THIRD SECTION
DECISION
Application no. 60907/11
Roman Iosifovich DALETSKIY
against Russia
The European Court of Human Rights (Third Section), sitting on 3 December 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 11 September 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Roman Iosifovich Daletskiy, is a Russian national, who was born in 1972 and lives in Vladivostok. He was represented before the Court by Ms T. Demicheva, a lawyer practising in Vladivostok.
2. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 2 April 2010 the applicant was arrested on suspicion of having murdered his wife.
5. On 24 December 2010 the Leninskiy District Court of Vladivostok convicted the applicant. Both the applicant and his lawyer were present at the trial hearing.
6. The full text of the judgment was provided to the applicant on 12 January 2011. It contained a passage explaining, inter alia, how to submit a request for participation in the appeal proceedings. The applicant was also informed by the trial judge of the need to submit a request in order to take part in an appeal hearing.
7. The applicant and his lawyer lodged statements of appeal. Neither the application nor his lawyer made a request for the former to be present during the appeal hearing.
8. On 14 March 2011 the Primorye Regional Court upheld the conviction. The applicant, unlike his lawyer, was absent from the appeal hearing. The applicant’s lawyer made no objection to that.Relevant domestic law
9. Under the Code of Criminal Procedure of the Russian Federation, as in force at the relevant time, if a convicted person wanted to take part in an appeal hearing he should have made a request to that effect in his or her statement of appeal (Article 375 § 2). Failure by a party to attend an appeal hearing when he or she had been duly notified of its date, time and place could not have prevented the appeal court to proceed with the examination of the case (Article 376 § 4).
COMPLAINT
10. The applicant complained under Article 6 § 1 and § 3 (c) of the Convention about his absence from the appeal hearing on 14 March 2011.
THE LAW
11. The Court observes that the applicant claimed that his absence from the appeal hearing in the criminal case had been in violation of the requirements of Article 6 §§ 1 and 3 (c) of the Convention. The relevant Convention provisions read 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 ...”
12. The Government denied that there had been a violation of Article 6 § 1 and § 3 (c) of the Convention. They pointed out that the applicant had failed to duly file a request to attend his hearings and that he had been represented by counsel.
13. The Court notes that under Russian law the applicant’s right to participate in the appeal hearing was conditional on making a request to that effect (see paragraph 8 above). Such a requirement does not in itself contradict the Convention, if the procedure is clearly set out in the domestic law and complied with by all participants of the proceedings (see Kononov v. Russia, no. 41938/04, § 40, 27 January 2011).
14. It is not disputed by the parties that the applicant, represented by a lawyer, knew that he had to lodge a leave to appear before the appeal court. He was informed of that by the trial court on two separate occasions (see paragraph 6 above). The applicant’s lawyer, present during the appeal hearing, did not request to postpone it in order to secure the applicant’s presence.
15. The Court observes that the applicant failed to inform the Russian authorities of his wish to attend the appeal hearing, and thus, through his conduct, he implicitly waived that right.
16. As to the adversarial character of the proceedings, the Court notes that the applicant was afforded professional legal assistance. Moreover, he did not explain what specific statements or which evidence, in addition to those made by his lawyer, he wished to lay before the appeal court. Accordingly, there is no indication that the adversarial character of the proceedings was compromised (see, for similar reasoning, Borisov v. Russia, no. 12543/09, §§ 39-40, 13 March 2012).
17. In the light of the foregoing considerations, the Court concludes that the complaint under Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) of the Convention as regards the applicant’s absence from his appeal hearing is manifestly ill-founded. It follows that this complaint must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 16 January 2020.
Stephen PhillipsPaulo Pinto de Albuquerque
RegistrarPresident
Full & Egal Universal Law Academy