FIFTH SECTION

DECISION

Application no . 27388/05 Anatoliy Yakovlevich LOYKO against Latvia

The European Court of Human Rights ( Fifth Section), sitting on 8 December 2015 as a Chamber composed of:

Angelika Nußberger, President, Khanlar Hajiyev, Erik Møse, André Potocki, Faris Vehabović, Síofra O ’ Leary, Mārtiņš Mits, judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 12 July 2005 ,

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, Mr Anatoliy Yakovlevich Loyko, is a Ukrainian national, who was born in 1948 and lives in Jelgava. He was represented before the Court by Ms R. Matjušina, a lawyer practising in Riga.

2. The Latvian Government (“the Government”) were represented by their Agent at the time, Ms I. Reine.

A. The circumstances of the case

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

1. Investigation

4. Between 7 and 8 October 2004 the applicant and an acquaintance were consuming alcohol together when a fight broke out between them and the acquaintance died. The applicant, still under the influence of alcohol, asked the neighbours to call an ambulance or the police, who arrived at 4.23 a.m. on 8 October 2004. The applicant was placed under administrative arrest and admitted to a sobering-up facility at 5.10 a.m.

5. At noon on the same day the applicant was placed under arrest on suspicion of having committed the offence proscribed by section 125(3) of the Criminal Law ( Krimināllikums ) (see paragraph 34 below) . The record of the arrest stated that the applicant had been sober and also contained his signature to confirm that he did not need a lawyer.

6. Between 12.25 and 12.55 p.m. the police questioned the applicant as a suspect. The record of the interview indicated that the applicant was suspected of the offence under section 125(3) of the Criminal Law for having inflicted severe injury causing death. It further contained the applicant ’ s signature to confirm that he had been informed of the right to ask for a lawyer. He also signed a note made in Russian stating that he wished to give evidence in Russian and that he did not need a lawyer. According to the applicant, this note was written in his handwriting. The applicant declared that the victim had started the fight and that he had acted in self-defence.

7. On 15 October 2004, between 10 and 10.50 a.m., the police visited the crime scene together with the applicant to verify his statements. Between noon and 12.10 p.m. the applicant was questioned. The record of the interview contained his signature to confirm that he had been informed of the right to have a lawyer present. It further stated that the applicant had wished to give evidence in the presence of a lawyer. The same day the applicant was provided with State-appointed lawyer I.C.

8. On 26 October 2004 the police questioned the applicant in the presence of I.C. The applicant gave further details concerning the incident. He confirmed that the victim had started the fight and that he had acted in self-defence .

9. On 27 October 2004 the applicant was charged with murder under section 116 of the Criminal Law. The same day he was questioned as an accused in the presence of I.C. The applicant stated that he was not guilty. He had hit the victim because the latter had attacked him.

10. On 7 December 2004 the applicant again declared, in the presence of I.C., that he was not guilty. He did not wish to add anything to his previous statements. The same day the applicant and I.C. familiarised themselves with the case file. The applicant stated that he had understood its content and did not wish to make any requests or remarks.

2. Trial

(a) First instance

11. On 9 December 2004 the applicant was committed for trial.

12. On 25 January 2005 a hearing was held before the court in Jelgava. I.C. was present. The applicant testified that he had caused the victim ’ s death but it had not been his intention to kill him. The applicant expressed his remorse.

13. According to the transcript of the hearing, I.C. asked two questions, one to the applicant and the other to his former wife. In her closing statement, I.C. stated, inter alia , that the applicant had not started the fight. It had been the victim who had inflicted pain on him and this had prompted him to react. The applicant had been unable to understand the consequences of his actions because of the mental distress he had been caused. Following the incident he had actively sought assistance. The applicant had been the only witness to the incident and any doubts regarding the existence of facts relevant to the case had to be interpreted in his favour.

14. During the first-instance proceedings the applicant raised no complaints as regards his representation by I.C. He stated that no lawyer had been present during the first “investigation”.

15. On 26 January 2005 the first-instance court convicted the applicant of murder under section 116 of the Criminal Law and sentenced him to seven years ’ imprisonment.

(b) Appeal

16. On 31 January 2005 I.C. lodged a one-page appeal against the sentence imposed by the first-instance court. Referring to the circumstances of the incident, she submitted that the applicant had not acted intentionally.

17. On 4 February 2005 the applicant lodged an appeal. He maintained that he had not intended to kill the victim. He raised no complaints as regards his representation by I.C. He stated that there had been several irregularities during the investigation, including the fact that he had not been provided with a lawyer.

18. On 8 February 2005 the court in Jelgava decided not to consider the applicant ’ s appeal on the grounds that he had not made any requests in it.

19. On 14 February 2005 the applicant lodged another appeal. He disagreed with the legal classification given to the facts. He had acted in self-defence and had not intended to kill the victim. He supported the appeal lodged by I.C. and requested that a more lenient judgment be rendered.

20. On 16 February 2005 another lawyer, I.D., undertook to represent the applicant in the criminal proceedings.

21. On 12 April 2005 an appeal hearing was held before the Zemgale Regional Court ( Zemgales apgabaltiesa ). I.D. was present. The applicant maintained that he had not intended to kill the victim. I.D. stated, inter alia , that the first-instance court had failed to consider all the mitigating circumstances, namely, the fact that the victim had started the fight and had been the first to hit the applicant. The incident had been brought about by the victim ’ s own actions. Referring to the other circumstances of the case, I.D. requested that the Regional Court impose a more lenient sentence on the applicant.

22. During the appeal proceedings the applicant raised no complaints as regards his representation by I.D. or I.C.

23. Following the appeal hearing, on 12 April 2005 the Regional Court dismissed the appeals by the applicant and his lawyer and upheld the lower court ’ s judgment.

(c) Appeal on points of law

24. On 27 April 2005 the applicant lodged an appeal on points of law against the aforementioned judgment. He disagreed with the legal classification given to the facts and argued that he had not intended to kill the victim. The applicant raised no complaints as regards his legal assistance or his representation by I.D. or I.C.

25. On 2 May 2005 the Regional Court decided not to consider the applicant ’ s appeal on the grounds that he had failed to substantiate it.

26. The same day the applicant supplemented his appeal on points of law. He disagreed with the legal classification given to the facts. He maintained that he had acted in self-defence and had not intended to kill the victim. He complained that initially he had been suspected of having inflicted severe injury resulting in death but subsequently had been charged with murder. When the offence had been reclassified I.C. had “sat and remained silent”.

27. By a final decision of 31 May 2005 the Criminal Cases Division of the Senate of the Supreme Court ( Augstākās tiesas Senāta Krimināllietu departaments ) refused to examine the applicant ’ s appeal on points of law.

3. Complaints regarding legal assistance

28. On 27 July 2005 the applicant filed a complaint with the Latvian Bar Association regarding the quality of legal services provided by the first State-appointed lawyer during the preliminary investigation and the proceedings at first instance.

29. On 1 August 2005 the Bar Association replied that I.C. had acted in accordance with domestic law. It could be seen from the case material that she had defended the applicant ’ s interests.

30. On 30 October 2008 the applicant lodged a complaint with the Ombudsperson ( Tiesībsargs ). He stated that his right to a fair trial had been breached because he had not received legal assistance during the preliminary investigation.

31. On 13 January 2009 the Ombudsperson replied that the applicant ’ s right to a fair trial had not been breached. Following the preliminary investigation, I.C. had been requested to assist the applicant, followed later by I.D. According to the transcript of the hearings, both lawyers had defended the applicant.

32. Upon a further complaint by the applicant, on 14 January 2009 the Bar Association replied that I.C. had attended all the procedural activities to which she had been asked. She had lodged an appeal against the first ‑ instance judgment. The applicant had not complained about her services or requested another lawyer during the preliminary investigation or the first-instance proceedings.

B. Relevant domestic law

33 . The relevant provision of the former Code of Criminal Procedure (in force until 1 October 2005) provided as follows:

Article 98 – Mandatory defence

“T he defendant must have defence counsel during the first-instance proceedings :

...

3) in cases involving persons ( lietās par personām ) who do not understand the language of the proceedings.

...

In the [aforementioned] cases of mandatory defence the defendant must also have defence counsel during the preliminary investigation...

In cases of mandatory defence, if the suspect [or] accused ... does not engage defence counsel and no one engages defence counsel on his or her behalf, an investigator, a prosecutor or a court shall ensure the participation of defence counsel in the proceedings. ”

Under Article 99 the suspect and the accused had the right to refuse defence counsel on his or her own initiative.

34. Under section 125(3) of the Criminal Law infliction of severe injury which caused death by negligence was punishable by imprisonment for a term of three to fifteen years with or without police control for up to three years. Under section 116 of the Law murder was punishable by imprisonment for a term of five to fifteen years with or without police control for up to three years .

COMPLAINTS

35. The applicant complained that he had had neither access to a lawyer nor effective and practical legal assistance during the preliminary investigation and the first-instance proceedings. He relied on Article 2 § 2 (a) and Articles 6 and 7 of the Convention .

THE LAW

A. Alleged violation of Article 6 §§ 1 and 3 (c) of the Convention

36. Relying on Article 2 § 2 (a) and Articles 6 and 7 of the Convention, the applicant complained of his lack of access to a lawyer and the lack of effective and practical legal assistance during the preliminary investigation and the first-instance proceedings. The Court finds that these complaints fall to be examined under Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads as follows :

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

...

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;

...”

1. The parties ’ submissions

37. The Government argued that the applicant ’ s complaints were inadmissible for non-exhaustion of domestic remedies, as he had failed to pursue them before the domestic courts. Furthermore, they were manifestly ill-founded. The records of the applicant ’ s arrest and interview of 8 October 2004 contained his signature to confirm that he did not need a lawyer. When on 15 October 2004 he had refused to give evidence in the absence of a lawyer, he had been provided with State-appointed lawyer I.C., who had then participated in all the procedural actions and the first-instance proceedings and had lodged an appeal against the first-instance judgment. There had been no manifest failure by I.C. to provide the applicant with effective representation. It had been open to the applicant to request that the domestic authorities engage another lawyer.

38. The applicant submitted that there were no remedies to be exhausted in respect of his complaints. Under Article 98 of the former Code of Criminal Procedure, the domestic authorities should have provided him with a lawyer as he did not understand Latvian. The record of his arrest had been drawn up in Latvian. In addition, his ability to understand his actions had been significantly impaired, as at the time of his arrest he had been heavily intoxicated. Furthermore, I.C. had performed her duties in a purely formal manner and had remained passive. She had had no defence strategy, nor had she made any requests, submitted any evidence, or set out any mitigating circumstances.

2. The Court ’ s assessment

(a) Legal assistance

39. In respect of the States Parties ’ responsibility under the Convention, the Court reiterates that given the independence of the legal profession from the State, the conduct of a case is essentially a matter between the defendant and his or her counsel – whether counsel is appointed under a legal-aid scheme or is privately financed – and, as such, cannot, other than in special circumstances, incur the State ’ s liability under the Convention. The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective representation is manifest or is sufficiently brought to their attention in some other way. It will depend on the circumstances of the case whether the relevant authorities should take action. Assigning counsel to represent a party to the proceedings does not in itself ensure the effectiveness of the assistance (see Andreyev v. Estonia , no. 48132/07 , § 65, 22 November 2011, with further case-law references ).

40. In the case at hand, there is no information in the case file that the applicant raised any complaints regarding I.C. at the time of the events, or that he sought her replacement. On the contrary, he supported the appeal lodged by her (see paragraph 19 above). There was no sign during the preliminary investigation or the first-instance or appeal proceedings that the applicant was not in agreement with the way I.C. was conducting his defence. In these circumstances, the Court is unable to accept that the applicant had sufficiently brought the alleged failure by I.C. to provide effective representation to the attention of the domestic authorities by merely stating at last instance – namely, in his appeal on points of law – that when the offence had been reclassified I.C. had “sat and remained silent” (see paragraph 26 above) .

41. As to the performance of the State-appointed lawyer, it appears that I.C. familiarised herself with the case material, and attended various procedural activities and the first-instance hearing , at which she pleaded the case on behalf of the applicant (contrast with Kahraman v. Turkey , no. 42104/02, § 36, 26 April 2007) . She subsequently lodged an appeal which was joined by the applicant. While the Court notes that her appeal was brief, she made arguments that were essential for the defence, in particular, with regard to the circumstances of the case and the applicant ’ s intent (see paragraphs 13 and 16 above). In that connection, the Court observes that the applicant maintained that he had not intended to kill the victim and had acted in self-defence.

42. The alleged shortcomings of the State-appointed lawyer I.C. were therefore not manifest. Accordingly, there is no indication that the domestic authorities were obliged to intervene or take steps to ensure that the applicant was adequately represented and defended.

43. In view of the above, the Court finds that this complaint is manifestly ill-founded and must therefore be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.

(b) Access to a lawyer at the initial stage of the investigation

45. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Other complaints

46. The applicant raised other complaints, relying on Article 2 § 2 (a) and Articles 3, 6, 7 and 13 of the Convention. An examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the application is manifestly ill-founded and must be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 January 2016 .

             Claudia Westerdiek Angelika Nußberger Registrar President