THIRD SECTION
DECISION
Applications nos. 65428/11 and 26437/15
Valentin Nikolayevich VLASENKO against Russia
and Rauf Rafailovich SITDIKOV against Russia
The European Court of Human Rights (Third Section), sitting on 12 February 2019 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Regitrar,
Having regard to the above applications lodged on 9 September 2011 and 18 May 2015 respectively,
Having deliberated, decides as follows:
THE FACTS AND PROCEDURE
The applicant in the first case, Mr Valentin Nikolayevich Vlasenko, is a Russian national, who was born in 1974 and lived in Matveev-Kurgan before his conviction.
The applicant in the second case, Mr Rauf Rafailovich Sitdikov, is a Russian national, who was born in 1974 and lived in Kazan before his conviction.
The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
The applicants’ complaints under Article 6 §§ 1 and 3 (c) of the Convention about a lawyer’s absence from appeal hearings in a criminal case were communicated to the Government.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 2010 and 2014 the two applicants were convicted of various criminal offences. Their cases were then examined by appeal courts in the absence of the applicants’ counsel. The convictions were upheld.
Personal details and information relevant to the criminal proceedings against the applicants appear in the appendix below.
RELEVANT DOMESTIC LAW
The relevant domestic legal provisions governing lawyer’s participation in appeal proceedings in a criminal case were summarised in the Court’s judgments in the cases of Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 31‑39, 2 November 2010; Shumikhin v. Russia, no. 7848/06, § 17, 16 July 2015; Volkov and Adamskiy v. Russia, nos. 7614/09 and 30863/10, §§ 21-26, 26 March 2015; Eduard Rozhkov v. Russia, no. 11469/05, §§ 11‑13, 31 October 2013, and Nefedov v. Russia, no. 40962/04, § 17, 13 March 2012.
THE LAW
I. JOINDER OF THE APPLICATIONS
Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
II. COMPLAINTS UNDER ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
The applicants complained that they had not been represented on appeal in their criminal cases contrary to the requirements of Article 6 §§ 1 and 3 (c) of the Convention, which, insofar as relevant, reads as follows:
“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; ...”
The Government submitted that the first applicant, Mr Vlasenko (application no. 65428/11), had applied to the Court belatedly. They stressed that the Court’s Registry had erred in the determination of the introduction date of the complaint about his lawyer’s absence from the appeal hearing. As to application no. 26437/15 of Mr Sitdikov the Government indicated that it was manifestly ill-founded because the applicant had made an explicit written waiver refusing legal assistance on appeal.
With regards to the application made by Mr Vlasenko (application no. 65428/11), the Court observes the following.
The Court reiterates that some indication of the factual basis of the complaint and the nature of the alleged violation under the Convention is required to introduce a complaint and interrupt the running of the six month time-limit (see Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001). For complaints not included in the initial communication of the applicant with the Court, the running of the six-month time-limit is not interrupted until the date when the complaint is first submitted to the Court.
The first letter summarising the applicant’s complaints was lodged with the Court on 9 September 2011. In compliance with instructions of the Registry the applicant dispatched his full application form on 15 December 2011. Therefore, the introduction date of the application was correctly determined as 9 September 2011.
However, the Court also notes that Mr Vlasenko failed to raise the complaint under Article 6 §§ 1 and 3 (c) of the Convention about his lawyer’s absence from the appeal hearing in his first letter of 9 September 2011. This complaint was only introduced for the first time in the full application form on 15 December 2011.
In these circumstances the Court finds it appropriate to conclude that the six-month time-limit for the complaint at hand was only interrupted on 15 December 2011. As the final decision in the process of exhaustion of domestic remedies in relation to this complaint was the Rostov Regional Court’s judgment of 15 March 2011, this complaint had been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
Turning to application no. 26437/15 lodged by Mr Sitdikov, the Court observes that the applicant had made an explicit written waiver of his right to a lawyer before the appeal hearing (see, a contrario, Volkov and Adamskiy, cited above, § 59). He never argued that the waiver was not knowing, intelligent and free of any pressure. It follows that the complaint 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,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 14 March 2019.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Court of 1st instance
Conviction date
Court of Appeal
Date of appeal judgment
65428/11
09/09/2011
Valentin Nikolayevich VLASENKO
06/03/1974
Matveev-Kurgan
Matveev-Kurgan District Court of the Rostov Region
24/11/20110
Rostov Regional Court
15/03/2011
26437/15
18/05/2015
Rauf Rafailovich SITDIKOV
16/12/1974
Kazan
Supreme Court of the Tatarstan Republic
19/02/2014
Supreme Court of the Russian Federation
18/11/2014
Full & Egal Universal Law Academy