FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6822/04 by Mikhail BRINZEVICH against Russia

The European Court of Human Rights (First Section), sitting on 11 December 2007 as a Chamber composed of:

Mr C.L. Rozakis , President, Mr L. Loucaides , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr S.E. Jebens , Mr G. Malinverni , judges, and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 15 January 2004,

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 Mikhail Vasilyevich Brinzevich , is a Russian national who was born in 1981 and lives in Arkhangelsk . He wa s represented before the Court by Mr I. Ilyin and Mr M. Sitilin , lawyer s practising in Arkhangelsk . The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new Representative, Mrs V. Milinchuk.

A. The circumstances of the case

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

On 15 October 2003 the Lomonossovskiy District Court of Arkhangelsk convicted the applicant of inflicting grievous bodily harm that had caused the victim ’ s death and sentenced him to thirteen years and six months ’ imprisonment in a high-security colony. As the applicant was indigent, Mr Ilyin was appointed by the local bar association to represent him in the proceedings.

On 22 October 2003 Mr Ilyin lodged a statement of appeal.

The appeal hearing was initially scheduled for 17 November 2003. On that day the applicant submitted a handwritten statement of appeal to the Arkhangelsk Regional Court . Invoking Article 6 of the Convention, he asked the court to have Mr Ilyin appointed as his counsel at the appeal hearing.

By a letter of 17 November 2003, Mr Ilyin and the director of the detention centre where the applicant was being held were advised that the appeal hearing had been adjourned until 5 December 2003.

On 5 December 2003 the Arkhangelsk Regional Court examined the case on appeal in the absence of the applicant ’ s lawyer. It heard submissions by the judge rapporteur and oral submissions by the applicant and the public prosecutor, and upheld the judgment of 15 October 2003.

On 19 February 2004 the Arkhangelsk Regional Court rejected Mr Ilyin ’ s application for supervisory review of the conviction on the ground that the applicant ’ s right to defence had not been violated by the Regional Court .

On 18 March 2004 the President of the Arkhangelsk Regional Court dismissed Mr Ilyin ’ s appeal against the decision of 19 February 2004.

On 26 October 2006 a deputy prosecutor of Arkhangelsk Region lodged an application for supervisory review ( надзорное представление ) with the Arkhangelsk Regional Court against the conviction on the ground that the applicant ’ s case had been examined by the Regional Court in the absence of the applicant ’ s lawyer.

On 20 December 2006 the Presidium of the Arkhangelsk Regional Court granted the prosecutor ’ s application. In particular, the Presidium found as follows:

“According to Article 409 § 2 of the Code of Criminal Procedure, an appeal judgment must be quashed if the supervisory-review court finds that the appeal judgment was issued in breach of the requirements of the Code of Criminal Procedure which affected or could have affected the correctness of the judgment.

According to Article 47 § 4 (8) of the Code of Criminal Procedure, an accused has the right to legal assistance, which must be provided free of charge in the circumstances described in the Code.

In his supplementary statement of appeal of 10 November 2003... [the applicant] requested that the advocate Mr Ilyin take part in the appeal proceedings. The advocate Mr Ilyin did not attend the appeal hearing, despite having been properly notified of its date, time and place.

It appears from the Regional Court ’ s appeal judgment of 5 December 2003 that [the applicant] did not waive his request for participation of the advocate Mr Ilyin in the appeal proceedings. The appeal court did not take measures to ensure the presence of that advocate or to secure participation of another advocate in the appeal proceedings, which fell short of the requirement of Article 50 § 2 of the Code of Criminal Procedure ... This breach is a ground for quashing the appeal judgment concerning [the applicant] and remitting the case for a new appeal hearing.

In the new hearing the appeal court must take measures to ensure that parties can exercise their legal rights...”

The proceedings are currently pending before the Arkhangelsk Regional Court .

B. Relevant domestic law and practice

1. The Code of Criminal Procedure

Article 50 establishes that the investigator, the prosecutor or the court have a duty to provide the suspect or accused with legal-aid counsel upon his or her request.

Article 51 establishes that counsel must imperatively be appointed by the investigator, prosecutor or court if the suspect or accused has not waived his right to legal assistance.

2. Case-law of the Constitutional Court of the Russian Federation

Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):

“ Article 51 § 1 of the Code of Criminal Procedure which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in the appeal proceedings or that the convict ’ s right to legal assistance in such proceedings may be restricted .”

3. Case-law of the Supreme Court

In a number of cases (no. 608 п 04, decision of 13 October 2004; no. 931 п2004пр, decision of 26 January 2005; and no. 144п05 , decision of 6 April 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted the cases for fresh considerations on the ground that the courts had failed to secure the presence of defence counsels in the appeal proceedings whereas the legal representation of the accused was obligatory.

COMPLAINTS

The applicant complain ed under Article 6 § 3 (b) and (c) of a violation of his right to defend himself at the stage of the preliminary investigation and at the appeal hearing before the Regional Court .

The applicant complain ed under Article 6 § 1 of the Convention that the domestic courts had not taken into account the arguments by the defence and that he had been unlawfully found guilty and convicted .

THE LAW

1. The applicant complained that he had been deprived of legal assistance at the hearing of 5 December 2003 before the Arkhangelsk Regional Court . He relied on Article 6 §§ 1 and 3 (c) of the Convention which, in its relevant parts, reads 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 pointed out that the domestic authorities had taken steps to remedy the alleged violation of the applicant ’ s rights. They referred to the Constitutional Court ’ s decision of 18 December 2003, which declared unconstitutional the previously existing practice of conducting appeal proceedings in the absence of counsel . Shortly after that decision the courts ’ practice in respect of legal representation in appeal proceedings had been changed , and the Presidium of the Supreme Court of the Russian Federation started to set aside the appeal judgments which had been issued without due respect for the convict ’ s right to legal assistance. Likewise, in the present case on 20 December 2006 the Presidium of the Arkhangelsk Regional Court quashed the appeal judgment of 5 December 2003 and remitted the case for a fresh consideration on the ground that the appeal hearing had been conducted in breach of the applicant ’ s right to legal assistance.

The applicant maintained his complaint.

The Court notes that on 20 December 2006 the Regional Court accepted an application for supervisory review of the appeal judgment of 5 December 2003, whereas the previous applications (of 19 February and 18 March 2004) concerning the defective legal representation in the appeal proceedings had been dismissed by the Regional Court , which found no impairment of the applicant ’ s right to defence.

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 ‑ V I, and Constantinescu v. Romania , no. 28871/95, § 40, ECHR 2000-VIII).

In the instant case, the Presidium of the Arkhangelsk Regional Court explicitly acknowledged that the applicant ’ s right to legal assistance guaranteed under the Convention had been infringed and quashed the appeal judgment of 5 December 2003. The effect of the proceedings which formed the basis for the applicant ’ s complaints has thus been annulled.

Therefore, having regard to the contents of the Presidium ’ s decision of 20 December 2006 and its direction to hold a new appeal hearing with proper respect for the applicant ’ s right to legal assistance, 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. Luxemburg (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 has to be rejected pursuant to Articles 34 and 35 §§ 3 and 4.

2. As concerns the remainder of the applicant ’ s complaints under Article 6 of the Convention, the Court notes that the criminal proceedings against the applicant have been re-opened and are pending. It remains open to him to raise his grievances in the new appeal proceedings. It follows that this part of the application is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

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

Søren Nielsen Christos Rozakis Registrar President