CASE OF EDUARD ROZHKOV v. RUSSIA
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)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1969 and lives in Krasnodar. 6. On 26 January 2004 the applicant was charged with murder. He was assisted by legal counsel and pleaded guilty to a lesser charge of manslaughter. On 5 August 2004 the Novokubansk District Court of Krasnodar Region convicted the applicant as charged and sentenced him to ten years’ imprisonment. 7. On 14 August 2004 the applicant and his counsel submitted their statements of appeal in which they requested the appeal court to reclassify the offence as manslaughter and challenged the findings of fact made by the trial court. 8. On 15 September 2004 the appeal hearing was adjourned as the applicant and his lawyer had not been notified of the appeal hearing fourteen days in advance. 9. The Government produced a typed summons issued by the Krasnodar Regional Court on 22 September 2004, by which the applicant and his counsel were to be informed of the appeal hearing scheduled for 6 October 2004. According to the Government, a copy of this summons was sent to the lawyer’s address. 10. On 6 October 2004 the Krasnodar Regional Court upheld the judgment of 5 August 2004. A representative of the prosecution and the applicant, but not his counsel, attended the appeal hearing. 11. The Code of Criminal Procedure of the Russian Federation, in force from 1 July 2002, provides as follows: “1. participation of a defence counsel in criminal proceedings shall be mandatory, if: 1) a suspect or accused has not waived defence counsel as per Article 52 of this Code ... 3. If, in the instances specified in paragraph 1 of this Article, no defence counsel has been retained by the suspect or defendant, his representative, or by other persons acting on instructions from or subject to the consent of the suspect or accused, the inquiry officer, investigator, prosecutor, or court shall ensure participation of defence counsel in the criminal proceedings.” “1. A suspect or defendant shall have the right to waive a defence counsel at any moment of the proceedings in the criminal case. Such waiver shall be permitted only upon the initiative of the suspect or defendant. A waiver of defence counsel shall be filed in writing and be entered into the record of the relevant procedural action ...” 12. 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 shall not be applicable in appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.” 13. 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 the courts to secure the participation of defence counsel in appeal proceedings.