THIRD SECTION
DECISION
Application no. 59743/10
Kirill Borisovich BYKHOVETS
against Russia
The European Court of Human Rights (Third Section), sitting on 17 September 2019 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Helen Keller,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 28 September 2010,
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, Mr Kirill Borisovich Bykhovets, is a Russian national who was born in 1971 and lives 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. On 26 July 2009 the applicant, a bailiff, was arrested on suspicion of taking a large bribe and placed in custody.
5. On 16 April 2010 the Moscow City Court acquitted the applicant and ordered that he be released.
6. On 17 June 2010 the Supreme Court of Russia quashed the acquittal decision and remitted the case for a fresh examination in the applicant’s absence but in the presence of K., the applicant’s lawyer.
7. On 30 June 2010 the Moscow City Court scheduled a hearing in the applicant’s case for 14 July 2010. On the same date the court secretary called the applicant on the telephone to inform him of the hearing. The applicant’s father answered the telephone, told the secretary that the applicant was not there, and agreed to inform him about the hearing.
8. On 14 July 2010 the Moscow City Court held a hearing in the applicant’s absence but in presence of his lawyer, K., who informed the court that he was unaware of the applicant’s whereabouts and that the applicant knew that his case had been remitted for fresh examination. The court adjourned the hearing until 20 July 2010.
9. After the hearing the court secretary telephoned the applicant, his father and his mother several times to inform them about the hearing. The applicant did not answer. The court registry also sent telegrams to two of the applicant’s addresses. However, they were returned to the court as unclaimed. Furthermore, bailiffs reported to the court that the applicant’s house had been demolished and his second flat had been leased. They could not establish his whereabouts.
10. On 20 July 2010 the Moscow City Court held a hearing in K.’s presence but in the applicant’s absence. The court examined the circumstances of the applicant’s absence and came to the conclusion that the applicant had absconded. It further ordered that he should be put on the wanted list, and suspended the criminal proceedings.
11. On 9 August 2011 the Moscow City Court resumed the criminal proceedings, referring to Article 247 §§ 5 and 6 of the Code of Criminal Procedure and stating that the applicant had been on the wanted list for a long time and the exceptional circumstances of the case justified its examination in his absence.
12. On 5 October 2011 the Moscow City Court convicted the applicant of taking a bribe and sentenced him to seven years’ imprisonment. It also disqualified him from working for the Government for two years. K. lodged an appeal against the conviction.
13. On 29 November 2011, following K.’s appeal, the Supreme Court of Russia upheld the applicant’s conviction in part. K. was present for the hearing, but the applicant did not attend.
B. Relevant domestic law and practice
1. The Code of Criminal Procedure
14. Under Article 247 §§ 5 and 6 of the Code of Criminal Procedure, a hearing which concerns serious crimes may, exceptionally, be held in the absence of an accused who has left the territory of the Russian Federation and/or has absconded, if the accused has not been prosecuted in a foreign State in respect of the same criminal case. In that situation, the participation of a lawyer or lawyers appointed by the accused or by the court is mandatory.
15. Article 247 § 7 provides that if the above circumstances change, the conviction in absentia may, at the request of the convicted party or his or her lawyer, be quashed by the supervisory court.
16. Under Article 401.15 §§ 1 and 2, a conviction may be quashed or changed on appeal in the event of a material breach of criminal law and/or procedure which has had an impact on the outcome of the proceedings. If the circumstances provided for in Article 247 § 5 no longer exist, the convicted party or his or her lawyer may ask the appeal court to quash the conviction.
2. The Supreme Court of Russia
17. In accordance with paragraph 13 of Ruling no. 28 of 22 December 2009 on courts’ application of criminal procedure law when preparing a case for judicial proceedings, under Article 247 § 5, a trial in absentia could exceptionally take place: where a crime was serious, where a victim had suffered significant damage, where it had not been possible to trace a suspect, and where it was impossible to extradite a suspect.
COMPLAINT
18. The applicant complained under Article 6 of the Convention that he had been convicted in absentia.
THE LAW
19. The applicant complained that he had not had an opportunity to present his defence before the domestic courts. He 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
20. The Government submitted that the applicant had had full knowledge of the criminal proceedings against him and that his right to defence had been fully secured. The applicant had been duly represented by a lawyer, K., and the authorities had made sufficient efforts to ensure the applicant’s presence at the hearings. The Government provided documentary evidence confirming that bailiffs had tried to find the applicant, who had absconded.
21. The applicant maintained his complaint.
B. The Courts’s assessment
1. General principles
22. Although proceedings that take place in an 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 absentia 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).
23. 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 a 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).
2. Application of the above principles to the present case
24. The Court has previously held in cases concerning convictions in absentia that where a person charged with a criminal offence had not been notified of proceedings in person, it could not be inferred merely from his status as a “fugitive” (a status which, in those cases, had itself been founded on a presumption without a sufficient factual basis) that he had waived his right to appear at the trial and defend himself (see Colozza, cited above, § 28). The Court 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).
25. Turning to the circumstances of the present case, the Court notes that on 16 April 2010 the Moscow City Court acquitted the applicant of the relevant charges and ordered that he be released from detention. The hearing was held in the presence of the applicant and his lawyer. However, on 17 June 2010 the Supreme Court of Russia quashed the acquittal and remitted the case for a fresh examination in the applicant’s absence but in presence of his lawyer. Therefore, the question arises as to whether the applicant knew that the acquittal had been quashed and that the proceedings had been resumed but, fearing prosecution, chose to escape.
26. The Court reiterates that certain established facts might provide an unequivocal indication that an accused does not intend to take part in a trial or wishes to escape prosecution. This may be the case, for example, where materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him (see Sejdovic, cited above, § 99). In the instant case, according to the transcript of the hearing held on 14 July 2010, the judge asked the applicant’s lawyer, K., whether he had stayed in touch with the applicant. K. answered that the applicant called him from time to time and confirmed that he had told the applicant about the quashing of his acquittal.
27. Therefore, it is evident to the Court that the applicant learned about the quashing before the second trial on 5 October 2011 and deliberately chose not to attend. The Court considers that the applicant, as a former bailiff with legal knowledge, could have been expected to appreciate that his failure to attend the hearing would result in his being tried and convicted in his absence.
28. The Court further notes that the domestic courts verified whether the applicant 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 find him. The courts concluded that, in those circumstances, his failure to appear would not preclude the examination of the case under Article 247 § 5 of the Code of Criminal Procedure.
29. Moreover, the applicant’s interests during the proceedings were defended by his lawyer, K., who was notified of the various steps in the proceedings and attended all hearings. Moreover, it seems that K. was in contact with the applicant 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.
30. Accordingly, having regard to all the material in its possession and the above conclusions, 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 10 October 2019.
Stephen PhillipsPaulo Pinto de Albuquerque
RegistrarPresident
Full & Egal Universal Law Academy