CASE OF MAMOLINA v. RUSSIA
(Application no. 57123/16)
This version was rectified on 3 March 2020 under Rule 81 of the Rules of Court.
17 December 2019
This judgment is final but it may be subject to editorial revision.
In the case of Mamolina v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 26 November 2019,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 57123/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Svetlana Ivanovna Mamolina (“the applicant”), on 16 September 2016.
2. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
3. On 2 February 2018the Government were given notice of the complaints concerning the alleged lack of free legal assistance and the appeal proceedings’ being conducted in the applicant’s absence, and the remainder of the application was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.
4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1975 and lives in Volsk, Saratov Region.
6. According to the official version of the events, on 3 January 2016 the applicant, who was working as a waitress and bartender in a café, sold beer to a minor.
7. On 14 January 2016 the prosecutor’s office questioned the applicant as regards the incident of 3 January 2016. The applicant made a written statement as to the events in question. She described what had happened in the case on 3 January 2016, claiming to have no recollection of having sold alcohol to a minor.
8. On 28 January 2016 the deputy inter-district prosecutor instituted administrative proceedings against the applicant on the charge of supplying alcohol to a minor.
9. On 29 January 2016 the deputy prosecutor informed the applicant of the proceedings and advised her of her rights, including the right against self-incrimination and the right to have a lawyer. When questioned, the applicant claimed to have no recollection of having sold alcohol to a minor on 3 January 2016.
10. On 22 March 2016 the justice of the peace of judicial circuit no. 5 of the Volsk district in Saratov Region found the applicant guilty as charged and imposed on her a fine in the amount of 35,000 Russian roubles (RUB). The applicant and her counsel attended the hearing. The applicant chose to remain silent. The prosecutor was present and made submissions to the court. The court questioned the people present in the café on 3 January 2016, including N., the minor to whom the applicant had sold beer, and the café’s owner, and examined a video recording of the incident, the administrative-offence report and other documents, including the applicant’s statement of 14 January 2016. The applicant appealed.
11. On 6 May 2016 the Volsk District Court of Saratov Region upheld the judgment of 22 March 2016 on appeal. The applicant did not attend the hearing, asking the court to adjourn the examination of her case, referring to her being in the final month of pregnancy. Noting that the applicant was not in hospital, the court ruled that the applicant had not provided any proof that she was unable to attend the hearing for health reasons and proceeded with the examination of her complaint. The District Court reviewed the applicant’s case, finding it established that her guilt was confirmed by the evidence admitted and examined by the justice of the peace, including, inter alia, the applicant’s statement of 14 January 2016.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
12. The applicant complained that the prosecutor had obtained her statement without providing access to a lawyer or advising of her rights; that the justice of the peace had admitted the statement in evidence on which her conviction had been based; that she had been unable to attend the appeal hearing and that no free legal assistance had been available to her in the appeal proceedings. She relied on Article 6 of the Convention, which, in so far as relevant, 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[.]”
13. The Government contested that argument. They submitted that the prosecutor had advised the applicant of her procedural rights, including the right to legal assistance and the right against self-incrimination, when instituting administrative proceedings against her. They further argued that the applicant had not asked for legal assistance when questioned on 14 January 2016. As regards the appeal proceedings, the Government pointed out that the applicant had failed to show that she had been unable to attend the hearing for health reasons. The fact that, at the time, the applicant had been pregnant had not been, in itself, sufficient proof that she had not been fit to appear in court. She had chosen not to retain a lawyer before the appellate court. It had not been incumbent on the latter, as a matter of law, to appoint counsel to represent the applicant. The applicant’s case had been reviewed by domestic courts at two levels of jurisdiction in full compliance with the applicable legislation.
14. The applicant maintained her complaint.
15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. General principles
16. The general principles concerning the right of everyone charged with a criminal offence to be effectively defended by a lawyer are well established in the Court’s case law, and have recently been summarised and refined in a number of judgments of the Grand Chamber (see Beuze v. Belgium [GC], no. 71409/10, §§ 119-50, 9 November 2018; Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-20, 12 May 2017; and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 249-74, 13 September 2016).
2. Application of the general principles in the present case
(a) Whether the applicant was subject to a criminal charge
17. The Court notes, at the outset, and the Government do not argue otherwise, that the proceedings instituted in the applicant’s case on the charge of having supplied alcohol to a minor are to be regarded as criminal within the autonomous meaning of Article 6 of the Convention. In this connection, the Court takes into account that the penalty imposed on the applicant in the form of the administrative fine was punitive and deterrent in nature (compare Mikhaylova v. Russia, no. 46998/08, § 64, 19November 2015).
18. The Court further notes that those proceedings were formally instituted on 28 January 2016 (see paragraph 8 above). Nevertheless, regard being had to the fact that on 14 January 2016 the applicant was questioned as to whether she had sold alcohol to B. and her statement was subsequently used at trial, the Court accepts that the applicant can be regarded as having been “charged with a criminal offence” and claim the protection of Article 6 of the Convention as of 14 January 2016.
(b) Whether the proceedings against the applicant were fair
19. The Court finds it established that on 14 January 2016 the prosecutor questioned the applicant and obtained her statement without advising her of her rights or providing her with access to a lawyer. In their observations, the Government argued that the applicant had not asked for legal assistance. The Court finds that assertion of no relevance and concludes, in the absence of the argument on the part of the Government to the contrary, that there were no “compelling reasons” justifying such a restriction. Accordingly, it remains for the Court to ascertain whether the overall fairness of the proceedings was ensured (see Ibrahim and Others, cited above, § 262-63).
20. In this connection, the Court reiterates that, where there are no “compelling reasons”, it must apply very strict scrutiny to the assessment of fairness. The absence of such reasons weighs heavily in the balance and may tip it towards finding a violation. The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer. Furthermore, where access to a lawyer was delayed, and where the suspect was not notified of the right to legal assistance, the privilege against self-incrimination or the right to remain silent, it will be even more difficult for the Government to show that the proceedings as a whole were fair (see, for example, Beuze, cited above, §§ 145-46).
21. Having examined the Government’s submissions, the Court discerns no argument therein demonstrating that the overall fairness of the proceedings had not been irretrievably prejudiced by the restriction imposed on the applicant at the pre-trial stage. The Court therefore concludes that the Government have not satisfied the burden of proof.
22. In this regard, the Court attaches a particular weight to the fact that the applicant’s statement given to the prosecutor on 14 January 2016 in the absence of legal advice was relied upon by the trial court when delivering a guilty verdict in the applicant’s case. While it is true that the applicant never confessed to the charge and therefore did not incriminate herself strictosensu, she nevertheless gave a detailed statement to the prosecutor which must have affected her position. The justice of the peace admitted the statement in evidence without conducting an appropriate examination of the circumstances in which the statement had been given, or of the impact of the absence of access to legal advice. The statement constituted an integral part of the evidence on which the applicant’s conviction was based.
23. The appellate court did nothing to remedy the said omission on the part of the justice of the peace. While reviewing the applicant’s case, it merely reiterated the findings of the justice of the peace that the applicant’s guilt had been established on the basis of the evidence, including her statement of 14 January 2016.
24. Regard being had to the above, the Court considers that the proceedings brought against the applicant, when considered as a whole, were unfair. There has been therefore a violation of Article 6 §§ 1 and 3 (c) of the Convention.
25. In view of the above finding, the Court considers it unnecessary to examine the remainder of the applicant’s grievances concerning the alleged unfairness of the criminal proceedings against her.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
26. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
27. The applicant claimed 492.95 euros (EUR) and EUR 25,000 in respect of pecuniary and non-pecuniary damage respectively.
28. Discerning no violation of Article 6 of the Convention in the present case, the Government considered that the applicant’s claims should be dismissed in full. They further noted that the applicant’s claim in respect of pecuniary damage corresponding to the size of the fine paid by the applicant should be dismissed given that the fine had been lawfully imposed. Lastly, they submitted that the applicant’s claims in respect of non-pecuniary damage were excessive and unsubstantiated.
29. The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicants did not have the benefit of the guarantees of Article 6 § 1 of the Convention. It cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 might have been, had the requirements of this provision not been violated (compare Menchinskaya v. Russia, no. 42454/02, § 46, 15 January 2009, and Popov v. Russia, no. 26853/04, § 260, 13 July 2006). Accordingly, it does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage.
B. Costs and expenses
30. The applicants did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award them any sum on that account.
C. Default interest
31. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declaresthe application admissible;
2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;
(a) that the respondent State is to pay the applicant, within three months EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Alena Poláčková
 Rectified on 3 March 2020: “2.Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;” has been added.