Постановление Европейского суда по правам человека от 08.04.2010 «Дело Синичкин (Sinichkin) против России» [англ.]

the Russian Federation

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.

C. Case-law of the Supreme Court of the Russian Federation

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.

THE LAW

I. Alleged violation of Article 6 of the Convention

25. The applicant complained under Article 6 of the Convention that the appellate court had examined his appeal in his absence. The Court also raised, of its own motion, under Article 6 of the Convention the issue of lack of free legal representation for the applicant at the appeal hearing. Article 6, in its relevant parts, reads as follows:
"1. In the determination of... any criminal charge against him, everyone is entitled to a fair and public hearing... by a... tribunal...
3. Everyone charged with a criminal offence has the following minimum rights:
...(c) to defend himself in person or through legal assistance of his own choosing..."

A. Admissibility

26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

27. The Government submitted that pursuant to Article 375 of the Code of Criminal Procedure, if a convicted person wished to participate in the appeal hearing, he or she was to request it expressly in the appeal statement. They further claimed that on 10 November 2002, after the pronouncement of the conviction, the first-instance court had explained to all defendants that they had a right to request the appellate court to secure their presence at the appeal hearing. A copy of the judgment of 10 November 2002 obtained by the applicant in the remand centre also contained that indication. However, in his appeal statement the applicant had not sought leave to attend the hearing. Accordingly, on 25 November 2002 a simple notification about the date of the appeal hearing had been sent to his remand centre. The applicant had not submitted any other requests, either to attend the appeal hearing or for a lawyer to be appointed to represent him there. At the same time, his co-defendants had expressly requested the appellate court to secure their attendance and had been able to attend.
28. As regards the issue of representation, the applicant had not been represented before the trial court, hence a law

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