FIRST SECTION

DECISION [1]

AS TO THE ADMISSIBILITY OF

Application no. 10709/02 by Edgar Nikolayevich ABRAMYAN against Russia

The European Court of Human Rights ( First Section), sitting on 31 August 2006 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 18 January 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Edgar Nikolayevich Abramyan, is a Russian national who was born in 1974 and lives in Pyatigorsk. The respondent Government are represented by Mr P.A. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

On 16 June 2000 criminal proceedings were brought against the applicant, a police investigator. The preliminary investigation authorities charged him with bribe-taking in volving a large sum of money, aggravated by extortion, under Article 290 § 4 (c) and (d) of the Criminal Code , and with a number of other offences .

The applicant and his lawyer were present at the hearings before the Stavropol Regional Court .

On 2 October 2000 the Stavropol Regional Court delivered a judgment. In respect of the legal characterisation of the acts the applicant was found to have committed, it held as follows:

“... the court finds the classification of the acts of Abramyan E.N. by the preliminary investigation authorities to have been erroneous and classifie s his acts under Articles 30 § 3 and 159 § 3 (b) of the UK RF [ Criminal Code of the Russian Federation ]. It was established that Abramyan, through the abuse of official authority and with a view to misappropriating another ’ s property, misled witness [L.], claiming that he would forward her case to a court. He then fraudulently obtained two thousand US dollars from [L.], via [D.], having kept from [D.] and [L.] the fact that the proceedings had already been terminated. Taking into account the amount that was stolen and the fact that Abramyan had no real opportunity to dispose of the money, having been arrested at the scene, the court regards his acts as attempted misappropriation, through the abuse of official authority, of another ’ s property, involving a large sum of money, since he committed all the acts necessary in order to misappropriate another ’ s property and failed to complete the crime due to circumstances beyond his control.”

The court convicted the applicant under Articles 30 § 3 and 159 § 3 (b) of the Criminal Code, acquitted him on the remaining charges and sentenced him to seven years ’ imprisonment and confiscation of property .

According to the record of the hearing, after pronouncing judgment the presiding judge explained to the applicant the procedure and time - limit for appealing against the judgment. He explained that convicted persons could participate in the examination of their case by an appeal body . The record of the hearing further stated:

“Having ascertained that the applicant and the participants in the trial have understood the judgment and the procedure and time-limit for appealing against it, the presiding judge declares the hearing closed.”

The applicant appealed against the judgment. In particular, he complained that the court ’ s classification of his actions had been erroneous.

In his appeal against the judgment the applicant did not request that he be summoned to the hearing before the appeal court or that he be informed of the date of the hearing. Nor did he or his lawyer lodge a separate request to that effect .

On 27 December 2000 the Supreme Court of the Russian Federation held an appeal hearing at which neither the applicant, who was in detention pending trial , nor his lawyer, was present. T he prosecut or was present and argued that the judgment should be upheld . The court rejected the applicant ’ s appeal and upheld the judgm ent, having found that the trial court had correctly established the facts and given the correct legal characterisation of the acts which the applicant had been found to have committed.

On an unspecified date in 2003 the applicant was released on parole.

B. Relevant domestic law

1. Bribe-taking and fraud

An official who – in person or through an intermediary – receives a bribe in the form of money, shares or other property or benefits in return for acts (omissions) in favour of the bribe-giver, provided that such acts are within the professional competence of the official or the official can facilitate the performance of such acts by virtue of his position, shall be criminally liable (Article 290 § 1 of the Criminal Code of the Russian Federation). The same acts , if they are aggravated by extortion (Article 290 § 4 (c)) or involve a large sum of money (Article 290 § 4 ( d )) , are punishable by seven to twelve years ’ imprisonment, which may be accompanied by a confiscation order.

Article 159 § 1 of the Criminal Code provides that fraud, that is , theft of an other ’ s property or acquisition of rights to an other ’ s property by means of deception or breach of trust , is a criminal offence. Article 159 § 3 (b) specifies that fraud involving a large sum of money shall be punishable by five to t en years ’ imprisonment, which may be accompanied by a confiscation order.

2. Reclassification of an offence by the court

Article 254 of the 1960 Code of Criminal Procedure (“the CCP”) in force at the material time required the court to examine the case on the basis of the charge brought against the defendant(s). The charge could be amended by the court provided that such amendment did not aggravate the situation of the defendant or violate his right to defend himself. If the amendment entailed a violation of the defence rights, the court had to remit the case for additional investigation. It did not have powers to prefer a more serious charge or a charge based on substantially different factual circumstances. The court could continue the trial if the amendment related only to the deletion of certain counts or aggravating circumstances.

3. Right to be present at the appeal hearing

Under Article 335 of the CCP, at the appeal stage the public prosecutor gave his conclusion as to whether a judgment was lawful and well-founded. Defence counsel had the right to participate in the hearing. A decision as to the defendant ’ s participation in the hearing was taken by the appeal court. A defendant who appeared before the court was always entitled to present arguments.

In Decision n o. 27-P of 10 December 1998 the Constitutional Court of the Russian Federation declared Article 335 § 2 of the CCP incompatible with the Constitution in that it had allowed appeal courts to take a final decision in a case in which they had rejected the defendant ’ s request for the appeal to be examined in his presence, without the defendant being given an opportunity to familiarise himself with the documents for the hearing and to communicate his opinion on the issues raised before the appeal court.

Article 336 of the CCP provided that appellants should be notified of the date of their appeal hearing before any court lower than the Supreme Court of the Russian Federation . It further provided that the Supreme Court must give notice of the date of the appeal hearing to those appellants who had asked to be informed when lodging their appeal. Failure of appellants who had been notified of the date to attend the hearing did not prevent the court from examining the case. A notice of the time of the hearing on appeal was to be posted in the court not later than three days before the hearing.

In Decision n o. 200-O of 17 October 2001 the Constitutional Court held that the provisions of Article 336 of the CCP could not serve a basis for failing to inform participants in proceedings who had the right to appeal against judgments, of the date of examination of their appeal by a court at any level of jurisdiction.

4. The appeal court ’ s jurisdiction

Under Article 332 of the CCP t he appeal court considered, on the basis of the materials in the case-file and newly submitted materials, whether a first-instance judgment was lawful and well-founded. The appeal court could examine the case on the merits and was not bound by the grounds of the appeal .

Under Articles 339-341 of the CCP the appeal court could decide to dismiss the appeal and uphold the judgment, to quash the judgment and remit the case for a new investigation or a fresh trial-court examination, to terminate the criminal proceedings or to vary the judgment. It could reduce a sentence or amend the legal classification of a conviction to the defendant ’ s advantage. If it found a sentence or legal classification to be too lenient, it could quash the judgment only if appeals on such grounds had been filed by the prosecutor or the victim. Acquittals could be quashed on appeal at the request of the prosecutor, the victim or the acquitted person.

Article 342 [of the CCP] Grounds for quashing or varying judgments [on appeal]

“The grounds for quashing or varying a judgment on appeal shall be as follows:

(i) prejudicial or incomplete investigation or pre-trial or court examination;

(ii) inconsistency between the facts of the case and the conclusions reached by the court;

(iii) a grave violation of procedural law;

(iv) improper application of [substantive] law;

(v) discrepancy between the sentence and the seriousness of the offence or the convicted person ’ s personality.”

COMPLAINTS

1. The applicant complained under Article 6 of the Convention that the trial had been unfair . In particular, the fact that he had been convicted of an offence with which he had never been charged had breached his right to defend himself.

2. He further complained , relying on Articles 1, 5 and 6 of the Convention and Article 2 of Protocol No. 7, that he had not been informed of the date and place of the appeal hearing , and that the appeal hearing, having been held in his absence and in the absence of his lawyer, had not complied with the principle of equality of arms.

3. The applicant also complained, relying on Article 6 of the Convention, that the trial court had not been impartial , that it had dealt with the evidence in an arbitrary manner and that it had prepared the text of the judgment before the deliberations . He complained of errors in the trial record and of the outcome of the proceedings , which, he argued, had resulted in an unduly severe punishment .

THE LAW

1. The applicant complained un der Article 6 of the Convention that the reclassification of the offence by the trial court from bribe-taking to fraud had prevented him from exercising his defence rights properly. Article 6 in its relevant parts provides:

“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:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence; ...”

The Government submitted that, in accordance with Article 254 of the Code of Criminal Procedure, in force at the material time, a trial court could examine criminal cases only in respect of the charges on which a defendant had been brought to trial. Amendment of the charges by the trial court was allowed only if it was not to the detriment of the accused and did not violate his right to defend himself. The factual scope of the applicant ’ s criminal acts had remained unchanged; only their legal qualification had been altered. Since Article 159 of the Criminal Code concerned a less serious offence than Article 290, the trial court had improved the applicant ’ s position without changing the essence of the charge in its factual aspect. No new circumstances had been established by the trial court going beyond the initial charge. The applicant had therefore been informed, throughout the trial, of the charge against him. He had had ample opportunity to prepare his defence. Hence, his rights under Article 6 § 3 (a) and (b) had not been violated and his complaint should be rejected as manifestly ill-founded .

The applicant submitted that the corpus delicti of the offence under Article 159 of the Criminal Code differed from that of the offence under Article 290. Bribe-taking represented malfeasance in office , whereas fraud was a crime against property. The trial court had actually convicted him of a different crime with which he had never been charged. His defence rights had been violated because he had not known what he was accused of.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complained , relying on Articles 1, 5 and 6 of the Convention and Article 2 of Protocol No. 7, of the failure of the judicial authorities to inform him of the date and place of the appeal hearing .

The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention, cited above.

The Government submitted t hat , in accordance with Article 336 of the Code of Criminal Procedure, in force at the material time, the Supreme Court of the Russian Federation gave notice of the date of an appeal hearing only to those participants in proceedings who had made a request to that effect when lodging their appeal. Since the applicant had made no such request the Supreme Court, in examining the applicant ’ s appeal in his absence and in the absence of his lawyer, had acted in full compliance with the legislation on criminal procedure. Therefore, the applicant ’ s right to a fair trial guaranteed by Article 6 § 1 had not been violated. His complaint should thus be rejected as manifestly ill-founded .

The applicant maintained his complaint. He noted that he had been deprived of the possibility of making a decision on his own or his lawyer ’ s participation in the examination of his appeal. The hearing before the appeal court had been held in breach of the principle of equality of arms. The appeal court had examined issues of both law and fact. His right to defend himself had been violated.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The Court has examined the remainder of the applicant ’ s complaints as submitted by him. However, having regard to all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaints concerning the legal reclassification of the offence by the trial court and the complaint concerning the examination of the applicant ’ s appeal in his and his counsel ’ s absence [2] ;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis Registrar President

[1] This version was rectified on 23 November 2006 under Rule 81 of the Rules of Court.

[2] Rec ti f ied on 23 November 2006. In the former version of the decision, the first paragraph of the operative part read as follows : “Declares admissible, without prejudging the merits, the applicant’s complaints concerning the legal reclassification of the offence by the trial court and the failure of the judicial authorities to notify him of the appeal hearing.”