Information Note on the Court’s case-law No. 118
April 2009
Sibgatullin v. Russia - 32165/02
Judgment 23.4.2009 [Section I]
Article 6
Article 6-3
Rights of defence
Failure to duly notify the applicant of a fresh appeal hearing in his criminal case: violation
Facts: In February 2002 the applicant was convicted of three murders and sentenced to twenty years’ imprisonment. On appeal, he challenged the quality of the evidence on which his conviction had been based. In August 2002, in the presence of the prosecutor, the Supreme Court examined the applicant’s appeal and dismissed it. Neither the applicant nor his counsel were present at that hearing. In April 2006, following an application for supervisory review by the Deputy Prosecutor General, the Presidium of the Supreme Court quashed the decision on the applicant’s appeal because he had not been properly notified of the hearing and remitted the case for fresh examination. Neither the applicant nor his counsel were present at that hearing and it does not appear that they were notified of its outcome. On 23 May 2006 the applicant received a telegram in prison stating that his case was to be heard by the Supreme Court on 29 June 2006. Similar notification was sent to his counsel. On the latter date, the Supreme Court held an appeal hearing in the absence of the applicant and his counsel. It does not appear to have verified whether the applicant was duly informed of the hearing or had expressed a wish to take part in it. Having heard the prosecutor’s submissions, it upheld the applicant’s conviction.
Law: Having regard to the proceedings in their entirety, the Court concluded, firstly, that the appeal court could not have properly determined the issues before it without a direct assessment of the evidence given by the applicant in person. As the Government had acknowledged, the appeal proceedings of August 2002 had fallen short of the fair-trial guarantee since neither the applicant nor his counsel had been duly informed of the appeal hearing. However, it was necessary to determine whether the guarantees had been complied with in the appeal proceedings following the quashing by supervisory review of the first appeal decision and whether, by failing to submit a special request, the applicant lost the opportunity to be present at that hearing. In that connection, the Court reiterated that the Contracting States enjoyed the choice of means in ensuring the enjoyment of the rights of those charged with a criminal offence to defend themselves in person or through legal assistance. Furthermore, the requirement to lodge a prior request for participation in an appeal hearing did not in itself contradict the requirements of Article 6, if the procedure was clearly set out in the domestic law. Likewise, defendants were free to waive, either expressly or tacitly, their entitlement to those fair-trial guarantees. In the applicant’s case, there had been no explicit waiver of those rights. As to whether there had been a tacit one, the Court observed that on 23 May 2006, the date on which the applicant received the telegram informing him that his case would be heard by the Supreme Court, he had not been aware that his case had previously been quashed and could not, therefore, have known what hearing was to be held by the Supreme Court. In such circumstances, the Court considered that the applicant had not been duly notified of the appeal hearing of 29 June 2006. Moreover, given that the appeal court had failed to verify whether either the applicant or his counsel had been duly informed of the hearing, it could not have been concluded that the applicant had waived his right to take part in the hearing in an unequivocal manner.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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