THIRD SECTION

DECISION

Applications nos. 59021/10 and 54373/11 Ivan Vladimirovich SUBBOTIN against Russia and Gennadiy Nikolayevich CHERNOUSOV against Russia

The European Court of Human Rights (Third Section), sitting on 6 July 2021 as a Committee composed of:

Darian Pavli, President, Dmitry Dedov , Peeter Roosma , judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above applications lodged on 22 August 2010 and 3 October 2011 respectively,

Having regard to the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the applicants ’ absence from cassation proceedings in a criminal case and to declare inadmissible the remainder of the applications,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants ’ personal details and information relevant to the criminal proceedings against them appear in the appendix.

2 . The Russian Government were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr A. Fedorov.

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

4 . Between 2009 and 2011 the two applicants were convicted of various criminal offences. The cassation courts examined the cases in the absence of the applicants and dismissed their cassation appeals.

5 . Mr Subbotin (application no. 59021/10) was represented by a legal aid counsel during the cassation hearing, the prosecutor was also present. There is no information as to whether the applicant had an opportunity to converse with the counsel before the cassation hearing.

6 . Mr Chernousov (application no. 54373/11) was not represented during the cassation hearing, the prosecutor was also absent.

COMPLAINTS

7 . The applicants complained under Article 6 §§ 1 and 3 (c) of the Convention about their absence from cassation hearings in their criminal cases.

THE LAW

8 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

9 . The applicants complained that they had not participated in the cassation hearings in their criminal cases contrary to the requirements of Article 6 §§ 1 and 3 (c) of the Convention, which, insofar as relevant, read 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; ...”

10 . The Government submitted that all documents relevant to criminal proceedings against Mr Chernousov (application no. 54373/11) had been destroyed by the time of communication of his case in 2019. They did not make any observations with regards to the complaints of Mr Subbotin (application no. 59021/10).

11 . The applicants maintained their complaints.

12 . The Court reiterates that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1. Therefore, it will examine the applicants ’ complaints under these provisions taken together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I ). It flows from the notion of fair trial that a person charged with a criminal offence should, as a general principle, be entitled to be present and participate effectively in the first-instance hearing (see Colozza v. Italy , 12 February 1985, §§ 27 and 29, Series A no. 89 ). However, proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, even though the appellant was not given an opportunity of being heard in person by the appeal or cassation court, provided that he had been heard by a first ‑ instance court (see, for example, Faig Mammadov v. Azerbaijan , no. 60802/09, §§ 29-31, 26 January 2017; Monnell and Morris v. the United Kingdom , 2 March 1987, § 58, Series A no. 115 ).

13 . In the present case, the Court notes that the applicants and their lawyers had appeared and presented their cases in the first-instance courts and, in a case of Mr Chernousov , also in the court of appeal, which had jurisdiction to deal with questions of law and fact pertaining both to criminal liability and sentencing. Thus, the applicants were given the opportunity to submit the evidence, additional materials and relevant arguments directly before the courts having respective jurisdiction.

14 . The cassation review proceedings in the applicants ’ criminal cases in turn were devoted solely to the interpretation of the legal provisions and the applicants ’ positions and relevant arguments were submitted in the written statements of cassation appeal. As such the examination of these arguments had not necessitated a direct assessment of the evidence given in person by the accused, and the applicant ’ s absence did not lead to a disadvantage of the defence position (see Faig Mammadov , cited above, § 31 ). The present case, accordingly, differs from the cases where the Court has found a violation of Article 6 of the Convention due to the absence of applicants from proceedings where both the points of facts and law could be examined (see, by way of comparison, Kozlitin v. Russia , no. 17092/04, §§ 55 and 65, 14 November 2013 and Kononov v. Russia , no. 41938/04, §§ 32 and 45, 27 January 2011). The Court further notes that the applicants in present case also did not claim that they had no opportunity to present the cassation courts with certain other arguments; neither did they explain in which manner their absence influenced the overall fairness of the proceedings.

15 . In the light of the above and having considered the available material, the Court concludes that the present applications are manifestly ill ‑ founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares inadmissible the applications.

Done in English and notified in writing on 29 July 2021 .

Olga Chernishova Darian Pavli Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 6 §§ 1 and 3 (c) of the Convention

( applicant ’ s absence from cassation hearings )

No.

Application no.

Date of introduction

Applicant ’ s name

Year of birth

First instance judgment (court, date)

Cassation judgment (court, date)

Comments

59021/10

22/08/2010

Ivan Vladimirovich SUBBOTIN

1973Novosibirsk Regional Court

21/12/2009

Supreme Court of the Russian Federation

31/03/2010

The applicant was absent from the hearing on 31/03/2010

54373/11

03/10/2011

Gennadiy Nikolayevich

CHERNOUSOV

1968Mineralnyye Vody District Court

17/01/2011

Stavropol Regional Court

04/05/2011

The applicant was absent from the hearing on 04/05/2011