FIRST SECTION

CASE OF SIBGATULLIN v. RUSSIA

( Application no. 32165/02 )

JUDGMENT

STRASBOURG

23 April 2009

FINAL

14 /0 9 /2009

This judgment may be subject to editorial revision

In the case of Sibgatullin v. Russia ,

The European Court of Human Rights ( First Section ), sitting as a Chamber composed of:

Christos Rozakis , President, Anatoly Kovler , Elisabeth Steiner , Dean Spielmann , Sverre Erik Jebens , Giorgio Malinverni , George Nicolaou , judges, and Søren Nielsen , Section Registrar ,

Having deliberated in private on 2 April 2009 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 32165/02) 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, Mr German Nailyevich Sibgatullin (“the applicant”), on 10 December 2002 .

2 . The applicant, who had been granted legal aid, was represented by the Centre for the International Protection. The Russian Government (“the Government”) were re presented by Mr P. Laptev and Ms V. Milinchuk , former Representatives of the Russian Federation at the European Court of Human Rights.

3 . The applicant alle ged, in particular, that his right to a fair trial had been violated in that the appeal hearing of his criminal case had been held in his absence.

4 . On 8 July 2005 the President of the First Section decided to give notice of the application to the Gove rnment. I t was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3) .

5 . On 13 September 2007 the Presid ent of the First Section invited the Government to submit further written observations on the admissibility and merits of the application under Rule 54 § 2 (c) of the Rules of the Court.

6 . The Government objected to the joint examination of the admissibility and merits of the application. The Court examined and dismissed their objection.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7 . The applicant was born in 1966 and lives in Nizhniy Tagil , Sverdlovsk regi on. He is currently serving a prison sentence in Nizhnyy Tagil.

8 . In September 2001 the applicant and a certain B. were arrested on suspicion of three murders and were placed in detention. The applicant alleged that he was ill-treated while in detention. However, he did not lodge any c omplaints in that respect with the competent domestic authorities.

9 . On 22 February 2002 the Sverdlovsk Regional Court (“the trial court”) heard the case in the presence of the a pplicant, his counsel Ch. and his co-accused B. T he applicant submitted that B. had tried to strangle the first victim with a cord , but had not managed to do so and asked hi m for help. So, h e had tightened the cord. Afterwards he strangled the second victim. He further maintained that th e third victim was killed by his co-accused . Co-accused B . submitted that the applicant had killed the third victim with a knife.

10 . The trial court co nsidered that B . ’ s testimony regarding the third murder was coherent and consistent with ot her evidence submitted at tr i a l and therefore deserved more credit. It found the applicant guilty of three murders and theft and sentenced him to twenty years ’ imprisonment. It found B. guilty of complicity in committing the first and the second murders as well as of theft and sentenced her to fifteen years ’ imprisonment. The judgment stated that the applicant and his co-accused could appeal to the Supreme Court of the Russian Federation within seven days of the date on which they received a copy of the judgment.

11 . In their appeal against the judg ment of 22 February 2002 the applicant and his counsel complained , in particular, that the trial court ’ s conclusions regarding the applicant ’ s guil t in the first murder were not supported by the evidence submitted at trial. The first victim had been strangled by B. and when the applicant approached her , she was already dead. T he applicant ’ s conviction for the third murder had been based solely on B . ’ s testimony which was supported by nothing else but the court ’ s suppositions . The applicant and his counsel requested that the judg ment be quashed and the case be remitted for a fresh trial. When lodging the appeal the applicant did not expressly state that he wished to take part in the appeal hearing. The applicant ’ s co-accused did not appeal against her conviction.

12 . On 15 August 2002 the Supreme Court of the Russian Federation (“the Supreme Court”) examined the applicant ’ s appeal in the presence of the prosecutor and dismissed it. Neither the applicant nor his counsel were present at that hearing.

13 . On 26 October 2005 the Deputy Prosecutor General of the Russian Federation lodged an application for supervisory review of the appeal decision of 15 August 2002 with the Presidium of the Supreme Court , on the ground that the applicant and his lawyer had not been properly notified of the appeal hearing of 15 August 2002 and therefore, could not attend it. He requested that the above decision be quashed and the case be remitted for a fresh appeal examination .

14 . On 5 April 2006 the Presidium of the Supreme Court quashed the decision of 15 August 2002 and remitted the case for a fresh examination of the appeal . It appears that n either the applicant nor his representative were present at that hearing.

15 . On 23 May 2006 the head of the detention facility in which the applicant was held received a t elegram which read as follows: “Inform Sibgatullin that his case will be heard by the Supreme Court of the Russian Federation at 10 am on 29 June 2006” . On the same date the applicant read that telegram. A similar n otification was also sent to the applicant ’ s legal counsel Ch.

16 . On 29 June 2006 the Supreme Court held a n appeal hearing in the absence of the applicant and his counsel . It heard the prosecutor who requested that the applicant ’ s conviction on three counts of murder be upheld and that the sentence imposed for theft be lifted as the prescription period had expired.

17 . Having studied the materials of the case, the appeal court found, in particular, that the trial court had rightly concluded on the basis of evidence submitted at trial that when the applicant had been tighten ing the cord , the first victim was still alive and that therefore, he had killed her. It further confirmed the trial court ’ s conclusion that the applicant had also killed the third victim. The Supreme Court concluded that the trial court had correctly characterised the applicant ’ s actions as murders and had imposed an appropriate sentence. I t upheld the applicant ’ s conviction for the murders, lifted his sentence in respect of theft and sentenced the applicant to nineteen years and six months ’ imprisonment.

18 . It does not appear from the decision of 29 June 2006 that the appeal court verified whether the applicant had been duly informed of the hearing and whether he had expressed a wish to take part in it.

19 . On 4 July 2006 the applicant , who allegedly was not aware of the appeal hearing of 29 June 2006, but at some point learned that the appeal decision of 15 August 2002 had been quashed on 5 April 2006, sent additional grounds of appeal to the appeal court. On the same date he also lodged a special request for leave to appear at the appeal hearin g and requested the appeal court to provide him with legal counsel.

II. RELE VANT DOMESTIC LAW AND PRACTICE

Code of Criminal Procedure of the Russian Federation of 18 December 2001, in fo rce since 1 July 2002 (“the CCrP”)

20 . A ppeal court s shall verify the legality, validity and fairness of the judgment of the trial court (Article 360) .

21 . I f a convicted person wishes to take part in the appeal hearing, he shall indicate th is in his statement of appeal (Article 375 § 2) .

22 . P arties shall be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. Whether a convicted person held in custody shall be summoned shall be decided by the court. A convicted person held in custody who expressed a wish to be present at the examination of the appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall make a decision with respect to the form of participation of the convicted person in the court session. A defendant who has appeared before the court shall always be entitled to take part in the hearing. I f persons who ha ve been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude examination of the case (Article 376 §§ 2-4) .

24 . T he appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment (Article 378) .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

25 . The applicant complained under Article 6 of the Convention that criminal proceedings against him had been unfair because appeal hearings on 15 August 2002 and 29 June 2006 had been held in his absence. The relevant part s of Article 6 of the Co nvention provide as follows :

“ 1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial 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 ... ”

A. Submissions by the parties

26 . The Government acknowledged that neither the applicant nor his representative had been notified of the appeal hearing of 15 August 2002 in breach of Article 376 of the CC r P . In that connection, supervisory review proceedings were initiated on the application of the Deputy Prosecutor General. On 5 April 2006 the Presidium of the Supreme Court of the Russian Federation quashed the appeal decision of 15 August 2002 and remitted the case for a fresh appeal hearing . A fresh appeal examination took place on 29 June 2006. The applicant and his counsel were duly informed of that hearing by telegrams sent on 4 May 2006. The applicant received that notification on 23 May 2006, however he submitted a request for participation in the appeal hearing only on 4 July 2006. He did not ask to be brought to the appeal hearing in his grounds of appeal. Therefore, taking into account that the applicant and his counsel were duly informed of the hearing, that the applicant failed to make a spec ial request for participation in the hearing in due time, that his counsel failed to appear without any valid reasons and did not ask to postpone the hearing, the appeal court examined the case in their absence. The Government concluded that the applicant had been able to take part in the appeal hearing of 29 June 2006, but had failed to use that opportunity. Consequently, the Russian authorities had complied with the requirements of Article 6 §§ 1 and 3 (c) of the Convention.

27 . The appl icant submitted that neither he nor his counsel had been informed of the supervisory review proceeding and of their outcome . The telegram of 4 May 2006 which he received on 23 May 2006 stated that a hearing of his case would take p lace on 29 June 2006, but it did not say what kind of hearing it would be. Furthermor e, the Government did not submit any proof that his counsel had received that notice. Therefore, it cannot be said that his counsel was duly informed of the appeal hearing. Furthermore , four years had elapsed since the date of the first appeal hearing and the contract concluded between the appli cant and his counsel had expired. The authorities were under an obligation to verif y whether the applicant was still represented, and provide him with a nother representative if necessary. The applicant concluded that the authorities ’ failure to inform him about the developments in his case and failure to notify his counsel of the appeal hearing of 29 June 2006 violated his right to a fair trial and had not provided appropriate redress for their failure to notify him and his counsel of the appeal hearing of 15 August 2002.

B. The Court ’ s assessment

1 . Admissibility

28 . According to the Government, the supervisory review and the new appeal proceedings had remedied the shortcoming s of the initial appeal proceedings. Therefore, they may be understood to claim that the applicant had lost his victim status in respect of the appeal hearing of 15 August 2002.

29 . In this respect, t he Court reiterates that an appli cant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for, a breach of the Convention (see , for example , Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-93 , ECHR 2006 ‑ ... ).

30 . As regards the first condition, namely the acknowledgment of a violation of the Convention, the Court considers that the Presidium ’ s decision to quash the appeal decision of 15 August 2002 does amount to an acknowledgment that there had been a breach of Article 6 of the Convention.

32 . The Court considers that the applicant ’ s complaint about holding the appeal hearing s of 15 August 2002 and 29 June 2006 in his absence is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2 . Merits

(a) General principles

37 . The Court further reiterates that the principle of equality of arms is another feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both the prosecution and the defence must be given the opportunity to have knowledge of and comment on the observations made and the evidence adduced by the other party (see Brandstetter v. Austria , 28 August 1991, §§ 66-67, Series A no. 211).

(b) Application of the above principles to the instant case

39 . The Court observes that in Russian criminal procedure , appeal courts have jurisdiction to deal with questions of law and fact pertaining both to crimi nal liability and to sentencing. They are empowered to examine the evidence and additional materials submitted by the parties directly. As a result of the examination, the appeal courts may dismiss the appeal and uphold the judgment, quash the judgment and terminate the criminal proceedings, quash the judgment and remit the case for a fre sh trial, or amend the judgment (see “Relevant domestic law and practice” above, paragraphs 20 and 23 -2 4 ).

40 . In their grounds of appeal the applicant and his counsel contested the applicant ’ s conviction on factual and legal grounds. They submitted, in particular, that the applicant ’ s guilt in the first and the third murders had not been supported by evidence submitted at trial and that the trial court attached undue weight to the applicant ’ s co-accused ’ s statements. They asked the appeal court to quash the conviction for those two murders and remit the case for a fresh trial. The Prosecutor asked to uphold the applicant ’ s conviction for the three murders. Consequentely, the issues to be determined by the appeal court in deciding the applicant ’ s liability were both factual and legal. The appeal court was called on to make a full assessment of the applicant ’ s guilt or innocence regarding the charges of the first and third murders.

41 . The Court further observes that the proceedings in question were of utmost importance for the applicant, who had been sentenced to twenty years ’ imprisonment at first instance and who was not represented at the appeal hearing of 29 June 2006. It also does not lose sight of the fact that the prosecutor was present at the appeal hearing and made submissions.

42 . Having regard to the criminal proceedings against the applicant in their entirety and to the above elements, the Court considers that the appeal court could not properly determine the issues before it without a direct assessment of the evidence given by the applicant in person. Neither could it ensure equality of arms between the parties without giving the applicant the opportunity to reply to the observations made by the prosecutor at the hearing. It follows that in the circumstances of the present case, it was essential to the fairness of the proceedings that the applicant be present at the appeal hearing.

43 . The Government have acknowledged and the Court agrees that the appeal proceeding s of 15 August 2002 fell short of the guarantees of fair trial because neither the appl icant nor his legal counsel were duly notified of t he appeal hearing. However, the Government contended that the appeal decision of 15 August 2002 had been quashed by way of supervisory review and that in new appeal proceedings the applicant had been given an opportunity to apply for participation in the hearing, which he did not use.

44 . In order to assess whether the supervisory review indeed remedied the defects of the original proceedings, as alleged by the Government, the Court has to verify whether the guarantees of fair trial were afforded in the ensuing appeal proceedings and whether the applicant lost the opportun ity to be present at the hearin g by failing to submit a special request .

47 . T he Court observes that no explicit waiver was made in the pr esent case. The question is whet her there was a tacit one. In order to reply to that question, the Court will have to establish in the first place, whether, as the Government submitted, the applicant and his representative were duly informed of the appeal hearing of 29 June 2006.

49 . Furthermore, it follo ws from the appeal decision of 29 June 2006 that the appeal court did not verif y whether the applicant and his representative had been duly notified of the hearing . Neither did that decision state that the applicant had failed to submit a request for participation in the hearing and had waived his right, and that his failure to appear would not preclude examination of the case. In suc h circumstances, the Court considers that it cannot be said that in the present case the applicant had waived his right to take part in the hearing in an unequivocal manner.

II . ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

51 . The applicant complained under Article 3 that he had been ill-treate d while in pre-trial detention. The Court notes that the applicant did not lodge any complaints in that respect with the competent state authorities. It follows that this complaint must be rejected for non-exhaustion of domestic remedies pursuant to Article 3 5 §§ 1 and 4 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

52 . 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.”

53 . The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be submitted in writing within the time-limit fixed for the submission of the applicant ’ s observations on the merits , “failing which the Chamber may reject the claim in whole or in part”.

54 . In the instant case, on 4 November 2005 the applicant was invited to submit his claims for just satisfaction. He failed to submit any such claims within the required time-limit. Therefore , the Court makes no award under Article 41 of the Convention.

FOR THESE R EASONS, THE COURT UNANIMOUSLY

1 . Join s to the merits the Government ’ s objection concerning the victim status of the applicant and rejects it ;

2. Declares the complaint concerning holding the appeal hearing s of 15 August 2002 and 29 June 2006 in the applicant ’ s absence admissible and the remainder of the application inadmissible;

3 . Holds that there h as been a violation of Article 6 § § 1 and 3 (c) of the Convention on account of holding the appeal hearing s of 15 August 2002 and 29 June 2006 in the applicant ’ s absence ;

4. Decides to make no award under Article 41 .

Done in English, and notified in writing on 23 April 2009 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Rozakis, Spielmann and Malinverni is annexed to this judgment .

C.L.R. S.N.

JOINT CONCURRING OPINION OF JUD GES ROZAKIS, SPIELMANN AND MALINVERNI

1. As in the case of Sakhnovskiy v. Russia , (no. 21272/03, 5 February 2009 ), we voted in favour of finding a violation of Article 6 §§ 1 and 3 (c) of the Convention.

2. In the present case the majority follows the approach adopted in Sakhnovsksi y , finding that the second appeal hearing did not provide appropriate redress for the shortcomings of the first appeal hearing and holding that there was a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c) on account of the fact that both appeal hearings were held in the applicant ’ s absence.

3. In our view however the applicant was no longer a victim of the shortcomings of the first appeal hearing, because by quashing the appeal decision and sending the case for a fresh appeal examination the authorities had acknowledged and provided appropriate redress for the shortcomings of the first appeal hearing.

4. Our reasoning therefore differs from the majority ’ s approach and we would like to refer in this respect to our joint concurring opinion in Sakhnovskiy and in particular to paragraph 5 of that opinion.