CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 décembre 2005

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s3CA6E042 { width:12.35pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s473B62F0 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:13.5pt } .s4B4B41EE { font-family:Arial; font-size:12pt } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sDFF9B1EC { width:27.55pt; display:inline-block } .sB7DA171E { width:196.78pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 6857/02 by Ruslan Aleksandrovich STADUKHIN against Russia The European Court of Human Rights (Third Section), sitting on 8   December 2005 as a Chamber composed of:   Mr   B.M. Zupančič , President ,   Mr   L. Caflisch ,   Mr   C. Bîrsan ,   Mr   A. Kovler ,   Mr   V. Zagrebelsky ,   Mrs   A. Gyulumyan ,   Ms   I. Ziemele, judges , and Mr M. Villiger , Deputy Section Registrar , Having regard to the above application lodged on 29 June 2001, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Ruslan Aleksandrovich Stadukhin, is a Russian national who was born in 1970 and lives in the Stavropol Region. The respondent Government are represented by Mr   P.   A.   Laptev, Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. By a judgment of 5 December 2000 following the guilty verdict of a jury the Stavropol Regional Court convicted the applicant and his co-defendant of murder, robbery and illegal acquisition, storage and carrying of arms. The applicant was sentenced to sixteen years’ imprisonment and confiscation of property and ordered to pay pecuniary and non ‑ pecuniary damages to the victim. The applicant, who was held in custody, appealed against the judgment to the Supreme Court of Russia. He submitted, inter alia , that the judgment was based on evidence which had not been thoroughly examined, that the investigating authority had failed to verify statements of his co-defendant by way of a reconstruction of the scene of the crime, that the court had rejected his request for examination of additional witnesses and failed to obtain his psychiatric and psychological examination, and that he had had no motive to commit the murder and robbery. He requested the appeal court to quash the judgment and order a fresh examination of the case. On 21 February 2001 the Supreme Court examined the applicant’s appeal. It heard a public prosecutor who considered that the judgment should be upheld. The applicant, who had not been notified of the session, was not present. He was not represented by counsel. The Supreme Court found that the trial court’s presiding judge had conducted the trial impartially and ensured that the case had been thoroughly examined. The reconstruction of the scene of the crime by the investigating authority was not required as the evidence collected in the case was sufficient. There was no indication that the court had rejected the applicant’s request for examination of evidence which could have a significant impact on the outcome of the case. The applicant’s submission that he had no motive to commit the murder and robbery could not be taken into account since it could not serve a ground for the quashing of the judgment given by the jury, of which the applicant had been informed by the trial court. There was no need to order the applicant’s psychiatric and psychological examination since there had been no doubts about his mental health and the applicant had not requested the trial court to do so. In a decision of 21   February 2001 the Supreme Court dismissed the applicant’s appeal and upheld the judgment. B.     Relevant domestic law 1.     Right to be present on appeal Under Article 335 of the Code of Criminal Procedure (“CCP”) of 1960, in force at the material time, a public prosecutor should give his conclusion on whether a judgment is lawful and well ‑ founded at an appeal hearing. A defence counsel may participate in the hearing. A decision about the defendant’s participation in the hearing is taken by the appeal court. The defendant who appears before the court is always entitled to give explanations. 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 to the extent that it allowed appeal courts to take a final decision in a case, where they rejected the defendant’s request for appeal examination in his presence, if the defendant was not given an opportunity to become acquainted with the materials of the hearing and communicate his opinion on the issues raised before the appeal court. Article 336 of the CCP provided that the appellants should be notified about the date of the hearing on appeal before courts lower than the Supreme Court of the Russian Federation. It further provided that the Supreme Court notified of the date of the appeal hearing those appellants who had asked to be informed in their appeals. The failure of the appellants, notified about the respective date, to appear at the hearing did not preclude the court from examining the case. A notice informing of the time of the hearing on appeal should be placed in the court not later than three days before the hearing. In Decision no. 200-O of 17 October 2001 the Constitutional Court held that provisions of Article 336 of the CCP cannot serve a basis for not informing participants of proceedings, who are given the right to appeal against judgments, about the date of examination of their appeals by courts of any levels. Article 338 of the CCP required that at the beginning of an appeal hearing the presiding judge should verify the attendance and the court should decide whether to proceed with the hearing. 2.     The appeal court’s jurisdiction Under Article 465 of the CCP in cases decided by a jury the appeal court could change or quash the judgment on the following grounds: erroneous failure of the trial court to examine admissible evidence which could have a significant impact on the outcome of the case; unjustified dismissal of a party’s request for examination of evidence which could have a significant impact on the outcome of the case; examination of inadmissible evidence if it could have significantly impacted the outcome of the case; significant breaches of the criminal procedural law; the wrong application of the law and an unfair punishment. The appeal court could vary or quash the judgment providing that the changes were not to the detriment of the defendant. COMPLAINTS 1.     The applicant complains under Article 6 § 1 of the Convention that he was not informed about the date of the appeal hearing. 2.     He also complains, invoking Articles 6 §§ 1 and 3 (d), 7 § 1 and 13 of the Convention and Article 2 § 1 of Protocol No. 7, that the investigating authority had failed to verify statements of his co-defendant by way of the reconstruction of the scene of the crime, that the trial court rejected his request for examination of additional witnesses and examined inadmissible evidence, namely records of his interrogation which had allegedly been modified by the investigating authority without his consent. He further alleges that the trial was held with the accusation bias and the court’s wrong legal assessment led to a more severe punishment than the one which was appropriate. THE LAW 1.     The applicant complains under Article 6 § 1 of the Convention that he was not notified of the hearing on appeal. The Court notes that the applicant did not elaborate on his complaint. He did not specifically complain under Article 6 § 3 (c) about a violation of his right to defend himself in person or through legal assistance. The Court does not find it necessary to examine the complaint under Article 6 § 3 (c) of its own motion. Article 6 § 1, insofar as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing...” The Government submit that in his appeal of 18 December 2000 the applicant did not request to inform him of the date of the appeal hearing. He did not make known to the court that he wished to be present at the hearing. The applicant’s counsel, who did not appeal against the judgment, did not make such a request either. It follows from the decision of the Supreme Court of 21 February 2001 that all arguments raised by the applicant in his appeal were examined and all conclusions were reasoned. Article 336 of the Code of Criminal Procedure, then in force, provided for obligatory notification of the date of an appeal hearing before the Supreme Court of the Russian Federation of those participants of proceedings who asked for that in their appeals or observations in reply to appeals. The Government notes further that after Decision no. 200-O of 17 October 2001 of the Constitutional Court was published all appellants are notified of the date of examination of their cases on appeal. However, the applicant had lodged his appeal before the Constitutional Court adopted that decision. Lastly, the applicant’s complaints were subject of supervisory review which found the trial court’s judgment lawful and well-founded. Therefore the applicant’s complaint is manifestly ill ‑ founded and should be declared inadmissible. The applicant argues that the Supreme Court should have applied the Constitution directly. He claims that he lodged a separate request for his notification of the date of the appeal hearing with the Supreme Court. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2.     The Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and   4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint concerning the failure of the judicial authorities to notify him of the appeal hearing; Declares inadmissible the remainder of the application.   Mark Villiger   Boštjan M. Zupančič Deputy Registrar   President