FIFTH SECTION

DECISION

Application no . 30006/09 Dmitrijs TUZIKS against Latvia

The European Court of Human Rights (Fifth Section), sitting on 25 April 2017 as a Committee composed of:

André Potocki, President, Síofra O ’ Leary, Mārtiņš Mits, judges, and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having regard to the above application lodged on 14 September 2009,

Having regard to the decision of 31 January 2014,

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 Dmitrijs Tuziks, is a Latvian national who was born in 1977 and is detained in Daugavpils. He was represented before the Court by Ms M. Urbāne, a lawyer practising in Riga.

2. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.

A. The circumstances of the case

1. Pre-trial stage

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

4. On 29 March 2006 the applicant was placed under arrest on suspicion of committing two offences of robbery. The record of his arrest contained a written statement by the applicant that he did not need a lawyer.

5. On 13 June 2007 the applican t was formally accused of large ‑ scale robbery and, represented by State-appointed lawyer L.L., the applicant was served with the indictment. He refused to sign it or be given the criminal case file. He also explicitly refused to reply when asked whether he wanted to be represented by a lawyer in court.

6. On 14 June 2007 the public prosecutor transferred the case to the Riga City Centre District Court for trial.

2. First-instance proceedings

7 . The applicant was represented at a hearing on 4 September 2007 by State-appointed lawyer I.L. The hearing was adjourned because the applicant wished to read the case file and find another lawyer.

8. In October 2007 the trial judge dismissed an application by the applicant to appoint A.D., another detainee and allegedly the representative of a non-governmental organisation, as his defence lawyer.

9. On various occasions in September and November 2007 the applicant familiarised himself with the cas e file in the presence of State ‑ appointed lawyers A.L. and V.K. respectively.

10 . The applicant was represented at a hearing on 14 November 2007 by V.K. At the beginning of the hearing the applicant asked for an adjournment in order to continue to study the case file. The prosecution alleged that the applicant wished to delay the proceedings. The court rejected the applicant ’ s request on the grounds that the defence had had sufficient time to read the case file. The applicant asked to be assigned another lawyer and shown a list of all those available. That request was granted and the hearing was adjourned. The applicant was provided with a list of lawyers the same day.

(a) Attempts to secure the applicant ’ s defence

11 . On 11 February 2008 the applicant was represented by State ‑ appointed lawyer A.L. The applicant asked the court to release A.L. and stated that his relatives were close to finding him another lawyer, but the court refused to grant his request. It noted that the applicant had refused the services of a legal aid lawyer without any justification and was therefore preventing the court from examining the case in a prompt manner.

Just before the court began proceedings, the applicant attempted to injure himself by cutting the palm of his hand in the courtroom. An ambulance was called and the hearing was postponed until the next day.

12 . On 12 February 2008 the app licant was again represented by A.L. The hearing was interrupted because the applicant tried to injure himself by hitting his head on the iron bars in the courtroom. The applicant ’ s behaviour led to the proceedings being suspended until a psychiatric examination had been carried out.

13 . The psychiatric report showed that the applicant was only pretending to have a mental illness and found that he was able to understand and control his actions.

14 . The applicant failed to appoint his own lawyer for a hearing held on 21 May 2008 and he was represented by State-appointed lawyer I.K. The hearing was adjourned because the applicant was taken to hospital with a head injury he had inflicted on himself in prison before being taken to court.

15 . By the time of a hearing on 12 June 2008 the applicant ’ s family had appointed U.B. to represent the applicant. The hearing was adjourned to give the lawyer time to study the case file.

16 . On 26 June 2008, the Riga Regional Court (see paragraph 32 below), in the presence of the applicant, extended his pre-trial detention for another three months. The court referred to the psychiatric report and noted, inter alia , that the applicant had pretended to have a mental illness. Such behaviour was considered as an attempt to delay the criminal proceedings.

It also referred to the various occasions when the proceedings had been adjourned in order to give the defence time to prepare and for the applicant to find a lawyer of his choice.

17 . A hearing took place on 15 September 2008 in the presence of U.B and his assistant K.G, but the applicant refused to be represented by U.B., saying they had diverging opinions. The applicant also informed the court that on 12 September 2008 he had reached an agreement with another defence lawyer, A.K. On the same day A.K. sent the court an authorisation from the applicant and an application for an adjournment owing to his being busy with another case.

18 . The appeal court decided to refuse the applicant ’ s request and appointed K.G. to represent him. The court argued that the applicant ’ s chosen defence counsel was not able to attend the trial within a reasonable time.

19 . Following the above decision, the applicant started hitting his head against the iron bars in the courtroom and began bleeding. Given the applicant ’ s unruly behaviour, the court decided to remove him from the courtroom until final statements.

(b) The adjudication of the criminal case in the absence of the applicant

20 . A further hearing took place on 22 September 2008, in the absence of the applicant (see paragraph 19 above). The applicant was represented by K.G., who pleaded not guilty on his behalf. The applicant was allowed back into court at the end of the hearing to make a final statement but he refused to say anything.

21 . On 22 September 2008 the Riga City Centre District Court found the applicant guilty of two episodes of robbery and sentenced him to ten years ’ imprisonment.

Concerning the question of his removal from the courtroom, the court noted that the applicant had repeatedly disobeyed the judge ’ s orders and had attempted to injure himself. As regards his legal representation, the court noted that the applicant had refused the services of the lawyer secured by his relatives (U.B.) and had insisted on being allowed to be represented by another lawyer (A.K.), who had needed additional time to prepare for the hearing. The court considered that the applicant had been attempting to abuse his rights “so that the term of his pre-trial detention would run out and the proceedings would become unreasonably lengthy”. It was for that reason that the court had decided to secure legal representation for the applicant by appointing defence counsel (K.G.) paid for by the State.

3. Appeal proceedings

22 . The applicant appealed, primarily arguing that the judgment should be quashed owing to serious procedural violations. In particular, he complained that the first-instance court had examined the case in his absence, which had been caused by the court ’ s unjustified decision to remove him, and that A.K. had not been allowed to represent him at the hearing of 22 September 2008. He also complained that he had not been able to make a final statement to the court owing to his health.

23 . The applicant ’ s appeal was examined by the Riga Regional Court on 14 January 2009. The applicant ’ s def ence lawyer A.K. (see paragraph 17 above) informed the appellate court before the hearing that the applicant had dispensed with his services and so the applicant was represented by State-appointed lawyer I.K.

24 . The appeal court dismissed the appeal in full and upheld the judgment of 22 September 2008 adopted by the Riga City Centre District Court.

25. The Riga Regional Court noted that the applicant ’ s removal from the courtroom had been due to his attempt to injure himself during the hearings on 11 and 12 February 2008. It also referred to the statements of the police officers who had been present during the hearing of 15 September 2008 that the applicant had banged his head against the bars of the holding cage in the courtroom and had cut his forehead. The appeal court held that the lower court had been right to hold that the applicant ’ s repeated attempts to injure himself had been aimed at disrupting the proceedings and that therefore his expulsion from the courtroom had been justified.

It noted with regard to the first-instance court ’ s refusal to allow the applicant to be represented by A.K. that the applicant had “delayed the proceedings by the unfounded dismissal of [court-appointed] lawyers”. Furthermore, the appellate court considered that the applicant had not informed the first-instance court about his agreement with A.K. in due time. The first-instance court had therefore not erred in appointing K.G. to defend the applicant.

With regard to his complaint that he had been unable due to his illness to make a final statement to the first-instance court, the appeal court noted that the prison hospital where he had been treated had confirmed in a written statement that he had been fit enough in medical terms to make such a statement.

26. The applicant and his counsel, I.K., submitted appeals on points of law, disputing the appeal court ’ s decision on the applicant ’ s expulsion from the courtroom and on his lack of representation by A.K.

27. The Senate of the Supreme Court dismissed the appeals on points of law on 2 April 2009.

B. Relevant domestic law

1. Removal from courtrooms

28 . The possibility to remove a defendant from a courtroom is set down in section 296(2) of the Criminal Procedure Law:

“A defendant ... may be removed from the courtroom by a decision of the court if he is very disruptive. The hearing may be continued after the removal of the defendant if the court has decided that his or her participation is not mandatory and only for such time as there is reason to believe that the defendant might continue to be disruptive during the hearing.”

29. Section 297 of the Criminal Procedure Law sets out that if a defendant is allowed to participate in a hearing after being expelled, the presiding judge must explain what procedural steps were taken during the person ’ s absence. Section 297(2) provides that a defendant should be allowed to make a final statement even if he or she has been expelled previously.

2. Representation of defendants

30. Section 71(2) and (5) of the Criminal Procedure Law states that defendants in first-instance proceedings have the right to appoint their own defence counsel, to ask the court to appoint somebody and to ask the court to replace defence counsel if there are legal obstacles to the particular lawyer ’ s participation in the case. The legal o bstacles are set out in section 87 and concern a lawyer ’ s prior involvement or other links to the case in question.

31. Section 467(1) provides that a case is to be adjourned if defence counsel has not appeared at the hearing “and it is impossible to replace him”. Section 468(1) provides that “defence counsel may be replaced if his or her further participation in criminal proceedings is not possible within a reasonable time.” Section 468(2) states that replacing defence counsel does not mean the case should start afresh.

3. Detention pending trial

32 . Pursuant to section 277(7) of the Criminal Procedure Law , a person charged with an especially serious offence may not be held in detention for more than twenty-four months. In exceptional circumstances, during court adjudication a higher level court, at the request of the court which adjudicated the criminal case, may decide to extend the detention for a further three months.

COMPLAINT

33. The applicant complained under Article 6 of the Convention that the criminal proceedings against him had been unfair, in particular because the first-instance court had removed him from the courtroom and had deprived him of the right to defend himself in person or through legal assistance of his own choosing.

THE LAW

34. The applicant complained under Article 6 § § 1 and 3 (c) of the Convention that he had not been allowed to attend his own trial and had been deprived of the right to defend himself in person or through legal assistance of his own choosing. The relevant part of Article 6 of the Convention reads:

“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;

...”

1. The Parties

35. Firstly, in reply to the applicant ’ s argument that he had not been able to defend himself in person, the Government argued that his defence rights had been duly respected even though he had not been present at the hearing before the first-instance court. The Government contended that in the present case, as in Marguš v. Croatia [GC] , no. 4455/10, §§ 90-91, ECHR 2014 (extracts), the applicant had been removed from the courtroom because of disruptive behaviour. He had nevertheless been allowed back to make a final statement. He had been defended in his absence by a lawyer.

36. Secondly, on the choice of defence lawyer, the Government noted that the first-instance court had diligently and patiently respected the applicant ’ s wishes with regard to his defence. That had been illustrated by the appointment of several legal aid defence lawyers. Given the applicant ’ s own failure to find a lawyer in a timely manner, the first-instance court had been justified in assigning him a lawyer and continuing the adjudication of the applicant ’ s criminal case.

37. Lastly, the Government argued that the applicant had in any event not substantiated his submission that his absence from the courtroom had negatively affected his defence rights.

38. The applicant argued in essence that the first-instance court had had no grounds to proceed with a trial in his absence and in the absence of counsel of his choice.

The applicant submitted that his removal from the courtroom had been a disproportionate measure that had affected his defence rights, namely the right to question witnesses.

He also argued that the first-instance court had had no grounds to replace his chosen lawyer with a State-appointed defence lawyer. The court should have adjourned the hearing that his lawyer had not been able to attend.

2. The Court

39. The Court reiterates that the guarantees enshrined in Article 6 § 3, which are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 6 § 1 of the Convention, must in each case be examined by having regard to the development of the proceedings as a whole and not on the basis of the isolated consideration of one particular aspect or one particular incident (see Marguš , cited above, § 90 ).

40. Consequently, the Court shall examine whether, considering the proceedings as a whole, the applicant ’ s defence rights were restricted to such an extent as to undermine the overall fairness of the criminal proceedings (see Jemeļjanovs v. Latvia , no. 37364/05, §§ 77-78, 6 October 2016) .

(a) The applicant ’ s removal from the courtroom during the first-instance proceedings

41. As regards the applicant ’ s complaint about his removal from the courtroom during the first-instance proceedings, the Court reiterates that although not expressly mentioned in Article 6, the object and purpose of that Article as a whole show that a person charged with a criminal offence is entitled to take part in hearings (see Sejdovic v. Italy [GC], no. 56581/00, § 81, ECHR 2006 ‑ II, with case-law mentioned therein). Such attendance is of importance both because of his or her right to a hearing and because of the need to verify the accuracy of statements and compare them with those of the victim, whose interests need to be protected, and of the witnesses. The legislature must accordingly be able to discourage unjustified absences (see Poitrimol v. France , 23 November 1993, § 35, Series A no. 277 ‑ A).

At the same time, where an accused is disruptive in the courtroom the trial court cannot be expected to remain passive and allow such behaviour . It is a normal duty of the trial panel to maintain order in the courtroom and the rules envisaged for that purpose apply equally to all present, including the accused (see Marguš , cited above, §§ 90-91).

43. Nevertheless, given the serious consequences of such a measure on the defence rights, it should be accompanied by proper safeguards, which entail an obligation for the trial court to establish that the applicant could have reasonably foreseen what the consequences of his ongoing conduct would be prior to the decision to order his removal (see Idalov v. Russia [GC], no. 5826/03 , § 177, 22 May 2012 ), and, if need be, a possibility to obtain redress on appeal (ibid, § 180).

44. With regard to whether the applicant could have foreseen the consequences of his actions, the Court observes that the first-instance court had adjourned three hearings owing to the applicant ’ s self-inflicted injuries before removing him from the courtroom, (see paragraphs 11-12 and 14, above; compare and contrast with Idalov , cited above, § 178). After the second incident the court ordered a psychiatric examination of the applicant, which found no mental health problems (see paragraph 13 above) and showed, on the contrary, that he had been pretending to be ill. Moreover, the Riga Regional Court made the applicant aware in explicit terms that his behaviour was considered as an attempt to make the criminal proceedings protracted (see paragraph 16 above). In the light of the above, the Court considers that there was sufficient information for the applicant to be aware of the potential consequences of his behaviour.

45. Furthermore, the Court observes that the appellate court was capable of providing a full redress of the applicant ’ s complaints. Its jurisdiction extended to examination of all questions of fact and law and it discharged its duty to ensure that the applicant benefitted from sufficient procedural safeguards by addressing his complaints (see paragraph 25 above; see in this regard Ternovskis v. Latvia, no. 33637/02, § 70, 29 April 2014 ; compare and contrast with Idalov , cited above, §§ 179-180). In any event, the applicant has not referred to any other fair trial guarantees which the overall criminal proceedings failed to provide, either in his domestic appeals or in his application to the Court.

46. The Court concludes that the first-instance court dealt with the applicant ’ s behaviour with sufficient diligence, therefore providing proper safeguards, and that the appellate court had the power to cure any eventual defects of the trial.

47. T he Court will proceed next to examine the applicant ’ s complaint about alleged restrictions on the exercise of his defence rights.

(b) Restriction on the right to a defence lawyer of the applicant ’ s own choosing

48. The Court has held that the national authorities must have regard to a 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 that is necessary in the interests of justice. Where such grounds are lacking, a restriction on the free choice of defence counsel would entail a violation of Article 6 § 1 together with paragraph 3 (c) if it adversely affected the applicant ’ s defence, regard being had to the proceedings as a whole (see Dvorski v. Croatia [GC], no. 25703/11, § 79, ECHR 2015).

49. In the first place, the Court observes that before commencing its adjudication of the criminal case the first-instance court had appointed in total six different legal aid lawyers to represent the applicant. He either refused those lawyers (see paragraphs 7, 10-11, and 17 above) or created a situation in which the defence could not be exercised (see paragraphs 12, 14 and 19 above).

50. This case should be distinguished from Dvorski (cited above), in which there were no “relevant and sufficient” reasons put forward by the domestic authorities for denying the applicant the right to appoint a lawyer of his own choice.

In the present case, the first-instance and appellate court judgments provided relevant reasons for the restriction on the applicant ’ s choice of lawyer (see paragraphs 21 and 24 above). Namely, the first-instance court had o n two occasions adjourned hearings to give the applicant or his relatives time to secure counsel of the applicant ’ s choosing (see paragraphs 7 and 10 above). Following his refusal to be represented by the lawyer secured by his relatives (see paragraphs 15 and 17 above) and his failure to inform the court in a timely manner that A.K. would not be available (see paragraph 17 above), the first-instance court found that any further adjournment was unjustified. Accordingly, it appointed someone else, the sixth legal aid lawyer in a row, to defend the applicant.

51. Given that the applicant had had nearly a year to find a lawyer of his own choice for the first-instance proceedings, he could have expected that any further adjournments would be granted only in exceptional circumstances, which in the present case could not be identified. In comparison with Dvorski (cited above), the Court notes on that point that no client-lawyer relationship had been establ ished between the applicant and A.K. There is no information that the lawyer had tried to familiarise himself with the applicant ’ s case file. The fact that the applicant himself refused for unknown reasons to be represented by A.K. during the appellate hearing (see paragraph 23 above), may be taken as confirming the absence of such a relationship.

52. Taking note of the national court ’ s attempts to balance prompt adjudication of the criminal case and the applicant ’ s defence rights, the Court considers that it gave relevant and sufficient reasons to restrict the applicant ’ s ability to choose his own lawyer.

53. In any event, the applicant or his counsel had the possibility to re-examine evidence or, for example, to again question witnesses who had testified against him during his absence from the courtroom. The applicant raised no such requests in his appeal or in his an appeal of points of law, which were primarily based on his dissatisfaction with his removal from the courtroom and the refusal to grant further adjournments to allow him to be represented by a lawyer of his own choice.

(c) Conclusion

54. In the light of the above considerations and looking at the criminal proceedings as a whole, the Court finds that the applicant ’ s complaint under Article 6 § § 1 and 3 (c) of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these rea sons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 May 2017 .

Anne-Marie Dougin André Potocki Acting Deputy Registrar President