FIRST SECTION
CASE OF
ALEKSANDR DEMENTYEV v. RUSSIA
(Application no.
43095/05)
JUDGMENT
STRASBOURG
28 November 2013
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 Aleksandr Dementyev v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 5 November 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
43095/05) 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 Aleksandr Leonidovich Dementyev
(“the applicant”), on 14 September 2005.
The applicant, who had been granted legal aid, was
represented by Ms O.V. Preobrazhenskaya, a lawyer practising in Moscow. The
Russian Government (“the Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of Human Rights.
The applicant alleged, in particular, that he had
been unable to attend a sentencing hearing.
On 29 June 2009 the application was communicated to
the Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1978 and is serving a
prison sentence in Kotlas, Arkhangelsk region.
On 23 September 2003 the applicant was
arrested on suspicion of murder. He remained in custody pending investigation
and trial.
On 9 April 2004 the
Solombalskiy District Court of Arkhangelsk found the applicant guilty of
battery and sentenced him to six months’ community work. The applicant was
represented by a State-appointed lawyer. On 28 May 2004 the Arkhangelsk Regional
Court upheld the applicant’s conviction on appeal. It is apparent from the text
of the appeal judgment that the applicant was not represented before the appeal
court.
On 8 July 2004 the
Regional Court found the applicant guilty of murder and sentenced him to 13
years’ imprisonment. The applicant was again represented by a State-appointed
lawyer. The applicant appealed against his conviction, alleging that the trial
court had erred in its assessment of the evidence. On 20 October 2004 the
Supreme Court of Russia upheld the applicant’s conviction on appeal. It is
apparent from the text of the appeal judgment that the applicant was not
represented before the appeal court.
On an unspecified date, the correctional facility
where the applicant was serving the prison sentence asked the Regional Court to
advise as to the execution of the sentence for battery of 9 April 2004. The
court fixed the hearing for 18 March 2005.
On 5 March 2005 the Regional Court
forwarded to the correctional facility a request to inform the applicant of the
date, time and place of the hearing. The applicant signed a statement
acknowledging receipt of the notice on 17 March 2005. The relevant part of
his statement read as follows:
“I, Aleksandr Leonidovich Dementyev, hereby acknowledge that I
have been notified about the hearing to be held at the Arkhangelsk Regional
Court concerning the execution of the sentence imposed by the Solombalskiy
District Court on 9 April 2004. I have been informed that my attendance at
the hearing is not mandatory and that I have a right to participate through a
legal representative.”
On 18 March 2005 at 11 a.m. the
administrative office of the correctional facility where the applicant was
serving a prison sentence informed the Regional Court by phone that the
applicant had chosen not to be represented at the hearing. The message was
worded as follows:
“[The applicant] has chosen not to be represented by a lawyer
at the hearing on 18 March 2005 concerning the execution of the sentence
imposed by the Solombalskiy District Court on 9 April 2004.”
On 18 March 2005 at 2 p.m. the Regional
Court reconsidered the term imposed on the applicant sentence by the verdict of
9 April 2004. The court converted it into a prison sentence and added it, in part,
to the term of imprisonment imposed on the applicant by the murder verdict. As
a result, the applicant’s overall prison sentence was increased by one month to
take into account his conviction for battery of 9 April 2004. After having
examined the applicant’s statement - confirming that he had been apprised of
the hearing and his right to attend - and the transcript of the telephone
message from the correctional facility stating that the applicant had chosen
not to be represented at the hearing by a lawyer, the court decided to hold the
hearing in the applicant’s absence. The prosecutor and a representative of the
regional department of corrections who attended the hearing considered it acceptable
to proceed in the applicant’s absence.
On 31 March 2005 the
applicant received a copy of the decision of 18 March 2005 whereby he was
also advised of his right to lodge an application for supervisory review of the
said decision. No possibility of lodging an appeal was mentioned.
II. RELEVANT DOMESTIC LAW AND PRACTICE
When determining an aggregate
sentence, the court takes into account the terms of all sentences imposed and
adds them up in full or in part (Article 69 § 3 of the Criminal
Code of the Russian Federation, hereinafter the “CC”). When so doing, the court
takes into account the nature and degree of the danger each of the crimes
committed pose to the public, the offender’s character, and any mitigating or
aggravating circumstances surrounding each of the crimes committed, as well as any
cumulative aggravating effect resulting from the repeated crimes (Ruling
no. 40 adopted by the Plenary of the Supreme Court of the Russian
Federation on 11 June 1999, § 14, in force at the relevant time).
For the purposes of
calculating an aggregate sentence, three days of community work correspond to
one day of a prison sentence (Article 71 of the CC). The CC does not
provide for any possibility of performing the community work either before or
after serving a prison sentence.
The offender has the right to
attend the hearing concerning the execution of the sentence imposed on him (Article 47 § 4
of the Code of Criminal Procedure of the Russian Federation in force at the
relevant time, hereinafter the “CCP”). The provisions of the CCP
(Article 399) left it to the court’s discretion to decide whether the offender’s
attendance at the hearing was necessary. They further provided for the convict’s
right to be represented by a lawyer at the hearing.
It was open to the parties to the proceedings,
including the offender, to lodge an appeal against the court’s decision on aggregate
sentencing (Article 410 of the CCP).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained about his non-attendance
at the hearing of 18 March 2005. The Court will examine the applicant’s
allegations under Article 6 §§ 1 and 3 (c) of the Convention,
which, in so far as relevant, reads as follows:
“1. In the determination ... of any criminal charge
against him, everyone is entitled to a fair and public 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. Admissibility
1. Compatibility ratione materiae
(a) The parties’ submissions
(i) The Government
The Government submitted that the applicant’s
complaint did not fall within the ambit of Article 6 of the Convention.
The court hearing held on 18 March 2005 concerned the execution of two
sentences imposed earlier on the applicant. Under Russian law, a hearing of
this type was not considered to be part of the proceedings concerning
determination of the criminal charge within the meaning of Article 6 of
the Convention. A hearing of this type was of a formal character. The
court was not competent to decide the question of the guilt or innocence of the
accused, or to establish the circumstances of the case, or to assess evidence,
or to verify the lawfulness or well-foundedness of the verdict. It was
incumbent on the domestic court to determine only the way in which the applicant
was to serve the two criminal sentences imposed on him consecutively in
accordance with the “arithmetical” rules set out in the Criminal Code of the
Russian Federation.
In the Government’s view, the present case was
to be distinguished from the case of Eckle (Eckle v. Germany, 15
July 1982, § 77, Series A no. 51) where the German courts, when
determining the applicants’ sentence, had to evaluate the seriousness of all
the crimes committed by them, assess their character and take into account as a
mitigating circumstance the time that had passed since the date of the verdict.
The Government further referred to an earlier case,
against Russia (see Nurmagomedov v. Russia, no. 30138/02, §§ 40-51,
7 June 2007). In Nurmagomedov the Court had held that the proceedings
concerning the bringing of an offender’s sentence in line with the amendments
to the Criminal Code of the Russian Federation fell outside the scope of Article 6
of the Convention. The Government considered that the present case bore a close
resemblance to Nurmagomedov and it should, accordingly, be dismissed as
being incompatible ratione materiae with the Convention provisions.
(ii) The applicant
The applicant contested the Government’s
argument. Relying on the Court’s case-law, he argued that Article 6 of the
Convention applied to all stages of criminal proceedings, including the
proceedings whereby a sentence is fixed (see Phillips v. the United Kingdom, no. 41087/98, § 39, ECHR 2001-VII). In the applicant’s view,
the hearing was in any event decisive for the determination of his civil rights
and obligations within the meaning of Article 6 of the Convention. The
question to be decided by the domestic court concerned the determination of the
aggregate prison sentence to be served by him. Accordingly, it was the
applicant’s right to liberty, which was a civil right, that was at stake (see Aerts
v. Belgium, 30 July 1998, § 59, Reports of Judgments and
Decisions 1998-V).
(b) The Court’s assessment
The Court reiterates that, in criminal matters,
Article 6 § 1 of the Convention covers the whole of the proceedings in question,
including appeal proceedings and the determination of sentence (see, among
other authorities, Eckle v. Germany, 15 July 1982, §§ 76-77, Series
A no. 51, and T v. the United Kingdom [GC], no. 24724/94, § 108,
16 December 1999).
Turning to the circumstances of the present
case, the Court observes that, after two guilty verdicts had been rendered and taken
effect in respect of the applicant, it still remained necessary for the
domestic judicial authorities to fix the aggregate sentence combining those
previously imposed on the applicant in the course of two sets of criminal
proceedings against him.
The Court cannot accept the Government’s
argument that the determination of the aggregate sentence was a mere “formality”
and an “arithmetical” exercise (see, by contrast, Nurmagomedov, cited
above, § 48, where the domestic court was solely called upon to match the
constituent elements of a crime as established in the original conviction with
the definitions of offences contained in the new Criminal Code and to replace
the old references with the new). When determining the aggregate sentence in
respect of the applicant, the domestic judicial authorities were to take into
account his character, as well as the mitigating and aggravating circumstances
of the crimes committed. It was for the court to decide whether the terms of
both sentences were to be added up in full or in part (see paragraph 14 above).
Accordingly, the Court considers that the
applicant’s case should be distinguished from the case of Nurmagomedov. In
the Court’s view, it bears a close resemblance to the case of Eckle
where the Court held, in the context of determining the length of the criminal
proceedings, that there is no “determination ... of any criminal charge”,
within the meaning of Article 6 of the Convention, as long as the sentence
is not definitively fixed (see Eckle, cited above, § 77). In the
Court’s view, the applicant was not in a position to calculate the aggregate term
of the sentences on his own. While the conversion of the term of community work
into the prison term was indeed an arithmetical exercise, the judicial
authorities still had discretion to decide whether the converted sentence would
be added in full or in part, regard being had to the particular circumstances
of the case. Accordingly, the Court concludes that the applicant’s complaint
concerning the hearing for determination of his aggregate criminal sentence is
compatible ratione materiae with the provisions of the Convention. It
falls within Article 6 of the Convention under its criminal head.
2. Exhaustion of domestic remedies
(a) The parties’ submissions
(i) The Government
The Government submitted that the applicant’s
complaint was to be dismissed for his failure to exhaust effective domestic
remedies. In particular, it was open to the applicant to appeal against the
decision of 18 March 2005. The applicant had been duly informed of the
decision and his right to lodge an appeal against it. He had also had access to
legal advice. At all the previous stages of the proceedings he had been duly
represented by a professional lawyer.
(ii) The applicant
The applicant alleged that he had been prevented
from lodging an appeal because of the authorities’ belated service of process
on him. According to the applicant, he could only have lodged an appeal against
the decision of 18 March 2005 within ten days of the date of the decision,
that is to say no later than 28 March 2005. However, he received his copy
of the decision only on 31 March 2005 and could not comply with the statutory
time-limit. Furthermore, according to the text of the decision, the only option
open to the applicant would have been to lodge a request for supervisory
review. However, according to the Court’s jurisprudence, supervisory review was
not considered an effective remedy within the meaning of the Convention and the
applicant was not required to lodge an application for supervisory review in
order to comply with the requirement of exhaustion of effective domestic
remedies for the purposes of lodging the complaint before the Court.
(b) The Court’s assessment
While the Court is doubtful as to the applicant’s
assertion that the belated receipt by him of his copy of the decision of
18 March 2005 precluded his appealing against it, it nevertheless accepts
the applicant’s argument that it was not incumbent on him to appeal against the
decision in question in order to comply with the requirements set forth in
Article 35 § 1 of the Convention.
In this connection the Court observes that,
while it is true that the applicant received - albeit belatedly - a copy of the
decision of 18 March 2005, the text of the decision remained silent as to the
possibility of appealing against it. In its decision, the court had advised the
applicant that he could lodge an application for supervisory review against it
(see paragraph 13 above).
The Court further notes that the Government did
not furnish any evidence to demonstrate that the applicant had indeed had
access to a lawyer - either of his own choosing or State-appointed - who would have
been able to provide legal advice as to the proper avenue of appeal against the
decision of 18 March 2005. On the contrary, according to the text of the
appeal judgments of 28 May and 20 October 2004 (see paragraphs 7 and 8 above), the applicant was not represented even before the Regional and
Supreme Courts which examined his appeals against the guilty verdicts on the
charges of battery and murder. In such circumstances it appears that the
applicant could not have become aware that the option was open to him - as
claimed by the Government - to lodge an ordinary appeal against the decision of
18 March 2005.
Nevertheless, even assuming - for the sake of
argument - that it was possible for the applicant to seek legal advice on the
issue, 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 Kononov v. Russia, no. 41938/04, § 43, 27 January 2011).
Regard being had to the omission on the part of
the presiding judge to duly explain to the applicant the process regarding the possibility
of appealing against the decision of 18 March 2005, the Court holds that,
in the circumstances of the case, it cannot be said that the applicant received
clear and comprehensible instructions as to the proper avenue for exhausting
remedies. Accordingly, the applicant was exempt from the obligation to lodge an
appeal against the decision of 18 March 2005. Nor was he obliged to lodge an
application for supervisory review, which, according to the Court’s
well-established case-law, is not a remedy to be exhausted under Article 35 § 1
of the Convention (see Berdzenishvili v. Russia (dec.),
no. 31697/03, 29 January 2004). Accordingly, the Government’s objection as
to the alleged failure by the applicant to exhaust effective domestic remedies
should be dismissed.
3. Conclusion
The Court notes that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
The Government submitted that the applicant had
been informed of the date, time and place of the hearing. The domestic court had
explained to him that the rules of criminal procedure did not require his
presence at the hearing and that he could authorise his lawyer to attend the
hearing on his behalf. It was open to the applicant to ask the court to ensure
his presence at the appeal hearing or to authorise a lawyer to attend the
hearing on his behalf. However, he chose neither to attend nor to ensure his
participation through legal representation.
(b) The applicant
The applicant took the view that his attendance
at the hearing of 18 March 2005 was an essential requirement. It had been
incumbent on the domestic court not only to calculate the length of the prison
sentence to be imposed on him as a result of the two verdicts but also, when
doing so, to take into account the information concerning the applicant’s
character and other extenuating circumstances. When deciding the length of the
sentence to be imposed, the court should also have taken into account the
prospects for the applicant’s rehabilitation. The sentencing had not been a
mere arithmetical exercise. Replacement of community work with a prison
sentence had not been the only option available. The court could have allowed
the applicant to serve a prison sentence and then, following release, do the
community work.
The applicant submitted that he had been
notified of the date and time of the hearing of 18 March 2005 only one day
in advance, which meant that there had been clearly insufficient time for him
to make the arrangements necessary to ensure that his lawyer could attend the
hearing. As regards the information transmitted by phone by the administrative
office of the correctional facility to the Regional Court, in the applicant’s
opinion, the Regional Court should have verified the authenticity of his
decision not to be represented at the hearing.
2. The Court’s assessment
General principles
The Court notes at the outset 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, and the applicant’s
complaints under Article 6 §§ 1 and 3 should therefore be examined together
(see Vacher v. France, 17 December 1996, § 22, Reports of
Judgments and Decisions 1996-VI).
The Convention leaves Contracting States wide
discretion as regards the choice of the means intended to ensure that their
legal systems comply with the requirements of Article 6. The Court’s task is to
determine whether the result called for by the Convention has been achieved. In
particular, the procedural means offered by domestic law and practice must be
shown to be effective where a person charged with a criminal offence has
neither waived his right to appear and defend himself nor sought to escape trial
(see Sejdovic v. Italy [GC], no. 56581/00, § 83, ECHR 2006-II).
(i) Right to participate in a hearing
The general principles concerning the right of
an accused to attend a hearing are well established in the Court’s case-law and
have been summarised as follows (see Hermi v. Italy [GC],
no. 18114/02, ECHR 2006-XII):
“58. In the interests of a fair and just criminal
process it is of capital importance that the accused should appear at his trial
(see Lala v. the Netherlands, judgment of 22 September
1994, Series A no. 297-A, p. 13, § 33; Poitrimol v. France,
judgment of 23 November 1993, Series A no. 277-A, p. 15, § 35; and De
Lorenzo v. Italy (dec.), no. 69264/01, 12 February 2004), and 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). ...
60. However, the personal attendance of the
defendant does not take on the same crucial significance for an appeal hearing
as it does for the trial hearing (see Kamasinski, cited above, p. 44, §
106). ...
62. ... even where the court of appeal has
jurisdiction to review 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, judgment of 29 October 1991, Series A
no. 212-C, p. 68, § 31). 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 appellate court, particularly in the light
of the nature of the issues to be decided by it (see Helmers v. Sweden,
judgment of 29 October 1991, Series A no. 212-A, p. 15,
§§ 31-32) and of their importance to the appellant (see Kremzow,
cited above, p. 43, § 59; Kamasinski, cited above, pp. 44-45, § 106 in
fine; and Ekbatani, cited above, p. 13, §§ 27-28). ...
64. However, where an appellate court has to examine
a case as to the facts and the law and 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). ...
...
76. In view of the prominent place held in a
democratic society by the right to a fair trial (see, among many other
authorities, Delcourt v. Belgium, judgment of 17 January 1970, Series A
no. 11, pp. 14-15, § 25 in fine), Article 6 of the Convention
imposes on every national court an obligation to check whether the defendant
has had the opportunity to apprise himself of the date of the hearing and the
steps to be taken in order to take part where... 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). ...”
(ii) Legal representation in criminal cases
The Court reiterates that the Convention
requires that a person charged with a criminal offence who does not wish to
defend himself in person must be able to have recourse to legal assistance of
his own choosing (see Ezeh and Connors v. the United Kingdom [GC], nos.
39665/98 and 40086/98, § 131, ECHR 2003-X). 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).
(iii) Waiver
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.
However, such a waiver must, if it is to be effective for Convention purposes,
be established in an unequivocal manner and be attended by minimum safeguards
commensurate with its importance. In addition, it must not run counter to any
important public interest (see Hermi, cited above, § 73).
The Court has also held 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).
3. Application of the above
principles to the instant case
The Court observes that under Russian law, defendants
have the right to attend hearings concerning aggregate sentences. They may also
appoint a lawyer to represent them before the sentencing court (see paragraph 16 above).
This does not necessarily imply, however, that
the presence of the applicant at the sentencing hearing is required by
Article 6 § 1 of the Convention, as the
requirements of that provision are autonomous in relation to those of national
legislation.
In the instant case, the Court deems it
appropriate to proceed on the basis of the following facts. The Regional Court had
jurisdiction to rule solely on the conversion of the applicant’s sentence to six
months’ community work into a prison sentence according to an arithmetical
formula established by law, whereby three days of community work should be
replaced by one day of a prison sentence (see paragraph 15 above). The
recalculated and converted sentence was then to be added in full or in part to the
thirteen years’ imprisonment the applicant was to serve following his other
conviction. While it is true that the Regional Court, in carrying out the
sentencing exercise, was to take into account, inter alia, the applicant’s
character and the mitigating and aggravating circumstances of each of the
crimes committed, its task was purely to decide what period - ranging from one
day to two months - was to be served by the applicant following his conviction
for battery.
Given the limited scope of the issue to be dealt
with by the Regional Court and the fact that the applicant was present and
represented during both trials and was able to appeal against his convictions,
the Court considers that the Regional Court, could - as a matter of fair trial
- have properly examined the issue on the basis of the case-file and the
parties’ written submissions without a direct assessment of the evidence given
by the applicant in person.
That finding is sufficient basis for concluding
that there has not been a violation of Article 6 of the Convention. In any
event, the Court observes that, even assuming that the applicant had a right
under the Convention to appear at the hearing of 18 March 2005, he was
duly informed of the date of that hearing and waived his right to appear.
In this connection the Court observes that the
domestic authorities informed the applicant of the date and purpose of the
sentencing hearing and advised him of his right to be represented by counsel.
At the hearing, the sentencing court examined the situation and the applicant’s
decision not to be represented and decided to proceed with the sentencing in
his absence.
The Court further observes that the applicant
did not submit any written statement in response to the correctional facility’s
application for conversion of his sentence. Nor did he take any steps to ensure
his representation before the sentencing court by a State-appointed lawyer or a
lawyer of his own choosing. The domestic judicial authorities took the view
that the applicant had waived his right to attend the sentencing hearing and
conducted it in his absence. The Court does not discern anything in the
material before it to cause it to hold otherwise.
The Court accepts - and the applicant did not
argue to the contrary - that the applicant was well aware of his rights and the
steps needed to ensure his attendance at the hearing of 18 March 2005. He
did not at any point alert the authorities to any difficulties encountered in coming
to a decision or any need for further legal advice or clarification. The
domestic authorities were therefore not obliged to intervene or take steps to
ensure that the applicant was adequately represented. Nor did he claim that the
procedural formalities he was to comply with were excessive or unclear to him.
While the Court finds it regrettable that the
applicant was provided with the information pertaining to the sentencing
hearing only one day before it was actually held, it has no reason to find that
such belated notice prejudiced the applicant’s position to such an extent as to
render the proceedings against him unfair.
In the light of the above, the Court considers
that the Russian judicial authorities were entitled to conclude that the
applicant had waived, tacitly and unequivocally, his right to attend the
hearing.
It follows that there has been no violation of
Article 6 §§ 1 and 3 (c) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under
Article 3 of the Convention that he had been subjected to ill-treatment
and that he had not been provided with meals while in custody from 23 to
25 September 2003. He further complained, under Article 6 § 3 (c) of the Convention, of the poor quality of
the defence provided by the State-appointed lawyers who represented him in the
course of the criminal proceedings against him.
Having regard to all the material in its
possession and in so far as it falls within its competence, the Court finds
that the evidence before it discloses no 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 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the
applicant’s non-attendance at the sentencing hearing admissible and the
remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 6 §§ 1 and 3 (c) of the
Convention.
Done in English, and notified in writing on 28 November
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
