CASE OF KOZLITIN v. RUSSIA
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
6. The applicant was born in 1976 and lived before his arrest in the Kaliningrad region. He is currently serving a prison sentence in a correctional colony in the Kaliningrad region. 7. The applicant stood trial on charges of robbery and murder before the Kaliningrad Regional Court (“the Regional Court”). 8. On 10 June 2003 the Regional Court found the applicant guilty of robbery and aggravated murder, and sentenced him to twenty years’ imprisonment with forfeiture of estate. The applicant’s co-defendant, Sh., was found guilty of conspiring to commit robbery, incitement to commit robbery, aiding and abetting, and concealing evidence of murder. 9. Regarding the applicant’s right to appeal against his conviction, the judgment of 10 June 2003 stated as follows: “The judgment may be appealed against to the Supreme Court of the Russian Federation by lodging grounds of appeal with the Kaliningrad Regional Court within ten days of the date of the pronouncement of the judgment. Convicted persons held in detention may appeal against the judgment within the same time-limit, which starts to run from the day when they received a copy of the judgment. If an appeal is lodged, the convicted persons are entitled to apply for participation in the examination of their case by the appeal court.” 10. The record of the hearing before the trial court, which was issued on 16 June 2003, stated as follows: “The procedure for lodging an appeal against the judgment within ten days of its pronouncement was explained [to the parties], as was the procedure for convicted persons to lodge appeals within the same time-limit, starting to run from the date on which they received a copy of the judgment. The right to apply for leave to take part in the examination of the case by the appeal court was also explained”. 11. On 17 June 2003 a copy of the judgment of 10 June 2003 was served on the applicant. 12. On 24 June 2003 the applicant’s co-defendant appealed against the judgment of 10 June 2003 to the Supreme Court of the Russian Federation (“the Supreme Court”). He submitted that it was him and not the applicant who had committed the murder, but that the trial court had not verified his version of the events. 13. The Government submitted that on an unspecified date the applicant had appealed against the judgment of 10 June 2003. However, the Regional Court had returned his grounds of appeal to him for correction. In its accompanying letter the Regional Court advised the applicant that his grounds of appeal should comply with the requirements of Article 375 of the Code of Criminal Procedure (“the CCrP”). The Government did not provide the Court with a copy of that letter. 14. On 5 July 2003 the applicant, who was detained in Kaliningrad remand prison, submitted a corrected version of his grounds of appeal against the judgment of 10 June 2003. He complained, in particular, that he had not committed the impugned crimes and had an alibi which the trial court had refused to verify; police officers had ill-treated him during the pre-trial investigation to extort a confession from him; and his conviction had been based on statements by witness P. and his co-defendant, Sh., given during the pre-trial investigation under pressure by police officers, and which they had refuted before the trial court. Moreover, Sh. had confessed before the trial court to having committed the murder himself. The applicant asked the appeal court to quash his conviction. When lodging his appeal, the applicant did not expressly state that he wished to take part in the appeal hearing. 15. According to the Government, on 3 November 2003 the Regional Court informed all the participants of the proceedings, including the applicant and his counsel, that the criminal case had been referred to the Supreme Court. 16. On 10 November 2003 the applicant submitted a request to take part in the examination of his appeal by the Supreme Court. On 17 November 2003 the applicant’s co-defendant also applied for leave to take part in the appeal hearing. According to the Government, the Supreme Court received those requests on 26 November 2003. 17. On 26 November 2003 the applicant submitted additional grounds of appeal, which were received by the Supreme Court on 2 December 2003. However, he did not state in his additional grounds of appeal that he wished to take part in the appeal hearing. 18. On 18 December 2003 the Supreme Court of the Russian Federation (“the Supreme Court”), referring to Articles 375 § 2, 376 and 377 of the CCrP (see Relevant domestic law below), dismissed the requests submitted by the applicant and his co-defendant to take part in the appeal hearing. The Supreme Court held as follows: “... on 10 November 2003 Mr Kozlitin submitted a request to take part in the examination of his criminal case by the appeal court. It follows from the materials of the case that the judgment was delivered on 10 June 2003 and copies of that judgment were served [on the convicted persons] on 17 June 2003. ... on 5 July 2003 Mr Kozlitin submitted his grounds of appeal, in which he did not express his wish to take part in the appeal hearing. On 3 November 2003 the case, together with grounds of appeal submitted by the convicted persons, was forwarded to the Supreme Court of RF [Russian Federation] ... The case arrived at the Supreme Court on 10 November 2003. It was not until 10 and 17 November 2003 respectively that the convicted persons [the applicant and his co-defendant] submitted requests for participation in the appeal hearing. However, their requests should not be granted, since in accordance with Article 375 § 2 of the UPK RF [CCrP] if a convicted person expresses a wish to take part in the examination of his case by the appeal court, he should indicate this in his grounds of appeal. The convicted persons did not indicate in their grounds of appeal their wish to be brought to the Supreme Court of the RF [Russian Federation]. Instead they lodged such requests five months later, when their case had already arrived at the Supreme Court of the RF”. 19. On the same date the Supreme Court examined the appeals lodged by the applicant and his co-defendant against the judgment of 10 June 2003 in their absence. The applicant was not represented at that hearing. The prosecutor was present at the hearing and supported upholding the applicant’s conviction. He requested reclassification of the applicant’s actions in accordance with amendments to the Criminal Code. 20. Having studied the materials of the case, the appeal court found that the trial court had verified Sh.’s version of the events whereby he and not the applicant had committed the murder. However, that version had not been confirmed by the materials of the case. The applicant’s alibi had been verified and had been disproved by the statements of witness Shch., which had also been corroborated by other evidence. Furthermore, the defendants’ complaints of unlawful pressure by the police were unsubstantiated and refuted by evidence in the case. 21. On the same date the Supreme Court reclassified the crimes committed by the applicant. In particular, it excluded a number of aggravating circumstances and amended the applicant’s sentence to exclude forfeiture of his estate. The Supreme Court upheld the rest of the judgment. 22. Under the Constitution of the Russian Federation, all persons are equal before the law and the court (Article 19 § 1). 23. Any person convicted of a crime has the right to appeal against the verdict to a higher court in accordance with the procedure established by federal law, as well as to request pardon or mitigation of the punishment (Article 50 § 3). 24. A defendant in criminal proceedings is entitled to participate in the examination of the criminal case by the courts of first instance, second instance and supervisory instance, and in the proceedings in which the court examines the measure of restraint to be imposed (Article 47 §§ 4-16). 25. The appeal court will verify the legality, validity and fairness of the trial court judgment. The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law relating to a lesser offence, but has no power to impose a more severe penalty or apply the law relating to a more serious offence (Article 360). 26. If a convicted person wishes to take part in the appeal hearing, he must indicate this in his statement of appeal (Article 375 § 2). 27. The parties will be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. The court will decide whether to summon a convicted person held in custody. If the convicted person held in custody has expressed a wish to be present at the examination of the appeal, he or she is entitled to participate either directly in the court session or by video link. The court will decide the form of participation of the accused person in the court session. A defendant who has appeared before the court will always be entitled to take part in the hearing. If persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this will not preclude examination of the case (Article 376 §§ 2-4). 28. At the hearing the appeal court will hear the statement of the party who lodged the appeal and the objections of the opposing party. The appeal court will be empowered, if a party so requests, to directly examine evidence and additional materials provided by the parties in an attempt to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party (Article 377). 29. The appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment (Article 378). 30. Chapter 15 sets out a procedure for lodging applications and petitions by participants of criminal proceedings. A suspect or defendant, or his or her defence counsel, has the right to lodge applications with the investigator, prosecutor or a court to conduct procedural actions or to take procedural decisions to establish the circumstances that are of importance for the criminal case and also for ensuring the rights and legitimate interests of the person lodging the application or the person he represents (Article 119). Applications can be lodged at any time in the course of the proceedings in a criminal case (Article 120). 31. Chapter 49 of the Code sets out a procedure for reopening of the criminal case in view of new and newly discovered circumstances. It provides, in particular, that a judgment, a court finding or ruling that has taken legal effect may be reversed, and proceedings in the criminal case may be reopened in the event that the European Court of Human Rights has established that in the course of examining the criminal case, a court of the Russian Federation, has violated the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (Article 413). There are no time-limits for reviewing a judgment of conviction in view of new or newly discovered circumstances in favour of the convicted person (Article 414). 32. The Constitutional Court has examined a number of complaints challenging the compatibility with the Constitution of provisions of the old Code of Criminal Procedure (in force until 1 July 2002) and the new Code of Criminal Procedure (in force since 1 July 2002) governing participation of a person convicted of a criminal offence by a first-instance court in the examination of his appeal against conviction by a second-instance court. 33. In its leading ruling of 10 December 1998 on a complaint lodged by Mr B., the Constitutional Court held as follows: “... implementation of constitutional guarantees of judicial protection ... implies that a convicted person who has expressed a wish to take part in a court hearing may not be deprived of the opportunity to file objections and lodge petitions, acquaint himself with the position of [other participants] expressed in the court hearing and additional materials of the case, if any, and to provide explanations, including in relation to the prosecutor’s opinion. ... Those guarantees may be implemented not only by providing the convicted person with an opportunity to participate in the court hearing in person, but also in other ways. In particular, a convicted person may entrust his defence to a lawyer of his own choosing, and provide written replies to the arguments contained in the grounds of appeals, protests and submissions to the appeal court by other participants in the proceedings. What is significant in the constitutional context is that in the interests of justice a convicted person who has expressed a wish to take part in the court hearing should be provided with an effective opportunity to state his position regarding all aspects of the case and bring it to the attention of the court. ... The challenged provision of the [old] CCrP ... does not prevent the appeal court, which is under an obligation to verify the lawfulness and validity of the judgment, from finding that the participation of a convicted person in the court hearing is indispensable and taking measures to ensure his presence at the hearing. The court may also examine the case in the absence of the convicted person if he has not expressed the wish to take part in the court hearing. At the same time, those provisions allow the appeal court to dismiss the convicted person’s request to participate in the hearing and to take a final decision in the case without providing him with any other legal means for implementation of his rights ... This results in a deviation from the principle of equality of all persons before the law and the court and in the limitation of the constitutional rights to judicial protection, examination of the case by a tribunal established by law, and review of the judgment by a higher court ... Moreover, this breaches Article 123 of the Constitution, which guarantees that court proceedings will be adversarial and will respect equality of arms. Those guarantees imply that the prosecution and the defence should be provided with equal procedural opportunities to state their position during the examination of the case by the appeal court ...” Taking the above considerations into account, the Constitutional Court held that the challenged provisions of the old CCrP were incompatible with the Constitution in so far as they allowed the appeal court, if it dismissed a convicted person’s request to take part in the hearing, to take a final decision in the case without providing that person with an opportunity to acquaint himself with the materials of the court hearing and to state his position on the questions examined by the court. 34. In its further decisions on the complaints challenging the compatibility of the new CCrP with the Constitution, in particular of Article 375 § 2 of that Code, the Constitutional Court further developed its position regarding the participation of convicted persons in the examination of their case by the appeal court. 35. On 15 July 2010 the Constitutional Court refused to examine on the merits a complaint lodged by Mr S. challenging the compatibility with the Constitution of Article 375 § 2 of the new CCrP in so far as that provision allowed the appeal court to examine his grounds of appeal in his absence, since he had applied to participate in the examination of his criminal case by the appeal court not in his initial grounds of appeal but in additional grounds of appeal which were submitted later. The Constitutional Court held as follows: “In accordance with the legal position expressed by the Constitutional Court in its rulings of 10 December 1998, no. 27-П, 15 January 1999, no. 1-П and 14 February 2000, no. 2-П, and decisions of 10 December 2002, no. 315-О, 11 July 2006, no. 351O and 16 November 2006, no. 538-О, providing the parties with an effective opportunity to state their position regarding all aspects of the case is a necessary requirement of judicial protection and a fair trial. Depriving the convicted person of an opportunity to familiarise himself with all the materials of the case and to bring to the attention of the court arguments refuting the conclusions of the trial court, either by way of his personal presence at the appeal court hearing or by way of video link or any other way, would breach his right to judicial protection and the principle of equality of arms. Article 375 § 2 of the [new] CCrP provides a convicted person with the right to apply for participation in the examination of his criminal case by the appeal court by indicating his wish to attend in his grounds of appeal. The provision’s aim is to provide him with an opportunity to state his position on the case before the appeal court and shall not be regarded as limiting his right to judicial protection and other rights guaranteed by the Russian Constitution. In addition, the provision does not deprive the convicted person of the right to apply for participation in the appeal hearing if he makes such a request not in his grounds of appeal, but in accordance with the procedure provided for by Chapter 15 of the [new] CCrP of the Russian Federation, which places an obligation on the court to take a lawful, reasoned and duly motivated decision on such a request ...” 36. The Constitutional Court confirmed its interpretation of Article 375 § 2 of the [new] CCrP in its decision of 8 December 2011, by which it refused to examine on the merits a complaint lodged by Mr T. challenging the compatibility of that provision with the Constitution. Citing its decision of 15 July 2010, the Constitutional Court held as follows: “... a different interpretation of Article 375 § 2 of the [new] CCrP would not only be contrary to Articles 46, 49 and 50 of the Constitution of the Russian Federation and the above-cited legal position of the Constitutional Court of the Russian Federation, but also, contrary to the general principle of equality guaranteed by Article 19 of the Constitution, it would unreasonably worsen the situation of convicted persons held in custody compared to that of the other participants of the criminal proceedings, including convicted persons who have not been deprived of their liberty, whose right to take part in the appeal court hearing is not limited (under Article 376 of the [new] CCrP a convicted person or a person acquitted of all charges who appears before the court will always be entitled to take part in the hearing). Therefore, Article 375 § 2 of the [new] CCrP, taken together with the provisions of chapter 15 of that Code, does not prevent a convicted person from applying for participation in the examination of his criminal case by the appeal court after submitting his grounds of appeal. This implies that the court has an obligation to take a lawful, reasoned and duly motivated decision on such a request ...”.