CASE OF KONONOV v. RUSSIA
Violation of Art. 6-1 and 6-3-c;No violation of Art. 6-1 and 6-3-c
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
4. The applicant was born in 1979 and is currently serving his prison sentence in the Altay Region. 5. The applicant was charged with possession of firearms and several counts of robbery. The pre-trial proceedings were concluded in September 2003 and then the case against the applicant and four other persons was submitted to the Altay Regional Court for trial. 6. During the preliminary hearing on 28 November 2003, the presiding judge informed the defendants of their procedural rights, including, in particular, the right to free legal assistance, the right to meet with their lawyers without restrictions, the right to bring an appeal against a trial court's judgment, the right to participate in the appeal hearing and the right to defend themselves through all lawful means. 7. On 11 February 2004 the Regional Court convicted the applicant as charged and sentenced him to twelve years' imprisonment. 8. In the operative part of its judgment, the trial court informed that any appeal had to be lodged with the Supreme Court of the Russian Federation within ten days. The time-limit for the defendants started running from the day when they were served with a copy of the judgment. For other participants in the proceedings, it would run from the day of pronouncement of the judgment. There was no further information as to the right of the defendants to ask the authorities to ensure their participation in an appeal hearing. 9. Both the applicant and his counsel, who he had chosen and who had represented him at the trial, lodged their appeals challenging the Regional Court's judgment on factual and legal grounds, without stating the wish to take part in the appeal hearing. They claimed, in particular, that the trial court's findings had not been based on the facts of the case and that the court had used for the applicant's conviction the evidence obtained in breach of the criminal procedural law. It appears that some time later the applicant discharged his representative owing to a lack of financial means. 10. On 13 July 2004 the Registry of the Supreme Court despatched a summons for an appeal hearing. It contained several words: “For information ... the case of Kononov Krasnov Lukyanov Miroshnichenko Nepomnyashchikh is to be heard on 27 July 2004 at 10”. The applicant was served with the court notification on 15 July 2004. 11. On 27 July 2004 the Supreme Court held an oral hearing. The applicant and his lawyer did not appear. The appeal court did not examine the question whether they had been duly summoned and, if they had not, whether the examination of their appeals should have been adjourned. The public prosecutor and one of the applicant's co-defendants were present and made their submissions. The prosecutor, in particular, asked to re-categorise the crime and uphold the trial court's judgment in the remaining part. On the same date the Supreme Court delivered a judgment by which it dismissed the applicant's appeal as being unsubstantiated and upheld his conviction and sentence in their entirety. 12. In the operative part of a judgment, a trial court shall inform of the manner and the time-limit for lodging an appeal. Furthermore, it shall explain that a convicted or acquitted person has a right to ask that his or her participation in an appeal hearing be ensured (Article 309 § 3 of the Code of Criminal Procedure). 13. If a convicted person wishes to take part in an appeal hearing, he or she shall indicate this in the statement of appeal (Article 375 § 2). 14. The parties shall be notified of the date, time and venue of an appeal hearing no later than fourteen days in advance (Article 376 § 2). 15. A convicted person, who is held in custody and has expressed the wish to be present at the appeal hearing, shall be entitled to participate in the court session either directly or by video link (Article 376 § 3). 16. At the hearing, the appeal court shall hear the statement of the appellant and the objection by the opposing party. The appeal court shall be empowered to examine evidence and additional materials provided by the parties in support of their arguments (Article 377). 17. The appeal court may decide (1) to dismiss the appeal and uphold the judgment, (2) to quash the judgment and terminate the criminal proceedings, (3) to quash the judgment and remit the case for a fresh trial, or (4) to amend the judgment (Article 378). 18. A judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court and the facts of the case established by that court. Violation of procedural law and wrongful application of criminal law, as well as unfairness of the judgment, shall also constitute grounds for reversing or changing the judgment (Article 379). 19. In case an accused requests free legal assistance or the interests of justice require that the defence be represented, the relevant authority, that is an investigator, a prosecutor, or a court, shall appoint him or her legal-aid counsel (Articles 50 - 51 of the Code of Criminal Procedure). 20. The Constitutional Court of the Russian Federation, in its decision no. 497-O of 18 December 2003, confirmed the applicability of the requirements of Article 51 of the Code to the appellate proceedings. 21. A trial court's judgment becomes final and binding on the day of the appeal hearing, provided that it was upheld by the appeal court (Article 390 § 3 and Article 392 § 1 of the Code of Criminal Procedure).