistance is conferred upon advocates and other legal specialists (the term used to describe degree-educated practicing lawyers who have not been called to the Bar), but the right of the latter to act as defence counsel required to be defined by a specific piece of legislation. As there was no such law authorising a legal specialist with a private practice, such as Mr M., to provide legal assistance in criminal matters, the decision of the investigator to allow such a specialist to take part in the case had been unlawful and therefore the applicant’s right to mount a defence had been violated. The court ordered additional investigation with the participation of an advocate. 12. On 10 August 2005 the applicant appealed against the decision of 5 August 2005, claiming that limiting his right to a free choice of defence counsel was contrary to the Constitution and the decision of the Constitutional Court of 16 November 2000 (see paragraph 37 below). 13. On 13 January 2006 the court rejected his appeal. 14. On 24 March 2006 the investigator decided to allow Mr O., who was a licensed advocate, to take part in the criminal case as the applicant’s defence counsel. 15. On 26 April 2006 the applicant appealed in cassation against the decisions of 5 August 2005 and 13 January 2006. 16. By letter of 3 May 2006, in reply to a request by the applicant that criminal proceedings be instituted against the relevant judge of the Dimitrov Court for alleged deliberate failure to comply with the decision of the Constitutional Court concerning the right to a free choice of defence counsel, the Donetsk Regional Prosecutor’s Office informed the applicant that the court had rightly decided to remove Mr M. from the applicant’s case because he was not a licensed advocate. 17. On 11 May 2006 the applicant asked the Dimitrov Court to remit his case for further investigation on the grounds that his right to mount a defence had been violated. 18. On the same date the court rejected his request. The court established that the applicant’s right to mount a defence had been complied with as a result of the participation of Mr O. in the additional investigation. 19. On 12 May 2006 the applicant notified the court that Mr O. was not his defence counsel and that he had seen him only once, in April 2006, when he had pointed out to the investigator that he needed defence counsel but did not wish to be represented by Mr O. because he had not been freely chosen by him. Therefore, he contested the court’s conclusion that his right to mount a defence had been complied with. 20. On 22 May 2006 the Supreme Court rejected his appeal on the grounds that decisions as to the remittal of a criminal case were not subject to appeal in cassation. 21. On 17 July 2006 the Dimitrov Court rejected a request by the applicant that Mr M. be allowed to represent him as his defence counsel because the law did not provide that a private practice lawyer could act as defence counsel in a criminal case. At the same time, the court accepted the refusal by the applicant to have Mr O. appointed as his defence counsel. 22. In July 2006 the same court returned the applicant’s appeal against the decision of 17 July 2006 without consideration on the grounds that the contested decision was not subject to a separate appeal. 23. By a decision of 6 September 2006, following another request by the applicant to institute criminal proceedings against the judge of the Dimitrov Court for alleged failure to comply with the decision of the Constitutional Court, the Dimitrov Prosecutor’s Office again refused to institute criminal proceedings. 24. On 12 March 2007 the Krasnoarmeysk Local Court rejected an appeal by the applicant against the prosecutor’s decision of 6 September 2006. The decision of 12 March 2007 was upheld by the Donestk Regional Court of Appeal on 14 August 2007. 25. During a court hearing on 13 March 2007 the Dimitrov Court examined a request from the applicant asking it to accept his dismissal of a lawyer, Mr K., who had been appointed by the court to represent him after the decision of 17 July 2006, and to appoint his wife as his representative. The court allowed his request in part. It allowed the applicant’s wife to be his defence counsel but rejected the applicant’s dismissal of Mr K. on the grounds that the applicant had complained on numerous occasions about a violation of his right to mount a defence and therefore determined that he should be legally represented. 26. On 10 April 2007 the applicant wrote a letter dismissing Mr K. He claimed that the appointed advocates, Mr O. and Mr K., had only formally represented him and had not properly defended him. He noted, however, that he did need defence counsel, although not a formally admitted one. 27. On the same date the court rejected the applicant’s dismissal letter, stating that he had claimed that he needed defence counsel. 28. On 21 March 2008 the court rejected the applicant’s request to remit the case for additional investigation. It also rejected the applicant’s dismissal of Mr K. and the applicant’s request asking that Mr M. be allowed to take part in the case again. 29. On 27 March 2008 the applicant was found guilty of a breach of traffic rules which had caused medium bodily injury and sentenced to three years’ restraint of liberty (обмеження волі). However, he was discharged from serving his sentence owing to the expiry of the statutory time-limit for the prosecution. He was also ordered to pay compensation for pecuniary and non-pecuniary damage caused to the victims. 30. The applicant appealed against that judgment, claiming, inter alia, that his right to a free choice of defence counsel had been violated. 31. On 13 June 2008 the Donetsk Regional Court of Appeal upheld the judgment of 27 March 2008 in part. The court noted that there had been no procedural violations that would require the judgment to be quashed. At the same time, the quantum of damages had not been substantiated and therefore the court remitted this part of the case for fresh consideration in separate civil proceedings. 32. The applicant appealed in cassation to the Supreme Court, claiming, inter alia, that his right to a free choice of defence counsel had been violated. 33. On 24 February 2009 the Supreme Court upheld the decision of the Court of Appeal. In reply to the applicant’s complaint of a violation of his right to mount a defence, the court noted: “It is not worth paying attention to the arguments [submitted in] the cassation appeal by the convict that his right to mount a defence was violated, because, in rejecting the request of the convict, the court reasonably noted that, in accordance with Article 44 of the Code of Criminal Procedure of Ukraine, only a person who is the bearer of an advocate’s licence for practice in Ukraine is allowed to act as defence counsel and M. is not the bearer of such a licence.” 34. By a judgment of 5 February 2009 of the Dimitrov Court, the applicant was ordered to pay compensation to the victims of the traffic accident for pecuniary and non-pecuniary damage caused to them. 35. On 29 April and 30 June 2009 respectively the Donetsk Regional Court of Appeal and the Supreme Court upheld the judgment of 5 February 2009. 36. Relevant provisions of the Constitution read as follows: “Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive. Constitutional rights and freedoms are guaranteed and shall not be abolished. The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force.” “Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose his or her own defence counsel. In Ukraine, advocacy acts to ensure the right to mount a defence against an accusation and to provide legal assistance during the determination of cases by the courts and other State bodies.” “... A suspect, an accused or a defendant has the right to mount a defence ...” “The following are determined exclusively by the laws of Ukraine: (1) human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of a citizen ... (14) the judicial system, judicial proceedings, the status of judges, the principle of judicial expertise, the organisation and operation of the prosecution service, bodies of inquiry and investigation, the [status of] notaries, bodies and institutions [pertaining to] the execution of punishments, the fundamentals of the organisation and activities of the Bar ...” 37. In this case, the Constitutional Court decided that: “1. The provisions of Article 59 of the Constitution of Ukraine, that "everyone is free to choose his or her own defence counsel”, in terms of the constitutional application of citizen G.I. S. shall be understood as the constitutional right of a suspect, an accused or a defendant in their defence from an accusation ... in order to obtain legal aid, to choose, as his or her defence counsel, anyone who is a legal specialist and who is entitled by law to provide legal assistance [on his or her own account] or on behalf of a legal person. 2. The provisions of part 2 of Article 59 of the Constitution of Ukraine that "in Ukraine, advocacy acts to ensure the right to mount a defence against an accusation ..." shall be understood as one of the constitutional guarantees, giving a suspect, an accused or a defendant the opportunity to exercise his or her right to freely choose, as defence counsel in criminal proceedings, an advocate, that is, a person who has the right to provide advocacy. 3. The following shall be considered not to be in conformity with the Constitution of Ukraine (unconstitutional): - a provision of part 1 of Article 44 of the Code of Criminal Procedure of Ukraine which limits the right for a suspect, an accused or a defendant to freely choose as his or her own defence counsel, apart from an advocate, another legal specialist, who, in accordance with the law, is entitled to provide legal assistance [as a sole practitioner] or on behalf of a legal person; ... 4. The provisions of part 1 of Article 44 of the Code of Criminal Procedure of Ukraine ... deemed to be unconstitutional, lose their force from the day that this decision by the Constitutional Court has been rendered. 38. Relevant provisions of the Code read as follows: “Defence counsel is the person who, in accordance with the procedure prescribed by law, shall be authorised to protect the rights and legitimate interests of a suspect, an accused, a defendant, a convict or an acquitted person, and to provide them with necessary legal assistance in criminal proceedings. Persons bearing a licence to exercise the right of advocacy in Ukraine and other legal specialists, who are entitled by law to provide legal assistance [as a sole practitioner] or on behalf of a legal person shall be allowed to act as defence counsel ... The powers of defence counsel to participate in a case shall be confirmed: ... (2) for an advocate who is not a member of the Bar Association by an agreement, for other legal specialists who are entitled by law to provide legal assistance [as a sole practitioner] or on behalf of a legal person by an agreement or by the authority of the legal person ...” 39. Section 2 of the Act provides that, in addition to having a university degree in law, an advocate must pass special qualification exams, obtain an advocate’s licence and be sworn in as an advocate of Ukraine. 40. Sections 6 and 7 set forth the professional rights and obligations of the lawyer, including those in respect of evidence gathering and restrictions on representation. 41. Section 9 of the Act sets out the provisions for advocate-client confidentiality and section 10 sets forth the privileges enjoyed by the advocate in carrying out his professional activities, including the prohibition on the search and seizure of the advocate’s professional papers without his consent and the special procedure for instituting criminal proceedings against him. 42. Section 13 of the Act provides for special qualifications and disciplinary boards that assess the professional competence of advocates and deal with any disciplinary matters in the event of a breach of the requirements of the Act or other relevant legislation. 43. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “In order to ensure the correct and uniformed application by the courts of the legislation that ensures the right of a suspect, an accused, a defendant, a convict or an acquitted person to mount a defence, the Plenary Supreme Court decides: 5. The powers of defence counsel to participate in the case should be confirmed: ... (c) for any other legal specialist, who, in accordance with the law, is entitled to provide legal assistance [as a sole practitioner] or on behalf of a legal person – by the documents specified in the specific legislation which confers on these persons the right to participate in criminal proceedings as defence counsel, as well as by a contract or through the authority of the legal person; ... In deciding whether a legal specialist has the authority to conduct the defence in a criminal case, it should also be established by exactly what law the right to participate in criminal proceedings as defence counsel was conferred on him or her. This should be recognised as the proper practice of the courts, which, in the absence of a specific piece of legislation, do not allow such specialists to conduct the defence in criminal cases ...”