CASE OF NEFEDOV v. RUSSIA
Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
5. The applicant was born in 1966 and lives in Irkutsk. 6. On 24 May 2002 the applicant, the head of the Anti-Drug Trafficking Department of the North-Eastern Customs Office at the time, was arrested on suspicion of abuse of position and drug trafficking. An investigator drew up an arrest record and, in detail, informed the applicant of his rights as an accused, including the right to have legal assistance and the right to remain silent. The applicant signed the record, noting that he clearly understood his rights, but he refused legal assistance and decided to make a statement. 7. According to the applicant, police officers beat him up and threatened him and his family. They also promised to release him in exchange for a confession. The applicant wrote a statement confessing to drug trafficking. 8. On the same date the investigator interrogated the applicant in the absence of counsel, whose assistance the applicant had refused. The refusal was recorded in a report duly dated and signed by the applicant. 9. The police searched the house of the applicant’s co-accused and found a parcel of heroin. The applicant claimed that a neighbour, Mr M., had seen a police officer putting the parcel into the closet. 10. On 27 December 2002 the applicant was released on a written undertaking not to leave the town. 11. On 10 March 2004 the Irkutsk Regional Court found the applicant guilty as charged and sentenced him to four years and six months’ imprisonment. In view of the applicant’s position, the trial hearings were closed to the press and public. The conviction was based on selfincriminating statements made during the pre-trial investigation, search records, expert examination reports and witness testimonies. According to the applicant, the trial court refused to hear Mr M. However, as noted in a statement of appeal lodged by the applicant’s co-accused, the trial court had heard Mr M. at least on two occasions: during the investigation phase of the trial, when he had testified and the parties had been allowed to ask questions, and when the trial court, having accepted the parties’ request, had again questioned Mr M. to clarify certain points. 12. The applicant alleged that the judgment of 10 March 2004 had not been pronounced publicly. 13. According to the Government, following the public pronouncement of the judgment, the Regional Court had notified the applicant of his right to appeal against conviction and had explained “procedural issues pertaining to lodging an appeal” to him. The Government provided the Court with typed notes signed by the applicant and his lawyer and certifying that they had been served with a copy of the judgment of 10 March 2004 and that the applicant had been informed of the ten-day time-limit for lodging an appeal. Another note submitted by the Government was handwritten by the applicant and showed that he had received a copy of the trial court’s records. 14. The applicant and his lawyer appealed against the conviction, having lodged lengthy appeal statements. They disputed the applicant’s involvement in the criminal offences he had been found guilty of and disagreed with the way the trial court had established the relevant facts, the distribution of roles between him and his co-defendant and the classification of his own acts. They submitted, in particular, that the trial court had disregarded the applicant’s testimony and statements by witnesses which supported it, in particular, regarding his submissions that he had committed the alleged act of drug trafficking whilst he had been undercover and acting within his official functions. In the appeal statement the applicant did not ask the Supreme Court to ensure his presence at the appeal hearing. 15. On 18 June 2004 the head of Detention Facility no. 1 in Irkutsk, where the applicant was detained at the time, received a telegram from the Supreme Court for the applicant informing him of an appeal hearing scheduled for 6 July. The Government also provided the Court with typed summonses not bearing any stamps or signatures. An official of the Supreme Court allegedly sent those summonses on 16 June 2004 to the Bar Association where the applicant’s counsel worked in order to confirm his ability to attend the appeal hearing on 6 July 2004. 16. On 6 July 2004 the Supreme Court of the Russian Federation upheld the judgment of 10 March 2004, having endorsed the Regional Court’s reasoning. The applicant was not brought to the appeal hearing. His counsel was also absent. The Supreme Court proceeded in their absence, heard a prosecutor who supported the conviction, and examined the applicant’s and his lawyer’s statements of appeal. 17. Article 51 of the CCrP provides as follows: “1. Participation of legal counsel in criminal proceedings is mandatory if: (1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code; (2) the suspect or the accused is a minor; (3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap; (3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code; (4) the suspect or the accused does not speak the language in which the proceedings are [to be] conducted; (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 by a jury trial; (7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code; 2. ... 3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on the request, or with the consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure the participation of legal counsel in the proceedings.” 18. Article 52 of the Code provides that an accused can waive his right to legal assistance, but such waiver must be established in the written form. The waiver can be revoked at any moment. 19. Article 360 establishes the scope of the examination of the case by an appeal court. It provides that the appeal court shall examine the legality, validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal. The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law of a lesser offence, but shall have no power to impose a more severe penalty or apply a law of a more serious offence. 20. Article 375 § 2 provides that if a convicted person wishes to take part in the appeal hearing, he must indicate that in his statement of appeal. 21. Under Article 376 § 2 parties shall be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. A court is to decide whether to summon a convicted person held in custody. Article 376 § 3 provides that a convicted person held in custody who expressed a wish to be present at the examination of his appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall take a decision with respect to the form of participation of the convicted person in the court session. A defendant who has appeared before the court shall be always entitled to take part in the hearing. Article 376 § 4 states that if persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude the examination of the case. 22. Article 377 describes the procedure for the examination of cases by the appeal court. It provides, among other things, that at the hearing the court shall hear the statement of the party who had lodged the appeal and the objections of the opposing party. The appeal court shall be empowered, at the party’s request, to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party. 23. Article 378 establishes which decisions the appeal court may take. It provides that the appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment. 24. Article 379 sets out the grounds for quashing or setting aside judgments on appeal. In particular, a judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court in the judgment and the facts established by that court. Violation of procedural law and wrongful application of criminal law, as well as unfairness of the judgment, also constitute grounds for reversing or changing the judgment. 25. Article 383 provides that the judgment shall be deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence, the personality of the convicted person, or if that sentence, although within the limits of the relevant Article of the Criminal Code, is unfair in its chosen type or extent, being either disproportionately lenient or disproportionately severe. A judgment may be reversed in connection with the necessity to impose a more severe penalty due to the fact that the penalty imposed by the trial court is deemed unfair as being disproportionately lenient, but only in instances when there is either a prosecution request or an application (as a private prosecution) by the victim or his representative to that effect. 26. Article 387 provides that where there has been a violation of the provisions of the Criminal Code, the appeal court may apply the law of a less serious offence and reduce the sentence, in accordance with legal reclassification of the acts committed. In doing so, the appeal court may not apply the law of a more serious offence or aggravate a sentence imposed. In cases where the trial court imposed a sentence more severe than that set forth by the relevant Article of the Criminal Code, the appeal court may reduce the sentence without changing the legal classification of the offence. 27. 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 appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.” 28. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in Article 51. It further underlined the obligation of courts to secure the participation of defence counsel in appeal proceedings. 29. On 18 December 2003 the Constitutional Court of Russia dismissed a constitutional complaint by Mr R. as inadmissible. In its ruling (определение) the Constitutional Court held, inter alia, that Article 51 of the Code of Criminal Procedure, which defined the situations where participation of a defence lawyer in criminal proceedings was mandatory, also applied to proceedings before a court of appeal. 30. In a number of cases (decisions of 13 October 2004 and 26 January, 9 February, 6 April, 15 June and 21 December 2005, 24 May and 18 October 2006, 17 January 2007, 3 September and 15 October 2008) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the grounds that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented. That approach was also confirmed by the Presidium of the Supreme Court in its report concerning cases adopted in the third quarter of 2005 (Decree of 23 November 2005) and by the Decree of the Plenary of the Supreme Court of 23 December 2008, as amended on 30 June 2009. In the latter document, the Supreme Court emphasised that an accused could only waive his right to a lawyer in writing, and that the court was not bound by that waiver.