(Application no. 3891/03)
12 February 2009
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 Samokhvalov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 22 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. First examination of the case
B. Second examination of the case
1. Proceedings before the trial court
2. Proceedings before the appeal court
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Code of the Russian Federation of 13 June 1996, in force since 1 January 1997
B. Code of Criminal Procedure of RSFSR of 1960, in force until 1 July 2002 (“old CCrP”)
C. Code of Criminal Procedure of the Russian Federation of 18 December 2001, in force since 1 July 2002 (“new CCrP”)
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial 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 ...;”
1. Submissions by the parties
2. The Court's assessment
(a) General principles
(b) Application of the above principles to the instant case
48. The Court notes at the outset that it has declared inadmissible the applicant's complaints relating to the alleged unfairness of the proceedings before the trial court, having found that they complied with the requirements of Article 6. In particular, the Court found that those proceedings comprised a public hearing during which the applicant and several witnesses were heard in person and the applicant was given the opportunity to question them (see paragraphs 37 and 38 above). Furthermore, it is not disputed that a hearing was also held by the appeal court, which heard the mother of S., her representative and the prosecutor. The main issue to determine is whether, in the particular circumstances of the case, holding that hearing in the applicant's absence infringed his right to a fair hearing under Article 6 of the Convention.
49. The Government's main argument was that the applicant by his own fault lost the opportunity to be present at the appeal hearing because he had failed to inform the authorities of his wish to take part in the hearing by lodging a special request. In other words, he had waived his right to be present at the hearing. The applicant admitted that he had not applied to participate in the appeal hearing, but argued that he had not been aware of the procedure to follow.
52. In his statement of appeal the applicant contested his conviction on factual and legal grounds. He sought a re-characterisation of the criminal offence, from premeditated murder to murder committed as a result of exceeding limits of self-defence. In particular, he considered that the trial court's conclusion that S. had no axe in his hands had been inconsistent with the facts established by the trial court and the evidence submitted in trial. He also considered that the trial court had wrongly applied the law when it had imposed his sentence. The applicant requested the appeal court to quash his conviction and adopt a fresh decision in his case. The mother of S. sought the imposition of a heavier sentence on the applicant by sending the case for a fresh trial. The prosecutor asked for the conviction to be upheld. Consequently, the Court observes that in the instant case the issues to be determined by the appeal court in deciding the applicant's criminal liability were both factual and legal. Despite the fact that the applicant had confessed to causing the death of the victim, the appeal court was called to make a full assessment of his guilt or innocence regarding the charges of premeditated murder and to verify whether the sentence had been imposed correctly.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 12 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos