issued by the Registrar of the Court

ECHR 365 (2015)

19.11.2015

Russian law should have provided free legal assistance to a pensioner in

proceedings against her for participating in a march

In today’s Chamber judgment¹in the case of Mikhaylova v. Russia (application no. 46998/08) the

European Court of Human Rights held, unanimously, that there had been:

two violations of Article 6 §§ 1 and 3 (right to a fair trial/right to free legal assistance) of the

European Convention on Human Rights as concerned administrative offence proceedings brought

against the applicant, Valentina Mikhaylova, firstly, for failing to comply with a police order and,

secondly, for taking part in an unlawful public gathering.

The case concerned administrative offence proceedings under Russian law and the right to free legal

assistance in such proceedings. Ms Mikhaylova complained that she had not, and could not, benefit

from free legal assistance as Russian law excluded this possibility in administrative offence cases.

The Court was satisfied that the administrative proceedings brought against Ms Mikhaylova could be

classified as “criminal” within the meaning of Article 6 of the European Convention. In particular, the

criminal sphere of Article 6 was applicable to the case against Ms Mikhaylova concerning the offence

of taking part in an unlawful public gathering, even though the offence did not involve a custodial

sentence but a relatively low fine. This was, in particular, because the fine imposed on

Ms Mikhaylova had been punitive and deterrent in nature, which was one of the characteristics of

criminal penalties.

One of the fundamental features of a fair trial under the European Convention was the right of

everyone charged with a criminal offence to be effectively defended by a lawyer; however, the

Russian Code of Administrative Offences had not provided Ms Mikhaylova, a pensioner with no legal

or other relevant training, with the possibility to obtain free legal assistance at any stage or in any

form in the proceedings against her. Given a certain degree of complexity in the cases against

Ms Mikhaylova, as well as what was at stake for her, namely 15 days’ detention (for the first offence)

and her right to freedom of assembly (as concerned the second offence), the Court considered that

she should have been provided with free legal assistance.

Principal facts

The applicant, Valentina Mikhaylova, is a Russian national who was born in 1949 and lives in Saint

Petersburg (Russia).

On 25 November 2007 Ms Mikhaylova, a pensioner, was taken to the police station following her

participation in a march. She was accused of two administrative offences; firstly, under Article 19.3

of the Code of Administrative Offences (CAO) for failing to comply with a police order for the march

to disband and, secondly, under Article 20.2 of the CAO for taking part in an unlawful public

gathering.

On 19 December 2007 Ms Mikhaylova’s requests for free legal assistance were dismissed on the

grounds that the legislation governing administrative offences contained no rule concerning

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

provision of legal assistance. On the same day she was found guilty of both offences and fined a total

of 1000 Russian roubles (RUB), the equivalent of 28 euros at the time.

Ms Mikhaylova appealed and sought free legal assistance for the appeal proceedings. Her appeal

was ultimately rejected by the Supreme Court in 2008.

Ms Mikhaylova then lodged a constitutional complaint regarding the non-availability of free legal

assistance in proceedings for administrative offences. The Constitutional Court declared the

complaint inadmissible on 5 February 2015 in view of: the relatively low fine imposed on

Ms Mikhaylova; the fact that she would only have been given a sentence of administrative detention

in exceptional circumstances; and, the fact that she had not been subject to any pre-trial detention

which exceeded 48 hours. However, in that decision the Constitutional Court encouraged the

legislator to specify those conditions required for obtaining legal assistance in CAO cases and to

remedy certain lacunae present.

Complaints, procedure and composition of the Court

Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial /right to legal assistance), Ms Mikhaylova

complained that she had not, and could not, benefit from free legal assistance in the administrative

proceedings against her as Russian law excluded this possibility in administrative offence cases. She

notably alleged that the legislative exclusion of free legal assistance from administrative offence

cases had revealed a structural deficiency in the domestic legal order.

The application was lodged with the European Court of Human Rights on 10 September 2008.

Judgment was given by a Chamber of seven judges, composed as follows:

András Sajó (Hungary), President,

Elisabeth Steiner (Austria),

Khanlar Hajiyev (Azerbaijan),

Paulo Pinto de Albuquerque (Portugal),

Linos-Alexandre Sicilianos (Greece),

Erik Møse (Norway),

Dmitry Dedov (Russia),

and also Søren Nielsen, Section Registrar.

Decision of the Court

The Court was satisfied that the administrative proceedings brought against Ms Mikhaylova under

both Article 19.3 and Article 20.2 of the CAO could be classified as “criminal” within the meaning of

Article 6 of the European Convention. In particular, the criminal limb of Article 6 of the Convention

was applicable not just to proceedings under Article 19.3 of the CAO where a defendant such as

Ms Mikhaylova faced a statutory sentence of detention (of up to 15 days at the time) for failing to

comply with a police order but also to other proceedings where there was no custodial sentence, for

instance under Article 20.2 of the CAO where Ms Mikhaylova risked only a fine for breaching the

regulations on public assemblies. Indeed, the criminal limb of Article 6 was applicable to the case

under Article 20.2 irrespective of the relatively low fine ordered at the time for the offence at issue,

as – among other things – the fine had not been intended as pecuniary compensation for damage

but had been punitive and deterrent in nature, which was one of the characteristics of criminal

penalties.

The Court reiterated that one of the fundamental features of a fair trial was the right (although not

absolute) of everyone charged with a criminal offence to be effectively defended by a lawyer and

that the right to free legal assistance under Article 6 § 3 of the Convention was subject to two

conditions, namely lack of means and the “interests of justice”.

The Court was ready to assume that Ms Mikhaylova would satisfy any means test, even though such

a test had not and could not be applied at the domestic level.

As concerned the administrative offence case under Article 19.3 against Ms Mikhaylova, the Court

considered that free legal assistance was necessary “in the interests of justice” given what was at

stake for her, namely 15 days’ detention.

Similarly, “the interests of justice” required that Ms Mikhaylova should have had the possibility to

obtain free legal assistance in the case against her under Article 20.2, because, even though she only

risked a relatively low (even by national standards) fine, it concerned two fundamental freedoms

protected under the European Convention, namely the right to freedom of expression and to

freedom of peaceful assembly. The CAO had not provided Ms Mikhaylova, a pensioner with no legal

or other relevant training, with the possibility to obtain free legal assistance at any stage (either in

the trial or appeal proceedings relating to both offences) or in any form (such as legal assistance

during the trial, legal consultation/representation before the court hearing or to draft an appeal, or a

combination of all these).

Indeed, while Ms Mikhaylova’s constitutional complaint had been dismissed, it was notable in those

proceedings that the Constitutional Court had encouraged the legislator to remedy shortcomings it

had found in the CAO and to legislate on the matter of legal assistance.

The Court therefore held that there had been a violation of Ms Mikhaylova’s right to free legal

assistance under Article 6 §§ 1 and 3 as concerned the administrative offence cases brought against

her under both Article 19.3 as well as Article 20.2 of the CAO.

Article 41 (just satisfaction)

The Court held that Russia was to pay Ms Mikhaylova 1,500 euros (EUR) in respect of non-pecuniary

damage and EUR 128 in respect of costs and expenses.

Separate opinion

Judge Pinto de Albuquerque, joined by Judge Dedov, expressed a concurring opinion, which is

annexed to the judgment.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.