FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37041/03 by Viktor DAVIDCHUK against Russia

The European Court of Human Rights ( First Section), sitting on 1 April 2008 as a Chamber composed of:

Christos Rozakis , President, Anatoly Kovler , Elisabeth Steiner , Dean Spielmann , Sverre Erik Jebens , Giorgio Malinverni , George Nicolaou , judges,

and André Wampach , Deputy Section Registrar ,

Having regard to the above application lodged on 8 October 2003 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

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

The applicant, Mr Viktor Anatolyevich Davidchuk, is a Russian national who was born in 1960 and lives in the Bryansk Region. The Russian Government were initiall y represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their R epresentative, Mrs V. Milinchuk .

A. The circumstances of the case

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

The applicant was questioned by the police in the absence of his lawyer and confessed to the murder of his wife. Before the questioning he had made a handwritten statement that he did not need legal assistance.

On 29 May 1998 the Klintsovskiy District Court of the Bryansk Region convicted the applicant of murder and sentenced him to fourteen years ’ imprisonment. The applicant was assisted by legal-aid counsel.

The applicant appealed. In his grounds of appeal he advanced the defence of irresistible impulse and asked for a more lenient sentence. He also applied for free legal representation because he did not have sufficient means to retain counsel. He relied on Article 50 of the Code of Criminal Procedure (see below).

By letter of 23 April 2003, a deputy President of the Bryansk Regional Court rejected the applicant ’ s request for free legal assistance because “there were no right to free legal representation before appeal courts”.

On 25 April 2003 the Bryansk Regional Court upheld the conviction on appeal but reduced the sentence to twelve years ’ imprisonment. The applicant was not assisted by counsel.

On 9 March 2006 a deputy Prosecutor General lodged an application for supervisory review with the Presidium of the Bryansk Regional Court . He submitted that the Bryansk Regional Court had infringed the applicant ’ s right to free legal representation .

On 26 April 2006 the Presidium of the Bryansk Regional Court granted the prosecutor ’ s application, finding that the refusal to provide the applicant with free legal representation at the appeal hearing had violated the rights of the defence. It quashed the appeal judgment of 25 April 2003 and remitted the case for a fresh examination before the Bryansk Regional Court .

On 7 July 2006 the Bryansk Regional Court held a new appeal hearing. It upheld the applicant ’ s conviction but reduced the sentence to eleven years ’ imprisonment.

On 29 December 2006 the applicant was released on parole .

B. Relevant domestic law

Article 50 of t he Code of Criminal Procedure (in force from 1 July 2002 ) establishes that the investigator, the prosecutor or the court provide the suspect or the accused with legal aid counsel upon his/her request.

COMPLAINTS

The applicant complained under Article 6 §§ 1 and 3 that the criminal proceedings had been unfair. In particular, he complained about the refusal to provide him with free legal representation at the appeal hearing, despite his request to that effect.

THE LAW

1. The applicant complained that his lack of legal representation during the proceedings before the appeal court constituted a violation of Article 6 §§ 1 and 3 (c) of the Convention, which provides 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...”

The Government submitted that the Presidium of the Bryansk Regional Court had acknowledged a violation of the applicant ’ s rights and quashed the appeal judgment. The applicant could no longer claim to be a victim.

The applicant conceded that the alleged violation of his right to defence had been remedied.

The Court reiterates that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘ victim ’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI, and Constantinescu v. Romania , no. 28871/95, § 40, ECHR 2000-VIII).

In the instant case, the Presidium of the Bryansk Regional Court explicitly acknowledged that the applicant ’ s right to free legal representation at the hearing before the appeal court had been infringed, quashed the appeal judgment and ordered a new appeal hearing.

Therefore, having regard to the contents of the Presidium ’ s decision of 26 April 2006 , the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention (compare Babunidze v. Russia (dec.), no. 3040/03 , 15 May 2007; Fedosov v. Russia (dec.), no. 42237/02, 5 January 2007; Nikishina v. Russia (dec.), no. 45665/99, 12 September 2000; and Wong v. Luxembourg (dec.), no. 38871/02, 30 August 2005 ) .

It follows that the applicant can no longer claim to be a “victim” of the alleged violation of Article 6 §§ 1 and 3 (c) of the Convention within the meaning of Article 34 of the Convention and that this complaint must be rejected pursuant to Articles 34 and 35 §§ 3 and 4.

2. The Court has examined the other complaints submitted by the applicant under Article 6 §§ 1 and 3 of the Convention . However, having regard to all the material in its possession, and in so far as these complaints fall within the Court ’ s competence, it finds that th o se complaints 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 must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and to declare the application inadmissible .

             André Wampach Christos Rozakis Deputy Registrar President