CASE OF SHULEPOV v. RUSSIA
Violation of Art. 6-1+6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
5. The applicant was born in 1963. He is currently serving a sentence in a correction facility in Nizhniy Tagil, Sverdlovsk Region. 6. On 19 August 1999 the applicant was arrested on suspicion of murder. 7. On 20 August 1999 the local prosecutor remanded him in custody. The duration of the applicant’s detention was extended on several occasions; the applicant unsuccessfully challenged those orders. 8. On 30 June 2000 the Sverdlovskiy Regional Court convicted the applicant of aggravated murder and robbery and sentenced him to nineteen years’ imprisonment. 9. On 29 March 2001 the Supreme Court of Russia quashed this judgment and remitted the case to the first-instance court for a fresh consideration. 10. On 23 August 2001 the Sverdlovskiy Regional Court remitted the case for an additional investigation to the Prosecutor’s Office of the Sverdlovsk Region. The case was then twice more sent to the court and remitted for an additional investigation, being finally referred to the Dzerzhinskiy District Court of Nizhniy Tagil for examination in August 2002. 11. On 27 September 2002 the Dzerzhinskiy District Court, following adversarial proceedings in the course of which several witnesses, including co-defendants, gave evidence and forensic expert reports were examined, convicted the applicant of murder and theft and imposed a sentence of thirteen years’ imprisonment for murder and five years’ imprisonment for theft, the final sentence being determined by way of partial accumulation as fifteen years’ imprisonment. During the proceedings before the first-instance court the applicant was represented by a court-appointed lawyer. 12. On an unspecified date the applicant appealed against the judgment of 27 September 2002. 13. On 20 December 2002 the Sverdlovsk Regional Court upheld the judgment. The applicant appeared before the appeal court via videoconference from the detention facility. He was not represented by a legal-aid lawyer. According to the case file, the prosecutor was present in the courtroom but did not make any submissions. The court put only one question to the applicant during the hearing: it asked whether the applicant wished to amend his appeal. 14. In July 2003 the applicant lodged a request for supervisory review proceedings. On 5 December 2003 the Sverdlovsk Regional Court left this request without consideration, for the applicant’s failure to respect procedural formalities stipulated by law. 15. According to Article 69 of the Code, in cases of cumulative crimes, sentences shall be imposed separately for each crime. A final sentence shall be determined by partial or full accumulation of these sentences. 16. Article 105 § 1 of the Code sets out that murder shall be punishable by imprisonment for a term of six to fifteen years. Article 158 § 2 of the Code provides for penalties for theft including, inter alia, imprisonment for a term of two to six years. 17. Article 51 of the Code of Criminal Procedure establishes that counsel is appointed by the investigator, prosecutor or the court if, inter alia, the accused faces serious charges, carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Counsel is appointed by the investigator or court if the accused has not retained a lawyer. 18. Article 373 of the Code provides that an appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, an appeal court can directly examine evidence, including additional material submitted by parties. 19. 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.” 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 on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in Article 51. It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings. 20. In a number of cases (decisions of 13 October 2004 and 26 January, 6 April, 15 June and 21 December 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 counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented.