CASE OF ZAYTSEV v. RUSSIA
No violation of Art. 6;Preliminary objection dismissed (abuse of process)
Christos Rozakis
6. The applicant was born in 1977 and lives in Novomoskovsk, Tula Region. 7. On 21 September 2001 the Novomoskovskiy Town Court of the Tula Region convicted the applicant, a school teacher, of cruel treatment of his pupils and sentenced him to one year and six months' imprisonment, suspended. The applicant and his counsel were present at the hearing. The court heard statements from a number of witnesses and victims and examined a transcript of a meeting of the school disciplinary committee. 8. The applicant appealed against the judgment on points of fact. 9. On 26 October 2001 the Tula Regional Court upheld the judgment on appeal. The applicant was not present at the hearing. The appeal court reviewed the applicant's conviction both on points of law and on points of fact. The prosecutor, who was present at the hearing, submitted that the conviction should stand. The appeal court did not hear any witnesses and there is no evidence that any were summoned. 10. On 28 February 2002 the applicant received a copy of the appeal judgment. 11. On 14 June 2005, following an application for supervisory review lodged by a deputy prosecutor of the Tula Region on 10 June 2005, a judge of the Tula Regional Court decided to institute supervisory review proceedings. The judge stated that in the absence of any evidence that the applicant had been duly notified of the appeal hearing on 26 October 2001, the examination of his appeal in his absence had violated his defence rights. The applicant was notified of the decision to institute supervisory review proceedings and sent his written pleadings to the court on 22 June 2005. 12. On 27 June 2005 the Presidium of the Tula Regional Court, having examined the case under the supervisory review procedure, quashed the appeal judgment of the Tula Regional Court of 26 October 2001 and remitted the case for a fresh examination on appeal. The Presidium noted that among the documents in the case file there was a notification of the appeal hearing dated 11 October 2001. The applicant had not appeared at the hearing and, later, in his numerous complaints repeatedly stated that he had never received the notification. The case file contained no conclusive evidence that the applicant had been duly notified of the hearing. The Presidium found that in these circumstances the examination of the applicant's appeal in his absence had violated his defence rights. 13. On 20 July 2005 the Tula Regional Court examined the case on appeal. The applicant was duly notified of the hearing, but did not appear. The appeal court upheld the findings of fact of the Novomoskovskiy Town Court. However, it set aside the judgment of 21 September 2001 and terminated the criminal proceedings against the applicant on account of the expiry of the statutory time-limits. 14. Article 336 of the Code of Criminal Procedure of 1960, in force at the material time, provided that appellants should be notified of the date of the hearing on appeal. The failure of appellants who had been duly notified of the relevant date to appear at the hearing did not preclude the court from examining the case. A notice indicating the time of the hearing on appeal should be displayed at the court not later than three days before the hearing.