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FIRST
SECTION
CASE OF SIBGATULLIN v. RUSSIA
(Application
no. 32165/02)
JUDGMENT
STRASBOURG
23 April 2009
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 Sibgatullin v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 2 April 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32165/02) 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 German Nailyevich
Sibgatullin (“the applicant”), on 10 December 2002.
- The
applicant, who had been granted legal aid, was represented by the
Centre for the International Protection. The Russian Government (“the
Government”) were represented by Mr
P. Laptev and Ms V. Milinchuk, former Representatives
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 in that the appeal hearing of his criminal case had
been held in his absence.
- On
8 July 2005 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
- On
13 September 2007 the President of the First
Section invited the Government to submit further written observations
on the admissibility and merits of the application under Rule 54 §
2 (c) of the Rules of the Court.
- The
Government objected to the joint examination of the admissibility and
merits of the application. The Court examined and dismissed their
objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1966 and lives in Nizhniy
Tagil, Sverdlovsk region. He is currently serving a prison sentence
in Nizhnyy Tagil.
- In
September 2001 the applicant and a certain B. were arrested on
suspicion of three murders and were placed in detention. The
applicant alleged that he was ill-treated while in detention.
However, he did not lodge any complaints in that respect with the
competent domestic authorities.
- On
22 February 2002 the Sverdlovsk Regional Court (“the trial
court”) heard the case in the presence of the applicant, his
counsel Ch. and his co-accused B. The applicant submitted that B. had
tried to strangle the first victim with a cord, but had not managed
to do so and asked him for help. So, he had tightened the cord.
Afterwards he strangled the second victim. He further maintained that
the third victim was killed by his co-accused. Co-accused B.
submitted that the applicant had killed the third victim with a
knife.
- The
trial court considered that B.’s testimony regarding the third
murder was coherent and consistent with other evidence submitted at
trial and therefore deserved more credit. It found the applicant
guilty of three murders and theft and sentenced him to twenty years’
imprisonment. It found B. guilty of complicity in committing the
first and the second murders as well as of theft and sentenced her to
fifteen years’ imprisonment. The judgment stated that the
applicant and his co-accused could appeal to the Supreme Court of the
Russian Federation within seven days of the date on which they
received a copy of the judgment.
- In
their appeal against the judgment of 22 February 2002 the applicant
and his counsel complained, in particular, that the trial court’s
conclusions regarding the applicant’s guilt in the first murder
were not supported by the evidence submitted at trial. The first
victim had been strangled by B. and when the applicant approached
her, she was already dead. The applicant’s conviction for the
third murder had been based solely on B.’s testimony which was
supported by nothing else but the court’s suppositions. The
applicant and his counsel requested that the judgment be quashed and
the case be remitted for a fresh trial. When lodging the appeal the
applicant did not expressly state that he wished to take part in the
appeal hearing. The applicant’s co-accused did not appeal
against her conviction.
- On 15 August 2002 the Supreme Court of the Russian
Federation (“the Supreme Court”) examined the applicant’s
appeal in the presence of the prosecutor and dismissed it. Neither
the applicant nor his counsel were present at that hearing.
- On 26 October 2005 the Deputy Prosecutor General of
the Russian Federation lodged an application for supervisory review
of the appeal decision of 15 August 2002 with the Presidium of the
Supreme Court, on the ground that the applicant and his lawyer had
not been properly notified of the appeal hearing of 15 August 2002
and therefore, could not attend it. He requested that the above
decision be quashed and the case be remitted for a fresh appeal
examination.
- On 5 April 2006 the Presidium of the Supreme Court
quashed the decision of 15 August 2002 and remitted the case for a
fresh examination of the appeal. It appears that neither
the applicant nor his representative were present at that hearing.
- On
23 May 2006 the head of the detention facility in which the applicant
was held received a telegram which read as follows: “Inform
Sibgatullin that his case will be heard by the Supreme Court of the
Russian Federation at 10 am on 29 June 2006”. On the same date
the applicant read that telegram. A similar notification
was also sent to the applicant’s legal counsel Ch.
16. On
29 June 2006 the Supreme Court held an appeal hearing in the absence
of the applicant and his counsel. It heard the prosecutor who
requested that the applicant’s conviction on three counts of
murder be upheld and that the sentence imposed for theft be lifted as
the prescription period had expired.
- Having
studied the materials of the case, the appeal court found, in
particular, that the trial court had rightly concluded on the basis
of evidence submitted at trial that when the applicant had been
tightening the cord, the first victim was still alive and that
therefore, he had killed her. It further confirmed the trial court’s
conclusion that the applicant had also killed the third victim. The
Supreme Court concluded that the trial court had correctly
characterised the applicant’s actions as murders and had
imposed an appropriate sentence. It upheld the applicant’s
conviction for the murders, lifted his sentence in respect of theft
and sentenced the applicant to nineteen years and six months’
imprisonment.
- It
does not appear from the decision of 29 June 2006 that the appeal
court verified whether the applicant had been duly informed of the
hearing and whether he had expressed a wish to take part in it.
- On 4 July 2006 the applicant, who allegedly was not
aware of the appeal hearing of 29 June 2006, but at some point
learned that the appeal decision of 15 August 2002 had been quashed
on 5 April 2006, sent additional grounds of appeal to the appeal
court. On the same date he also lodged a special request for leave to
appear at the appeal hearing and requested the appeal court to
provide him with legal counsel.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Code of Criminal
Procedure of the Russian Federation of 18 December 2001,
in force since 1 July 2002 (“the CCrP”)
- Appeal
courts shall verify the legality, validity and fairness of the
judgment of the trial court (Article 360).
- If
a convicted person wishes to take part in the appeal hearing, he
shall indicate this in his statement of appeal (Article 375 §
2).
- Parties
shall be notified of the date, time and place of an appeal hearing no
later than fourteen days in advance. Whether a convicted person held
in custody shall be summoned shall be decided by the court. A
convicted person held in custody who expressed a wish to be present
at the examination of the appeal shall be entitled to participate
either directly in the court session or to state his case by video
link. The court shall make a decision with respect to the form of
participation of the convicted person in the court session. A
defendant who has appeared before the court shall always be entitled
to take part in the hearing. If persons who have been given timely
notice of the venue and time of the appeal hearing fail to appear,
this shall not preclude examination of the case (Article 376 §§
2-4).
- At
the hearing the appeal court shall hear the statement of the party
who lodged the appeal and the objections of the opposing party. The
appeal court shall be empowered, at a party’s request, to
directly examine evidence and additional materials provided by the
parties in an attempt to support or disprove the arguments cited in
the statement of appeal or in the statements of the opposing party
(Article 377).
- The
appeal court may decide to dismiss the appeal and uphold the
judgment, to quash the judgment and terminate the criminal
proceedings, to quash the judgment and remit the case for a fresh
trial, or to amend the judgment (Article 378).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention that criminal
proceedings against him had been unfair because appeal hearings on 15
August 2002 and 29 June 2006 had been held in his absence. The
relevant parts of Article 6 of the Convention provide as follows:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair and
public 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. Submissions by the parties
- The
Government acknowledged that neither the applicant nor his
representative had been notified of the appeal hearing of 15 August
2002 in breach of Article 376 of the CCrP. In that connection,
supervisory review proceedings were initiated on the application of
the Deputy Prosecutor General. On 5 April 2006 the Presidium of the
Supreme Court of the Russian Federation quashed the appeal decision
of 15 August 2002 and remitted the case for a fresh appeal hearing. A
fresh appeal examination took place on 29 June 2006. The applicant
and his counsel were duly informed of that hearing by telegrams sent
on 4 May 2006. The applicant received that notification on 23 May
2006, however he submitted a request for participation in the appeal
hearing only on 4 July 2006. He did not ask to be brought to the
appeal hearing in his grounds of appeal. Therefore, taking into
account that the applicant and his counsel were duly informed of the
hearing, that the applicant failed to make a special request for
participation in the hearing in due time, that his counsel failed to
appear without any valid reasons and did not ask to postpone the
hearing, the appeal court examined the case in their absence. The
Government concluded that the applicant had been able to take part in
the appeal hearing of 29 June 2006, but had failed to use that
opportunity. Consequently, the Russian authorities had complied with
the requirements of Article 6 §§ 1 and 3 (c) of the
Convention.
- The
applicant submitted that neither he nor his counsel had been informed
of the supervisory review proceeding and of their outcome. The
telegram of 4 May 2006 which he received on 23 May 2006 stated that a
hearing of his case would take place on 29 June 2006, but it did not
say what kind of hearing it would be. Furthermore, the Government did
not submit any proof that his counsel had received that notice.
Therefore, it cannot be said that his counsel was duly informed of
the appeal hearing. Furthermore, four years had elapsed since the
date of the first appeal hearing and the contract concluded between
the applicant and his counsel had expired. The authorities were under
an obligation to verify whether the applicant was still represented,
and provide him with another representative if necessary. The
applicant concluded that the authorities’ failure to inform him
about the developments in his case and failure to notify his counsel
of the appeal hearing of 29 June 2006 violated his right to a fair
trial and had not provided appropriate redress for their failure to
notify him and his counsel of the appeal hearing of 15 August 2002.
B. The Court’s assessment
1. Admissibility
- According to the Government, the supervisory review
and the new appeal proceedings had remedied the shortcomings of the
initial appeal proceedings. Therefore, they may be understood to
claim that the applicant had lost his victim status in respect of the
appeal hearing of 15 August 2002.
- In
this respect, the Court reiterates that an applicant is deprived of
his or her status as a victim if the national authorities have
acknowledged, either expressly or in substance, and then afforded
appropriate and sufficient redress for, a breach of the Convention
(see, for example, Scordino v. Italy (no. 1) [GC], no.
36813/97, §§ 178-93, ECHR 2006 ...).
- As
regards the first condition, namely the acknowledgment of a violation
of the Convention, the Court considers that the Presidium’s
decision to quash the appeal decision of 15 August 2002 does amount
to an acknowledgment that there had been a breach of Article 6 of the
Convention.
- With
regard to the second condition, namely, appropriate and sufficient
redress, the Court must ascertain whether the measures taken by the
authorities, in the particular circumstances of the instant case,
afforded the applicant appropriate and sufficient redress in order to
determine whether he could still claim to be a victim. As the
Government’s objection under this head is closely linked to the
merits of the applicant’s complaints, the Court decides to join
them.
- The Court considers that the applicant’s
complaint about holding the appeal hearings of 15 August 2002 and 29
June 2006 in his absence is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
2. Merits
(a) General principles
- The
Court reiterates that the object and
purpose of Article 6 taken as a whole implies that a person “charged
with a criminal offence” is entitled to take part in the
hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3
guarantee to “everyone charged with a criminal offence”
the right “to defend himself in person”, “to
examine or have examined witnesses” and “to have the free
assistance of an interpreter if he cannot understand or speak the
language used in court”, and it is difficult to see how he
could exercise these rights without being present (see Colozza
v. Italy, 12 February 1985, §
27, Series A no. 89). Based on that
interpretation of Article 6 the Court has held that the duty to
guarantee the right of a criminal defendant to be present in the
courtroom – either during the original proceedings or in a
retrial – ranks as one of the essential requirements of Article
6 (see Stoichkov v. Bulgaria,
no. 9808/02, § 56, 24 March 2005).
- 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 Ekbatani v.
Sweden, 26 May 1988, § 27,
Series A no. 134).
- Leave-to-appeal
proceedings and proceedings involving only questions of law, as
opposed to questions of fact, may comply with the requirements of
Article 6, although the appellant was not given an opportunity to be
heard in person by the appeal or cassation court, provided that he
had been heard by a first-instance court (see, among other
authorities, Monnell and Morris v.
the United Kingdom, 2 March 1987,
§ 58, Series A no. 115, as regards the issue of leave to
appeal, and Sutter v. Switzerland,
22 February 1984, § 30, Series A no. 74, as regards the court of
cassation).
- In
appeal proceedings reviewing the case both as to facts and as to law,
Article 6 does not always require a right to a public hearing, still
less a right to appear in person (see Fejde
v. Sweden, 29 October 1991, § 33,
Series A no. 212-C). In order to decide
this question, regard must be had, among
other considerations, to the specific features of the proceedings in
question and to the manner in which the applicant’s interests
were actually presented and protected before the appeal court,
particularly in the light of the nature of the issues to be decided
by it and of their importance to the appellant (see, among many other
authorities, Kremzow v. Austria,
21 September 1993, § 59, Series A no. 268-B; Belziuk
v. Poland, 25 March 1998, § 37,
Reports of Judgments and Decisions
1998-II; and Hermi v. Italy
[GC], no. 18114/02, § 62, ECHR 2006 ...). For instance,
where an appeal court has to make a full assessment of the issue of
guilt or innocence, it cannot determine the issue without a direct
assessment of the evidence given in person by the accused for the
purpose of proving that he did not commit the act allegedly
constituting a criminal offence (see Dondarini
v. San Marino, no. 50545/99, §
27, 6 July 2004).
- The
Court further reiterates that the principle of equality of arms is
another feature of the wider concept of a fair trial, which also
includes the fundamental right that criminal proceedings should be
adversarial. The right to an adversarial trial means, in a criminal
case, that both the prosecution and the defence must be given the
opportunity to have knowledge of and comment on the observations made
and the evidence adduced by the other party (see Brandstetter
v. Austria, 28 August 1991, §§
66-67, Series A no. 211).
(b) Application of the above principles to
the instant case
- The
Court reiterates that the requirements of Article 6 § 3 are to
be seen as particular aspects of the right to a fair trial guaranteed
by Article 6 § 1. Therefore, it will examine the
applicant’s complaint under these provisions taken together
(see Van Geyseghem v. Belgium [GC], no. 26103/95, §
27, ECHR 1999-I).
39. The
Court observes that in Russian criminal procedure, appeal courts have
jurisdiction to deal with questions of law and fact pertaining both
to criminal liability and to sentencing. They are empowered to
examine the evidence and additional materials submitted by the
parties directly. As a result of the examination, the appeal courts
may dismiss the appeal and uphold
the judgment, quash the judgment and terminate the criminal
proceedings, quash the judgment and remit the case for a fresh trial,
or amend the judgment (see
“Relevant domestic law and practice” above, paragraphs 20
and 23-24).
40. In
their grounds of appeal the applicant and his counsel contested the
applicant’s conviction on factual and legal grounds. They
submitted, in particular, that the applicant’s guilt in the
first and the third murders had not been supported by evidence
submitted at trial and that the trial court attached undue weight to
the applicant’s co-accused’s statements. They asked the
appeal court to quash the conviction for those two murders and remit
the case for a fresh trial. The Prosecutor asked to uphold the
applicant’s conviction for the three murders. Consequentely,
the issues to be determined by the appeal court in deciding the
applicant’s liability were both factual and legal. The appeal
court was called on to make a full assessment of the applicant’s
guilt or innocence regarding the charges of the first and third
murders.
41. The
Court further observes that the proceedings in question were of
utmost importance for the applicant, who had been sentenced to twenty
years’ imprisonment at first instance and who was not
represented at the appeal hearing of 29 June 2006. It also does not
lose sight of the fact that the prosecutor was present at the appeal
hearing and made submissions.
- Having
regard to the criminal proceedings against the applicant in their
entirety and to the above elements, the Court considers that the
appeal court could not properly determine the issues before it
without a direct assessment of the evidence given by the applicant in
person. Neither could it ensure equality of arms between the parties
without giving the applicant the opportunity to reply to the
observations made by the prosecutor at the hearing. It follows that
in the circumstances of the present case, it was essential to the
fairness of the proceedings that the applicant be present at the
appeal hearing.
- The
Government have acknowledged and the Court agrees that the appeal
proceedings of 15 August 2002 fell short of the guarantees of fair
trial because neither the applicant nor his legal counsel were duly
notified of the appeal hearing. However, the Government contended
that the appeal decision of 15 August 2002
had been quashed by way of supervisory review and that in new appeal
proceedings the applicant had been given an opportunity to apply for
participation in the hearing, which he did not use.
44. In
order to assess whether the supervisory review indeed remedied the
defects of the original proceedings, as alleged by the Government,
the Court has to verify whether the guarantees of fair trial were
afforded in the ensuing appeal proceedings and whether the applicant
lost the opportunity to be present at the hearing by
failing to submit a special request.
- In
that respect the Court reiterates that while Article 6 § 3 (c)
confers on everyone charged with a criminal offence the right to
“defend himself in person or through legal assistance ...”
it does not specify the manner in which this right should be
exercised. It thus leaves to the Contracting States the choice of the
means of ensuring that it is secured in their legal systems, the
Court’s task being only to ascertain whether the method they
have chosen is consistent with the requirement of a fair trial (see
Quaranta v. Switzerland,
24 May 1991, § 30, Series A no. 205).
The Court considers that the requirement to lodge a prior request for
participation in the appeal hearing would not in itself contradict
the requirements of Article 6, if the procedure is clearly set out in
the domestic law.
- The
Court further reiterates that 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, entitlement to the guarantees of a fair trial. However, such
a waiver must, if it is to be effective for Convention purposes, be
established in an unequivocal manner; it must not run counter to any
important public interest (see Sejdovic
v. Italy [GC], no. 56581/00, § 86,
ECHR 2006 ...), and
it must be attended by minimum safeguards commensurate with its
importance (see Poitrimol v. France,
23 November 1993, § 31, Series A no. 277-A).
Furthermore, in view of the prominent
place held in a democratic society by the right to a fair trial
Article 6 of the Convention imposes on every national court an
obligation to check whether the defendant has had the opportunity to
know of the date of the hearing and the steps to be taken in order to
take part where, as in the instant case, this is disputed on a ground
that does not immediately appear to be manifestly devoid of merit
(see, mutatis mutandis,
Somogyi v. Italy,
no. 67972/01, § 72, ECHR 2004-IV, and Hermi,
cited above, § 76).
- The
Court observes that no explicit waiver was made in the present
case. The question is whether there was a tacit one. In order to
reply to that question, the Court will have to establish in the first
place, whether, as the Government submitted, the applicant and his
representative were duly informed of the appeal hearing of 29 June
2006.
- The
Court observes that on 23 May 2006 the applicant was informed that
“case will be heard by
the Supreme Court of the Russian Federation at 10 am on 29 June
2006”. However, according
to the applicant, by that date he was not aware that his case had
been sent to a fresh appeal hearing as a result of the supervisory
review and therefore, he could not know what kind of hearing would be
held by the Supreme Court. The Court notes that the Government have
not provided any information to prove that the applicant and/or his
counsel were duly informed of the supervisory review proceedings or
of their outcome. The Court further notes that on 4 November
2005 it forwarded to the applicant a copy of the Government’s
observations in which they submitted that on 26 October 2005 the
Deputy Prosecutor had applied for a supervisory review of the appeal
decision of 15 August 2002. On 23 May 2006 the Court forwarded
to the applicant the Government’s letter from which it followed
that on 5 April 2006 the Presidium of the Supreme Court had quashed
the appeal decision of 15 August 2002 and had remitted the case
for a fresh appeal examination. It follows that, at least until the
date on which the applicant received the Court’s letter of 23
May 2006 he was not aware of the results of the supervisory review
proceedings. It means that on 23 May 2006, the date on which the
applicant read the telegram informing him that his case would be
heard by the Supreme Court, he could not have known what hearing was
to be held by the Supreme Court, a supervisory review hearing or a
fresh appeal hearing. In those circumstances, the Court considers
that the applicant was not duly notified of the appeal hearing of 29
June 2006. The Court also notes that the Government have not
submitted any document which demonstrates that the applicant’s
counsel received notification.
- Furthermore,
it follows from the appeal decision of 29 June 2006 that the appeal
court did not verify whether the applicant and his representative had
been duly notified of the hearing. Neither did that decision state
that the applicant had failed to submit a request for participation
in the hearing and had waived his right, and that his failure to
appear would not preclude examination of the case. In such
circumstances, the Court considers that it cannot be said that in the
present case the applicant had waived his right to take part in the
hearing in an unequivocal manner.
- Having
regard to its findings in paragraphs 42,
48 and 49 above, the Court considers
that the appeal hearing of 29 June 2006 did not comply with the
requirements of fairness. It follows that the measures taken by the
authorities, failed to provide appropriate redress to the applicant
in respect of the violation of his right to take part in the appeal
hearing of 15 August 2002. He may therefore still claim to be a
victim within the meaning of Article 34 of the Convention. The Court
therefore, rejects the Government’s objection under this head
and finds that there has been a violation of Article 6 §§
1 and 3 (c) of the Convention on account of holding the appeal
hearings of 15 August 2002 and 29 June 2006 in the applicant’s
absence.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 that he had been ill-treated
while in pre-trial detention. The Court notes that the applicant did
not lodge any complaints in that respect with the competent state
authorities. It follows that this complaint must be rejected for
non-exhaustion of domestic remedies pursuant to Article 35 §§
1 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.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be submitted in writing within the
time-limit fixed for the submission of the applicant’s
observations on the merits, “failing which the Chamber may
reject the claim in whole or in part”.
- In
the instant case, on 4 November 2005 the applicant was invited to
submit his claims for just satisfaction. He failed to submit any such
claims within the required time-limit. Therefore, the Court makes no
award under Article 41 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government’s
objection concerning the victim status of the applicant and rejects
it;
- Declares the complaint concerning holding the
appeal hearings of 15 August 2002 and 29 June 2006 in the
applicant’s absence 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 on account of holding
the appeal hearings of 15 August 2002 and 29 June 2006 in the
applicant’s absence;
- Decides to make no award under Article 41.
Done in English, and notified in writing on 23 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint concurring opinion of
Judges Rozakis, Spielmann and Malinverni is annexed to this judgment.
C.L.R.
S.N.
JOINT CONCURRING OPINION OF JUDGES ROZAKIS, SPIELMANN
AND MALINVERNI
- As
in the case of Sakhnovskiy v. Russia, (no. 21272/03, 5
February 2009), we voted in favour of finding a violation of Article
6 §§ 1 and 3 (c) of the Convention.
- In
the present case the majority follows the approach adopted in
Sakhnovsksiy, finding that the second appeal hearing did not
provide appropriate redress for the shortcomings of the first appeal
hearing and holding that there was a violation of Article 6 § 1
of the Convention in conjunction with Article 6 § 3 (c) on
account of the fact that both appeal hearings were held in the
applicant’s absence.
- In
our view however the applicant was no longer a victim of the
shortcomings of the first appeal hearing, because by quashing the
appeal decision and sending the case for a fresh appeal examination
the authorities had acknowledged and provided appropriate redress for
the shortcomings of the first appeal hearing.
- Our
reasoning therefore differs from the majority’s approach and we
would like to refer in this respect to our joint concurring opinion
in Sakhnovskiy and in particular to paragraph 5 of that
opinion.
