THIRD SECTION

DECISION

Application no. 52202/07 Mikhail Anatolyevich ATAMANOV against Russia

The European Court of Human Rights (Third Section), sitting on 7 December 2021 as a Committee composed of:

Peeter Roosma, President, Dmitry Dedov, Andreas Zünd, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 52202/07) against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 October 2007 by a Russian national, Mr Mikhail Anatolyevich Atamanov, who was born in 1970 and lives in Velikiy Novgorod (“the applicant”);

the decision to give notice of the complaint concerning the absence of the applicant and his lawyer from appeal hearing in criminal proceedings against the applicant to the Russian Government (“the Government”), initially represented by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and lately by his successor in that office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;

the observations submitted by the Government;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. On 27 June 2008 the Novgorod Regional Court found the applicant guilty of libel in respect of two judges and sentenced him to 18 months of suspended imprisonment with two years of probation and additional punishments (not to change the place of residence, to register within the local police office, to ask the employment centre for a help to find a job, not to commit any new crimes).

2. On an unspecified date the applicant lodged an appeal against the judgment of 27 June 2008. He explicitly expressed his wish to be present in the appeal hearing.

3. On 21 July 2008 the Supreme Court of the Russian Federation sent the notice on the appeal hearing to the applicant and his lawyer.

4 . On 23 July 2008 the Supreme Court was informed that the applicant did not receive the notice as he had not been at home. He did not come to the post office to collect it. No such information in respect of the applicant’s counsel was provided.

5. On 7 August the Supreme Court upheld the applicant’s conviction in substance on appeal omitting the reference to probation limitations. Neither the applicant nor his lawyer were present at the appeal hearing.

6 . On an unspecified date the applicant lodged a supervisory review appeal with the Supreme Court. He did not complain that he and his counsel had not been duly notified of the hearing in the appeal court.

7. On 3 February 2009 the Supreme Court dismissed it.

THE COURT’S ASSESSMENT

8. The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must be established in an unequivocal manner, and it must be shown that the accused could reasonably have foreseen what the consequences of his conduct would be (see Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006 ‑ XII, with further references). It must also be addressed whether or not the authorities were diligent in informing the applicant of the appeal hearing (see Aždajić v. Slovenia , no. 71872/12, § 53, 8 October 2015, Dilipak and Karakaya v. Turkey , nos. 7942/05 and 24838/05, § 80, 4 March 2014).

9. The Court observes that the appeal court granted the applicant’s request to take part in the appeal hearing and sent the respective notice both to the applicant and his counsel, more than two weeks in advance. The Court notes that the Government provided a copy of the telegram to prove that the applicant and his counsel were duly informed of the appeal hearing (see, a contrario , Sibgatullin v. Russia , no. 32165/02, § 48, 23 April 2009).

10. While the applicant failed to receive the notice from the appeal court (see paragraph 4 above), there is no information about the receipt of that notification by the applicant’s council.

11. The applicant, who did not submit observations, did not claim before the domestic courts (see paragraph 6 above) or before this Court that he was unaware of the date set for the examination of his appeal, nor that his counsel was not duly notified of the appeal hearing.

12. The Court observes that, unlike in Aždajić and Dilipak and Karakaya , the applicant in the present case complains about his absence in the appeal hearing, and not in the trial hearing. He was thus aware in general of the proceedings against him. It further notes that the applicant himself initiated the examination of his case in appeal.

13. The Court emphasises that the applicant in the present case was duly represented and did not claim that he or his representative had been somehow precluded from obtaining information about the appeal hearing, either by receiving the notifications sent to their respective addresses or by contacting the appeal court directly. In such circumstances the Court considers that the applicant could not be said to have complied with his duty of diligence ( mutatis mutandis , Raush v. Russia (dec.), no. 17767/06, § 59, 22 March 2016).

14. The Court thus considers that the authorities were diligent in notifying the applicant of the hearing, and that they cannot be hold responsible for the applicant’s failure to take steps to receive the telegram.

15. The Court accepts – and the applicant did not argue to the contrary – that, in the circumstances of the case, he can be said to have implicitly, through his conduct, waived his right to appear before the appeal court and defend himself.

16. The Court considers that, in the light of all the material in its possession, this application does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto, and thus, must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 January 2022.

Olga Chernishova Peeter Roosma Deputy Registrar President