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SIDOROVA (ADUKEVICH) v. RUSSIA - 4537/04 [2008] ECHR 159 (14 February 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/159.html
Cite as:
[2008] ECHR 159
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FIRST
SECTION
CASE OF SIDOROVA (ADUKEVICH) v. RUSSIA
(Application
no. 4537/04)
JUDGMENT
STRASBOURG
14
February 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sidorova (Adukevich) v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Loukis
Loucaides,
Nina
Vajić,
Anatoli
Kovler,
Elisabeth
Steiner,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and Søren Nielsen, Section
Registrar,
Having
deliberated in private on 24 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4537/04) 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, Mrs Irina Georgiyevna
Adukevich (“the applicant”), on 24 December 2003. On 18
August 2004 the applicant changed her name to Valeriya Georgiyevna
Sidorova.
The
applicant was represented before the Court by Mr I. Telyatyev, a
lawyer practising in Arkhangelsk. The Russian Government (“the
Government”) were initially represented by Mr P. Laptev, the
former Representative of the Russian Federation at the European Court
of Human Rights, and subsequently by their new Representative, Mrs V.
Milinchuk.
On
11 September 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1967 and lives in Arkhangelsk.
On
23 November 2002 the applicant, a taxi driver, had driven Mr P. and
Ms I. to their destination. According to Mr P., an argument broke out
between him and the applicant upon arrival at the destination and the
applicant injured him with her car. According to the applicant, Mr P.
assaulted her and attempted to break the car door and windscreen. She
denied that she had injured him and claimed that he had been in good
health when she had left.
On
8 August 2003 the Severodvinsk Town Court of Arkhangelsk Region
convicted the applicant of reckless driving resulting in an injury
and sentenced her to one year's imprisonment conditional on one
year's probation. The court based its findings on the version of
events presented by Mr P. and rejected statements by witnesses K.,
Ko. and S., who had supported the applicant's version of events.
On
17 August 2003 the applicant lodged a statement of appeal. She
contended, in particular, that the court had not been impartial as it
had based its findings only on the contradictory statements of Mr P.
and Ms I., and had disregarded her version which was supported by
many witnesses' statements.
According
to the Government, both the applicant and her lawyer were informed of
the appeal hearing. The Government submitted the following documents:
(a) a
copy of the summons of 20 August 2003 which was addressed to the
applicant, the victim, counsel for the applicant and for the victim
and to the prosecutor;
(b) an
extract from the registry correspondence log, indicating the dispatch
of the summons to the applicant's home address;
(c) an
extract from the court delivery log, indicating that the summons had
been delivered to the advocates' office of which counsel for the
applicant was a member.
The
applicant submitted that she had never received the summons. As
regards her counsel, the summons had indeed been received by one of
his colleagues but not by him personally.
On
9 September 2003 the Arkhangelsk Regional Court examined the case on
appeal. The court heard submissions by the judge rapporteur and
prosecutor, who asked the court to reject the appeal. Neither the
applicant nor her counsel was present at the hearing. The Regional
Court upheld the judgment of 8 August 2003.
On
an unspecified date the applicant asked the District Court to grant
her access to the case file. She submitted that on 11 November 2003 a
judge of the District Court had refused the request on the ground
that the conviction had become final, but she did not provide any
documentary evidence in support of this.
II. RELEVANT DOMESTIC LAW
A. The Code of Criminal Procedure
Article 373 of the Code of Criminal Procedure (“the
Code”) provides an appeal
court examines appeals with a view to verifying the lawfulness,
validity and fairness of judgments.
Under
Article 376 § 2 of the Code, parties to the proceedings shall be
notified of the date, time and place of an appeal hearing no later
than fourteen days beforehand. Article 376 § 4 provides that the
parties' failure to appear before the court, if they were duly
informed of the date and time of the appeal hearing, is not an
obstacle to the examination of the case.
Under
Article 377 §§ 4 and 5 of the Code, an appeal court can
directly examine evidence, including additional material submitted by
parties.
Article
379 of the Code sets out the grounds for setting aside judgments. In
particular, a judgment will be quashed if there is an inconsistency
between the conclusions reached by the court in the judgment and the
facts established. Article 380 provides that such an inconsistency
will occur if, inter alia, the court's conclusions are not
supported by the evidence examined in the hearing; if the court fails
to take into consideration circumstances which could substantially
affect its findings; or if, in case of contradictory evidence, the
judgment does not specify why some of it is accepted and the
remainder is rejected.
B. Instruction on the judicial workflow in district
courts, approved by Order no. 36 of the Judicial Department of the
Supreme Court on 29 April 2003
Article
2.13 provides that, summonses and copies of procedural documents
shall be sent by registered mail with an acknowledgement of receipt
form.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained that the appeal court had held the hearing in
her absence, without duly notifying her of the time and date of that
hearing. She relied on Article 6 §§ 1 and 3 (c) of the
Convention, which read as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public 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...”
A. Admissibility
The Court notes that this complaint 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.
B. Merits
1. Submissions by the parties
The Government maintained that both the applicant and
her lawyer had been duly informed of the hearing in the Arkhangelsk
Regional Court. They relied on the documents submitted (paragraph 9
above). Examination of the case in the applicant's absence had
therefore been compatible with Article 376 § 4 of the Code of
Criminal Procedure.
The
applicant argued that the summons had not been served on her and that
the Government had not produced any evidence to the contrary.
Moreover, pursuant to the Instruction on the judicial workflow in
district courts, approved by Order no. 36 of the Judicial
Department of the Supreme Court on 29 April 2003, the summonses had
to be sent by registered mail and the acknowledgement of receipt form
had to be included in the case file. The applicant further maintained
that her presence at the hearing had been crucial as she had sought
to challenge the first-instance court's decision to reject her
testimony.
2. The Court's assessment
(a) General principles
The
Court notes at the outset 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, and therefore the applicant's
complaints under Article 6 §§ 1 and 3 should be examined
together (see Vacher v. France, judgment of 17 December
1996, Reports of Judgments and Decisions 1996-VI, p. 2147,
§ 22).
The Court reiterates that the duty to guarantee the
right of a criminal defendant to be present in the courtroom –
either during the original proceedings or in a retrial – ranks
as one of the essential requirements of Article 6 (see Stoichkov
v. Bulgaria, no. 9808/02, § 56, 24 March 2005).
However, the personal attendance of the defendant does not take on
the same crucial significance for an appeal hearing as it does for
the trial hearing (see Hermi v. Italy [GC], no.
18114/02, § 60, ECHR 2006-...). Regard must be had in
assessing this question to, inter alia, the special features
of the proceedings involved and the manner in which the defence's
interests are presented and protected before the appeal court,
particularly in the light of the issues to be decided by it (see,
among many other authorities, Metelitsa v. Russia,
no. 33132/02, § 27, 22 June 2006; Belziuk
v. Poland, judgment of 25 March 1998, Reports 1998 II,
§ 37, and Botten v. Norway, judgment of 19 February
1996, Reports of Judgments and Decisions 1996 I, § 39).
Where an appellate court has to examine a case as to the facts and
the law and make a full assessment of the issue of guilt or
innocence, it cannot determine the issue without a direct assessment
of the evidence given in person by the accused for the purpose of
proving that he did not commit the act allegedly constituting a
criminal offence (see Dondarini v. San Marino, no. 50545/99,
§ 27, 6 July 2004, and Hermi, cited above, §
64).
The
principle of equality of arms is only one feature of the wider
concept of a fair trial, which also includes the fundamental right
that criminal proceedings should be adversarial. This latter means,
in a criminal case, that both prosecution and defence must be given
the opportunity to have knowledge of and comment on the observations
filed and the evidence adduced by the other party (see Vanyan v.
Russia, no. 53203/99, § 62, 15 December 2005, and
Brandstetter v. Austria, judgment of 28 August 1991,
Series A no. 211, p. 27, §§ 66–67).
(b) Application of the above principles to
the instant case
The Court observes that, in Russia, the jurisdiction
of appeal courts is not limited to matters of law but also extends to
factual issues. The Arkhangelsk Regional Court thus had the power to
review the case both as to facts and as to law. It was also competent
to consider additional facts which had not been examined in the
first-instance proceedings. Pursuant to Article 380 of the Code of
Criminal Procedure (paragraph 16 above), it had to elucidate the
first-instance court's findings in respect of any discrepancy between
the presented versions of events.
The
applicant denied the facts upon which the charge against her was
founded and maintained that the first-instance court had attached
undue weight to the victim's testimony. Thus, for the appeal court
the crucial question concerned the credibility of the statements of
the persons on trial; it was called upon to examine the case as to
the facts and the law and to make a full assessment of the
applicant's guilt or innocence. In those circumstances the court
could not, if the trial were to be fair, determine the applicant's
case in her absence (see, mutatis mutandis, Vanyan,
cited above, § 67, and Belziuk, cited above, §
38).
Against
this background the Court will not speculate on whether the
applicant's lawyer received the summons. It notes that it was the
applicant who appealed against the judgment and that her lawyer had
not submitted any statement of appeal. In previous cases the Court
has found a violation of the applicant's right to be heard in person
in the appeal proceedings, even where the applicant was in fact
represented by a defence counsel in the appeal court, but the issues
to be determined required his or her personal presence (see, among
others, Sigurþór Arnarsson v. Iceland,
no. 44671/98, §§ 31-38, 15 July 2003; Pobornikoff
v. Austria, no. 28501/95, § 29-33, 3 October
2000; and Dondarini, cited above, § 27). In the
present case the issues to be determined by the Regional Court were
predominantly factual in nature and therefore required an assessment
of the evidence given by the applicant in person. Thus, it was
incumbent on the domestic authorities to ensure the applicant's
presence at the hearing.
The
Court notes that the summons was not sent to the applicant by
registered mail or in any other traceable manner, and the Government
did not indicate why they believed that the applicant had received
the summons (see Sukhorubchenko v. Russia, no. 69315/01,
§ 46, 10 February 2005; Guţu v. Moldova,
no. 20289/02, § 52, 7 June 2007; Strizhak v.
Ukraine, no. 72269/01, § 39, 8 November 2005; and
Metelitsa, cited above, § 34). The Court finds that,
whereas the State was under a duty to ensure the applicant's presence
in the Arkhangelsk Regional Court, the applicant had not been duly
summoned to the appeal hearing.
Furthermore,
the Court observes that the Arkhangelsk Regional Court heard the
opinion of the prosecutor to whose comments the applicant had had no
opportunity to reply.
In
view of the above considerations the Court finds that the proceedings
before the Arkhangelsk Regional Court did not comply with the
requirements of fairness. There has therefore been a breach of
Article 6 § 1 in conjunction with Article 6 § 3
(c) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant further complained under Article 6 of the Convention that
the domestic courts had assessed the evidence in an arbitrary manner
and had failed to resolve contradictions in the testimonies. She also
complained under Articles 8 and 34 of the Convention that she had
been refused access to her criminal case file after the conviction
had become final.
The
Court has examined the remainder of the applicant's complaints and
considers that, in the light of all the material in its possession
and in so far as the matters complained of are within its competence,
they 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 should be declared inadmissible pursuant
to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant maintained that her conviction without being given an
adequate opportunity to defend herself had caused her suffering and
anxiety. She had had to leave her job due to its dangerousness and
lack of protection by the State. She therefore claimed 100,000 euros
(EUR) in respect of non-pecuniary damage.
The
Government considered the claim completely unsubstantiated and
excessive. In the Government's view, the finding of a violation would
constitute sufficient just satisfaction in the present case.
The
Court finds that the applicant suffered non-pecuniary damage, which
would not be adequately compensated by the finding of a violation
alone. However, the amount claimed by the applicant appears to be
excessive. Making its assessment on an equitable basis, it awards the
applicant EUR 1,000, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
The
applicant claimed 32,000 Russian roubles (RUB) in respect of her
representation in the proceedings before this Court.
The
Government argued that the applicant's claim had not been duly
substantiated.
The
Court reiterates that, in order for costs and expenses to be awarded
under Article 41, it must be established that that they were actually
and necessarily incurred in order to prevent or obtain redress for
the matter found to constitute a violation of the Convention and are
reasonable as to quantum (see Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 43, ECHR 1999-VIII). It notes that the
costs and expenses claimed by the applicant were supported by
appropriate evidence and did not appear disproportionate to the
amount of work performed in the case. However, a certain reduction is
to be applied as some of the applicant's complaints were declared
inadmissible (see Shofman v. Russia, no. 74826/01, § 57,
24 November 2005). Making its assessment on the basis of the
available information, the Court awards the applicant EUR 850, plus
any tax that may be chargeable on that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the absence of
the applicant at the hearing in the appeal proceedings admissible and
the remainder of the application inadmissible;
Holds that there has been a violation of
Article 6 §§ 1 and 3 (c) of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i)
EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;
(ii)
EUR 850 (eight hundred and fifty euros) in respect of costs and
expenses;
(iii)
any tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
