Information Note on the Court’s case-law 190
November 2015
Mikhaylova v. Russia - 46998/08
Judgment 19.11.2015 [Section I]
Article 6
Administrative proceedings
Article 6-1
Criminal charge
Fair hearing
Article 6-3-c
Free legal assistance
Lack of free legal assistance in administrative proceedings: Article 6 applicable; violations
Facts – In 2007, after participating in a demonstration, the applicant was arrested on the grounds of having allegedly disobeyed a police order to disperse. Administrative proceedings were initiated against her, and her request for free legal assistance was dismissed. She was then found guilty of having breached Articles 19.3 and 20.2 of the Code of Administrative Offences (CAO) and sentenced to a fine. In her subsequent appeals, including to the Constitutional Court, her request for free legal assistance was again refused and her sentence upheld.
Law – Article 6 §§ 1 and 3 (c)
(a) Applicability – As to the charges under Article 20.2 of the CAO, the Court noted that certain procedural guarantees contained in the CAO were indicative of the “criminal” nature of the procedure. Moreover, the relevant penalty was not that actually imposed, but the penalty she in fact risked or was liable to have imposed, which was determined by reference to the maximum provided for the offence. The statutory maximum in the applicant’s case was a fine equivalent to EUR 28. However, although the fine could not be converted into a custodial sentence in the event of non-payment, what mattered was that it was not intended as pecuniary compensation for damage but was punitive and deterrent in nature. Finally, noting the Government’s admission that the applicant had been “arrested”, the Court assumed that she had been subjected to the administrative arrest foreseen by the CAO in relation to both charges against her, a measure which had stronger criminal connotations than the escorting of an individual to the police station. As to the charges under Article 19.3 of the CAO, that provision provided for a fine equivalent to EUR 28 and/or 15 days’ imprisonment as the maximum penalties. This gave rise to a strong presumption that the charges against the applicant were “criminal” in nature, a presumption which could only exceptionally be rebutted, and only if the deprivation of liberty could not be considered “appreciably detrimental” given its nature, duration or manner of execution. However, in the present case the Court did not discern any such exceptional circumstances. It followed that both offences for which the applicant had been prosecuted under the CAO could be classified as “criminal” within the meaning of Article 6 of the Convention.
(b) Merits
(i) Charge under Article 19.3 of the CAO – Under domestic law administrative detention was to be applied only in “exceptional circumstances”. However, since the applicant did not fall within the categories of people excluded from such detention, it had been a possible sanction. In the Court’s view, the gravity of the penalty was sufficient to conclude that the applicant should have been provided with legal assistance free of charge since the “interests of justice” so required, regardless of whether she had legal skills enabling her to present a proper legal defence. The Russian Constitutional Court had come to similar conclusions.
Conclusion: violation (unanimously).
(ii) Charge under Article 20.2 of the CAO – Although the statutory penalty for this offence was relatively low (a fine of up to EUR 28) and the case concerned a single event whose relevant legal elements were relatively straightforward, the determination of the charge nevertheless required that the applicable rules and acts punishable be determined and assessed in the light of other legislation and, eventually, with reference to the defendant’s rights to freedom of assembly and/or freedom of expression. Arguably, this task was capable of disclosing some degree of complexity as the applicant had no legal training or knowledge and it could therefore not be assumed that little was at stake for her. In order to comply with Article 6 of the Convention, it was preferable for the pertinent factual and legal elements (such as the means test and the question of “the interests of justice”) to be first assessed at the domestic level when the issue of legal aid was decided, especially when, as in the present case, a fundamental right or freedom protected under the Convention was at stake. However, no such assessment was made in the present case.
Conclusion: violation (unanimously).
Article 41: EUR 1,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See the Factsheet on Police arrest and assistance of a lawyer)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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