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FIRST
SECTION
CASE OF KONONOV v. RUSSIA
(Application
no. 41938/04)
JUDGMENT
STRASBOURG
27 January
2011
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 Kononov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41938/04) 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, Mr Mikhail Yevgenyevich
Kononov (“the applicant”), on 30 September 2004.
- The
applicant was represented by Mr P.A. Finogenov, a lawyer practising
in Moscow. The Russian Government (“the Government”) were
represented by Mrs V. Milinchuk, former representative of the Russian
Federation at the European Court of Human Rights.
- On
3 September 2007 the President of the First Section decided to give
notice of the application to the Government.
THE FACTS
- The
applicant was born in 1979 and is currently serving his prison
sentence in the Altay Region.
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was charged with possession of firearms and several counts
of robbery. The pre-trial proceedings were concluded in September
2003 and then the case against the applicant and four other persons
was submitted to the Altay Regional Court for trial.
- During the preliminary hearing on 28 November 2003, the
presiding judge informed the defendants of their procedural rights,
including, in particular, the right to free legal assistance, the
right to meet with their lawyers without restrictions, the right to
bring an appeal against a trial court's judgment, the right to
participate in the appeal hearing and the right to defend themselves
through all lawful means.
- On
11 February 2004 the Regional Court convicted the applicant as
charged and sentenced him to twelve years' imprisonment.
- In the operative part of its judgment, the trial court
informed that any appeal had to be lodged with the Supreme Court of
the Russian Federation within ten days. The time-limit for the
defendants started running from the day when they were served with a
copy of the judgment. For other participants in the proceedings,
it would run from the day of pronouncement of the judgment.
There was no further information as to the right of the defendants to
ask the authorities to ensure their participation in an appeal
hearing.
- Both the applicant and his counsel, who he had chosen
and who had represented him at the trial, lodged their appeals
challenging the Regional Court's judgment on factual and legal
grounds, without stating the wish to take part in the appeal hearing.
They claimed, in particular, that the trial court's findings had not
been based on the facts of the case and that the court had used for
the applicant's conviction the evidence obtained in breach of the
criminal procedural law. It appears that some time later the
applicant discharged his representative owing to a lack of financial
means.
- On
13 July 2004 the Registry of the Supreme Court despatched
a summons for an appeal hearing. It contained several words:
“For information ... the case of Kononov Krasnov
Lukyanov Miroshnichenko Nepomnyashchikh is to be heard on 27 July
2004 at 10”.
The
applicant was served with the court notification on 15 July
2004.
- On 27 July 2004 the Supreme Court held an oral
hearing. The applicant and his lawyer did not appear. The appeal
court did not examine the question whether they had been duly
summoned and, if they had not, whether the examination of their
appeals should have been adjourned. The public prosecutor and one of
the applicant's co-defendants were present and made their
submissions. The prosecutor, in particular, asked to re-categorise
the crime and uphold the trial court's judgment in the remaining
part. On the same date the Supreme Court delivered a judgment by
which it dismissed the applicant's appeal as being unsubstantiated
and upheld his conviction and sentence in their entirety.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Participation in the appeal proceedings
- In the operative part of a judgment, a trial court
shall inform of the manner and the time-limit for lodging an appeal.
Furthermore, it shall explain that a convicted or acquitted person
has a right to ask that his or her participation in an appeal hearing
be ensured (Article 309 § 3 of the Code of Criminal
Procedure).
- If a convicted person wishes to take part in an appeal
hearing, he or she shall indicate this in the statement of appeal
(Article 375 § 2).
- The
parties shall be notified of the date, time and venue of an appeal
hearing no later than fourteen days in advance (Article 376 § 2).
- A convicted person, who is held in custody and has
expressed the wish to be present at the appeal hearing, shall be
entitled to participate in the court session either directly or by
video link (Article 376 § 3).
- At
the hearing, the appeal court shall hear the statement of the
appellant and the objection by the opposing party. The appeal court
shall be empowered to examine evidence and additional materials
provided by the parties in support of their arguments (Article 377).
- The appeal court may decide (1) to dismiss the appeal
and uphold the judgment, (2) to quash the judgment and terminate the
criminal proceedings, (3) to quash the judgment and remit the case
for a fresh trial, or (4) to amend the judgment (Article 378).
- A judgment shall be quashed or amended on appeal if
there is an inconsistency between the conclusions reached by the
trial court and the facts of the case established by that court.
Violation of procedural law and wrongful application of criminal law,
as well as unfairness of the judgment, shall also constitute grounds
for reversing or changing the judgment (Article 379).
B. Legal aid
- In case an accused requests free legal assistance or
the interests of justice require that the defence be represented, the
relevant authority, that is an investigator, a prosecutor, or a
court, shall appoint him or her legal-aid counsel (Articles 50 - 51
of the Code of Criminal Procedure).
- The Constitutional Court of the Russian Federation, in
its decision no. 497-O of 18 December 2003, confirmed the
applicability of the requirements of Article 51 of the Code to
the appellate proceedings.
C. Enforcement of trial court's judgment
- A
trial court's judgment becomes final and binding on the day of the
appeal hearing, provided that it was upheld by the appeal court
(Article 390 § 3 and Article 392 § 1 of the Code of
Criminal Procedure).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF
THE CONVENTION
- The
applicant complained that the national authorities had failed to
ensure his right to take part in the appeal hearing and to ensure his
effective representation, by legal aid counsel, before the appeal
court. He relied on Article 6 §§ 1 and 3 (c) of
the Convention, the relevant parts of which read as follows:
“1. ...[E]veryone is entitled to a fair
... 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. The parties' submissions
- According
to the Government, the applicant did not inform the relevant
authorities of his wish to take part in the appeal hearing. He could
have done so either in his statement of appeal, or when he was
notified of the appeal hearing but failed to avail himself of both
opportunities.
- As
regards the applicant's representation before the appeal court, the
Government submitted that during the trial, he had been defended by
counsel of his own choosing. The latter had effectively fulfilled his
duties: he had submitted a number of applications, had questioned
witnesses, had studied the court record and, finally, had brought two
appeals against the judgment of the trial court. He had also been
notified of the appeal hearing but had not appeared. In their further
submissions, the Government stated that the agreement between the
applicant and his representative had exclusively concerned the
representation before the first-instance court and that the applicant
had not informed the authorities that he had discharged his lawyer
due to a lack of financial means.
- For
the above reasons, the Government considered that the applicant's
complaints were manifestly ill-founded. The national authorities
could not be blamed for the applicant's absence in the appeal
hearing, or for the lack of his representation before the appeal
court. In both instances, it had been the applicant who had failed to
exercise effectively his procedural rights.
- Finally, they stated that the applicant could have
applied to a supervision review court for the revision of the appeal
proceedings. Besides, the use by the applicant of an offensive
language in his submissions to the Court had amounted to an abuse of
the right of application within the meaning of Article 35 § 3 of
the Convention.
- The
applicant maintained his complaint. He argued that the judicial
authorities had not explained his right to take part in the appeal
hearing and that he had not been aware of the procedure to follow. If
the authorities had taken his conduct as a waiver of his rights, they
should have obtained his respective written statement. He could not
afford legal assistance by a lawyer of his own choosing therefore the
appeal court should have appointed legal aid counsel to represent
him.
B. The Court's assessment
1. Admissibility
- In
so far as the Government may be understood to claim that the
applicant failed to exhaust available domestic remedies because he
did not apply for supervisory review proceedings, the Court
reiterates that, according to its constant practice, an application
for supervisory review is not a remedy to be used for the purposes of
Article 35 § 1 of the Convention (see Berdzenishvili
v. Russia (dec.), no. 31697/03, 29 January 2004;
and Shulepov v. Russia, no. 15435/03, § 23,
26 June 2008). The Government's objection in this respect must
therefore be dismissed.
- The
Court further 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 amounted to an
abuse of the right of petition. Accordingly, it dismisses the
Government's objection.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. No other
grounds for declaring this complaint inadmissible have been
established. It must therefore be declared admissible.
2. Merits
(a) General principles
(i) Right to take part in the appeal
hearing
- The
Court reiterates that it flows from the notion of fair trial that
a person charged with a criminal offence should, as a general
principle, be entitled to be present and participate effectively in
the first-instance hearing (see Colozza v. Italy,
12 February 1985, §§ 27 and 29, Series A
no. 89).
- In the Contracting States where courts of appeal or of
cassation exist, the guarantees of Article 6 must be complied
with (see Kulikowski v. Poland, no. 18353/03,
§ 59, 19 May 2009). However, the personal
attendance of the defendant does not necessarily take on the same
crucial significance for an appeal hearing as it does for the trial
(see Kamasinski v. Austria, 19 December 1989,
§ 106, Series A no. 168). The manner in which
Article 6 is applied to proceedings before courts of appeal
depends on the special features of the proceedings involved –
account must be taken of the entirety of the proceedings in the
domestic legal order and of the role of appeal court therein (see
Jussila v. Finland [GC], no. 73053/01, §§ 40-42,
ECHR 2006 XIII; Ekbatani v. Sweden, 26 May
1988, § 27, Series A no. 134).
- It is observed that neither the letter nor the spirit
of Article 6 of the Convention prevents a person from waiving of his
or her own free will, either expressly or tacitly, entitlement to the
guarantees of this provision (see Hermi v. Italy [GC],
no. 18114/02, § 73, ECHR 2006-XII). However, such a waiver
must, if it is to be effective for Convention purposes, be
established in an unequivocal manner, be attended by minimum
safeguards commensurate with its importance, and should not run
counter to any important public interest (ibid). For example, the
Court considers that before an accused can be said to have
implicitly, through his conduct, waived an important right under
Article 6, it must be shown that he could reasonably have foreseen
what the consequences of his conduct would be (see Jones v. the
United Kingdom (dec.), no. 30900/02, 9 September 2003
and Sejdovic v. Italy [GC], no. 56581/00,
§ 87, 1 March 2006, Hermi, cited above, § 74
and Panovits v. Cyprus, no. 4268/04, § 68,
11 December 2008).
(ii) Right to free legal assistance in the
appeal proceedings
- Although
not absolute, the right of everyone charged with a criminal offence
to be effectively defended by a lawyer, assigned officially if need
be, is one of the fundamental features of a fair trial (see Poitrimol
v. France, 23 November 1993, § 34, Series A
no. 277-A). A person charged with a criminal offence does not
lose the benefit of this right merely on account of not being present
at the trial (see Mariani v. France, no. 43640/98,
§ 40, 31 March 2005). It is of crucial importance for
the fairness of the criminal justice system that the accused be
adequately defended, both at first instance and on appeal (see Lala
v. the Netherlands, 22 September 1994, § 33,
Series A no. 297-A and Pelladoah v. the Netherlands,
22 September 1994, § 40, Series A no. 297-B).
(b) Application of these principles to the
present case
- The
Court observes that in the Russian criminal procedure, appeal courts
have jurisdiction to deal with questions of law, as well as with
questions of facts pertaining both to criminal liability and to
sentencing. The appeal courts are empowered to examine evidence
and additional materials submitted by the parties directly. As a
result of the examination, the appeal courts may dismiss an appeal
and uphold a trial court's judgment, quash a judgment and
terminate criminal proceedings, quash a judgment and remit a case for
a fresh trial, or amend a judgment (see paragraphs 17 and 18
above).
- In
the present case, the applicant was sentenced by the trial court to
twelve years' imprisonment. He contested his conviction on legal and
factual grounds. It can be concluded, therefore, that the appeal
proceedings were of capital importance for the applicant and that it
was essential for the fairness that he took part in the appeal
hearing.
- It is further noted that the public prosecutor was
present at the hearing and made oral submissions to the court. Those
submissions were directed at having the applicant's conviction
upheld. In such circumstances, in order to maintain the adversarial
character of the proceedings, it was incumbent on the appeal court to
take measures at ensuring the applicant's presence. However, the
judgment of the Supreme Court was silent on the issue of the
applicant's absence from the hearing (see paragraph 11 above).
- The
applicant did not claim that he was unaware of the date set for the
examination of his appeal. It remains to be determined whether, in
the circumstances of the case, he can be said to have implicitly,
through his conduct, waived his right to appear before the appeal
court and defend himself.
- The
applicant argued that he had not known what steps he should have
taken in order to take part in the appeal hearing. The Court notes
that at the beginning of the trial, the presiding judge informed the
defendants of their rights to free legal assistance, to bring an
appeal against the judgment, and to participate in the appeal hearing
(see paragraph 6 above).
- Under
Russian law, the applicant had an indisputable right to participate
in the hearing, directly or by video link, on condition that he made
a request to ensure his participation in either form (see paragraph 15
above). The Court considers that the requirement to make such request
would not in itself contradict the guarantees of Article 6, if the
procedure is clearly set out in the domestic law and complied with by
all participants of the proceedings, including the courts.
- The
Government asserted that the national authorities could not be blamed
for the applicant's absence from the appeal hearing. He could have
requested to ensure his participation either in his appeal, or when
he was notified of the hearing. He failed to do so and, for that
reason, lost his opportunity to appear before the appeal court.
- The
Court, having considered the submitted materials and the relevant
domestic law, notes three specific features of the present case.
First, according to the Russian Code on Criminal Procedure, a
person convicted by a trial court and detained in custody pending
appeal proceedings can take part in an appeal hearing on the
condition that he or she has duly indicated such a wish (see
paragraph 15 above). Second, trial courts in Russia are required
to apprise defendants of this condition in the operative part of
their judgments (see paragraph 12 above). Third, in the present case
it appears that, having pronounced its judgment of 11 February
2004 and having informed the parties of the time-limit for lodging
appeals, the Regional Court did not explain to the defendants the
requirement to point out to the judicial authorities, in a statement
of appeal or otherwise, their wish to attend the appeal hearing (see
paragraph 8 above).
- It
is observed that during the trial proceedings the applicant was
assisted by counsel of his own choosing. However, later he discharged
his representative. In any event, the Court considers that, even
assuming that it was a part of the lawyer's duty to inform the
applicant about peculiarities of appeal procedure, the presiding
judge, being the ultimate guardian of the fairness of the
proceedings, cannot be absolved of his or her responsibility to
explain to the defendant the procedural rights and obligations and
secure their effective exercise (see, for example, Cuscani
v. the United Kingdom, no. 32771/96, § 39,
24 September 2002, Timergaliyev v. Russia,
no. 40631/02, § 59, 14 October 2008 and Kremzow
v. Austria, 21 September 1993, § 68, Series A
no. 268 B).
- In
such circumstances, the Court is prepared to accept the applicant's
argument that he cannot have been expected to appreciate that the
failure to make a special request to ensure his participation in the
appeal hearing would result in his appeal being examined in his
absence. It cannot be said, accordingly, that he unequivocally waived
his right to appear before the appeal court and defend himself in
person.
- As
to the right to legal assistance in the appeal proceedings, the Court
has already examined several cases against Russia in which applicants
had not been represented before appeal courts. Taking into account
several factors – (a) the fact that Russian appeal courts were
empowered to fully review the case and to consider additional
arguments which had not been examined in the first-instance
proceedings, (b) the seriousness of the charges against the
applicant and (c) the severity of the sentence which he had faced –
the Court considered that the interests of justice demanded that, in
order to receive a fair hearing, the defendants should have had legal
representation at the appeal hearing. The Court accordingly found a
violation of Article 6 § 1 in conjunction with
Article 6 § 3 (c) of the Convention in cases
Samoshenkov and Strokov v. Russia, nos. 21731/03
and 1886/04, § 69, 22 July
2010, Shilbergs v. Russia, no. 20075/03,
§ 123, 17 December 2009; Potapov v. Russia,
no. 14934/03, § 24, 16 July 2009; and Shulepov
v. Russia, no. 15435/03, §§ 34-39, 26 June
2008.
- In
the present case, the Court notes two particular circumstances.
First, during the proceedings in the first-instance court, the
applicant was represented by counsel of his own choosing. The latter
submitted the appeal against the applicant's conviction but was then
discharged. Second, the applicant did not inform the relevant
authorities about the dismissal of his lawyer.
- According
to the domestic procedural law, any defendant may ask an appeal court
to provide him or her with free legal assistance. Then, it is for the
authorities to assess the request and, if the interest of
justice so require, to appoint a representative so that the defence
rights were secured to an extent compatible with Article 6 of the
Convention (see paragraphs 19 and 20 above). The applicant
was duly informed of this procedure (see paragraph 6 above).
Therefore, the onus was on him to request legal representation for
the effective participation in the appeal hearing. He, however,
did not do so (compare Sakhnovskiy v. Russia [GC],
no. 21272/03, § 20, 2 November
2010, where the applicant made a request, prior to the appeal
hearing, to be assigned a lawyer to represent him in the appeal
proceedings because his counsel was unable to attend the hearing).
In view of the circumstances of the case, the Court does
not find that the absence of any representative in the appeal hearing
of 27 July 2004 was imputable to the national authorities.
(c) Conclusion
- In
the light of the foregoing considerations, the Court concludes that
there has been a violation of Article 6 § 1 of the
Convention taken in conjunction with Article 6 § 3 (c)
as regards the applicant's absence at the appeal hearing.
- As
regards the alleged failure to appoint a legal-aid lawyer for the
appeal hearing, the Court finds that there has been no breach of
Article 6 § 1 of the Convention taken in conjunction
with Article 6 § 3 (c).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 §§ 1 and 2
that the court had been biased and that his presumption of innocence
had been violated. He also complained under Article 13 of a lack
of effective domestic remedies.
- Having
considered his submissions in the light of all the material in its
possession, the Court finds that, 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.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, 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 claimed 1,500,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage incurred as a result of the infringement of his
rights set out in the Convention.
- The
Government noted that the applicant had failed to submit any document
to substantiate his claims for pecuniary damage. As regards his
claims for non-pecuniary damage, they submitted that the applicant's
allegations should not give rise to an award of any compensation
under this head. In any event, they considered that the finding of a
violation would constitute sufficient just satisfaction.
- The
Court considers that the applicant has failed to substantiate his
claim of pecuniary damage incurred and, for that reason, rejects it.
On the other hand, the Court considers that the applicant must have
suffered non-pecuniary damage as a result of the authorities' failure
to ensure his participation in the appeal hearing and to present his
case in accordance with his defence rights, and that this would not
be adequately compensated by the finding of a violation alone. Making
its assessment on an equitable basis, it awards the applicant EUR
4,800 under this head, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant claimed costs and expenses incurred before the domestic
courts and before the Court. He did not indicate any specific amount.
- The
Government noted that the applicant had failed to submit any document
to substantiate his claims under this head.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the applicant did not
indicate the amount of costs and expenses claimed. Nor did he provide
any evidence (receipts, vouchers, etc.) on the basis of which the
Court could assess the quantum of the expenses incurred. Therefore,
the Court considers that there is no call to award him any sum on
that account.
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 complaints concerning the
applicant's absence from the appeal hearing on 27 July 2004 and the
lack of legal representation at this hearing 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 as regards the
applicant's absence at the appeal hearing;
- Holds that there has been no violation of
Article 6 §§ 1 and 3 (c) of the Convention as regards the
alleged failure to appoint a legal-aid lawyer for the appeal hearing;
- 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, EUR 4,800 (four
thousand eight hundred euros), in respect of non-pecuniary damage,
plus any tax that may be chargeable, 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
