CASE OF METELITSA v. RUSSIA
Violation of Art. 6-1+6-3-c;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
Christos Rozakis
7. The applicant was born in 1968 and is now serving his sentence in Irkutsk. 8. On 17 September 2001 the applicant was arrested on suspicion of having severely beaten a certain Mr D. 9. On 19 December 2001 the Nazarovo Town Court of the Krasnoyarsk Region found the applicant and his co-defendants guilty of grievous bodily injuries, a criminal offence under Article 111 § 3 (a) of the Russian Criminal Code. The applicant was sentenced to six years’ imprisonment in a correctional colony. 10. On 23 December 2001 and 24 January 2002 the applicant submitted his statements of appeal. He contended that his co-accused had slandered him, that the forensic report had not reflected the facts as established by the trial court and that the investigation had not been sufficiently thorough. He asked that the conviction be quashed and his lawyer, Ms Struchenko, be invited to the appeal hearing. 11. On 25 December 2001 Ms Struchenko submitted her statement of appeal. She pointed to discrepancies between the facts established by the trial court and their description in the judgment and sought re-characterisation of the criminal offence and/or reduction of the sentence. 12. On 27 December 2001 the applicant requested the appeal court to examine the case in his absence. 13. According to the applicant, neither he nor his lawyer was notified of the appeal hearing. According to the Government, on 20 February 2002 summonses for the appeal hearing were sent to Ms Struchenko’s legal office and to the detention facility where the applicant was held. 14. On 5 March 2002 the Krasnoyarsk Regional Court upheld the conviction in respect of the applicant, reduced the sentences for both of his co-accused and attributed a different legal characterisation to the offence committed by one of them. The applicant and his lawyer were not present at the appeal hearing, whereas his co-accused were both present and represented. According to the Government, the prosecutor was in attendance and made submissions to the appeal court. 15. On 30 October 2003 the applicant received a summons for the hearing before the Krasnoyarsk Regional Court that had taken place on 5 March 2002. The summons was dated 27 February 2002. 16. Article 336 of the RSFSR Code of Criminal Procedure of 27 October 1960 (the “CCrP”, in force at the material time) provided that persons who had submitted their points of appeal were to be apprised of the date and time of the appeal hearing. If a person had been notified, but failed to appear, the appeal court could hold the hearing in that person’s absence. Article 338 required that at the beginning of a hearing the presiding judge verify the attendance and the court decide whether to proceed with the hearing. 17. On 16 June 1978 the Plenary Session of the USSR Supreme Court declared that if the requirements of Article 336 of the CCrP had not been respected, the appeal hearing was to be adjourned. The examination of a criminal case in the absence of the accused or his counsel, if they had not been notified of the date and time of the appeal hearing, was considered to be a substantial breach of the law on criminal procedure. On 1 December 1983 the Plenary Session ruled that the appeal court had to verify in each case whether the parties to the proceedings had been notified of the date and time of the appeal hearing, whether their submissions had been sent to the other party and whether the other party had been given an opportunity to comment on them. 18. On 10 December 1998 the Constitutional Court of the Russian Federation declared Article 335 § 2 of the CCrP incompatible with the Constitution to the extent that it allowed appeal courts to reach a final decision on a convicted person’s appeal if the defendant was absent from the hearing and if he (she) had not been provided with an opportunity to study the materials of the hearing and communicate his (her) opinion on the issues raised before the appeal court.