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

r 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 judgment may be reversed in connection with the necessity to impose a more severe penalty due to the fact that the penalty imposed by the trial court is deemed unfair as being disproportionately lenient, but only in instances when there is either a prosecution request or an application as a private prosecution, the victim or his representative to that effect.
34. Article 387 provides that where there has been a violation of the provisions of the Criminal Code, the appeal court may apply a law of a less serious offence and reduce the sentence, in accordance with legal reclassification of the acts committed. In doing so, the appeal court may not apply a law of a more serious offence or aggravate a sentence imposed. In cases where the trial court imposed a sentence more severe than that set forth by the relevant Article of the Criminal Code, the appeal court may reduce the sentence without changing the legal classification of the offence.

THE LAW

I. Alleged violations of Article 6 of the Convention

35. The applicant made several complaints under Article 6 §§ 1 and 3 (c) of the Convention. In particular, he complained that (1) the record of the hearing of 5 February 2002 had been falsified, (2) he could not question witnesses K. and B. because he had been removed from the court room on 22 March 2002, (3) the trial court had removed the public from a part of the hearing of 22 March 2002, (4) the appeal hearing of his criminal case had been held in his absence on 1 July 2002 and he could not plead his defence and confront the prosecutor. The relevant parts of Article 6 of the Convention provide:
"1. In the determination... of any criminal charge against him, everyone is entitled to a fair and public hearing... by an independent and impartial 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

36. As regards the applicant's complaint about the alleged falsification of the minutes of the hearing of 5 February 2002, the Court observes that the judgment of 5 February 2002 was quashed on appeal and the case was examined anew. Therefore, the alleged falsification of the record of the minutes did not influence the overall fairness of the proceedings. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
37. Regarding the applicant's complaint about the impossibility of questioning witnesses K. and B. in proceedings before the trial court, the Court notes that the trial court found in its decision of 10 June 2002 that the applicant had returned to the hearing at 10 a.m. on 25 March 2002, that the testimony given in his absence had been read out to him and that he had been offered the opportunity to question witnesses K. and B., which he had refused. The Court has no reason to doubt the findings of the trial court. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
38. In so far as the applicant complained about the lack of a public hearing on 22 March 2002, the Court observes that in his grounds of appeal against the judgment of 26 March 2002 the applicant submitted that two women had been removed from the hearing of 22 March 2002. In his additional grounds of appeal he submitted that the trial court had removed from the hearing p

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