THIRD SECTION

DECISION

Application no. 37364/05 Vasilijs JEMEĻJANOVS against Latvia

The European Court of Human Rights (Third Section), sitting on 17 January 2012 as a Chamber composed of:

Josep Casadevall , President, Corneliu Bîrsan , Egbert Myjer , Ján Šikuta , Ineta Ziemele , Nona Tsotsoria , Kristina Pardalos , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 23 September 2005,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Vasilijs Jemeļjanovs , is a Latvian national who was born in 1965 and is currently serving a prison sentence in Daugavgrīvas prison in Daugavpils .

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant , may be summarised as follows.

1. Criminal proceedings against the applicant

3 . On 5 October 2004 the applicant was arrested very shortly after he had stabbed a person in the chest with a knife in the presence of multiple eye-witnesses . The victim died in a hospital later on the same day.

4 . The applicant was detained and on 4 November 2004 he was officially charged with murder. The decision to charge him ( lēmums par personas saukšanu pie kriminālatbildības ) indicated that the applicant had stabbed the victim with the purpose to murder him “because of a personal conflict”. The applicant and a sworn attorney signed a statement that the decision and the procedural rights at the pre-trial stage had been explained to them.

5 . On 3 January 2005 the applicant ’ s criminal case was transferred for adjudication to the Daugavpils Court . In a decision to that effect a judge of the Daugavpils Court declared that the first hearing would be held on 7 April 2005 and that, among other persons, a defence counsel would be called.

6 . At the hearing of 7 April 2005 the applicant was represented by a court-appointed attorney S. According to the transcript of the court proceedings, the applicant “refused the services of the attorney [S.]”. The attorney stated that there was “a conflict between the interests of the client and the interests of defence”. For that reason he invited the court to grant the applicant ’ s request. The court decided to release S. from his duties. When asked by the court, the applicant stated that he needed to be represented by counsel. The court adjourned the trial.

7 . On 27 May 2005 the senior attorney ( vecākais advokāts ) of the Daugavpils Court district rejected the trial judge ’ s request to appoint an attorney to conduct the applicant ’ s defence. The reply indicated that Article 98 of the Code of Criminal Procedure ( Kriminālprocesa kodekss ; KPK; see below, paragraph 28 ) did not give the accused the right to freely choose a lawyer. It was further pointed out that S. had carried out his duties diligently. The senior attorney indicated that the applicant could choose to either appoint an attorney of his own choice (and pay for his services) or to refuse the services of an attorney.

8 . On an unspecified date attorney D. was appointed to represent the applicant.

9 . On 20 June 2005 the applicant wrote a letter to D., indicating that he was not sure why D. had consented to represent him despite their “unpleasant” first meeting. The applicant pointed out that he had not had the intention to kill the victim and had not suspected that his death would occur. He asked D. to help him to submit arguments concerning the legal classification of his actions, since he believed that he had not committed the intentional murder that he had been charged with. In addition, the applicant asked the lawyer to request additional evidence, namely, to test him with a polygraph, to request the presence of additional witnesses and to request his repeated psychiatric testing. In the conclusion of the letter the applicant wrote as follows:

“I have no possibility to pay for the quality of your services. Therefore, if you do not wish to undertake my defence, you have the possibility to refuse to provide me legal services [thus] freeing yourself from guilt and freeing me from receiving legal services of a poor quality.

... with all [due] respect to you, I will be forced to ask for your removal, if your defence activities will be similar to the activities of the previous defence counsel and will be limited to only being present at the court hearings.”

10 . At the hearing of 1 September 2005 the applicant was represented by D. At the beginning of the hearing the applicant ’ s counsel supported his request for an additional forensic psychiatric examination and reserved his comments concerning the applicant ’ s request to issue a new statement of charges and to carry out a re-enactment of the crime at the scene of the crime. Immediately afterwards the applicant “challenged the attorney [D.]” ( просил отклонить адвоката ) and asked the court to appoint another counsel.

11 . D. submitted to the court the applicant ’ s letter of 20 June 2005 and invited the court to establish whether the applicant “needed to be represented at all”. The court appended the applicant ’ s letter to the materials of the case. In response to a question from the court the applicant stated that he could not name a specific lawyer to whom he wished to entrust his defence. The court adopted an interim non-appealable decision, which in the relevant parts provided as follows:

“At the preparatory stage of the trial [the applicant] refused the services of his court-appointed attorney [D.] because the attorney could not guarantee that he would be exculpated and also because the attorney did not conduct his defence sufficiently well.

[The applicant] requests that his defence counsel be replaced, without naming a specific attorney.

The court considers that [the applicant ’ s] request should be rejected because on two occasions [the applicant] has been appointed defence lawyers [and] twice he has refused [the] services ... of attorneys [S. and D.]

Article 96 of the Code of Criminal Procedure ... provides that an accused person ’ s defence counsel is appointed by a court; it is not selected by the accused person himself. Defence counsel for [the applicant] was appointed on two occasions.

According to Article 99 of the Code of Criminal Procedure ... an accused person has a right to refuse the services of defence counsel altogether but not a right to request a replacement of defence counsel.

The court considers [the applicant ’ s] refusal of [the services of the two] attorneys to be a refusal of [the services of] defence counsel altogether and an intentional delaying of the court proceedings. The court considers that the reasons for the defendant ’ s refusal of the services of the attorney [D.] are unjustified. [The applicant ’ s] rights to defence in the present case have not been violated.”

12 . The trial continued with the applicant being unrepresented. He voiced his displeasure with that fact on numerous occasions and whenever he was invited to ask questions to witnesses, he refused to do so, usually explaining that he had some questions to ask but was unable to do so in the absence of a defence lawyer.

13 . After the Law of Criminal Procedure ( Kriminālprocesa likums ; KPL) replaced the Code of Criminal Procedure, the applicant lodged a written request with the court on 25 October 2005, requesting it to secure the observance of his defence rights. The applicant referred to section 71 of KPL (see below, paragraph 30 ). He further argued that his earlier requests to replace the two court-appointed attorneys could not have been construed as a waiver of the right to the assistance of a lawyer. The applicant invited the court to provide to him a list of all lawyers practicing in Latvia and a means of communication with them or, in the alternative, to ensure his representation by one of the two lawyers he had chosen.

14 . At the hearing of 12 January 2006 the court held that

“the question [concerning the appointment of a defence lawyer to the applicant] has already been decided and it is impossible to review that decision, since the Law of Criminal Procedure does not provide for a possibility to appoint a lawyer with respect to one part of the court proceedings[;] if a defence counsel participates [in the proceedings], he does so from the very beginning”.

15 . On 31 January 2006 a public prosecutor of the Daugavpils City Prosecutor ’ s Office amended the charges against the applicant. The amendment concerned the motive of the applicant ’ s actions and indicated that the applicant had committed the intentional murder “without a reason, being guided by hooligan tendencies”.

16 . The Daugavpils Court adopted its judgment on 6 February 2006. The court noted the applicant ’ s objection that he did not understand the charges against him. It further remarked that the applicant had refused to testify for various reasons, insisting that the charges against him be amended, refusing to testify in the absence of a lawyer and so on. The court went on to note that during the pre-trial investigation the applicant had admitted that he had stabbed the victim but had insisted that he had done so in self-defence, not with a murderous intent.

17 . Regarding the applicant ’ s legal representation the court held that his defence rights had not been violated, for the following reasons :

“On two occasions the [applicant refused the services of his] court ‑ appointed defence attorneys. The court considers that the defendant ’ s refusals were unjustified and contrary to the legislation applicable at the time when the court was called to decide on his request to change his defender. The Code of Criminal Procedure which was in force on 1 September 2005 did not give a defendant the right to challenge his defence counsel [“ право дать отвод защитнику ”]. On two occasions the defendant refused the services of defence attorneys, relying on his own appreciation of the quality of the attorneys ’ work. The court considers such grounds ill-founded, since at that time the investigation of the case had not at all been started and there was no basis for the defendant ’ s arguments. The defendant judged the quality of the attorneys ’ work on the basis of their defence of other defendants in other criminal cases. In addition, the defendant required the defence attorneys to guarantee that he would be acquitted.”

18 . The court then dismissed the applicant ’ s complaint about the inadequacy of the charges against him. It held that the prosecutor had amended the charges (by including a motive of the applicant ’ s actions) in accordance with the requirements of the procedural law. The court furthermore noted that witnesses had been called to give their testimony on two occasions, once following a request of the applicant who then refused to pose questions to them in the absence of defence counsel.

19 . The court went on to find the applicant guilty as charged. To that end it relied on the statements of seven witnesses who had been in the immediate vicinity of the crime. It deemed unreliable the testimony of another eyewitness who was detained together with the applicant and with whom the applicant had been transported to the court hearing. In addition the court took into account a significant volume of documentary and material evidence. The applicant was sentenced to twelve years ’ imprisonment with a subsequent police control of two years.

20 . On 26 March 2006 the applicant lodged a preliminary appeal which would be explained in more detail during a court hearing. The “main goal” of the appeal was to have the first-instance court ’ s judgment quashed due to, inter alia , the violation of the applicant ’ s defence rights. The applicant requested the appeal court to appoint him a lawyer and to call all witnesses heard by the first-instance court. In addition he requested that he be given an opportunity to meet with the lawyer prior to the court hearing in order to reach and agreement on the defence strategy.

21 . The Latgale Regional Court held its first hearing on 17 May 2006. The applicant was represented by attorney M. The applicant alleges that he had had no opportunity to meet with M. before the hearing. The trial was adjourned until 8 November 2006 because the applicant needed additional time to prepare his defence. In the hearing of 8 November 2006 the applicant was represented by attorney V. The applicant told the court that he had no objections to the work of V. but that he needed a lawyer ’ s assistance not only during the court hearings but also in order to carry out certain investigative steps and gather certain information that would support his defence position. V. clarified that a lawyer could help the applicant to obtain information about the personal characteristics of the witnesses as well as to locate additional witnesses. The applicant and his lawyer then asked the court to question the witnesses who had testified at the first-instance court. The court decided to reject that request because the applicant had not included such a request in his written appeal.

22 . By a decision adopted on 8 November 2006 the Latgale Regional Court dismissed the applicant ’ s appeal. It fully upheld the first-instance court ’ s findings on the merits of the case. As to the fairness of the proceedings, the appeal court found that the first-instance court had given “the defendant all possibilities to choose an attorney and, in order to realise his right to defence, [had given in] to all whims and fancies of the defendant, [thus] taking upon it functions uncharacteristic to a court”. The court went on to point out that the applicant did not belong to the category of persons whose legal representation at trial is compulsory (as set down in section 83 of KPL; see below, paragraph 32). Consequently the appeal court considered the applicant capable of having been able to perform his own defence. To that end the court remarked that the applicant had been given full opportunity to defend himself since the first-instance court had summoned all witnesses on two occasions. However, the applicant himself had not made use of that opportunity under various pretexts.

23 . On 13 December 2006 the applicant submitted an appeal on points of law. In a document consisting of thirty-one handwritten pages the applicant complained of, among many other things, the quality of the services provided by his court-appointed lawyers at the first-instance court as well as at the court of appeal and of the first-instance court ’ s decision to deprive him of legal representation.

24 . On 16 January 2007 the applicant was informed that it had been decided that his appeal on points of law had not disclosed any significant violations of the Criminal Law or the Law of Criminal Procedure. It was therefore not accepted for adjudication in the Senate of the Supreme Court. That decision was final.

2. Other facts

25 . The crime committed by the applicant received some coverage in the regional press. One of the articles written about the murder incorrectly stated that only a year earlier the applicant had been released from prison after serving a sentence for the murder of his father. The applicant considered that information libellous and on numerous occasions attempted to institute civil proceedings in that respect against the publisher of the newspaper. All of his claims were not accepted and were returned to him for procedural reasons. The latest decision in that regard was adopted by the Daugavpils Court on 14 October 2006.

26 . In June 2006 the applicant gave some materials from his criminal case-file to a prisoner who was being released from prison in order for him to make copies and send them back to the applicant. The documents were taken away from that prisoner and the applicant only received them back approximately one month later after multiple requests to the administration of the prison.

B. Relevant domestic law

1. Code of Criminal Procedure (in force until 30 September 2005)

27 . Article 95 of KPK listed the rights of an accused person, including the right to request defence counsel at the trial stage ( pieprasīt aizstāvi iztiesāšanā ). Article 96 specified that a defence lawyer had a right to participate in the proceedings starting from the moment when his client was declared a suspect. The same Article also provided that if the defence counsel could not participate in the trial, the person directing the proceedings, the prosecutor and the court had a right to recommend to the person under trial to invite a different attorney or to provide for that person ’ s legal representation. Article 97 set out a defence lawyer ’ s rights and obligations, providing, inter alia , for an obligation to utilise all legal means to establish circumstances that could mitigate his client ’ s guilt or exculpate the client. The same Article also provided that a defence attorney had no right to refuse to represent a client once the attorney had undertaken to carry out the defence. Article 97 1 provided that an attorney could not act as a defence counsel because of a prior involvement in the same case or because he was a relative of another person involved in the case.

28 . Article 98 provided as follows:

“Legal counsel ’ s participation in the trial at the first-instance court shall be mandatory:

in cases concerning criminal acts committed by minors;

in cases concerning persons who are deaf, blind or otherwise incapable of independently using their right to defence because of physical or mental defects;

in cases against persons who do not understand the language in which the criminal proceedings are conducted;

in cases of contradictions between the defence interests of [several] accused persons where at least one of the accused is represented by a lawyer”.

In such cases the accused could choose their own representative or else the person directing the proceedings, the prosecutor or the court had an obligation to ensure a representative ’ s participation.

29 . Concerning the refusal of the services of an attorney, Article 99 provided as follows:

“A suspect, an accused and a person under trial shall have a right to refuse [the services of] an attorney. Such a refusal shall only be permissible upon the initiative of the suspect, the accused or the person under trial ...”

2. Law of Criminal Procedure (in force from 1 October 2005)

30 . According to section 71 of KPL an accused has a right to appoint a lawyer or to ask that a defence lawyer be appointed for participation in the trial ( lÅ«gt nodroÅ¡ināt aizstāvja piedalÄ«Å¡anos tiesas sÄ“dÄ“ ) (section 71 (2)) as well as to ask for a replacement of the defence lawyer in case his participation in the trial is precluded by law (section 71 (5)). Those rights apply both in the first ‑ instance court as well as in the appeal court. Section 87 precludes a lawyer ’ s participation in trial in cases of personal or professional conflict of interests.

31 . In so far as is relevant, section 83 provides for a compulsory participation of a defence lawyer in cases concerning persons who cannot fully make use of their procedural rights because of physical or mental deficiencies and also in cases concerning illiterate persons or persons whose educational level is so low that they cannot adequately make use of their procedural rights.

32 . According to section 80 a defence counsel is normally recruited by the accused person. Pursuant to paragraph 3 of that section the police, the prosecutors and the courts cannot invite a specific attorney to represent the accused person. However, they can provide to the accused the necessary information and the necessary means of communication for inviting a defence lawyer.

33 . Once a lawyer has agreed to represent a person, section 79 (3) prohibits him to refuse to represent his client without the client ’ s consent. On the other hand, section 88 permits the accused person to refuse the services of defence counsel. The refusal should always be initiated by the accused person himself. The refusal should be noted in the minutes of the respective procedural stage and confirmed by a signature of the accused person.

COMPLAINTS

34 . The applicant complains under Article 6 §§ 1 and 3 (a), (b) and (d) of the Convention that he was not immediately and in detail informed of the nature and the basis for the charges against him, as a result of which during the pre-trial investigation the necessary witnesses were not questioned and he did not have sufficient time to prepare his defence. In addition, the first ‑ instance and appeal courts had refused to summon witnesses requested by the applicant.

35 . The applicant complains under Article 6 § 3 (c) that he was deprived of a right to legal assistance at the pre-trial stage, in the first-instance court and while he was preparing his appeal and appeal on points of law. In particular, he criticises the quality of the work of the court-appointed lawyers S. and D. He furthermore complains that the first-instance court intentionally misinterpreted his request to replace the attorney D. with another one as a waiver of a right to be represented by an attorney. As a result, he was unrepresented after 1 September 2005 and was unable to adequately conduct his defence.

36 . The applicant complains under Article s 5 § 3, 6 § 1 and 13 of the Convention about the length of his pre-trial detention and the impossibility to submit complaints in that respect.

37 . Without invoking any Articles of the Convention the applicant complains that the domestic authorities obstructed the preparation of his application to the Court when for a month they failed to return him the documents from his criminal case file.

38 . In a letter sent to the Court on 15 June 2007 the applicant added the following complaints:

a) under Article 2 of Protocol No. 7 to the Convention he complains about the quality of the work of the appeal court. More specifically, he denounces their refusal to summon witnesses, order additional expert reports and so on;

b) under the same Article the applicant criticises the fact that the decision-making in the Senate of the Supreme Court concerning his appeal on points of law did not follow the basic procedural requirements, such as his being informed ahead of time about the date of the forthcoming hearing, being given an opportunity to demand a disqualification of a judge and to receive a motivated court decision;

c) under Article s 6 § 1, 8 § 1 and 13 the applicant complains about the domestic courts ’ refusal to accept for adjudication on merits his civil-law claim concerning the allegedly libellous newspaper article, as a result of which the State had failed to protect his right to respect for his private life;

d) under Article 14 of the Convention the applicant complains that the domestic authorities refuse to give reasoned replies to the complaints written in his native Russian language .

THE LAW

39 . The applicant complain ed under Article 6 § 3 (c) that he was deprived of a right to legal assistance at the pre-trial stage, in the first ‑ instance court and while he was preparing his appeal and appeal on points of law, in particular complaining that he was unrepresented after 1 September 2005.

40 . Article 6 § 3 (c) of the Convention provides as follows:

“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 ...”

41 . The Court considers that it cannot, on the basis of the case file, determine the admissibility of the above-mentioned complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of the application to the respondent Government.

42 . The applicant further submitted numerous other complaints (see paragraphs 34 and 36-38 above). However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant ’ s complaints in that regard do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the alleged deprivation of his right to legal assistance after 1 September 2005 ;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall              Deputy Registrar              President