Постановление Европейского суда по правам человека от 12.02.2009 «Дело Самохвалов (Samokhvalov) против России» [англ.]

rom that wording the applicant could have understood that he would not be brought to the hearing unless he made a special request. However, the Court cannot base its findings on presumptions as regards the inferences which the applicant might have had after reading the notice. Regard must be had to the provisions of the domestic law to see whether the procedure for taking part in the appeal hearing had been set there in a sufficiently clear manner.
59. The Court notes that the present case resembles to a certain extent the case of Hermi v. Italy where the applicant, represented by two counsel, had been informed of the appeal hearing more than two months in advance but did not apply to attend it within the deadline of five days beforehand and where the procedure for applying to the court had been clearly set out in the domestic law. The Court found that the domestic court had been entitled to take the applicant's conduct as a tacit but unequivocal waiver, in particular as there had been no excessive procedural formalities involved in making the requisite application (see Hermi, cited above, §§ 89 - 103).
60. Turning to the present case, the Court observes that the provisions of the old CCrP, in force at the material time, did not expressly state that in order to take part in the hearing a defendant had to submit a special request (see "Relevant domestic law and practice" above, paragraphs 24 - 26). The Government contended that the tenor of those provisions implied that the applicant had to make a special request if he wished to take part in the appeal hearing. However, it is questionable, whether the applicant, who had not been assisted by legal counsel, could have understood the tenor of those provisions in the way the Government suggested. It is true that Articles 375 and 376 of the new CCrP describe the procedure for applying for participation at the appeal hearing (see "Relevant domestic law and practice" above, paragraphs 28 and 29), however, they had entered into force only on 1 July 2002, the date on which the appeal hearing of the applicant's case had taken place. Furthermore, it follows from the appeal decision of 1 July 2002 that the appeal court had not verified whether the applicant had been duly informed of the hearing and of the steps to be taken in order to participate in it. Neither did that decision state that the applicant had failed to submit a request for participation in the hearing and had waived his right, and therefore that his failure to appear would not preclude examination of the case. In such circumstances, the Court considers that it cannot be said that in the present case the applicant had waived his right to take part in the hearing in an unequivocal manner.
61. Having regard to its findings in paragraphs 54 and 60 above the Court considers that the proceedings before the Kurgan Regional Court did not comply with the requirements of fairness. There has therefore been a breach of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention.

II. Application of Article 41 of the Convention

62. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

63. The applicant claimed 158,600 euros (EUR) in respect of non-pecuniary damage sustained as a result of his unfair conviction and EUR 150,000 for the authorities' failure to provide him with adequate medical treatment. He considered that he should be compensated for pension which he had not received because he had been convicted, and claimed EUR 7,800 in this respect.
64. The Government contested his claims.
65. The Co

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