Lexploria

THIRD SECTION

DECISION

Application no. 67772/10 Natalya Leonidovna SESLER against Russia

The European Court of Human Rights (Third Section), sitting on 1 September 2020 as a Chamber composed of:

Georgios A. Serghides, President, Helen Keller, Dmitry Dedov , María Elósegui , Erik Wennerström , Lorraine Schembri Orland, Ana Maria Guerra Martins, judges, and Milan Blaško , Section Registrar ,

Having regard to the above application lodged on 13 October 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Natalya Leonidovna Sesler , is a Russian national who was born in 1969 and lives in Krasnoyarsk. By a letter of 9 January 2019 the applicant informed the Court that she had changed her last name to Vitte . The Court advised the parties on 8 January 2020 that it would continue processing the application under the case name of Sesler v. Russia . This corresponded to the applicant ’ s name as referred to in the domestic court proceedings in issue and in her application lodged with the Court.

2 . The Russian Government (“the Government”) were represented by Mr M. Galperin , Representative of the Russian Federation to the European Court of Human Rights.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 16 April 2009 a senior investigator instituted criminal proceedings against the applicant on charges of abuse of power. The applicant, a bailiff at the relevant time, was suspected of having forged signatures on documents in two execution files. According to the bill of indictment, the applicant had closed the execution proceedings in the relevant cases, relying on her affidavits, which stated that it had been impossible to establish the debtors ’ whereabouts or to locate their assets. Pursuant to the applicable legislation, such affidavits were to be made in the presence of witnesses and to bear their signatures. The investigator established that the witnesses S. and I. had not taken part in the proceedings conducted by the applicant to locate the debtors and/or their assets and that they had not signed those affidavits. The signatures were made by an unidentified person(s).

5 . On an unspecified date the applicant retained Sm. to represent her as counsel.

6 . On 15 February 2010 the Zheleznogorskiy Town Court of the Krasnoyarsk Region found the applicant guilty as charged and sentenced her to a fine. The court relied, inter alia , on the statements made by S. and by I. ’ s widow, as well as on forensic reports which confirmed that the signatures in the affidavits had not been made by either S. or I.

7 . The applicant appealed, maintaining her innocence. She argued that the trial court had failed to prove beyond reasonable doubt that she had been responsible for having forged the witnesses ’ signatures.

8 . On 31 March 2010 the Town Court informed Sm. that the appeal hearing in the applicant ’ s case was scheduled for 15 April 2010.

9 . On 14 April 2010 the secretary of the Krasnoyarsk Regional Court contacted Sm. by telephone as regards the appeal hearing scheduled for the following day. In response, Sm. informed her that he was away on a business trip and that he would not be able to attend.

10 . On the same day, a local bar association selected A. to represent the applicant as counsel before the appellate court. According to A. ’ s affidavit, she had studied the entirety of the applicant ’ s case file and was sufficiently prepared for the hearing.

11 . On 15 April 2010 the Krasnoyarsk Regional Court examined the applicant ’ s case. The court considered that the applicant had failed to retain a lawyer of her own choosing and appointed A. to represent her in the appeal proceedings, relying on A. ’ s affidavit that she had studied the applicant ’ s case file and prepared for the hearing. The applicant stated that she had retained Sm. to represent her and asked for an adjournment. She objected to the appointment of A. as her representative. The court dismissed the applicant ’ s objection, noting that Sm. had failed to substantiate his assertion that he was away on a business trip. Relying on the fact that Sm. had been absent from a number of hearings during the trial without a valid reason and construing such conduct as disrespectful to the parties to the proceedings, it decided to proceed with the hearing. The court took a recess of twenty-five minutes so that the applicant could meet A. and discuss the case, after which the hearing resumed. Having heard the parties to the proceedings, the court upheld the applicant ’ s conviction on appeal.

12 . The Constitution of the Russian Federation guarantees a defendant in criminal proceedings the right to qualified legal assistance (Article 48 of the Constitution of the Russian Federation) and to a determination of the criminal charge against him (her) in accordance with the principles of adversarial proceedings and equality of arms (Article 123 of the Constitution of the Russian Federation).

13 . A defendant may retain counsel of his or her own choosing or, if requested by the defendant, counsel may be appointed by the investigator or the court (Article 50 of the Code of Criminal Procedure of the Russian Federation (the “CCP”). The court must adjourn the hearing if counsel retained by the defendant fails to appear and his or her replacement is not possible. If counsel is replaced, the court is to ensure that newly appointed counsel has time to study the case-file and to prepare for the hearing (Article 248 of the CCP).

COMPLAINT

14 . The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the appellate court had proceeded with the examination of her case in the absence of the lawyer she had retained to represent her.

THE LAW

15 . The applicant complained that she had been deprived of access to effective legal assistance, in contravention of Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which read as follows:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... .

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) 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 [.]”

16 . The Government discerned no violation of the applicant ’ s rights as alleged. In their view, the domestic courts had promptly notified the lawyers representing the applicant during the trial of the date and time of the appeal hearing. After Sm. had informed the appellate court that he would not be able to attend the hearing, the court had taken measures necessary to ensure that the applicant was effectively represented in the appeal proceedings. The applicant ’ s case had been assigned to A. She had studied the case file and discussed the case with the applicant. The applicant had not argued before the appellate court that the State-appointed lawyer had not been familiar with the matter or that the time allotted for their meeting had been insufficient.

17 . The applicant maintained her complaint. She submitted that her State ‑ appointed counsel had not been prepared for the hearing. She had had only one day in which to study the voluminous case file which comprised four volumes, each containing 250 pages. Nor had a twenty-five minute meeting with A. been sufficient for the preparation of her defence. As a result, the defence conducted by A. had been ineffective. A. had not made any applications and had pleaded the case on the basis of the arguments set out in the statement of appeal prepared by another lawyer. The appellate court should have adjourned the hearing to allow the applicant to retain a lawyer of her own choosing or to give more time for the applicant ’ s meeting with her State-appointed counsel .

18 . The Court reiterates at the outset that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol v. France , 23 November 1993, § 34, Series A no. 277 ‑ A). It is of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal (see Lala v. the Netherlands , 22 September 1994, § 33, Series A no. 297 ‑ A, and Pelladoah v. the Netherlands , 22 September 1994, § 40, Series A no. 297 ‑ B).

19 . The national authorities must have regard to the defendant ’ s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice . Where such grounds are lacking, the Court ’ s task will be to assess whether, in the light of the proceedings as a whole, the rights of the defence have been “adversely affected” to such an extent as to undermine their overall fairness (see Dvorski v. Croatia [GC], no. 25703/11, §§ 79 and 81 , with further references, ECHR 2015).

20 . The Court also reiterates that the rights guaranteed by Article 6 § 3 are not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole. Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident (see Beuze v. Belgium [GC], no. 71409/10, §§ 121-22, with further references , 9 November 2018 ).

21 . Having examined the parties ’ submissions in the light of the principles cited above , the Court considers that it has not been shown that the applicant ’ s defence rights have been irretrievably prejudiced or that the right to a fair trial has been adversely affected. In its view, the national judicial authorities took all the necessary steps to ensure that the applicant was adequately defended on appeal and that the criminal proceedings in her case were in compliance with the requirements set forth in Article 6 of the Convention.

22 . The Court bases the above finding on the following facts. Firstly, the Court accepts that there were sufficient and relevant grounds for the national judicial authorities to override the applicant ’ s wish as to her choice of legal representation. The decision to appoint a council to represent the applicant before the appellate court was prompted by the conduct on the part of the lawyer retained by the applicant, who failed to inform promptly either the applicant or the appellate court about his inability to represent the applicant before the appellate court. Once the national judicial authorities became aware that counsel Sm. would not be attending the appeal hearing, they ensured that another lawyer was nominated to represent the applicant. State-appointed counsel A. studied the case file and discussed the matter with the applicant. Admittedly, in view of the time constraints, evidently caused by slackness on the part of the applicant ’ s lawyer of her own choosing, A. had only had one day in which to study the case file. Nevertheless, taking into account that the applicant ’ s case was not particularly complex, the Court accepts that the State-appointed counsel was prepared for the hearing and was able to conduct an effective defence of the applicant before the appellate court. This was also confirmed by A. ’ s affidavit, relied upon by the appellate court. The Court accordingly dismisses the applicant ’ s argument that the amount of time in question was not sufficient to ensure adequate knowledge of the matter. In its view, the alleged failure of the counsel to prepare for the appeal hearing, if any, was not manifest or obvious to the appellate court. Had the applicant considered that A. was not prepared for the hearing, it was incumbent on her to bring such concerns to the attention of the court after the recess.

23 . In such circumstances, the Court accepts that the national judicial authorities ’ decision to proceed with the examination of the applicant ’ s case and to replace the lawyer retained by the applicant was based on relevant and sufficient grounds, and did not infringe her right to effective legal assistance or undermine the fairness of the proceedings as a whole. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 24 September 2020 .

Milan Blaško Georgios A. Serghides Registrar President

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SESLER v. RUSSIA

SESLER v. RUSSIA

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