FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46502/99 by Oleg Nikolayevich SHULMIN against Russia

The European Court of Human Rights (First Section) , sitting on 30 May 2000 as a Chamber composed of

Mrs W. Thomassen, President Mr L. Ferrari Bravo, Mr C. Bîrsan, Mr J. Casadevall, Mr B. Zupančič, Mr T. Panţîru,

Mr  A. Kovler, judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 5 June 1998 and registered on 4 March 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Russian national, born in 1961 and living in Kemerovo , Russia. In 1998 he was convicted to five years’ imprisonment and is serving his sentence in prison in Kemerovo Region.

A. The circumstances of the case

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

The applicant was detained on 23 April 1997, on the basis of a district prosecutor’s  arrest warrant of 29 November 1996 ( Постановление об избрании меры пресечения в виде заключения под стражу ). He contested his detention on 10 September 1997, and on 9 October 1997 the Nolinsky District Court confirmed the prosecutor’s office decision on his detention.

On 14 July 1998 the applicant was convicted of swindling by the Nolinsky District Court of Kirov Region ( Нолинский районный суд Кировской области ).

In his appeal before the Kirov Regional Court the applicant was not represented by a lawyer and acted in person. On several occasions he requested permission to be present at the hearing to present his case. On 27 August, 29 September and 22 October 1998 the Court rejected the applicant’s requests. The Court, by reference to Article 335 of the Code of Criminal Procedure (CCP) ( Уголовно-процессуальный кодекс ) considered that the applicant had submitted numerous, comprehensive and detailed reasons for his disagreement with the first instance court decision, and that his personal participation was not necessary.

At the relevant time, Article 335 also provided that the prosecutor was required to participate in cassation hearings, and is required to submit to the court his opinion on the legality of  and reasons for the first instance decision.

In addition to his appeal, on 3 September 1998 the applicant requested the Kirov Regional Court to review his detention pending the appeal. The Regional Court did not consider the applicant’s complaints separately, but on 22 October 1998 confirmed the sentence of the first instance court.

On 10 December 1998 the Constitutional Court found para 2 of Article 335 of the CCP unconstitutional (see Relevant domestic law, below).

The applicant forwarded a number of requests for supervisory review: to the Chairman of the Kirov Regional Court ( Председатель Кировского областного суда ), refused on 5 January 1999 and 2 April 1999, to the Supreme Court ( Верховный Суд ), refused on 1 March 1999 and 3 June 1999, Kirov Regional Prosecutor’s Office ( Кировская областная прокуратура ) , refused on 3 March 1999, and the Office of the Prosecutor General ( Генеральная Прокуратура ), refused on 8 June and 14 October 1999.

B. Relevant domestic law

Constitution of the Russian Federation

Article 46 § 1

“Everyone is guaranteed judicial protection of his rights and freedoms.”

Article 49 § 1

“Everyone charged with a criminal offence is presumed innocent until his guilt is proved as provided for by federal law, and certified by a valid court decision.”

Article 50 § 3

“Everyone convicted of a crime has a right to review of the conviction by a higher court as provided for by federal law, and the right to request pardon or mitigation of the sentence.”

Code of Criminal Procedure (CCP):

Article 335 of the CCP: Parties to the appeal hearing

“1. At the court hearing on the appeal, the prosecutor shall submit his opinion on the legality of and reasons for the court’s decision. The defence representative may take part in the appeal hearing.

2. The question of participation of the convicted person at the appeal hearing is decided by the court itself. In any event, a convicted or acquitted person who presents himself at the hearing, is always entitled to give explanations.

3. During the appeal hearing, other persons can participate in accordance with Article 325 of this Code.

4. Failure of the above-mentioned persons to appear at the hearing, provided they were duly informed of the hearing date , is not a ground to adjourn the hearing.”

Decision No. 27-P of the Constitutional Court of 10 December 1998

In its Decision No. 27-P ( Постановление Конституционного Суда 27-П по делу о проверке конституционности части второй статьи 335 Уголовно-процессуального кодекса РCФСР в связи с жалобой гражданина М.А. Баронина ) the Constitutional Court

quashed Article 335 § 2 of the CCP as unconstitutional to the extent that it allowed the second instance court to decide the appeal without permitting the person to be present and “without allowing the convicted person to study materials of the court hearing and to present his position to the court on questions raised during the hearing”.

The Constitutional Court referred in its reasoning to Article 6 § 1, 3 (c) of the European Convention, Article 2 § 1 of Protocol No. 7, and to Articles 46 § 1, 49 § 1 and 50 § 3 of the Constitution.

COMPLAINTS

1. The applicant complains under Article 5 § 4 that he was denied speedy judicial review of his detention in September 1997.

2. The applicant also complains that he was denied judicial review of his detention in October 1998, while waiting for the case to be heard in the cassation instance. He again refers to Article 5 § 4 of the Convention.

3. The applicant complains that he did not receive a fair trial in the cassation instance, where he was not allowed to be present, but the prosecutor was. The applicant complains that he did not have adequate time and facilities for the preparation of his defence in the cassation instance. He also complains that he was denied the right to defend himself in person or through legal assistance of his choosing, as he was unrepresented and was refused permission to attend the appeal hearing. The applicant refers to Article 6 § 3 (b) and (c) of the Convention

THE LAW

1 . The applicant complains that he was denied speedy judicial review when contesting the lawfulness of his detention in September 1997. He alleges a violation of Article 5 § 4 of the Convention.

The Court recalls that the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party. The final decision in respect of the present complaint was the decision of the Nolinsky District Court of 9 October 1997 to confirm the decision to detain the applicant. The applicant's complaints concerning the proceedings prior thereto thus relate to the period prior to 5 May 1998, which is the date of the entry into force of the Convention with respect to Russia.

It follows that this part of the application is outside the competence ratione temporis of the Court and therefore incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

2. The applicant complains that he was denied judicial review of his detention in October 1998, after he had been convicted and before the appeal hearing. He alleges a violation of Article 5 § 4 of the Convention which provides, so far as relevant, as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court ...”

The Court recalls that where a sentence of imprisonment is imposed after “conviction by a competent court”, the supervision required by Article 5 § 4 is incorporated in the decision of the court (see the Thynne , Wilson and Gunnell v. the United Kingdom judgment of 25 October 1990, Series A no. 190-A, p. 27, § 68, with reference back to the De Wilde , Ooms and Versyp judgment of 18 June 1971 (Series A no. 12, pp. 40, § 76)). The fact that the sentence of imprisonment was not a final sentence, as the applicant’s appeal was still pending, is not relevant as, once the applicant had been convicted, the “cause” of his detention lay in the conviction at first instance (see the B. v. Austria judgment of 28 March 1990, Series A no. 175, p. 15, § 39).

Accordingly, the supervision required by Article 5 § 4 was incorporated in the conviction of 14 July 1998.

It follows that this part of the application is manifestly ill-founded, and that it must be rejected pursuant to Article 35 § 4 of the Convention.

3. The applicant further complains that he was not permitted to be present at the appeal hearing which took place in the presence of the prosecutor. He alleges violation of Article 6 § 3 (b) and (c) of the Convention .

Article 6 reads, so far as relevant:

“ 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …

3. Everyone charged with a criminal offence has the following minimum rights:

…

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

c. to defend himself in person or through legal assistance of his own choosing…”

T he Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaint concerning his absence from the appeal hearing.

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Wilhelmina Thomassen Registrar President