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Могут ли акты правосудия быть источниками административного права? (1)
ЕСПЧ В 2014 ГОДУ РАССМОТРИТ ДЕЛО О ПРИНУЖДЕНИИ МИНЮСТОМ РАCКРЫТЬ ПЕРСОНАЛЬНЫЕ ДАННЫЕ ЧЛЕНОВ НКО (1)
European Court of Human Rights 5 April 2013 Memorandum from the Applicant Application No. 46998/08 Mikhailova v Russia 1. Under cover of a letter dated 5 February 2013, the First Section of the European Court of Human Rights (hereafter "the Court") provided to the Applicant a copy of the Russian Government's observations on the above application, and invited the Applicant to submit written observations in reply by 9 April 2013. This Memorandum constitutes those observations. 2. The Applicant has no comment to make regarding the national legal provisions and factual background set out in the Government's observations, so will proceed to address the Government's answers to the questions posed by the Court. Questions to the Parties 3. The questions addressed in the Government's observations are as follows: 1. Does the present case fall within the scope of Article 35 S: 3 (b) of the Convention? In particular, did the applicant suffer any "significant disadvantage"? 2. (a) Was Article 6 of the Convention applicable to the domestic proceedings in the present case? Was it applicable, under its criminal or civil limb, to the case under Article 19.3 of the Code of Administrative Offences (CAO)? As regards the case under Article 20.2 of the CAO: - Was Article 6 of the Convention applicable under its civil limb (see, for comparison, Lutz v. Germany, 25 August 1987, S:S: 51-57, Series A no. 123; Malige v. France, 23 September 1998, S:S: 31-40, Reports of Judgments and Decisions 1998-VII; Schmautzer v. Austria, 23 October 1995, S:S: 26-28, Series A no. 328-A; and Nilsson v. Sweden (dec.), no. 73661/01, 13 December 2005)? - Does it matter that non-payment of a fine imposed in a case under Article 20.2 may entail conviction and detention under Article 20.25 (see, for comparison, Weber v. Switzerland, no. 11034/84, S: 34, 22 May 1990 see Ravnsborg v. Sweden, no. 14220/88, S: 35, 23 March 1994; and Schmautzer v. Austria, no. 15523/89, S: 28, 23 October 1995)? (b) If Article 6 of the Convention was applicable, was the applicant afforded an adequate opportunity to defend herself in person? Was she afforded an opportunity to receive legal assistance before and/or during the trial and/or on appeal before the District Court? Having regard to various relevant factors (for instance, the seriousness of the offences, the severity of the possible sentences, the complexity of the cases and the personal situation of the accused), did the interests of justice require that legal assistance be provided free of charge? If yes, was there a violation of Article 6 of the Convention (cf. Pakelli v. Germany, 25 April 1983, S: 31, Series A no. 64; Benham v. the United Kingdom, 10 June 1996, S: 61, Reports of Judgments and Decisions 1996-III), and Gutfreund v. France (dec.), no. 45681/99, 25 April 2002)? 4. The Applicant addresses these questions, and the Government's observations on them, in turn, below. Answer to Question 1 5. As appears to be accepted by the Government, the effect of Article 35 S: 3 (b) of the Convention is that: (1) the Court may declare inadmissible any individual application where the applicant has suffered no significant disadvantage; however (2) the Court may not declare such an application inadmissible where respect for human rights requires an examination of the application on the merits; and (3) no case may be rejected under this criterion which has not been duly considered by a domestic authority. 6. The Applicant therefore needs only to satisfy the Court under any one of the three criteria for the Application to be declared admissible (see Finger v. Bulgaria, No. 37346/05, 10 May 2011; and Flisar v. Slovenia, No. 3127/09, 29 September 2011). (1) Has the Applicant suffered a "significant disadvantage"? 7. The Government rightly accepts that both objective and subjective factors are relevant. Disadvantage is hard to measure objectively, so it is unsurprising that one of the factors looked at in the Court's case law is the financial impact of the violation alleged by the applicant. However, it is clear from the precedent of the Court that financial impact is not necessarily determinative of the significance of the disadvantage for the purposes of admissibility. Other (non-financial) repercussions on the applicant's personal life must also be taken into account: "...a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interest" (Korolev v. Russia (dec.), No. 25552/05, 1 July 2010). 8. Moreover, provided the belief of the applicant is objectively reasonable this may be an important factor in the assessment of "significant disadvantage": "...applicant's own subjective feeling about the impact of the alleged violation has to be justifiable on objective grounds." (Rinck v. France (dec.), No. 18774/09, 19 October 2009) 9. In the present case, the Government argues that the Application is not in any way relevant to the fine imposed on the Applicant and that, in any event, the amount of the fine imposed on the Applicant is insignificant. The Applicant refutes these points. 10. As to the first point, the Government's reliance on Zwinkels v the Netherlands to argue that the Application is not relevant to the sanction imposed on the Applicant is ill-founded. In that case, the applicant's complaint concerned an alleged breach of Article 8 of the Convention as a result of inspectors entering the applicant's garage without his permission. That complaint was, as the Court found, not related to the imposition of a fine on the applicant for employing foreign nationals without a work permit. Those facts are far from the circumstances of the present case, where the alleged breaches are of Article 6 of the Convention and concern whether the Applicant had a fair hearing. The convictions which resulted from that trial are clearly related to the alleged violations of Convention rights. The Zwinkels case is simply not relevant here. 11. As to the second point, the total amount of the fines imposed on the Applicant in 2007 was 1,000 RUB. That accounts for 25% of the Applicant's monthly pension in 2007 which, it is submitted, is a large enough proportion to have a significant impact upon her. 12. Further guidance on whether a fine of this size would meet the "significance" criterion can be taken from a similar case in which the applicants were fined the same amount (1,000 RUB) in 2005 as a result of their participation in a demonstration in Russia (Berladir and Others v. Russia, No. 34202/06, 10 July 2012). In Berladir, the Government submitted that the amount was neither significant nor disproportionate, but otherwise failed to state why it considered that the applicants had suffered no significant disadvantage, and made no submissions in relation to the safeguard clauses. The Court held that: "...Noting the nature of the issues raised in the present case, which also arguably concerns an important matter of principle, as well as the scope of the limitations, the Court does not find it appropriate to dismiss the present application with reference to Article 35 S: 3 (b) of the Convention." 13. Plainly, in absolute terms, the low financial sum was not sufficient by itself to render the application in that case inadmissible. The same should apply here. 14. Further, there are other non-financial factors which are of significance to the Applicant in ways which are objectively justified within the meaning of Rinck. The administrative convictions have had a chilling effect on the Applicant who has now stopped attending mass actions (i.e. the Applicant has, as a direct consequence of the convictions, felt unable to exercise her right to freedom of expression and right of freedom of assembly). Thus, contrary to the observations of the Government, the convictions have had a very significant negative impact on the Applicant's position. 15. Therefore, it is submitted that the Applicant has demonstrably suffered a "significant disadvantage" within the meaning of the Convention as applied by the Court. (2) Does respect for human rights require an examination of the Application on the merits? 16. The Court has consistently interpreted this provision as compelling it to continue the examination of a case when it may raise questions of a general character affecting the observance of the Convention. Such questions of a general character would arise, for example, where there is a need to clarify a State's obligations under the Convention or to induce the State to resolve a structural deficiency affecting other persons in the same position as the applicant (see Korolev v. Russia (dec.), Id.). 17. Some circumstances where this safeguard has been held to apply are as follows: (1) where there is a potential systemic problem in the national system (Finger v. Bulgaria, Id.); and (2) where a decision of principle on the issue in question was needed (Nicoleta Gheorghe v Romania, No. 23470/05, 3 April 2012). 18. The Application already sets out in some detail why it is argued that the process against the Applicant was a criminal one as opposed to an administrative one. The Government argues the opposite in its observations, but seemingly only bases its argument upon the national law terminology, i.e. it is designated `administrative' in national law, so that means it must be `administrative'. If, as is submitted, the Applicant is correct on this point, the serious defects identified in the fairness of that process in terms of a failure to provide free legal representation mean that the Applicant's case evinces a structural deficiency likely to affect other individuals in the same position as the Applicant. 19. The Applicant's case is, by its nature, one which concerns clarification of the extent of Russia's obligations under the Convention. It is submitted that the Article 6 issues raised are important ones of principle which have the potential to clarify Russia's Convention obligations and to have a significant impact on all individuals subject to the jurisdiction of the Russian courts. The issue in question relates to a systemic failing: Russia's treatment of proceedings which are properly classified as criminal proceedings as administrative proceedings in its domestic laws. Regardless of the extent of the direct financial disadvantage imposed on the Applicant, the case should be examined on its merits. 20. An additional feature of the present case which supports the argument that this is one which requires examination on the merits is the political context of the criminal process brought against the Applicant. She was detained by a police officer and subsequently sanctioned because of attempted participation in an opposition demonstration. The ability of Russia to use force, in the form of criminal sanctions (thinly disguised as administrative sanctions) to prevent the exercise of democratic freedoms of expression and assembly (rights protected by Articles 10 and 11 of the Convention respectively) is, it is submitted, a matter of significant wider public interest and of direct relevance to a great many individuals other than the Applicant. 21. Also of importance are developments since the Applicant's administrative conviction. On 8 June 2012, the maximum fine applicable to the Article 20.2 CAO offence for which the Applicant was held liable was increased from 1,000 RUB to 20,000 RUB (i.e. a twenty-fold increase). However, Russia still classifies the offence as administrative and provides no free legal assistance. So, individuals who now find themselves in the exact same situation as the Applicant found herself continue to be disadvantaged by Russia's breaches of the Convention and, in fact, the direct financial disadvantage to such people is potentially much greater. Were the maximum fine to be imposed on the Applicant today, it would constitute five times her monthly pension. 22. There has been recent academic comment on the current trend in Russia for offences which should properly be classified as criminal to be reclassified by legislators as administrative (see the comments of Professor Leonid Golovko, acting department head of the criminal process, justice and prosecutorial supervision of the Law Faculty of Moscow State University and a member of the International Association of Penal Law, at http://www.kommersant.ru/doc/2130874 (reproduced as Attachment 1)). People accused of committing such "administrative" offences will find themselves subject to the same disadvantages as the Applicant was in this case. 23. Accordingly, respect for human rights should require an examination of the present application on the merits. (3) Was the Applicant's case properly heard in the domestic Courts? 24. The circumstances of the case have already been set out in detail in the Application and in the Court's Statement of Facts. For present purposes it is necessary to highlight that: (1) The Applicant sought free legal assistance in the proceedings before the Justice of the Peace but her request was rejected as not being prescribed by domestic law; (2) The Applicant again sought free legal assistance in the proceedings before the District Court but her request was rejected as not being prescribed by domestic law; (3) The District Court also rejected the Applicant's appeal based on the procedural irregularity (failure to provide free legal assistance) before the Justice of the Peace, but the appeal was rejected without the Applicant's Convention arguments being addressed in the court's decision; (4) The Deputy Chief Justice of Saint-Petersburg City Court refused to allow an extraordinary appeal on the basis that free legal representation was not prescribed by domestic law, with the decision ignoring the Applicant's Convention arguments; (5) The Deputy Chief Justice of the Supreme Court of the Russian Federation refused to allow an extraordinary appeal, with the decision ignoring the Applicant's Convention arguments. 25. Even from this short summary, it is quite clear that the failure of the first-instance court to address the Applicant's Convention arguments (relying instead on whether free legal representation was prescribed under national law) has been compounded by the failure of the upper tribunals to address the Applicant's Convention arguments in their decisions. 26. The question of admissibility is closely related to the substance of the complaint. There are clear parallels with the case of Fomin v Moldova, No. 36755/06, 11 October 2011. That case, like (in this aspect) the present case, concerned an alleged failure by the national courts to give sufficient reasons. Whilst, in the present case, the Applicant made submissions on Convention arguments in adversarial proceedings, the domestic courts failed to deal in any manner with the Applicant's arguments in their decisions. Where a court finds an argument irrelevant it should set out why in its decision. That has not been done in the present case, at any level, which gives rise to a strong inference that the courts have consciously chosen to ignore the Applicant's valid Convention arguments and/or that the Applicant's Convention arguments were not within the scope of the examination conducted by those courts. It is submitted that this gives rise to a violation of Article 6 S: 1 (see further the arguments set out in the Application). 27. The Government relies upon the fact that, when rejecting the Applicant's requests for free legal assistance, both the Justice of the Peace and the District Court noted that, in her applications, the Applicant raised Convention/international law rights. However, simply noting that the Applicant had raised such issues does not mean that the court has properly heard those arguments. As the Government appears to accept, the courts failed to give the Applicant's Convention arguments any consideration, as the courts ruled that provision of free legal assistance was not prescribed by domestic law. 28. Accordingly, the issue which is the subject of this Application (i.e. whether Russian domestic law should provide free legal representation in cases of the kind brought against the Applicant by the Russian Government in order to comply with the Convention) has not been heard by a domestic tribunal. Conclusion on Question 1 29. As set out above, the Court should not declare this Application inadmissible as: (1) the Applicant has suffered a significant disadvantage; (2) in any event, respect for human rights requires an examination of the Application on the merits; and (3) in any event, the Applicant's case has not been duly considered by a domestic tribunal 30. Further, or in the alternative, the admissibility of the case should be considered at the same time as the merits (as was done in Fomin, Id.). Answer to Question 2(a) 31. As the Government recognises, the Applicant's case under Article 6 is contingent upon a finding that the offences with which she was charged should be classified as "criminal charges" under the Convention. 32. The Court's case law has established a methodology for assessing whether a particular charge can be classified as "criminal" (see Engel v. the Netherlands, No. 5100-5102/71, 5354/72 and 5370/72, 8 June 1976; Ravnsborg v. Sweden, No. 14220/88, 23 March 1994; Benham v. the United Kingdom, No. 19380/92, 10 June 1996; Weber v. Switzerland, No. 11034/84, 22 May 1990; Putz v. Austria, No. 18892/91, 22 February 1996; Schmautzer v Austria, No. 15523/89, 23 October 1995; T v. Austria, No. 27783/95, 14 November 2000). 33. First, the Court will treat the charge as "criminal" if the national law of the Contracting States defines the charge as such. In the present case, Russia classifies the offences under Articles 19.3 and 20.2 of the CAO as "administrative" and not "criminal". 34. Second, if the charge is not defined as "criminal" in national law, the Court will examine the substantive reality of the procedure in question, based on two alternative criteria: (i) the nature of the offence, and/or (ii) the degree of severity of the penalty that the person concerned risks incurring. 35. The Court has clarified that these criteria are not cumulative but alternative. The Court has pointed out that for Article 6 to apply by virtue of the words "criminal charge" it suffices that the offence in question should by its nature be "criminal" from the point of view of the Convention, or should have made the person concerned liable to a sanction which, in its nature and degree of severity, belongs in general to the criminal sphere (Lutz v Germany, No. 9912/82, 25 August 1987). The concept of a "criminal offence" is an autonomous concept and its analysis is not bound by the classification in domestic law (Malige v France, No. 27812/95, 23 September 1998). The Court has also established in numerous cases that the criminal nature of the offence and the severity of the penalty are sufficient to establish that the offence which the applicant is accused of may be classified as criminal for the purposes of the Convention even if not classified as such in domestic law. Each of the following offences have previously been considered as criminal offences by the Court despite their classification in domestic law: (a) road traffic offences punishable by fines or restrictions imposed on a driving licence (Schmautzer, Id.; Malige, Id.; Lutz, Id.), (b) tax surcharge proceedings (Bendenoun v France, No. 12547/86, 24 February 1994; Jussila v Finland, No. 73053/01, 23 November 2006), (c) customs law (Salabiaku v France, No. 10519/83, 7 October 1988), (d) competition law (Societe Stenuit v France, No. 11598/85, 27 February 1992), (e) financial proceedings (Guisset v France, No. 33933/96, 26 September 2000), (f) minor offence of accusing your neighbour of causing a nuisance without justification, punishable with a maximum fine of SKK 3,000 (approx. EUR 90) and with an imposed fine of EUR 9 (Lauko v Slovakia, No. 26138/95, 2 September 1998). 36. Moreover, in certain circumstances, the nature and degree of severity of the penalty alone, may bring the matter into the criminal sphere (Ravnsborg, Id.). (1) The nature of the offences for which the Applicant was convicted 37. In evaluating whether the offences under Article 19.3 and Article 20.2 of the CAO would be considered as "criminal" based on the nature of the offence, according to established case law, it is submitted that the Court needs to take into account the following factors: (a) The general character of the provision. This is whether the rule is of general binding character, as opposed to rules addressed exclusively to a specific group, e.g. lawyers, soldiers (see Bendenoun, Id.; Demicoli v Malta, No. 13057/87, 27 August 1991; Ozturk v Germany, No. 8544/79, 21 February 1984). A general legal provision should cover all citizens and not a given group of citizens with a particular status. (b) Whether the body instituting the proceedings is a public body. Sanctions that are not ordered by an administrative authority but that are mandatory according to the relevant statute cannot be described as administrative sanctions (Malige, Id.). (c) The purpose of the penalty. This refers to whether the legal rule has a punitive or deterrent character, as opposed to, for example, a pecuniary compensation for damage (Bendenoun, Id.; Ozturk, Id.). (d) The charge imposed followed conviction for a criminal offence. The Court considers that a measure which had traditionally been regarded as an administrative measure under national law (in Nilsson v Sweden, No. 73661/01, 13 December 2005, the withdrawal of a driving licence to protect road safety) constituted a "criminal" sanction because it was imposed on the ground of a criminal conviction. (e) The procedures involved in the making and implementation of the measure (Malige, Id.). Some administrative offences are dealt with via administrative criminal procedures. This factor helps to determine the very nature of the offence (Schmautzer, Id.). (f) Whether the imposition of a penalty is dependent upon a finding of a guilt (Benham, Id.). (g) Whether the Court can verify how comparable procedures are classified in other Contracting States (Ozturk, Id.). 38. In the present case, all of the following factors point in favour of the offences under Articles 19.3 and 20.2 of the CAO being properly classified as "criminal": (1) The rules are of general binding character. They apply potentially to all Russian citizens and not to a given group with a particular status. In this respect, the present case is very similar to the unanimous judgment in Lauko where the Court analysed the criminal nature of "minor" offences under Slovakian law (in that particular case, the minor offence of unjustified accusation, see above). In Lauko, the Court concluded that the general character of the legal provision together with the deterrent and punitive purpose of the penalty imposed on him, showed that the offence was criminal in nature. (2) The proceedings in this case are instituted by the Russian Justice of the Peace which is a public body with statutory powers (per Article 22 of the CAO). (3) The rules have a punitive and deterrent character. This is supported by the definition of "administrative penalty" under the CAO. Article 3.1 of the CAO defines administrative penalty as "a punitive measure for committing an administrative offence, established by the state". Moreover, several procedural guarantees, in particular the presumption of innocence (Article 1.5 of the CAO), are indicative of the criminal nature of these charges. In this case, Article 19.3 of the CAO was enforced by the Russian authorities to prevent the Applicant's participation in a march. When detained, the Applicant had not yet participated in any march but the police acted on the belief that she was intending to participate in an opposition march. It follows that the enforcement of Article 19.3 CAO against the Applicant had both a punitive character, i.e. punishing her for her intention to participate in a march, and a deterrent character, i.e. deterring her from participation in the march in question and in future marches. See also Lauko above. (4) The imposition of a penalty under Articles 19.3 or 20.2 of the CAO is dependent upon a finding of a guilt. Article 2.1 CAO provides that "a wrongful, guilty action (omission) of a natural person or legal entity which is administratively punishable under this Code or the laws on administrative offences of subjects of the Russian Federation shall be regarded as an administrative offence" (emphasis added). (2) The degree of severity of the penalty that the person concerned risks incurring 39. In general, the Court has found that "deprivations of liberty liable to be imposed as a punishment, except those which, by their nature, duration or manner of execution cannot be appreciably detrimental" belong to the criminal sphere (Engel, Id.). 40. Whether a potential imprisonment is deemed "appreciably detrimental" depends on the circumstances of the case. In Engel, the Court considered that the charges in question were disciplinary by their nature because, among other factors, they were confined to soldiers only. The Court then ruled that a 2-day arrest was too short a duration to be classified as criminal. By contrast, a potential 3 to 4 months committal to a disciplinary unit would belong to the `criminal' sphere. 41. In Weber, the Court ruled that a fine of 500 Swiss francs, convertible to 10 days imprisonment, for breach of confidentiality in a judicial proceeding should be regarded as `criminal'. The rationale being that what was at stake was sufficiently important to warrant classifying the offence with which the applicant was charged as a criminal one under the Convention. 42. The Court has held in some cases that there is no need to examine the nature and degree of severity of the penalty as it considered that the relative lack of seriousness of a penalty at stake cannot divest an offence of its inherently criminal character (Ozturk, Id.). The Court classified as `criminal' a fine imposed by the Maltese House of Representatives on a journalist for breach of privilege and defamation, which was confirmed by the Maltese Constitutional Court (Demicoli, Id.). The maximum level of the fine in this case was 500 Maltese lira or imprisonment of up to 60 days or both. 43. In the present case, the maximum fine that could be imposed was 1,000 RUB or 15 days of administrative arrest for the Article 19.3 CAO offence, and 1,000 RUB for the Article 20.2 CAO offence. A failure to pay a fine imposed under either Article 19.3 or 20.2 CAO could result in imprisonment for up to 15 days. In light of the Engel, Demicoli and Weber judgments described above, it is submitted that the fine imposed on the Applicant, which could also entail imprisonment of several days, is sufficiently severe to make the sanction criminal in nature. The Government's observations 44. Rather than engage with the question posed by the Court, the Government has instead argued that the present case is indistinguishable from Gutfreund v France (dec.), No. 45681/99, 12 June 2003. In that case, the applicant's entire complaint concerned the procedure for applying for legal aid (the applicant alleged bias on the part of the judge who decided his legal aid application). That procedure did not concern the determination of a criminal charge against him, or of his civil rights and obligations, within the meaning of Article 6 S: 1. The legal aid office's decision had no bearing on the decision as to guilt, as the determination of the criminal charge was left to the relevant criminal court. The Court accordingly held unanimously that that provision was inapplicable. Further, the applicant in Gutfreund actually did appoint a lawyer to represent him after legal aid was refused, so the refusal of legal aid could not be said to have had any bearing on his ability to secure legal representation or therefore on the outcome of case (S:35 in the Gutfreund decision of 12 June 2003). 45. In the present case, the complaint is very different, being that the denial of free legal representation in proceedings of a criminal nature prevented the Applicant from being legally represented and therefore infringed the Applicant's Article 6 rights, in particular her right to a fair hearing. The Government's reliance on Gutfreund in this context is misplaced. Answer to Question 2(b) 46. The Court has held that domestic courts must have "regard to the object and purpose of [Article 6 S: 3(c)]", which states a defendant has the right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require (Pakelli v. Germany, No. 8398/78, 25 April 1983). In Pakelli, the Court noted that the object and purpose of the article necessitates that it be read not as a choice between allowing the accused to defend themselves in person or through legal counsel, but that "a `person charged with a criminal offence' who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing." In other words, the accused has the fundamental human right to choose whether they prefer to present their case by themselves or through legal counsel. A tribunal cannot make this decision for the accused. It is submitted that this proposition holds true even if domestic law allows an accused to appear in person to defend themselves. 47. In Pakelli, the Court further held that "it goes without saying that the personal appearance of the appellant would not have compensated for the absence of his lawyer: without the services of a legal practitioner, Mr. Pakelli could not have made a useful contribution to the examination of the legal issues arising ..." 48. In Ezeh and Connors v. The United Kingdom, Nos. 39665/98 and 40086/98, 9 October 2003, the Court reached the same conclusion, holding that an accused was "denied the right to be legally represented in the proceedings before the prison governor" in violation of Article 6 when the "governor excluded the applicants' legal representation." The Convention violation for excluding legal counsel was "irrespective of whether they could have obtained the services of a lawyer free of charge." 49. In Zdravko Stanev v. Bulgaria, No. 32238/04, 6 November 2012, the Court highlighted that even an educated man cannot be deemed prepared to represent himself personally before a tribunal and that the "interests of justice demanded that, in order to receive a fair hearing, the applicant ought to have benefited from free legal representation during the proceedings before the Sliven Regional Court." In the words of the Court: "[A]lthough it is not in dispute that the applicant had a university degree, there is no suggestion that he had any legal training, and while the proceedings were not of the highest level of complexity, the relevant issues included the rules on admissibility of evidence, the rules of procedure, and the meaning of intent. In addition, the Court notes that the applicant was charged with a criminal offence which involved in impugnment of a senior member of the judiciary and which called into question the integrity of the judicial process in Bulgaria. . . . As such, a qualified lawyer would undoubtedly have been in a position to plead the case with greater clarity and to counter more effectively the arguments raised by the prosecution. The fact that the applicant, as an educated man, might have been able to understand the proceedings does not alter the fact that without the services of a legal practitioner he was almost certainly unable to defend himself effectively." (emphasis added) 50. It is submitted that the case law is consistent and clear that the interests of justice and compliance with Article 6 necessitates that an accused in a criminal proceeding who wants legal representation must have access to it, and that an individual cannot be considered to have had an adequate opportunity to defend herself merely because they were present and permitted to speak at a hearing. The Government's observations 51. In the present case, the Government relies upon the fact that (1) the Applicant was able to participate in the proceedings and (2) the proceedings are "simple" (according to the criteria set out in Gutfreund v France, No. 45681/99, 25 April 2002) as showing that the interests of justice did not require that legal assistance be provided free of charge. In both aspects, the reliance is misplaced. 52. It is not correct to describe the proceedings before the Justice of the Peace or District Court as "simple". The court procedure involved the Applicant being called before a judge to give full oral and written submissions. The Applicant was also entitled to call and cross-examine witnesses. The nature of the offences of which the Applicant was accused was criminal. 53. The Applicant is not a lawyer. She was placed in an emotionally charged situation as she faced two charges of a criminal nature with a possible sentence of imprisonment. Although she could physically appear before the judge, submit written and oral statements, and cross-examine witnesses, as an elderly person with no legal background, she could not do this effectively without legal assistance. Although the Applicant was able to find some assistance in formulating written submissions for the hearing, she was however devoid of any effective assistance before the courts because she was unable to afford legal assistance, and was therefore unable to effectively present her argument, cross examine witnesses and function effectively at the hearings. 54. In such a case, it is submitted that it is in the interests of justice to provide an accused with a legal representative who can effectively take care of the legal and emotional burden, can present the accused's case calmly and dispassionately, making use of his/her legal training to focus on making the legally important points required to found a successful defence. 55. Had the Applicant had access to legal assistance, she would arguably have tried to defend her other rights that were violated in this case, including her rights to freedom of expression, to freedom of association and to peaceful assembly (Articles 10 and 11 of the Convention, as have been cited by the applicants in Lashmankin v Russia, No. 57818/09, and 14 other joined applications currently before the Court). Having been deprived of legal assistance, she was not aware that she could claim these rights. Her case was therefore likely to have been conducted differently had she had access to a lawyer. 56. The fact that the Applicant lacked the sufficient means to pay for qualified legal representation herself and that the Russian authorities refused her free legal assistance was therefore a crucial factor affecting the fairness of the trial. This principle of `fairness', which has been recognised by the Court (see McVicar v. the United Kingdom, No. 46311/99, 7 August 2002), should have meant that in this case the Applicant received the assistance of a lawyer. The fact that she did not benefit from any legal assistance was a prejudice which, it is submitted, violated Article 6 of the Convention. The Application is manifestly ill-founded? 57. At the end of its observations, the Government requests that the Court acknowledge that the Application is manifestly ill-founded within the meaning of Article 35 S: 3 (a) of the Convention and so should be dismissed in accordance with Article 35 S: 4. No arguments are put forward in the body of the Government's observations to justify this request and it is hard to imagine what the basis for this request is. 58. The Application is not one which on a preliminary examination of its substance does not disclose any appearance of a violation of the rights guaranteed by the Convention, with the result that it can be declared inadmissible without proceeding to a formal examination on the merits. Indeed, the Court has already completed just such a preliminary examination and raised no question of the Application being manifestly ill-founded in its questions to the parties. 59. Accordingly, the Applicant submits that the Court should dismiss the Government's request under Article 35 S: 3 (a). AND I SUBMIT: 1. Articles 35 S: 3 (a) and (b) of the Convention do not apply to the Application. The Application is admissible. 2. Article 6 of the Convention was applicable to the domestic proceedings in the present case, under the criminal limb. 3. The Applicant was not afforded an adequate opportunity to defend herself in the domestic proceedings and the interests of justice require that she should have been provided with legal assistance free of charge. The failure of Russia to provide such assistance violated the Applicant's right under Article 6 S: 3 (c) of the Convention, and the defect was such that the Applicant's right to a fair hearing under Article 6 S: 1 of the Convention was also violated. CLAIMS FOR JUST SATISFACTION With regard to just satisfaction claims, the Applicant asks for compensation of: 1. RUB 1,000 in respect of pecuniary damage caused by ordering the Applicant to pay fines of RUB 500 under Article 19.3 of the CAO and RUB 500 under Article 20.2 of the CAO; 2. EUR 10,000 in respect of non-pecuniary damage; 3. RUB 5,136 in respect of the costs and expenses incurred by Applicant in order to obtain redress (cost of travel of the representative of the Applicant from Moscow to St. Petersburg to meet with the Applicant in order to discuss the current communication - electronic tickets for 12 March 2013 and 14 March 2013 are at Attachments 2 and 3). ANTON BURKOV List of attachments: 1. Article at http://www.kommersant.ru/doc/2130874. 2. Receipts of paid fines of RUB 500 under Article 19.3 of the CAO and RUB 500 under Article 20.2 of the CAO. 3. Electronic travel ticket dated 12 March 2013. 4. Electronic travel ticket dated 14 March 2013. 5. Mikhailova's bank account details. - 1 -
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