Communicated on 6 September 2016
THIRD SECTION
Application no. 32453/08
Andrey Petrovich BIKINEYEV against Russia
lodged on 12 May 2008
STATEMENT OF FACTS
1. The applicant, Mr Andrey Petrovich Bikineyev, is a Russian national, who was born in 1972 and is currently detained in Ulyanovsk. He is represented before the Court by Ms L.A. Gataullina, a lawyer practising in Saratov.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was arrested on 16 November 2006. Upon arrest he was found to be in possession of weapons and ammunition, as well as drugs (cannabis).
4. On the same date criminal proceedings on charges of drug trafficking and the illegal possession of weapons and ammunition were instituted against him.
5. On 18 November 2006 the Dimitrovgrad City Court remanded the applicant in custody. Afterwards the applicant’s detention was extended several times, up to the date of his conviction.
6. On an unspecified date the applicant retained Ms Gataullina as legal counsel to defend him in the criminal proceedings.
7. On 10 November 2007 Ms Gataullina applied to join the proceedings as defence counsel, as required by the legally established procedure. Her application was allowed on 19 November 2007.
8. On 14 May 2008 the Dimitrovgrad City Court held a preliminary hearing on the case. Ms Gataullina failed to appear. At the request of the prosecutor the court studied a document showing that Ms Gataullina would be busy in other proceedings until approximately 6 June 2008.
9. In view of Ms Gataullina’s absence the court appointed Mr Bychkov as legal counsel to defend the applicant at the preliminary hearing and asked the latter to inform the court by 19 May 2008 about who would be counsel in the main proceedings. The applicant objected.
10. The first hearing in the case took place on 23 May 2008. From the very outset the applicant asked the court to adjourn the hearing because the legal representative of his choice, Ms Gataullina, could not attend. He objected to the appointment of Mr Bychkov, pointing out that that lawyer had not studied the case file.
11. The court adjourned the hearing until 28 May 2008 so that Mr Bychkov could study the case file. At the same time it dismissed the applicant’s objections to the appointment as such.
12. At every subsequent hearing the applicant objected to Mr Bychkov’s defending him on the grounds that: (a) he did not agree with the position on the case of the lawyer who had been appointed for him; (b) he had counsel of his own choice. The court repeatedly dismissed his objections.
13. On 26 June 2008 Ms Gataullina attended a hearing on the applicant’s case for the first time. She upheld the applicant’s application for the cancellation of Mr Bychkov’s appointment as legal counsel for the applicant. The court dismissed the application without providing any reasons.
14. Starting from 26 June 2008 both Ms Gataullina and Mr Bychkov appeared at the hearings on the applicant’s case.
15. On 17 July 2008 the Dimitrovgrad City Court convicted the applicant of drug trafficking and of possession of weapons and ammunition and sentenced him to fifteen years and six months’ imprisonment.
16. Among other evidence, the applicant’s conviction was based on statements which had been made at the pre‑trial stage of the proceedings by prosecution witnesses Mr S.S., Mr S.N., Mr P.P., Mr P.A., Ms P.G., Mr K., Mr P.N. and Mr P.A. The trial court allowed the pre-trial statements to be read out and admitted them as evidence without examining the witnesses during the trial because they lived in another region.
17. By a judgment of 28 July 2008 the Dimitrovgrad City Court ordered the applicant to reimburse the State for the fees payable to the court‑appointed lawyer Mr Bychkov for the hearings where counsel of the applicant’s choice had not been present. The applicant was ordered to pay 17,325 Russian roubles (RUB) (approximately 472 euros (EUR)) of the total RUB 25,575 (approximately EUR 696) payable to the court-appointed lawyer.
18. The applicant appealed against both the conviction and the reimbursement order. In the appeal against his conviction he argued, inter alia, that it had been unfair owing to the court’s failure to hear seven prosecution witnesses.
19. On 3 September 2008 the Ulyanovsk Regional Court upheld the conviction on appeal, stating that residence in a different region was a good reason for the absence of the witnesses at the hearing. The appeal court upheld the reimbursement order in the same judgment.
B. Relevant domestic law and practice
Legal assistance in criminal proceedings
20. Article 51 of the Code of Criminal Procedure (“the CCrP”) establishes that legal counsel must be appointed by an investigator, prosecutor or a court if, inter alia, the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Counsel must be appointed if the accused has not retained a lawyer.
21. By virtue of Article 52 of the CCrP a defendant in criminal proceedings may at any time waive his right to legal assistance. The waiver is not obligatory for an investigator or the court.
22. Article 131 of the CCrP provides that litigation costs are to be borne by the parties to the proceedings or by the State. Such costs include sums payable to a legal representative appointed by the State.
23. Article 132 of the CCrP provides that litigation costs are to be paid by a convicted person or by the State. A court may order a convicted person to pay costs, except for sums paid to legal counsel if the court has rejected the defendant’s waiver of the right to counsel and counsel was appointed by the State. The State is liable for costs if the person concerned is of no fixed abode. A court may also exempt the person concerned from the liability for costs or reduce the amount.
COMPLAINTS
The applicant complains under Article 6 § 3 (c) of the Convention that despite the fact that he had retained legal counsel of his own choice, the trial court appointed another lawyer and ordered the applicant to reimburse the State for the fees awarded to the court-appointed lawyer.
The applicant complains under Article 6 § 3 (d) of the Convention that he did not have a fair trial in the criminal proceedings against him, in particular because he was unable to secure the attendance of seven prosecution witnesses in order to question them.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?
2. Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention?
Was the appointment of legal counsel for the applicant despite his objections compatible with Article 6 of the Convention? In particular, did the interests of justice require the appointment of legal counsel (see Croissant v. Germany, 25 September 1992, Series A no. 237‑B)?
Was the applicant afforded free legal assistance, within the meaning of Article 6 § 3 (c) of the Convention?
3. Was the applicant able to obtain the attendance of witnesses against him and to examine them, as required by Article 6 § 3 (d) of the Convention?
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