CASE OF MIKHAYLOVA v. RUSSIA
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Criminal charge) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Criminal charge) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque
5. The applicant was born in 1949 and lives in Saint Petersburg. 6. On 25 November 2007 the applicant took part in a march. 7. The applicant was then taken to a police station and was accused of disobeying the police order for the march to disband, as it was considered to be a non-authorised public gathering. The applicant was suspected of an offence under Article 19.3 of the Code of Administrative Offences (CAO), which punishes disobedience of a lawful order by a public official. The police also considered that the applicant had committed an administrative offence under Article 20.2 of the CAO, on account of her participation in a public gathering which had not been subject to prior notification to the authorities, as required by the 2004 Public Gatherings Act. 8. On the same day, the administrative offence record was submitted to a justice of the peace of the 201 district. The applicant was then apprised of her procedural rights under Article 25.1 of the CAO. 9. The applicant lodged a request for adjournment in respect of both cases, since she needed time to retain counsel. The judge granted an adjournment until 28 November 2007. 10. On 27 November 2007 the applicant sought another adjournment, referring to the need for time to study the case material. The judge adjourned the cases until 5 December 2007. 11. On 28 November 2007, referring to the European Court’s case-law under Article 6 of the Convention, the applicant sought free legal assistance in these proceedings. 12. On 5 December 2007 the judge adjourned the case again, since the applicant sought to call witnesses. 13. By a procedural order of 19 December 2007, the justice of the peace dismissed the request for free legal assistance as follows: “Having examined the administrative offence record and the other documents in the case file, I dismiss the request because the CAO contains no rule concerning provision of legal assistance to the defendant. [The applicant] has been apprised of her rights under Article 25.1 of the CAO and thus must take her own decision whether she wants to retain an advocate, with due regard to her financial situation ...” 14. By a judgment of 19 December 2007 the applicant was found guilty of the administrative offence under Article 19.3 of the CAO and was sentenced to a fine of 500 Russian roubles (RUB). 15. On the same date, the same justice of the peace found the applicant guilty of breaching the requirements of the Public Gatherings Act, which is an administrative offence under Article 20.2 of the CAO. The applicant was ordered to pay a fine of RUB 500. 16. The applicant appealed against both judgments and sought free legal assistance for the appeal proceedings. 17. On 19 February 2008 the Dzerzhinksiy District Court of St Petersburg gave her leave to call witnesses but dismissed her request for free legal assistance as follows: “[The applicant] has submitted a request for free legal assistance, submitting that she is a pensioner and has insufficient means to retain an advocate; she has no knowledge in the area of jurisprudence. Having examined the request, the court cannot grant it because the CAO contains no rule concerning provision of legal assistance to the defendant. [The applicant] has been apprised of her rights under Article 25.1 of the CAO and thus must take her own decision whether she wants to retain an advocate, with due regard to her financial situation ...” 18. On 11 March 2008 the District Court granted the applicant’s request to admit a video recording in evidence. The applicant’s renewed application for free legal assistance was again dismissed. 19. On 17 March 2008 the District Court upheld the judgments of the justice of the peace. The appeal court also stated as follows: “There has been no violation of [the applicant’s] right to legal assistance. She was apprised of her procedural rights ... There is no evidence that the justice of the peace impeded [the applicant’s] exercise of her rights.” 20. The applicant sought further review of the above court decisions. On 16 and 19 June 2008 the deputy President of the St Petersburg City Court re-examined the case files and upheld the judgments. 21. The applicant sought review before the Supreme Court of Russia. On 31 July and 25 September 2008 the Deputy President of this court dismissed her applications, stating as follows: “The applicable legislation contains no rule concerning provision of legal assistance free of charge.” 22. Lastly, the applicant lodged a constitutional complaint regarding the non-availability of free legal assistance under the CAO. By decision no. 236-O of 5 February 2015 the Constitutional Court of Russia declared her application inadmissible and made the following findings: “The Constitution of the Russian Federation ... provides for a right to legal assistance, in the circumstances prescribed by law, free of charge ... The federal legislator is empowered to specify the means of access to the right to legal assistance, without impinging upon the essence of this right ... The Code of Administrative Offences contains provisions allowing the person, who is being prosecuted for an administrative offence, to seek legal assistance ... by way of retaining a defender ... The defendant has a possibility to retain an advocate or another person. Therefore, the possibility to find and retain a defender is wider as compared to the situation of a suspect or accused in criminal proceedings ... Unlike in criminal cases, the person concerned does not bear any procedural costs ... Therefore, the decision not to prosecute for an administrative offence or a favorable decision following the prosecution for such offence may entail reimbursement of the expenses relating to legal assistance ... The Constitutional Court previously acknowledged the need for a heightened level of protection of the citizens’ rights and freedoms in the areas entailing administrative or another type of public liability ... The relevant legislative regulations should comply with the requirements of fairness, proportionality and legal certainty ... At the same time, the constitutional requirements of fairness and proportionality entail some differentiation of liability on account of the seriousness of the facts, the extent and type of damage caused, the extent of the person’s guilt and other relevant factors ... Classification of offences as administrative or criminal entails corresponding statutory sentences and a set of corresponding procedural rules ... Unlike criminal cases, which include, as a rule, pre-trial proceedings, the cases under the CAO are focused on and processed by way of the non-judicial procedure. It has a more simplified and expedited nature, thus normally not requiring an investigation. Therefore, these proceedings are fit for the person to defend himself and are less financially burdensome as regards recourse to assistance from an advocate or another person ... Therefore, the federal legislator should not be deprived of the choice in favour of a differentiated approach when putting in place specific modalities concerning legal assistance, with due regard to the type of offences, the severity of penalties, procedural specificities of the procedures and other legitimate criteria ... In view of the above, as well as the case-law of the European Court of Human Rights, the State’s positive obligation to ensure provision of legal assistance, with recourse to public funding, primarily concerns the need to protect vulnerable groups ... and has a special significance in the criminal procedure, in particular on account of the importance of the consequences that may result during or after this procedure ... The issue of free legal assistance in CAO cases may acquire constitutional significance in situations where the degree of actual intrusion into constitutional rights and freedoms, by way of prosecution under the CAO, becomes comparable to measures prescribed by criminal law ... In substance, the applicant alleges a violation of her constitutional rights on account of the lacunae in Article 25.5 of the CAO that allowed the courts to reject her request to use free of charge the services of the lawyer that would be appointed. At the same time, she referred to a risk of an administrative sentence of fifteen days’ detention ... A theoretical possibility of administrative detention of up to fifteen days was only available as a penalty in respect of one of the two charges against the applicant ... As a matter of fact, with due regard to various circumstances, she was fined only 500 roubles, which was one-fifth the minimum statutory fine under the Criminal Code ... In view of the above and the other factors (the penalty of administrative detention is only prescribed for some offences, is to be used only in exceptional circumstances; it cannot not be imposed in respect of certain categories of people; the applicant was not subject to any pre-trial detention longer than forty-eight hours), there are no compelling reasons to consider that during the CAO proceedings the applicant was placed in a position which could be compared to that of a defendant in a criminal case and that she ran a risk of being subjected to measures which would be comparable to those under criminal law ... ’s allegations are abstract ... Article 25.5 cannot be perceived as violating the applicant’s rights in the specific case ... Thus, the complaint should be declared inadmissible ... However, the foregoing considerations should not prevent the federal legislator from specifying conditions for obtaining legal assistance in CAO cases, including by way of singling out categories of CAO cases and related criteria to determine whether free legal assistance in court proceedings is necessary ...”