(Application no. 32165/02)
23 April 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 Sibgatullin v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 2 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
16. On 29 June 2006 the Supreme Court held an appeal hearing in the absence of the applicant and his counsel. It heard the prosecutor who requested that the applicant’s conviction on three counts of murder be upheld and that the sentence imposed for theft be lifted as the prescription period had expired.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Code of Criminal Procedure of the Russian Federation of 18 December 2001, in force since 1 July 2002 (“the CCrP”)
I. ALLEGED VIOLATION 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 ...”
A. Submissions by the parties
B. The Court’s assessment
(a) General principles
(b) Application of the above principles to the instant case
39. The Court observes that in Russian criminal procedure, appeal courts have jurisdiction to deal with questions of law and fact pertaining both to criminal liability and to sentencing. They are empowered to examine the evidence and additional materials submitted by the parties directly. As a result of the examination, the appeal courts may dismiss the appeal and uphold the judgment, quash the judgment and terminate the criminal proceedings, quash the judgment and remit the case for a fresh trial, or amend the judgment (see “Relevant domestic law and practice” above, paragraphs 20 and 23-24).
40. In their grounds of appeal the applicant and his counsel contested the applicant’s conviction on factual and legal grounds. They submitted, in particular, that the applicant’s guilt in the first and the third murders had not been supported by evidence submitted at trial and that the trial court attached undue weight to the applicant’s co-accused’s statements. They asked the appeal court to quash the conviction for those two murders and remit the case for a fresh trial. The Prosecutor asked to uphold the applicant’s conviction for the three murders. Consequentely, the issues to be determined by the appeal court in deciding the applicant’s liability were both factual and legal. The appeal court was called on to make a full assessment of the applicant’s guilt or innocence regarding the charges of the first and third murders.
41. The Court further observes that the proceedings in question were of utmost importance for the applicant, who had been sentenced to twenty years’ imprisonment at first instance and who was not represented at the appeal hearing of 29 June 2006. It also does not lose sight of the fact that the prosecutor was present at the appeal hearing and made submissions.
44. In order to assess whether the supervisory review indeed remedied the defects of the original proceedings, as alleged by the Government, the Court has to verify whether the guarantees of fair trial were afforded in the ensuing appeal proceedings and whether the applicant lost the opportunity to be present at the hearing by failing to submit a special request.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
III. 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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 23 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Rozakis, Spielmann and Malinverni is annexed to this judgment.
JOINT CONCURRING OPINION OF JUDGES ROZAKIS, SPIELMANN AND MALINVERNI