CASE OF SINICHKIN v. RUSSIA
Remainder inadmissible;Violation of Art. 6-1+6-3-c
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicant was born in 1970 and is serving a prison sentence in correctional colony YuK-25/8 in the Orenburg Region. 6. On 24 June 2002 the applicant was arrested on suspicion of aggravated concerted robbery and taken to the Leninskiy District police station of the Orsk town police department. He refused legal assistance, signed a record confirming his refusal and denied the accusations made. He was released on the same day. 7. On 22 July 2002 the applicant was again remanded in custody. He was charged with aggravated robbery and questioned after he had refused legal assistance. Police officers allegedly threatened and humiliated him with a view to extracting a confession from him. The applicant did not confess. Two days later he was released on a written undertaking not to leave the town. 8. On 23 July 2002 the local bar association appointed counsel M. to represent the applicant in the criminal proceedings. It appears that M. was appointed to represent the applicant as legal-aid counsel. 9. On 31 October 2002 the Leninskiy District Court of Orsk started examining the applicant's criminal case. On the same day the applicant lodged a written request with the trial court, by which he declined the services of M. and sought leave to represent himself. He explained that it was a voluntary decision and had not been caused by financial difficulties. M. submitted to the court that he agreed with the applicant's request. Having discussed the issue, the court allowed the applicant's request and granted him leave to represent himself. 10. By a judgment of 10 November 2002, the District Court found the applicant guilty as charged and sentenced him to thirteen years' imprisonment. It established that the applicant, together with his two co-defendants, had attacked, robbed and severely beaten up the victim. The applicant's role, previously agreed upon by the co-defendants, consisted, among other things, in threatening the victim with a knife. The court based its findings on partial confessions by the applicant's co-defendants, statements by victims and witnesses and material evidence. It was finally stated in the judgment that it could be appealed against to the Orenburg Regional Court within ten days of its pronouncement or, for the detained defendants, within the same period after receipt of its copy. It was also stated that if the remanded convicts were submitting an appeal statement, they had a “right to request to participate in the examination of the criminal case by the appellate court”. 11. On 21 November 2002 the applicant appealed against his conviction to the Orenburg Regional Court (“the Regional Court”). He did not dispute that he had taken the money from the victim but disagreed with the way the trial court had established the relevant facts, the distribution of roles between him and his co-defendants and the classification of his own acts. He submitted, in particular, that the trial court had disregarded his testimony and statements by witnesses which supported it, in particular, regarding the trial court's findings about the distribution of responsibility between him and his co-defendants and the classification of his acts as a premeditated robbery. In his appeal statement the applicant neither requested the Regional Court to secure his presence at the appeal hearing nor sought legal representation. According to the Government, the applicant's co-defendants who also appealed against the conviction expressly requested the appellate court to secure their presence at the appeal hearing. 12. According to the Government, on 25 November 2002 a notification about the appeal hearing was sent to the remand centre where the applicant was being held. 13. On 19 December 2002 the Regional Court examined the appeals lodged by the applicant and his co-defendants and upheld the judgment. The applicant was absent from the appeal hearing and was not represented before it, while his co-defendants, as well as the prosecutor, attended the hearing and made submissions. 14. By a judgment of 19 December 2002, the Regional Court dismissed the applicant's appeal and upheld the conviction. 15. Under Article 360 of the Code of Criminal Procedure, which entered into force on 1 July 2002 (“the CCP”), the appeal court verifies the legality, validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal. The appeal court is empowered to reduce the sentence imposed on the convicted person or to apply the law of a lesser offence. It has no power to impose a more severe penalty, apply a law on a more serious offence or quash an acquittal, unless it considers that the conviction was unfair or that the interests of the parties to the proceedings were violated. 16. A conviction is deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence, the personality of the convicted person, or if that sentence, although within the limits of the relevant Article of the Criminal Code, is unfair in its chosen type or extent, being either disproportionately lenient or disproportionately severe A conviction may be reversed when it is necessary to impose a more severe penalty where the penalty imposed by the trial court is deemed unfair as being disproportionately lenient - only when it is requested by the pubic prosecutor, the victim or the private prosecution (Article 383). 17. Under Article 377 §§ 4 and 5 of the CCP, the appeal instance may directly examine evidence, including additional material submitted by parties. 18. Under Article 375 § 2, if a convicted person wishes to participate in an appeal hearing he or she should indicate that wish in the statement of appeal. 19. Article 376 of the Code provides that upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the remanded convict should be summoned to the hearing. If the remanded convict has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court. A defendant who has appeared before the court shall always be entitled to take part in the hearing. The failure of persons timely notified about the date, time and venue of the hearing to appear does not preclude the court from taking on the examination of the case. 20. Under Article 377, the presiding judge opens the hearing by announcing which criminal case is to be examined and on whose appeal. He then announces the composition of the court, the names of persons who are parties to the proceedings and are present at the hearing and hears the statements of those who had lodged the appeals and of the opposing parties. The appeal court is entitled, at the party's request, to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party. 21. The CCP provides as follows: “1. Participation of legal counsel in the criminal proceedings is mandatory if: 1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code; 2) the suspect or the accused is a minor; 3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap; 3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code; 4) the suspect or the accused does not speak the language in which the proceedings are conducted; 5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty; 6) the criminal case falls to be examined by a jury trial; 7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code; 2. ... 3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on request, or with consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.” “1. The suspect or the accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the own initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. ...” 22. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003): “Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict's right to legal assistance in such proceedings may be restricted.” 23. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in Article 51. It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings. 24. In a number of cases (decisions of 13 October 2004 and 26 January, 6 April, 15 June and 21 December 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented.