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FIRST
SECTION
CASE OF
ZAYTSEV v. RUSSIA
(Application
no. 22644/02)
JUDGMENT
STRASBOURG
16
November 2006
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 Zaytsev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Quesada, Deputy Section Registrar,
Having
deliberated in private on 24 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22644/02) 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, Mr Yuriy Mikhaylovich
Zaytsev (“the applicant”), on 13 May 2002.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged, in particular, that the proceedings before the
trial court were unfair and that he was not notified of the hearing
on appeal.
- By
a decision of 3 March 2005, the Court declared the application
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Chamber having decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine), the parties replied in writing to each other's
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1977 and lives in
Novomoskovsk, Tula Region.
- On
21 September 2001 the Novomoskovskiy Town Court of the Tula Region
convicted the applicant, a school teacher, of cruel treatment of his
pupils and sentenced him to one year and six months' imprisonment,
suspended. The applicant and his counsel were present at the hearing.
The court heard statements from a number of witnesses and victims and
examined a transcript of a meeting of the school disciplinary
committee.
- The
applicant appealed against the judgment on points of fact.
- On
26 October 2001 the Tula Regional Court upheld the judgment on
appeal. The applicant was not present at
the hearing. The appeal court reviewed the
applicant's conviction both on points of law and on points of fact.
The prosecutor, who was present at the hearing, submitted that the
conviction should stand. The appeal court did not hear any witnesses
and there is no evidence that any were summoned.
- On
28 February 2002 the applicant received a copy of the appeal
judgment.
- On
14 June 2005, following an application for supervisory review lodged
by a deputy prosecutor of the Tula Region on 10 June 2005, a judge of
the Tula Regional Court decided to institute supervisory review
proceedings. The judge stated that in the absence of any evidence
that the applicant had been duly notified of the appeal hearing on 26
October 2001, the examination of his appeal in his absence had
violated his defence rights. The applicant was notified of the
decision to institute supervisory review proceedings and sent his
written pleadings to the court on 22 June 2005.
- On
27 June 2005 the Presidium of the Tula Regional Court, having
examined the case under the supervisory review procedure, quashed the
appeal judgment of the Tula Regional Court of 26 October 2001 and
remitted the case for a fresh examination on appeal. The Presidium
noted that among the documents in the case file there was a
notification of the appeal hearing dated 11 October 2001.
The applicant had not appeared at the hearing and, later, in his
numerous complaints repeatedly stated that he had never received the
notification. The case file contained no conclusive evidence that the
applicant had been duly notified of the hearing. The Presidium found
that in these circumstances the examination of the applicant's appeal
in his absence had violated his defence rights.
- On
20 July 2005 the Tula Regional Court examined the case on appeal. The
applicant was duly notified of the hearing, but did not appear. The
appeal court upheld the findings of fact of the Novomoskovskiy Town
Court. However, it set aside the judgment of 21 September 2001 and
terminated the criminal proceedings against the applicant on account
of the expiry of the statutory time-limits.
II. RELEVANT DOMESTIC LAW
- Article
336 of the Code of Criminal Procedure of 1960, in force at the
material time, provided that appellants should be notified of the
date of the hearing on appeal. The failure of appellants who had been
duly notified of the relevant date to appear at the hearing did not
preclude the court from examining the case. A notice indicating the
time of the hearing on appeal should be displayed at the court not
later than three days before the hearing.
THE LAW
I. THE GOVERNMENT'S OBJECTION
- The
Government submitted that in his application the applicant had used
abusive language in respect of the Russian authorities. They
contended that this amounted to an abuse of the right of application
within the meaning of Article 35 § 3.
Article
35 § 3, in so far as relevant, reads as follows:
“The Court shall declare inadmissible any
individual application submitted under Article 34 which it
considers ... an abuse of the right of application.”
- The
Court reiterates that, except in extraordinary cases, an application
may only be rejected as abusive if it was knowingly based on untrue
facts (see Akdivar and Others v. Turkey, judgment of 16
September 1996, Reports of Judgments and Decisions 1996 IV,
§§ 53-54; I.S. v. Bulgaria (dec.), no. 32438/96, 6
April 2000; and Varbanov v. Bulgaria, no. 31365/96, §
36, ECHR 2000 X).
- Having
regard to the statements made by the applicant in the present case,
the Court does not consider that they amount to an abuse of the right
of application. Accordingly the Government's objection is dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the criminal proceedings against him had been unfair. He alleged, in
particular, that the trial court had erred in its assessment of the
evidence, accepted inadmissible evidence and gathered certain
evidence of its own motion. He further complained, under Article 6 §§
1 and 3 (c) of the Convention, about the failure to notify him of the
appeal hearing of
26 October 2001, which had resulted in his
absence at the hearing. He maintained that this had deprived him of
the right to make his submissions before the appeal court and
violated his defence rights, precluding him from being represented at
the hearing by counsel.
- Article
6, insofar as relevant, reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing...
...
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[.]”
- The
Government submitted that the Russian authorities had acknowledged
that the applicant had not been duly notified of the appeal hearing
of 26 October 2001. The appeal judgment had been quashed under the
supervisory review procedure precisely on that ground. In the course
of the fresh appeal examination the appeal court had carefully
examined the findings of the first-instance court and the arguments
raised by the applicant in his appeal. The court had discontinued the
criminal proceedings against the applicant on account of the expiry
of the statutory time-limits. The Government contended that the
criminal proceedings against the applicant had been fair. They also
claimed, in substance, that the applicant could no longer be
considered a victim of the alleged violation since his Convention
rights had been restored at the domestic level.
- The
applicant contested the Government's submissions. He stated that the
supervisory review of the appeal judgment of 26 October 2001 had not
restored his rights because it had been conducted after the term of
his suspended sentence had expired and his criminal record had been
cleared. He argued that his rights could have been restored only if
he had been rehabilitated following the termination of the criminal
proceedings against him and had had a claim for damages.
- In
so far as the applicant's complaint concerns the failure to notify
him of the appeal hearing of 26 October 2001, the Court notes that
the appeal judgment was quashed precisely on that ground and the case
remitted for a fresh appeal examination. The Court reiterates that,
where criminal proceedings are reopened after a conviction has become
final, a decision quashing the conviction is, in itself, not
sufficient to deprive an individual of his status as a “victim”
unless the national authorities have acknowledged, either expressly
or in substance, and afforded redress for, the breach of the
Convention (see, among many other authorities, Dalban v. Romania,
judgment of 28 September 1999, Reports 1999-VI, § 44).
- In
the present case, on 27 June 2005 the Presidium of the Tula Regional
Court quashed the applicant's final conviction on the ground that the
examination of his appeal in his absence, without his having been
duly notified of the hearing, had violated his right to a defence.
Accordingly, the Presidium expressly acknowledged that the
applicant's right to a fair trial had been breached.
- The
Court further notes that the applicant's conviction in 2001 had not
involved a deprivation of liberty. Furthermore, on 27 June 2005 the
Presidium of the Tula Regional Court not only set aside the appeal
judgment, but further remitted the applicant's case for a new appeal
examination. This time the applicant was duly notified of the appeal
hearing. In such circumstances the Court finds that the Presidium's
decision of 27 June 2005, taken together with the subsequent
proceedings, constituted sufficient redress for the alleged
procedural unfairness of the first appeal examination. The applicant
thus ceased to be a victim of the alleged violation of his rights
under Article 6 of the Convention in this respect (see Popov and
Vorobyev v. Russia (dec.), no. 1606/02, 2 March 2006).
- In
so far as the applicant's complaint concerns the taking and
assessment of evidence by the first-instance court and the outcome of
the proceedings, the Court notes that it
is not its task to review alleged errors of fact and law committed by
the domestic judicial authorities and that the admissibility
of evidence is primarily a matter for regulation by national law,
and, as a rule, it is for the national courts to assess the evidence
before them. The Court's task is to
ascertain whether the proceedings considered as a whole, including
the way in which evidence was taken, were fair. In particular, all
the evidence must normally be produced in the presence of the accused
at a public hearing with a view to adversarial argument (see Asch
v. Austria, judgment of 26 April 1991, Series A
no. 203, §§ 26-27).
- The
Court notes that the Novomoskovskiy Town Court of the Tula Region, in
its judgment of 21 September 2001, based the applicant's conviction
of cruel treatment of his pupils on, inter alia, the
statements of witnesses and victims of the offences. They were heard
in person at the hearing, where the applicant, who was assisted by
counsel, had the opportunity to put questions to them and to
challenge their credibility. The applicant did not specify
what evidence he alleged had been obtained by the trial court of its
own motion. The Court notes that the only evidence relied on in the
judgment, apart from the aforementioned statements of the witnesses
and victims, was a transcript of a meeting of the school disciplinary
committee, at which the applicant had been present. There is no
evidence that the applicant had not had access to that document
before the hearing and could not contest it at the hearing.
Accordingly, there is no indication of an infringement of the
applicant's defence rights or of the principle of equality of arms.
- The
Court further notes that, after the appeal judgment of
26 October 2001 had been quashed under the supervisory
review procedure, the judgment of 21 September 2001 was reviewed
on appeal on 20 July 2005. The applicant was duly notified of the
appeal hearing, but did not appear. The Tula Regional Court upheld
the findings of fact of the first-instance court. However, it set
aside the judgment of 21 September 2001 on the ground that the
criminal proceedings against the applicant should be terminated on
account of the expiry of the statutory time-limits. In
these circumstances the Court finds no evidence
of an infringement of the applicant's defence rights protected
by Article 6 § 3 (c) or of any unfairness
within the meaning of Article 6 § 1.
- Accordingly,
there has been no violation of Article 6 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's objection;
- Holds that there has been no violation of
Article 6 of the Convention;
Done in English, and notified in writing on 16 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Christos Rozakis
Deputy Registrar President
