CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 26 mars 2019

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s8B7697D0 { width:20.77pt; display:inline-block } .sBA790E88 { width:151.09pt; display:inline-block } .sF7DC134C { width:39.46pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   THIRD SECTION DECISION Application no. 34839/11 Yelena Mikhaylovna VYBORNOVA against Russia   The European Court of Human Rights (Third Section), sitting on 26   March 2019 as a Committee composed of:   Helen Keller, President,   Pere Pastor Vilanova,   María Elósegui, judges, and Stephen Phillips, Section Registrar, Having regard to the above application lodged on 27 May 2011, 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 1.     The applicant, Ms Yelena Mikhaylovna Vybornova, is a Russian national, who was born in 1972 and lives in Praha. She was represented before the Court by Mr S. Nasonov, a lawyer practising in Moscow. 2.     The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     In April 2004 the applicant was working as an economist in a private company. 5.     On 16 November 2004 criminal proceedings were initiated against Mr   K., deputy manager of the company OAO Neftyanaya Kompaniya YUKOS for embezzlement. 6.     The investigation concluded that in 2004 a group of persons, including the applicant, had been involved in the misappropriation of funds belonging to OAO Neftyanaya Kompaniya YUKOS and in money laundering. 7.     On 23 June and 1 July 2005 the applicant was questioned by the investigator as a suspect. 8.     On 23 June 2005 the applicant provided an undertaking not to leave the city. 9.     On 5 September 2005 the applicant was charged with embezzlement and money laundering and was put on a wanted list. 10.     On an unspecified date in September 2005 the applicant left Russia for the Czech Republic. 11.     On 15 September 2005 the Basmannyy District Court of Moscow held that the applicant should be placed in detention. 12.     On 30 August 2006 the applicant applied to the Ministry of the Interior of the Czech Republic for asylum. 13.     On 14 August 2006 the Prosecutor General of Russia asked the Czech Ministry of Justice to order the applicant’s extradition to Russia. 14.     On 24 July 2008 the Ministry of Justice of the Czech Republic informed Russian authorities that on 23 March 2007 the Regional Court in Ostrava had refused extradition because the applicant had been granted subsidiary protection and had a minor child. On that basis, extradition would breach the obligations of the Czech Republic under treaties protecting the rights of the child and prohibiting torture or other inhuman or degrading treatment. On 2 June 2008 the Supreme Court of the Czech Republic upheld that decision on appeal. 15.     On 6 October 2010 the Taganskiy District Court of Moscow convicted the applicant of embezzlement and money laundering in the presence of Ms Z., her State-appointed lawyer. 16.     Ms Z. and a lawyer appointed by the applicant, Ms A., lodged appeals against the conviction, stating that the applicant had not been present at the hearing on 6   October 2010. 17.     On 24 December 2010 the Moscow City Court upheld the conviction on appeal, stating that the Code of Criminal Procedure allowed for a conviction in absentia where the accused had absconded and had not been prosecuted in a foreign State. B.     Relevant domestic law and practice 1.     Code of Criminal Procedure 18.     Under Article 247 §§ 5 and 6 of the Code of Criminal Procedure a hearing in respect of serious crimes may, as an exception, be held in the absence of an accused who has left the territory of the Russian Federation and/or who has absconded, if the accused has not been prosecuted in a foreign State in respect of the same criminal case. If that is the situation, participation of a lawyer or lawyers appointed by the accused or by the court is mandatory. 19.     Article 247 § 7 provides that if the above circumstances change, the conviction issued in absentia may, at the request of the convicted party or his or her lawyer, be quashed by the supervisory-instance court. 20.     Under Article 401.15 §§ 1 and 2, a conviction may be quashed or changed on appeal in the event of a material breach in criminal law and/or procedure which has had an impact on the outcome of the proceedings. If the circumstances provided for by Article 247 § 5 no longer exist, the convicted party or his or her lawyer may ask the appeal court to quash the conviction. 2.     Supreme Court of Russia 21.     According to point 13 of Ruling no. 28 of 22 December 2009 “on the application of criminal procedure law by courts when preparing a case for judicial proceedings”, the exceptions referred to in Article 247 § 5 include the severity of the crime, significant damage to the victim, unsuccessful tracing of the suspect and the impossibility of extraditing the suspect. COMPLAINT 22.     The applicant complained under Article 6 of the Convention that she had been convicted in absentia . THE LAW 23.     The applicant complained that she had been convicted in absentia without having had an opportunity to present her defence before the domestic courts. She relied on Article 6 of the Convention, which provides, in so far as relevant: “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: ... (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 ...” A.     The parties’ submissions 24.     The Government submitted that the applicant had had full knowledge of the criminal proceedings against her and that her right to defence had been fully secured. At the hearing on 6 October 2010 she had been represented by a State-appointed lawyer, Ms Z. The applicant’s lawyer, Ms A., could not have attended the hearing on 6 October 2010 as she had received her warrant only on 20 October 2010. However, she had received a copy of the judgment and had submitted an appeal. Ms A. had informed the court, initially by telephone and later by her letter of 23   December 2010, that her agreement with the applicant had been rescinded. Therefore, at the appeal hearing on 24   December 2010 the applicant had been represented by Ms Z. The appeal court had examined the appeals submitted by both lawyers and upheld the conviction. The Government concluded that there had been no violation of Article 6. 25.     The applicant maintained her complaint. B.     The Court’s assessment 1.     General principles 26.     Although proceedings that take place in the accused’s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absenti a is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself (see Colozza v. Italy , 12 February 1985, § 29, Series   A no. 89; Einhorn v. France (dec.), no. 71555/01, § 33, ECHR 2001 ‑ XI; Krombach v. France , no. 29731/96, § 85, ECHR 2001-II; and Somogyi v. Italy , no. 67972/01, § 66, ECHR 2004-IV) or that he intended to escape trial (see Medenica v. Switzerland , no. 20491/92, § 55, ECHR 2001 ‑ VI). 27.     Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v.   Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Poitrimol v.   France , 23 November 1993, § 31, Series A no. 277 ‑ A). Furthermore, it must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden , 21 February 1990, § 66, Series A no. 171-A). 28.     The Court has held that where a person charged with a criminal offence had not been notified in person, it could not be inferred merely from his status as a “fugitive” (which itself had been founded on a presumption that had not had a sufficient factual basis) that he had waived his right to appear at the trial and defend himself (see Colozza , cited above, § 28). It has also had occasion to point out that before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention, 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). At the same time, it is open to the national authorities to assess whether the accused showed good cause for his absence or whether there was anything in the case file to warrant finding that he had been absent for reasons beyond his control (see Medenica , cited above, § 57, and Sejdovic v. Italy [GC], no. 56581/00, § 88, ECHR 2006 ‑ II). 2.     Application of the above principles in the present case 29.     In previous cases concerning convictions in absentia , the Court has held that to inform someone of a prosecution brought against him is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused’s rights; vague and informal knowledge cannot suffice (see Somogyi , cited above, § 75). The Court cannot, however, rule out the possibility that certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and either does not intend to take part in the trial or wishes to escape prosecution. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or where he succeeds in evading an attempted arrest (see Iavarazzo v. Italy (dec.), no. 50489/99, 4 December 2001), or where materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces (see Sejdovic , cited above, § 99). 30.     The Court notes that in the present case the police had questioned the applicant as a suspect before she left for the Czech Republic in the summer of 2005. In September 2005 the applicant was charged with embezzlement and money laundering and the domestic court remanded her in custody. In August 2006 the applicant applied for asylum in the Czech Republic, stating that she was being prosecuted in Russia on charges related to the YUKOS scandal and that she feared an unfair trial, imprisonment and the removal of her minor child if she returned to Russia. Her request was allowed and she was granted subsidiary protection. The Russian authorities’ requests to extradite the applicant were rejected. Therefore, it is evident to the Court that the applicant decided to stay away from Russia and to refrain from direct involvement in the criminal proceedings against her long before the trial. In such circumstances she may be regarded as having been sufficiently aware of the prosecution and the charges against her and as having deliberately chosen not to attend the hearings at the first-instance and appeal courts. 31.     The Court further notes that the domestic courts verified whether the applicant and her representatives had been duly notified of the hearing. They established that the authorities had put the applicant on the wanted list and had unsuccessfully tried to extradite her. The courts concluded that, in those circumstances, her failure to appear would not preclude the examination of the case under Article 247 § 5 of the Code of Criminal Procedure. 32.     Moreover, the applicant’s interests during the proceedings were defended by a privately financed lawyer, Ms A., and a State-appointed lawyer, Ms Z. The State-appointed lawyer was notified of the various steps in the proceedings, including the applicant’s conviction. It seems that in the beginning Ms A. had some difficulties in getting access to the case because she had failed to comply with certain formalities. However she was allowed to engage in the case after the formalities had been respected. Moreover, it seems that she was in contact with the State-appointed lawyer and submitted an appeal against the conviction. In these circumstances, the Court cannot but conclude that the applicant’s rights during the criminal proceedings were secured. 33.     Accordingly, having regard to all the material in its possession and the conclusions above, the Court finds that the complaint related to the applicant’s trial in absentia is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 18 April 2019.   Stephen Phillips   Helen Keller   Registrar   President