CASE OF JEMEĻJANOVS v. LATVIA
No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev
5. The applicant was born in 1965 and lives in Daugavpils. 6. On 5 October 2004 at about 5 p.m. the applicant, who was under the influence of alcohol, was involved in a fight outside a grocery store in the presence of several witnesses. He stabbed another individual with a knife, as a result of which the latter died. The same day the police opened a murder investigation into the death. 7. At 9 p.m. on the same day the applicant – who in August 2004 had been released from prison, having served a sentence for an earlier conviction for inflicting physical injuries – was placed under arrest on suspicion of murder. The record of his arrest contained a written statement from him confirming that he did not need a lawyer. 8. On 6, 7 and 13 October 2004 the police questioned the applicant as a suspect. The interview records contained his signatures confirming that he had been informed of his right to instruct a lawyer to attend his interview, and that he did not need one. During his first interview the applicant denied any involvement in the fight or the murder. During his second interview he stated that on 5 October 2004, having consumed alcohol, he had been riding a bicycle when O. had suddenly run into him from an alley. They had started arguing and O. had hit the applicant, who had responded with several punches. Afterwards, two other young men had joined in the fight, and the applicant had been kicked to the ground. At some point the applicant had noticed that a woman was restraining O. and not letting him approach the applicant. Another unknown young man, who had not taken part in the fight, had restrained the applicant. The applicant had thought that the young man was going to attack him, and had therefore picked up his knife from the ground and stabbed him. 9. On 4 November 2004 the applicant was formally accused of murder under section 116 of the Criminal Law (Krimināllikums) for having stabbed the victim with the intent to kill him “because of a personal conflict”. 10. On 5 November 2004 the applicant was provided with a State-appointed lawyer, S., to assist him during the preliminary investigation. On the same day he was questioned as an accused person in the presence of S. He partially admitted his guilt. In essence, he reiterated the statements made in his earlier interviews. He stated that he had used the knife against the victim because he had known that the victim wanted to hit him, although he could not say whether the victim had already hit him at that point or, if not, when the victim was going to attack him. 11. On 30 November 2004 the judge extended the applicant’s detention until 5 February 2005. The judge noted that S. had submitted that keeping the applicant in detention was not justified, as he did not present any danger and had no reason to evade justice, since he had a job and a permanent place of residence. 12. On 22 December 2004 the public prosecutor charged the applicant with murder under section 116 of the Criminal Law. S. was present. On the same day the applicant was questioned in the presence of S. and confirmed his earlier testimony of 5 November 2004 (see paragraph 10 above). 13. On 24 December 2004, between 10 a.m. and 1 p.m., the applicant familiarised himself with the case file in the presence of S. He wrote in the relevant record that he had no remarks or requests, and also asked to be provided with a lawyer for his trial. 14. On 3 January 2005 the public prosecutor transferred the case to the Daugavpils Court (Daugavpils tiesa) for trial. 15. On 10 and 13 January 2005 the applicant complained to the Daugavpils Court that he had not been assisted by a lawyer when he had familiarised himself with the case file. 16. On 18 February 2005 S. was assigned to the applicant’s case to assist him in the proceedings before the Daugavpils Court. On the same day S. familiarised himself with the case file. 17. On 23 March 2005 the applicant complained to the Daugavpils Court that S. had convinced him to partially admit his guilt, although he had not wished to do so. Furthermore, S. had not been present when he had familiarised himself with the case file. He did not wish to be assisted by S. 18. On 7 April 2005 a first-instance hearing was held. The court examined the applicant’s complaint regarding S., who stated that his client’s own interests and those relating to his defence diverged. S. invited the court to uphold the applicant’s application for him to be released from his duties. After the court decided to release S. from his duties, the applicant stated that he needed to be assisted by a lawyer. The proceedings were adjourned. 19. On 27 May 2005 a senior lawyer of the Daugavpils Bar refused the court’s request to provide the applicant with another State-appointed lawyer, stating that S. had carried out his duties diligently, and Article 98 of the Code of Criminal Procedure (Kriminālprocesa kodekss) did not give an accused the right to freely choose a lawyer. The applicant had the right to appoint a lawyer of his own choice (and pay for his or her services), and the right to waive his right to legal assistance. 20. On 6 June 2005 the applicant asked the Daugavpils Court to provide him with a State-appointed lawyer. 21. On 9 June 2005 the Latvian Bar Association informed the applicant that, in the event that an accused raised an unjustified challenge in respect of his or her lawyer, he or she had a right to request another lawyer, at his own expense. 22. On 16 June 2005 the applicant was provided with a State-appointed lawyer, D., to assist him in the proceedings before the Daugavpils Court. On the same day D. familiarised himself with the case file. 23. On 17 June 2005 a hearing was held before the Daugavpils Court. The applicant asked the court to ensure the attendance of several witnesses. D. maintained that application. The next hearing was fixed for 1 September 2005. 24. On 20 June 2005 the applicant wrote a letter to D. and asked why he had agreed to represent him, given their “unpleasant” first meeting during which D. had indicated his intention to refuse to act as the applicant’s counsel. The applicant also asked D. to guarantee that he would persuade the trial court to order three new measures in order to obtain evidence. According to the applicant, the following measures would prove his innocence in relation to the murder charge: searches of other unspecified witnesses, polygraph testing, and another psychiatric examination. The applicant stated that if D. did not wish to defend him, then he had the opportunity to withdraw from the case, which would provide a satisfying solution for them both. However, if D. acted in the same way as his previous defence lawyer, the applicant would ask the trial court to discharge D. from his duties. 25. On 1 September 2005 the applicant submitted several written applications to the Daugavpils Court. He asked for the criminal case to be remitted to the prosecutor’s office in order to rectify the bill of indictment by changing his motive for the alleged offence. The court dismissed the application, as it had not yet started its adjudication or assessment of the evidence. The court further dismissed the applicant’s second application to end his pre-trial detention. As regards a third application to examine evidence concerning the scene of the crime and search other unspecified witnesses, the court decided to postpone examination of those requests until the end of its adjudication. In that regard, it noted that all defence witnesses had been summoned to the hearing. The court then dismissed the applicant’s application for another forensic medical examination on the grounds that one had already been carried out in November 2004. All the applications were dealt with at a hearing and the applicant was present when the relevant decisions were announced. 26. During the hearing, D. reserved his comments as regards the applicant’s application to call other unspecified witnesses and have a new indictment, on the grounds that those were matters to be examined at the end of court’s adjudication. He supported the applicant’s application for additional psychiatric examination and the attendance of all the defence and prosecution witnesses summoned to the trial. With regard to the applicant’s other application, D. stated that it was at the court’s discretion. 27. In his subsequent written application (“a refusal” (отвод)), the applicant relied on Article 99 of the Code of Criminal Procedure and asked the court to release D. from his duties. In that application, the applicant referred to his letter to D. dated 20 June 2005 (see paragraph 24 above), to which the applicant had expected a favourable response, but to which D. had not responded. The written application stated that the applicant was refusing the services of D. on the grounds that all applications made to the court on 1 September 2005 had been drafted by the applicant, and D. had not shown any interest in asking the court to order the examination of witness statements about the scene of the crime, new psychiatric expert evidence, or the correction of the motive in the bill of indictment. D. had merely supported the above applications. At the end of the written application the applicant asked the Daugavpils Court to provide him with another State-appointed lawyer who would carry out his function in compliance with Article 97 of the Code of Criminal Procedure. 28. In reply to the applicant’s application, D. presented the applicant’s letter of 20 June 2005 to the court and invited it to establish whether the applicant needed a lawyer at all. In reply to a question put by the court, the applicant could not name a lawyer to be provided for him. 29. On the same day the Daugavpils Court decided to uphold the applicant’s application to release D. from his duties and rejected his application for appointment of another legal aid lawyer. It noted that the applicant had declined the services of D. because the latter could not guarantee that he would be acquitted, and the applicant had been of the opinion that D. had not adequately defended him. Daugavpils Court dismissed the applicant’s application on the grounds that he had twice been provided with a lawyer and had twice refused their services. Under Article 96 of the Code of Criminal Procedure, a lawyer was appointed by a court and not chosen by an accused himself. In accordance with Article 99, an accused had the right to waive his or her right to legal assistance, but no right to request replacement of a lawyer. According to the Daugavpils Court, the applicant’s refusal of D.’s services had been unjustified, and meant that he did not wish to have a legal aid lawyer at all. The court stated that the applicant was seeking to delay the proceedings. 30. From 1 September 2005 onwards the applicant did not have legal assistance in the first-instance proceedings. 31. During the hearing of 1 September 2005, when invited by the court to put questions to witnesses, he refused to do so, stating each time that he would either ask questions when represented by a lawyer or not ask questions at all. At the applicant’s request, the Daugavpils Court adjourned the hearing to summon other absent witnesses. 32. During the hearing of 24 October 2005 the applicant, referring to section 71 of the Criminal Procedure Law (Kriminālprocesa likums) (see paragraph 53 below), asked the court to ensure that his defence rights were respected. His earlier applications to replace the two State-appointed lawyers could not be construed as a waiver of his right to legal assistance; he had refused the assistance because of a “disagreement” and a “failure to provide legal assistance”. The applicant asked the court to provide him with a list of lawyers and a means of communicating with them, or, in the alternative, to ensure that he was assisted by one of the two lawyers he named. The court explained that the applicant’s application for a lawyer had been decided on 1 September 2005. It adjourned the hearing in order to summon absent witnesses. 33. During the next hearing on 17 November 2005 the applicant alleged that at least thirty people had been present when the alleged crime had taken place, but only eight of them had been called as witnesses. He therefore asked the court to identify the other witnesses. In reply to a question put by the court, the applicant confessed that he had stabbed the victim, but stated that he had not intended to kill him. At the applicant’s request, the Daugavpils Court adjourned the hearing, giving him time to give evidence and to submit a list of defence witnesses. 34. On 21 November 2005 Judge Z. of the Daugavpils Court sent the applicant a list of lawyers practising in Daugavpils whom the applicant could contact in order to obtain a legal consultation. He noted that the case file contained no evidence pertaining to the applicant’s status as a person of low income, and that the applicant would be provided with a State-appointed lawyer at appeal stage if the case were to reach it. 35. At a hearing on 12 January 2006 the Daugavpils Court examined several applications lodged by the applicant. As regards another application for appointment of a lawyer, the court held that the matter had previously been decided and could not be re-examined. During the same hearing the Daugavpils Court verified that the applicant had duly received the document setting out the charges against him. The court upheld the applicant’s application for an adjournment, and adjourned the hearing to give him time to prepare for the arguments in court. 36. On 31 January 2006 the prosecutor amended the charges against the applicant by changing the motive of the crime to, “acting with no reason, being guided by hooligan tendencies”. 37. On 6 February 2006 the Daugavpils Court found the applicant guilty of murder. The court noted that the applicant had partly admitted his guilt during the preliminary investigation in saying that he had stabbed the victim, but claiming that he had not intended to murder him. The court went on to refer to the evidence of seven witnesses who had been in the immediate vicinity of the incident. The court did not have any doubts as regards the applicant’s intent. He had stabbed the victim in the chest and had himself testified that he had aimed to stab the victim in the left part of his chest. All the witnesses, except one, had confirmed that the applicant had stabbed the victim after the fight had ended. The applicant had had no need to defend himself, because the victim had been unarmed and had not posed any threat to him. On the contrary, the victim had not taken part in the fight at all, but had wanted to stop it. The court dismissed as unreliable the evidence of an eyewitness who had been transported to a hearing and detained with the applicant. 38. In addition, the court relied on documentary evidence, such as the conclusions of the forensic psychiatric examination. The applicant was sentenced to twelve years’ imprisonment. 39. As regards the applicant’s right to legal aid assistance, the court observed that he had twice refused the services of State-appointed lawyers. The Code of Criminal Procedure, as in force on 1 September 2005, did not provide for the right of an accused to decline the services of a lawyer. The court further dismissed the applicant’s allegation that the State-appointed lawyers had not provided him with adequate legal assistance. At that point, the court had not yet started to hear the evidence. In addition, the applicant had wanted the lawyers to guarantee that he would be acquitted, and had referred to their performance in cases where they had assisted other individuals. The court also noted that witnesses had twice been called to testify, once following an application by the applicant, who had then refused to put any questions to them, arguing that he had not been granted a lawyer. 40. On 26 February 2006 the applicant lodged an appeal, which he supplemented on 26 March 2006. He submitted that his defence rights had been violated and asked the Latgale Regional Court (Latgales apgabaltiesa) to call all the witnesses, without providing any reason for that application. He stated that he needed a lawyer at an appeal hearing, and asked for an opportunity to meet him or her prior to the appeal hearing to agree on a defence strategy. 41. On 11 May 2006 the applicant was provided with a State-appointed lawyer, M. 42. At a hearing on 17 May 2006 the applicant was assisted by M. He and M. asked the court to adjourn the hearing, stating that more time was needed in order to prepare a defence. The hearing was adjourned until 8 November 2006. 43. On 8 November 2006 the applicant was represented by a State-appointed lawyer, V. At a hearing held on the same day the court read out witness statements and the applicant did not raise any objections to the statements in substance. When invited to ask questions, the applicant asked the court to call all the witnesses who had testified before the first-instance court again, in addition to some other witnesses. His application was on the grounds that he had twice refused legal assistance as a result of the different opinions of his lawyers about the conduct of his defence. The court dismissed that application, because the applicant had not made it in his appeal. 44. On 8 November 2006 the Regional Court dismissed the applicant’s appeal and upheld the first-instance judgment. The appellate court noted that there were no discrepancies in the witness testimonies and they were concordant with the applicant’s testimonies. It also noted that it was the applicant who had started the fight and demonstrated a readiness to use a knife against an unarmed victim, therefore no question of self-defence arose. 45. As to the fairness of the proceedings, the Regional Court found that the first-instance court had afforded the applicant an opportunity to choose a lawyer and exercise his defence rights. Referring to the reasoning of the first-instance court, the Regional Court agreed that his refusal to accept the services of the two lawyers had been unjustified. Having examined the content of the applicant’s submissions, applications and complaints in the criminal proceedings, it did not find that any of the conditions of section 83 of the Criminal Procedure Law had been fulfilled. The appellate court concluded that the applicant had been able to defend himself. The first-instance court had called the witnesses twice, however the applicant had refused to put any questions to them, citing unfounded excuses. 46. On 13 December 2006 the applicant lodged an appeal on points of law against the aforementioned decision with the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments). He made a complaint regarding the quality of the legal services provided by the State-appointed lawyers and the decision of the first-instance court to deprive him of legal assistance. 47. In addition, the applicant alleged that his guilt could have been “mitigated” if he had been given a psychiatric assessment and polygraph testing, and if additional defence witnesses had been questioned. He also complained in a general manner that neither of the lower courts had granted him permission to put questions to the witnesses. 48. On 16 January 2007 the Senate of the Supreme Court refused to consider the applicant’s appeal.