CASE OF MAKARENKO v. RUSSIA
No violation of Article 5 - Right to liberty and security;Violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial;No violation of Article 10 - Freedom of expression -{General}
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1949 and lived until his arrest in the town of Smolensk. He is a former deputy governor of the Smolensk Region. 6. On 24 October 2002 criminal proceedings were instituted against several officials of the Smolensk Regional Council on suspicion of money laundering and fraud. 7. On 2 December 2002 the applicant was arrested in the Smolensk Regional Prosecutor's office where he had been invited for questioning. He was transferred to the Smolensk Regional Department of the Federal Security Service (hereinafter – the FSB). A record of his arrest, drawn up at 2 p.m. on the same day and produced by the Government, indicated that certain documents were found and seized from the applicant's office. Those documents and other evidence, including witness statements, linked the applicant to or placed him in charge of private and State-owned enterprises implicated in money laundering and fraudulent activities and served as the basis for suspecting the applicant of having participated in an aggravated fraud. The relevant part of the record read as follows: “[The applicant], who is suspected of having committed a serious criminal offence, was arrested according to subparagraphs 1, 2 and 3 of paragraph 1 of Article 91 of the Russian Code of Criminal Procedure, and because the pre-trial investigating authorities have sufficient grounds to believe that, if released, he may abscond..., threaten witnesses, destroy evidence or in any other way obstruct the investigation in the present case.” The applicant signed the record, making a handwritten objection to his arrest and the accusations against him. 8. On the following day a senior investigator of the Smolensk Regional FSB Investigative Division, with the consent of the acting Smolensk Regional Prosecutor, lodged an application with the Leninskiy District Court of Smolensk, seeking authorisation for the applicant's detention on remand. The application contained a lengthy description of the fraudulent activities of a number of private and State-owned enterprises in which the applicant had allegedly taken part. The senior investigator also drew the District Court's attention to other circumstances warranting the applicant's detention, namely the likelihood that he would abscond and pervert the course of justice. 9. On 3 December 2002 the Leninskiy District Court authorised the applicant's detention, finding that he was accused of having committed a serious crime and that, if released, he might threaten witnesses, destroy evidence and obstruct justice. 10. The applicant's lawyer appealed against the decisions authorising the arrest and detention. In particular, she complained that there was no evidence which could serve as grounds for the applicant's arrest and that if such evidence did exist, it had not been listed in the record of the applicant's arrest. According to the lawyer, the authorities did not put forward any evidence justifying the conclusion that the applicant was liable to abscond or obstruct justice. 11. On 11 December 2002 the Smolensk Regional Court upheld the decision of 3 December 2002, holding as follows: 's application is substantiated because [the applicant] may threaten witnesses, destroy evidence in the case and obstruct adjudication of the case.” 12. Two weeks later, on 26 December 2002, the Leninskiy District Court rejected the lawyer's complaint concerning the applicant's arrest, finding that the arrest had been effected in compliance with Article 91 § 1 of the Russian Code of Criminal Procedure. 13. On 6 February 2003 the Smolensk Regional Court, endorsing the reasons given by the District Court, upheld the decision of 26 December 2002. 14. On 31 January 2003 the Leninskiy District Court extended the applicant's detention until 24 April 2003, holding that there were no grounds warranting his release. 15. The applicant's lawyer appealed. In particular, she complained that the District Court had not put forward any reason necessitating the extension of the applicant's detention. 16. On an unspecified date the Smolensk Regional Court upheld the decision of 31 January 2003. 17. On 22 April 2003 the Leninskiy District Court extended the applicant's detention until 1 June 2003, reasoning that additional time was required to perform certain investigative actions. The District Court further held as follows: “[The applicant] is accused of having committed a serious criminal offence; the court remanded him in custody because he was charged with a serious criminal offence, thus, there are no grounds for a change or annulment of [the preventive measure]. The court takes into account that the detention is extended only for one month and eight days. The court takes into account that [the applicant] has minor children, however, in determining the issue of the extension of detention, the court has regard to the fact that [the applicant] is charged with an offence under Article 159 § 3 (b) of the Russian Criminal Code, that is with having committed a serious crime for which the most lenient penalty is five years' imprisonment.” 18. The decision of 22 April 2003 was upheld on appeal. 19. On 30 May 2003 the Leninskiy District Court extended the applicant's detention until 1 September 2003, citing the same reasons as in the decision of 22 April 2003. 20. On 9 June 2003 the Smolensk Regional Court upheld the decision of 30 May 2003, accepting the District Court's reasoning that the applicant was charged with serious criminal offences and that the investigating authorities needed additional time. 21. On 2 July 2003 the applicant's lawyer applied for the applicant's release under his own recognisance not to leave the town. The lawyer argued that the need to hold the applicant in custody had long ceased to exist as the pre-trial investigation had been closed. The lawyer further pointed to circumstances making the applicant's absconding improbable: the applicant had three minor children and permanent places of residence and work, and before his arrest the investigating authorities had summoned him on several occasions and he had never defaulted. 22. On 11 July 2003 the Leninskiy District Court dismissed the request for release. It held that the applicant had been charged with aggravated fraud, money laundering, unlawful possession of ammunition and forgery of documents. A month later the Smolensk Regional Court upheld the decision, endorsing the District Court's findings. 23. On 25 September 2003 the Leninskiy District Court held a preliminary trial hearing, at which the applicant's lawyers petitioned for the applicant's release and discontinuation of the criminal proceedings against him. The District Court dismissed the request for release because the applicant was charged with serious criminal offences, and if released, could abscond or obstruct establishment of the truth. The District Court listed the first trial hearing for 8 October 2003. 24. The applicant's lawyers, Ms Liptser, Ms Karlova and Mr Kravchuk, appealed. 25. On 13 October 2003 the Leninskiy District Court returned the statement of appeal to Ms Liptser, stating that the applicant had refused her services. 26. Ten days later the president of Lawyer's office no. 10 of the Moscow City Bar Association informed the District Court that Ms Liptser and the applicant had signed an agreement according to which Ms Liptser had been entrusted with the authority to appeal against the decision of 25 September 2003. Ms Liptser's statement of appeal against the decision of 25 September 2003 was enclosed. 27. On 30 October 2003 the Leninskiy District Court accepted Ms Liptser's statement of appeal and sent it to the Smolensk Regional Court. Five days later the Regional Court, having heard the arguments by Ms Karlova and Mr Kravchuk, upheld the decision of 25 September 2003. The appeal statement lodged by Ms Liptser was examined by the Regional Court on 30 December 2003 and dismissed as unsubstantiated. 28. At the trial hearing on 8 October 2003 the Leninskiy District Court dismissed the applicant's lawyer's application for the applicant's release. 29. A week later the lawyer lodged an appeal against the District Court's decision. 30. On 18 November 2003 the Smolensk Regional Court, relying on Article 355 § 5 (2) of the Russian Code of Criminal Procedure, discontinued the appeal proceedings, finding that the release application had been examined and dismissed at the trial hearing and that such a decision was not amenable to appeal. 31. On 13 November 2003 the Leninskiy District Court held a trial hearing. At that hearing the applicant's lawyer asked for the applicant's release under his own recognisance. The District Court dismissed the request, noting that there were no grounds for the release. 32. The applicant's lawyer, invoking Article 5 § 3 of the Convention, appealed against the decision of 13 November 2003. 33. On 30 December 2003 the Smolensk Regional Court upheld the decision of 13 November 2003. The Regional Court held that the grounds warranting the applicant's detention had not changed and, thus, the request for release had been dismissed lawfully. 34. On 19 November 2003 the Leninskiy District Court dismissed another application for the applicant's release. It held that no new grounds authorising the applicant's release had been established. That decision was upheld on appeal on 30 December 2003 by the Smolensk Regional Court, which endorsed the District Court's reasoning. 35. On 24 November 2003 the applicant's lawyer requested the applicant's release on a written undertaking not to leave the town. The Leninskiy District Court refused to examine the request, finding that it was a mere restatement of the lawyer's previous release applications. 36. At the trial hearing on 29 December 2003 the applicant unsuccessfully asked the District Court to release him. On 6 April 2004 the Smolensk Regional Court examined the lawyers' appeal against the decision of 29 December 2003, upholding that decision as lawful. The Regional Court confirmed the District Court's opinion that there were no grounds authorising the applicant's release. 37. On 30 January 2004 the District Court adjourned the proceedings because the applicant's co-defendant was ill. The lawyers unsuccessfully petitioned for the applicant's release. On 16 March 2004 the Regional Court upheld the decision of 30 January 2004 because there were no new grounds justifying the release. 38. On 26 February 2004 the Leninskiy District Court extended the applicant's detention until 26 May 2004. The relevant part of the decision read as follows: “[The applicant] is accused of having committed intentional mercenary and serious crimes. The circumstances which served as the basis for remanding [the applicant] in custody have not changed. New circumstances justifying [the applicant's] release ... have not appeared. The trial investigation has not been finished, [the court] continues to examine the evidence. If released, the accused may obstruct establishment of the truth in the case, abscond or commit new crimes.” 39. On 30 March 2004 the Smolensk Regional Court endorsed the reasons given by the District Court on 26 February 2004 and upheld that decision. 40. On 26 May 2004 the Leninskiy District Court extended the applicant's detention until 26 August 2004 for the same reasons as in the decision of 26 February 2004. That decision became final on 6 July 2004, when the Regional Court upheld it on appeal, finding that the District Court had taken into account all relevant factors, including the applicant's personality, and that it had lawfully extended the detention. 41. On 28 June 2004 the Leninskiy District Court found the applicant guilty of aggravated fraud, unlawful possession of ammunition and forgery of documents and sentenced him to five years' imprisonment. 42. On 12 October 2004 the Smolensk Regional Court amended the judgment of 28 June 2004, discontinued the criminal proceedings on the forgery charge due to the expiration of the statutory limitation period and reduced the sentence by two months. 43. On the morning of 16 May 2002 the applicant's car was shot at several times. The applicant, his five-year old daughter, his bodyguard and his driver were in the car. The applicant was wounded, his bodyguard received serious injuries and the driver was killed. 44. On the same day the applicant gave a press conference, at which he accused Mr M., an FSB general and candidate in the upcoming election of the Smolensk Regional Governor, of having tried to kill him. 45. A complaint lodged by Mr M. with the Smolensk Regional Prosecutor led to the institution of criminal proceedings against the applicant on a charge of criminal libel on 18 May 2002. 46. On 19 August 2002 the applicant, in the presence of his lawyer, Ms Karlova, was served with the final text of the bill of indictment and was questioned as the accused. On the same day Ms Karlova began studying the case file, in compliance with the requirements of Article 53 of the Russian Code of Criminal Procedure. Two days later the applicant and Ms Karlova finished reading the file and made handwritten notes to that effect in a case file record. 47. On 29 August 2002 the applicant was committed to stand trial before the Justice of the Peace of the 7th Court Circuit of Smolensk, which, at the applicant's and Ms Karlova's request, fixed a preliminary hearing for 19 November 2002. 48. At the first trial hearing, held on 19 December 2002, the applicant successfully asked the Justice of the Peace to adjourn the proceedings to allow his lawyer to study the case file. On 22 January 2003 the Justice of the Peace granted another request by the applicant and allowed two other lawyers retained by the applicant to enter the proceedings. 49. A number of trial hearings were held between 22 January and 12 February 2003, at which the applicant was mostly represented by Ms Karlova. 50. At the trial hearing on 6 February 2003 the applicant notified the Justice of the Peace that he no longer intended to participate in the trial and that he had terminated his contracts with all his lawyers. On the same day the Justice of the Peace decided to proceed with the examination of the case in the applicant's absence, dismissed two of the applicant's lawyers from the proceedings and ordered that Ms Karlova, the applicant's third counsel, should continue representing him. The Justice adjourned the hearing until the afternoon of the same day. After the lunch break, the hearing resumed. Ms Karlova read out the applicant's repeated refusal of her services and left the courtroom, without waiting for the Justice's response to it. 51. On 7 February 2003 the Justice of the Peace held that Ms Karlova had committed contempt of court because she had left the courtroom without permission. The Justice also sent a notification to the President of the Smolensk Regional Bar Association concerning Ms Karlova's actions and asking him to ensure that she attended the following hearing. 52. Ms Karlova attended the following hearing. She informed the Justice that she refused to assist the applicant, referring to his refusal of her services. 53. At the following hearing, on 12 February 2003, Ms Karlova defaulted. The Justice of the Peace issued an interim order and again notified the Smolensk Regional Bar Association of Ms Karlova's actions. 54. On the same day the Justice of the Peace found the applicant guilty of aggravated libel and sentenced him to one year's probation. The Justice of the Peace based its judgment on testimonies by the victim and four witnesses who had attended the press conference given by the applicant, a written record and audio and video recordings of the press conference, a letter from the Smolensk Regional Police Department indicating that it had no information concerning participation by Mr M. in any illegal activities and a record of the applicant's questioning. The Justice of the Peace held, in particular: “...the court characterises the actions of [the applicant]... as dissemination of false information defaming the honour and dignity of another person and damaging his reputation, connected to accusation of that person of having committed an especially serious criminal offence, because he, by oral statements [addressed] to a number of persons, disseminated false information concerning the organisation by Mr M. of the attempted murder of [the applicant]. He disseminated that information in an affirmative rather than a presumptive manner. Furthermore, [the applicant] knew that Mr M. was a top ranking governmental official who, at the time the statement was made, was running for election as Governor of the Smolensk Region, thus any discreditable information could damage his reputation in some way. The statements made by [the applicant] were false... unfounded and unsubstantiated: at the time the statements [were made] no criminal proceedings were instituted against Mr M. and no other investigative measures were taken by law enforcement agencies; the statement did not contain references to any reliable evidence or documents proving the truthfulness of the statement, or any reference to sources of information on the basis of which [the applicant] had concluded that Mr M. had participated in the criminal offence committed against him. Undisputedly, [the applicant] understood that, but he publicly and intentionally made the above-mentioned statement in the presence of representatives of the mass media, accusing Mr M. of having committed an especially serious crime, thereby defaming the victim, his honour and his dignity, and [the applicant], in his official position as the deputy Governor of the Smolensk Region, must have been aware of that. At the meeting of the administration of the Smolensk Region of 16 May 2002, [the applicant] only put forward one piece of evidence to substantiate his statement about Mr M.'s involvement in the attempted murder: two days before the [attempted murder] General M. had threatened him ([the applicant]) in the presence of a deputy president of the Smolensk Regional Court, Mr A., and a deputy prosecutor of the Smolensk Region, Ms P. This submission ... was examined in the course of the trial but was not proven, because Mr A. and Ms P., questioned as witnesses in open court, did not confirm it. The court does not see any reason not to trust those witnesses. No other evidence proving the truthfulness of [the applicant's statement] was presented. The court also notes that [there is evidence confirming] the defendant's intention to disseminate the false statements publicly (whatever his reasons) and thus to negatively influence people's opinion of the victim, in order to damage his reputation before the election: firstly, the affirmative, rather than presumptive character of the statement; the content of the [the applicant's] speech before and after the libellous statement; the dissemination of the false information at the meeting of the administration of the Smolensk Region, that is, to individuals who had no right to institute criminal proceedings and verify the statement; the fact that the statement was made on several occasions... after the attempted murder... and in the course of the pre-trial investigation... Moreover, the false character of the statement made by [the applicant] was confirmed by his confession made at a press conference on 28 May 2002, during which he had confirmed that as far as he knew Mr M. had not participated in the attempted murder, and [the applicant] had apologised.” 55. The applicant and his three lawyers appealed against the judgment of 12 February 2003. In particular, they complained that the Justice of the Peace had proceeded with the trial after the applicant refused to participate, and that it had forced Ms Karlova to represent the applicant despite the fact that he had refused the assistance of his three lawyers, including Ms Karlova. Ms Karlova also filed a separate appeal against the interim orders of 7 and 12 February 2003. 56. On 21 November 2003 the Leninskiy District Court of Smolensk, in the presence of the applicant and his three lawyers, upheld the judgment of 12 February 2003. As regards the applicant's complaint concerning his defence rights, the District Court held that under Russian law a lawyer could not refuse to represent a defendant if he had already undertaken such a responsibility. However, the defendant could refuse legal assistance. Such a refusal would not be binding on the court, if the defendant, at the same time, asked for the case to be determined in his absence. Thus, the Justice of the Peace had lawfully ordered that Ms Karlova should continue representing the applicant because the latter had not wished to participate in the trial, had refused the assistance of his lawyers and had not asked the trial court to appoint another lawyer. 57. On the same day the Leninskiy District Court upheld the interim orders of 7 and 12 February 2003. 58. On 27 January 2004 the Smolensk Regional Court, in the final instance, upheld the judgments of 12 February and 21 November 2003 and the interim orders of 7 and 12 February 2003. The applicant and two of his lawyers attended the hearing. 59. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”). 60. “Preventive measures” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 89 of the old CCrP, Article 98 of the new CCrP). 61. The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor, supported by appropriate evidence (Article 108 §§ 1, 3-6). 62. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial, obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP). 63. Before 14 March 2001, remand in custody was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment, if they had previously defaulted, had no permanent residence in Russia or their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available. 64. The Codes make a distinction between two types of remand in custody, the first being “during investigation”, that is, while a competent agency – the police or a prosecutor's office – is investigating the case, and the second being “before the court” (or “during judicial proceedings”), at the judicial stage. Although there is no difference in practice between them (the detainee is held in the same detention facility), the calculation of the time-limits is different. 65. After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months but this can be extended for up to eighteen months in “exceptional circumstances”. Under the old CCrP, extensions were authorised by prosecutors of ascending hierarchical levels, but they must now be authorised by judicial decisions, taken by courts of ascending levels (under the new CCrP). No extension of detention “during investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 66. The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 67. Access to the materials in the file is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, at the request of a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months. 68. Under the old CCrP, the trial court was entitled to refer the case back for “additional investigation” if it found procedural defects that could not be remedied at the trial. In such cases the defendant's detention was again classified as “during investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “during investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month, starting from the date on which he or she received the case. Subsequent extensions could only be granted if the detention “during investigation” had not exceeded eighteen months (Article 97). 69. From the date the prosecutor refers the case to the trial court, the defendant's detention is classified as “before the court” (or “during judicial proceedings”). 70. Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences. 71. The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court received the file up to the date on which judgment is given. The period of detention “during judicial proceedings” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 72. Under the old CCrP, the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances, if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1). An appeal to a higher court lay against the judge's decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (Article 331 in fine). 73. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10). 74. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should be held in custody or released pending the trial hearings (Article 222 § 5 and Article 230 of the old CCrP, Article 228 (3) and Article 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). 75. At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including remand in custody (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 261 of the old CCrP, Article 256 of the new CCrP). 76. An appeal against such a decision lies to a higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP). 77. Under the old CCrP, within fourteen days after receipt of the case file (if the defendant was in custody), the judge was required to do one of the following: (1) to fix the trial date; (2) to refer the case back for further investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing; or (3) to fix a trial date (Article 227). In this last case, the trial proceedings must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing. 78. The duration of the entire trial proceedings is not limited in time. 79. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days after it was lodged. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this period could be extended by up to two months (Article 333). No further extensions were possible. The new CCrP requires the appeal court to start examining an appeal no later than one month after it is lodged (Article 374). 80. Article 51 of the new CCrP, in so far as relevant, reads as follows: “1. Participation of legal counsel in the 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 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 at the request, or with the consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.” 81. Article 52 of the Code provides that a suspect or an accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may be accepted only if made on the initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. The refusal of legal assistance may not strip the suspect or accused of the right to ask to be assisted by counsel during further procedural actions in the criminal case. The admission of a lawyer may not lead to the repetition of procedural actions which have already been performed by that time. 82. The presence of a defendant at the trial is mandatory unless, in a case which does not concern a grave criminal offence, the defendant petitions the court for the case to be examined in his absence (Article 247 §§ 1 and 4 of the new CCrP). 83. Chapters 43-45 of the new CCrP regulate procedure for lodging and examining appeals against judgments taken by justices of the peace. In particular, Article 365 of the Code establishes that a district court, when examining an appeal against a judgment taken by a justice of the peace, should conduct a judicial investigation which includes examination of the parties' submissions and evidence, including the hearing of witnesses, experts, and so on. The district court may, at the parties' request, hear new witnesses, authorise an expert examination, and collect material evidence and documents, even if the justice of the peace previously refused to perform those procedural actions. The district court may not dismiss a party's request pertaining to examination of new evidence on the ground that such a request was also dismissed by the justice of the peace.