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FIRST
SECTION
CASE OF
ABRAMYAN v. RUSSIA
(Application
no. 10709/02)
JUDGMENT
STRASBOURG
9 October 2008
FINAL
09/01/2009
This judgment may be
subject to editorial revision.
In the case of Abramyan v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and
André Wampach,
Deputy
Section Registrar,
Having
deliberated in private on 18 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10709/02) 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 Edgar Nikolayevich
Abramyan (“the applicant”), on 18 January 2001.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged, in particular, that his right to a fair trial had
been violated by the reclassification of charges against him by his
trial court and the examination of his case on appeal in his and his
counsel’s absence.
- By
a decision of 31 August 2006 the Court declared the application
partly admissible.
- The
Government, but not the applicant, filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1974 and lives in Pyatigorsk,
Stavropol region.
- On
16 June 2000 criminal proceedings were brought against the applicant,
a police investigator. The investigating authority charged him with
taking a bribe involving a large sum of money, aggravated by
extortion, under Article 290 § 4 (c) and (d) of the Criminal
Code, together with a number of other offences.
- The
applicant and his lawyer were present at the hearings before the
Stavropol Regional Court.
- On
2 October 2000 the Stavropol Regional Court delivered a judgment. In
respect of the legal characterisation of the acts the applicant was
found to have committed, it held as follows:
“... the court finds the classification of the
acts of Abramyan E.N. by the preliminary investigation authorities to
have been erroneous and classifies his acts under Articles 30 §
3 and 159 § 3 (b) of the UK RF [Criminal Code of the Russian
Federation]. It was established that Abramyan, through the abuse of
official authority and with a view to misappropriating another’s
property, misled witness [L.], claiming that he would forward her
case to a court. He then fraudulently obtained two thousand US
dollars from [L.], via [D.], having kept from [D.] and [L.] the fact
that the proceedings had already been terminated. Taking into account
the amount that was stolen and the fact that Abramyan had no real
opportunity to dispose of the money, having been arrested at the
scene, the court regards his acts as attempted misappropriation,
through the abuse of official authority, of another’s property,
involving a large sum of money, since he committed all the acts
necessary in order to misappropriate another’s property and
failed to complete the crime due to circumstances beyond his
control.”
- The
court convicted the applicant under Articles 30 § 3 and 159
§ 3 (b) of the Criminal Code, acquitted him on the
remaining charges and sentenced him to seven years’
imprisonment and imposed a confiscation order.
- According
to the record of the hearing, after pronouncing the judgment the
presiding judge explained to the applicant the procedure and
time-limit for appealing against the judgment. He explained that
convicted persons could participate in the examination of their case
by an appeal body.
- The
applicant appealed against the judgment. In particular, he complained
that the court’s classification of his actions had been
erroneous. In his appeal against the judgment
the applicant did not request that he be summoned to the hearing
before the appeal court or that he be informed of the date of the
hearing. Nor did he or his lawyer lodge a separate request to that
effect.
- On
27 December 2000 the Supreme Court of the Russian Federation held an
appeal hearing at which neither the applicant nor his counsel were
present. The Supreme Court heard a prosecutor K. who argued that the
judgment should be upheld. It examined the applicant’s points
of appeal, reviewed the judgment and found that the trial court had
correctly established the facts based on the evidence examined by it
and had given the correct legal classification of the acts which the
applicant had been found to have committed. The Supreme Court upheld
the judgment.
- On
an unspecified date in 2003 the applicant was released on parole.
II. RELEVANT DOMESTIC LAW
A. The right to be present at an appeal hearing
- Under
Article 335 of the Code of Criminal Procedure of 1960 (“the
CCP”), in force at the material time, the public prosecutor
would state his or her opinion at an appeal hearing as to whether a
judgment was lawful and well founded. Defence counsel could
participate in the hearing. A decision about the defendant’s
participation at the hearing was taken by the appeal court. A
defendant who appeared before the court was always entitled to give
evidence.
- In
Decision no. 27-P of 10 December 1998,
the Constitutional Court of the Russian Federation declared
Article 335 § 2 of the CCP incompatible with the Constitution on
the grounds that this provision enabled appeal courts to take a final
decision where a defendant’s request to attend the appeal
hearing had been rejected and where a defendant had not been given an
opportunity to study the materials of the hearing and communicate in
writing his or her opinion on the issues raised before the appeal
court.
- Article
336 of the CCP provided that persons who had submitted appeals were
to be apprised of the appeal hearing if it was held before courts
lower than the Supreme Court of Russia. If an appeal was to be
examined by the Supreme Court, an appellant would be apprised of the
appeal hearing if he or she had requested the court to do so in their
appeal or observations on the appeal. Notification of the time of the
hearing on appeal was to be displayed at the court not later than
three days before the hearing.
- In
Decision no. 200-O of 17 October 2001, the Constitutional Court held
that the provisions of Article 336 of the CCP could not serve as a
basis for failing to inform persons entitled to appeal against
judgments about the date of examination of their appeals by a court
of any level.
- Article
338 of the CCP required that, at the beginning of an appeal hearing,
the presiding judge should verify who was present and the court
should decide whether to proceed with the hearing.
B. The appeal court’s jurisdiction
- The appeal courts considered, on the basis of the
materials in the case file and newly submitted materials, whether a
first-instance judgment was lawful and well-founded. They were not
bound by the grounds of the appeal and exercised a full review of the
case (Article 332 of the CCP).
- Under
Articles 339-341 of the CCP appeal courts could decide to dismiss the
appeal and uphold the judgment, to quash the judgment and remit the
case for a new investigation or for a fresh trial, to terminate the
criminal proceedings or to vary the judgment. It could reduce the
sentence or amend the legal classification to the defendant’s
advantage. If it found the sentence or legal classification to be too
lenient, it could quash the judgment only if an appeal on such
grounds had been filed by the prosecutor or the victim. Acquittals
could be quashed on appeal at the request of the prosecutor, the
victim or the acquitted person.
- Article
342 of the CCP
Grounds
for quashing or varying judgments [on appeal]
“The grounds for quashing or varying a judgment on
appeal shall be as follows:
(i) prejudicial or incomplete inquest,
investigation or court examination;
(ii) inconsistency between the facts of the
case and the conclusions reached by the court;
(iii) a grave violation of procedural law;
(iv) improper application of [substantive]
law;
(v) discrepancy between the sentence and the
seriousness of the offence or the convicted person’s
personality.”
C. Offence reclassification
- Article
254 of the
CCP required the court to examine the
case on the basis of the charges brought against the
defendant. The charge could be amended by the court provided that
such amendment did not aggravate the situation of the defendant or
violate his right to defend himself. If the amendment entailed a
violation of the defence rights, the court had to remit the case for
additional investigation. It did not have powers to prefer a more
serious charge or a charge based on substantially different factual
circumstances. The court could continue the trial if the amendment
related only to the deletion of certain counts or aggravating
circumstances.
D. Bribe-taking and fraud
- An official who –
personally or through an intermediary – receives a bribe in the
form of money, shares or other property or benefits for acts (or
omissions) in the interest of the bribe-giver, provided that such
acts are within the competence of the official or the official can
facilitate the performance of such acts by virtue of his position,
commits a criminal offence (Article 290 § 1). The same acts, if
they are aggravated by extortion (Article 290 § 4 (c)) or
involve a large sum of money (Article 290 § 4 (d)), are
punishable by seven to twelve years’ imprisonment, which may be
accompanied by a confiscation order.
- Article
159 § 1 provides that fraud, that is theft of others’
property or acquisition of rights to others’ property by way of
deception or abuse of confidence, is a criminal offence. Article 159
§ 3 (b) specifies that a fraud involving a large sum of money is
punishable by five to ten years’ imprisonment, which may be
accompanied by a confiscation order.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention about the
judicial authorities’ failure to inform him of the date and
place of the appeal hearing and the resultant violation of the
principle of equality of arms. He also complained that the
reclassification of the offence by the trial court from accepting a
bribe to fraud had prevented him from exercising his defence rights
properly. Article 6 in its relevant parts provides:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence; ...”
A. The parties’ submissions
- The
Government submitted that under Article 336 of the CCP the Supreme
Court of the Russian Federation had given notice of the date of an
appeal hearing only to those participants in proceedings who had made
a request to that effect when lodging their appeal. Since the
applicant had made no such request, the Supreme Court, in examining
the applicant’s appeal in his absence and in the absence of his
lawyer, had acted in full compliance with the legislation on criminal
procedure. The Constitutional Court’s decision of 17 October
2001 had been adopted after the applicant’s appeal proceedings.
Therefore, the applicant’s right to a fair trial guaranteed by
Article 6 § 1 had not been violated.
- The
Government further submitted that under Article 254 of the CCP a
trial court could examine criminal cases only in respect of the
charges on which a defendant had been brought to trial. Amendment of
the charges by the trial court was allowed only if it had not been to
the detriment of the accused and had not violated his right to defend
himself. The factual scope of the applicant’s
criminal acts had remained unchanged; only their legal qualification
had been altered. Since Article 159 of the Criminal Code had
concerned a less serious offence than Article 290, the trial court
had improved the applicant’s position without changing the
essence of the charge in its factual aspect. No new circumstances had
been established by the trial court going beyond the initial charge.
The applicant had therefore been informed, throughout the trial, of
the charge against him. He had had ample opportunity to prepare his
defence. Furthermore, the Stavropol Regional Court had re-qualified
the charge in the applicant’s presence, which distinguished
this case from the cases of Vanyan (see Vanyan v. Russia,
no. 53203/99, 15 December 2005) and Aldoshkina
(see Aldoshkina v. Russia, no. 66041/01, 12 October
2006). Hence, his rights under Article 6 §
3 (a) and (b) had not been violated.
- The
applicant noted that he had been deprived of the possibility to
decide on his own or his lawyer’s participation in the
examination of his appeal. The appeal court had examined issues of
both law and fact. His right to defend himself had been violated.
- He
further submitted that the corpus
delicti of the offence under Article
159 of the Criminal Code differed from that of the offence under
Article 290. The taking of a bribe represented malfeasance in office,
whereas fraud was a crime against property. The trial court had
convicted him of a crime with which he had never been charged. His
rights to a defence had been violated because he had been unaware of
the charge against him.
B. The Court’s assessment
1. Appeal hearing in the absence of defence
- The
Court observes that the present case raises the same issue as the
case of Stadukhin which concerned holding the appeal hearing
before the Supreme Court in the absence of the defence (see Stadukhin
v. Russia, no. 6857/02, 18 October 2007). The question
whether or not the applicant had requested to be informed of the
appeal hearing, which was a pre requisite for the Supreme
Court’s notification at the material time, was disputed between
the parties in that case. The Court recalls that it held that even
assuming that the applicant had failed to request explicitly that he
be apprised of the appeal hearing, it had been incumbent on the
judicial authorities to do so in order for the proceedings to be
fair. It found a violation of the rights of the defence and the
principle of equality of arms having noted that the Supreme Court,
which had to exercise a full review of the case, had heard a
representative of the prosecution (§§ 31-37).
- In
the present case the Court equally considers that in order for the
proceedings to be fair the judicial authorities had to ensure that
the applicant be informed of the hearing before the Supreme Court for
the examination of his case on appeal despite his failure to request
them to do so. The Court does not consider it necessary to decide
whether the absence of the applicant and his counsel, taken
separately, would render the proceedings before the appeal court
unfair. Neither of them was present before the Supreme Court, and it
is against this background that the Court will determine the
complaint in issue.
- Having
made the above observations, the Court sees nothing to distinguish
the present case from the case of Stadukhin. Accordingly, it
finds that there has been a violation of Article 6 § 1 on the
grounds of the examination of the case by the Supreme Court in the
absence of the applicant and his counsel.
2. Reclassification of the offence
- The
Court recalls that the provisions of paragraph 3 (a) of Article 6
point to the need for special attention to be paid to the
notification of the “accusation” to the defendant.
Particulars of the offence play a crucial role in the criminal
process, in that it is from the moment of their service that the
suspect is formally put on written notice of the factual and legal
basis of the charges against him (see Kamasinski v. Austria,
judgment of 19 December 1989, Series A no. 168, pp. 36-37, §
79). The Court recalls further that the
scope of Article 6
§ 3
(a) must in particular be assessed in the light of the more
general right to a fair hearing guaranteed by Article 6 § 1 of
the Convention. In criminal matters the provision of full, detailed
information concerning the charges against a defendant, and
consequently the legal characterisation that the court might adopt in
the matter, is an essential prerequisite for ensuring that the
proceedings are fair (see Pélissier and Sassi v. France
[GC], no. 25444/94, § 52, ECHR 1999-II; Mattocia v. Italy,
no. 23969/94, § 58, ECHR 2000-IX; and I.H. and Others
v. Austria, no. 42780/98, § 34, 20 April 2006).
- The
fairness of proceedings must be assessed with regard to the
proceedings as a whole (see Dallos v. Hungary, no. 29082/95, §
47, ECHR 2001 II). Furthermore, the right to be informed of the
nature and the cause of the accusation must be considered in the
light of the accused’s right to prepare his defence guaranteed
by sub-paragraph (b) of Article 6 § 3 (see Pélissier
and Sassi, cited above, § 54, and Dallos, cited
above, ibid.).
- In
the present case the applicant learned about the new legal
classification of the charges against him when the trial court
pronounced its judgment at the end of the hearing. There is no
indication that at any time before the pronouncement of the judgment
he was made aware that he risked conviction under Articles 30 §
3 and 159 § 3 (b) of the Criminal Code. However, the constituent
elements of fraud and bribe-taking differed significantly (see
paragraphs 24 and 25 above). The offence
of fraud presupposed that another person’s property was
obtained by way of deception or abuse of confidence, the perpetrator
being aware that the victim was divesting himself of the asset as a
result of the deceitful conduct. The objective element of
bribe-taking consisted in accepting valuable assets in exchange for
acts or omissions within the perpetrator’s professional
competence and its subjective element required that the bribe-taker
be aware that he was obtaining the asset in return for the requested
acts or omissions for the benefit of the bribe-giver. The applicant
had no opportunity to react to that change in the proceedings
before the trial court which, given the difference between the two
offences, had certainly impaired his ability to defend himself.
- The
Court recalls further that it found no violation in the Dallos
case, which concerned the reclassification by an appeal court of a
charge upon which the applicant had been convicted, since the Supreme
Court had entirely reviewed the case at an oral hearing having heard
the prosecution and the applicant’s defence counsel. The Court
was satisfied that the applicant had had the opportunity to advance
before the Supreme Court his defence in respect of the reformulated
charge and that any defects in the proceedings before the Regional
Court had been cured before the Supreme Court (see Dallos,
cited above, §§ 48-53). The Court came to the same finding
in the case of Sipavičius, in which the applicant had
been unaware of a reformulated charge until the public pronouncement
of his judgment as in the case at hand, and in which the Court of
Appeal had heard the parties at an oral hearing and reviewed the
applicant’s complaints about the reclassification of the charge
from both the procedural and substantive point of view and the
applicant had had a further opportunity to advance his defence before
the Supreme Court (see Sipavičius v. Lithuania,
no. 49093/99, §§ 29-34, 21 February 2002).
- In
the present case the applicant indicated his disagreement with the
legal classification of the charges against him by the trial court in
his appeal against the judgment. The Supreme Court, which had the
power to exercise a full review of the case, examined and dismissed
the applicant’s appeal at an oral hearing having heard the
submissions by the prosecution (see paragraphs 13, 20, 21 and 22
above). However, the applicant and his counsel were not present at
the hearing before it which deprived the applicant of the possibility
to exercise his defence rights in respect of the reclassified charge
in a practical and effective manner. In these circumstances the Court
considers that the violation of the applicant’s right to defend
himself by the Stavropol Regional Court was not cured by the Supreme
Court.
- Therefore,
the applicant’s right to a fair trial and, in particular, the
rights to be informed in detail of the nature and cause of the
accusation against him and to have adequate time and facilities for
the preparation of his defence were infringed.
- Accordingly,
the Court finds that there has been a violation of Article 6 §§
1 and 3 (a) and (b) on this ground.
II. 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 claimed 130,321.85 Russian roubles (RUB), which his family
had allegedly spent in order to support him during his imprisonment,
in respect of pecuniary damage. He also claimed 35,000 euros (EUR) in
respect of non-pecuniary damage which he had allegedly suffered in
view of the unfair proceedings in his case.
- The
Government submitted that the damage claimed was excessive and did
not relate to the issues raised in the present application.
Alternatively, a finding of a violation of the Convention would be
adequate just satisfaction.
- The Court does not discern any
causal link
between the violations found and the pecuniary damage alleged;
it therefore dismisses this claim. As regards non-pecuniary damage,
it accepts that the applicant has suffered non-pecuniary damage which
would not be adequately compensated by the finding of a violation.
Making its assessment on an equitable basis, the Court awards the
applicant EUR 1,000 under this head, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant claimed RUB 10,000 for his legal representation in the
proceedings before the trial court in his criminal case. He also
claimed RUB 1,177.65 in respect of his postal expenses in the
proceedings before the Court.
- The
Government submitted that the claim for legal costs was not supported
by any documents.
- The
Court reiterates that to be entitled to an award of costs and
expenses the injured party must have incurred them in order to seek,
through the domestic legal order, prevention or redress of a
violation, to have the same established by the Court or to obtain
reparation therefore. It notes that the legal costs claimed were not
incurred for the purpose of prevention or redress of the violations
of the Convention found in this case: they therefore should be
dismissed. Furthermore, the Court has to be satisfied that the costs
and expenses were actually incurred, were necessarily incurred and
were also reasonable as to quantum. It considers that postal expenses
relating to the applicant’s correspondence with the Court meet
the above criteria. The Court awards the applicant EUR 35 in respect
of his postal expenses, 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
- Holds
that there has been a violation of Article 6 § 1 of the
Convention on account of the examination of the applicant’s
case on appeal in the absence of the applicant and his counsel;
- Holds
that there has been a violation of Article 6 §§ 1 and
3 (a) and (b) of the Convention on account of the recharacterisation
of the offence by the trial court;
- 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), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
35 (thirty-five euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 9 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
