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

cant was given the opportunity to question them (see paragraphs 37 and 38 above). Furthermore, it is not disputed that a hearing was also held by the appeal court, which heard the mother of S., her representative and the prosecutor. The main issue to determine is whether, in the particular circumstances of the case, holding that hearing in the applicant's absence infringed his right to a fair hearing under Article 6 of the Convention.
49. The Government's main argument was that the applicant by his own fault lost the opportunity to be present at the appeal hearing because he had failed to inform the authorities of his wish to take part in the hearing by lodging a special request. In other words, he had waived his right to be present at the hearing. The applicant admitted that he had not applied to participate in the appeal hearing, but argued that he had not been aware of the procedure to follow.
50. The Court will first examine whether the departure from the principle that an accused should be present at the hearing, could, in the circumstances of the case, be justified at the appeal stage by the special features of the domestic proceedings, viewed as a whole. It will next determine whether the applicant had waived his right to be present at that hearing.
51. The Court observes that in the Russian criminal procedure appeal courts have jurisdiction to deal not only with questions of law but also with questions of fact pertaining both to criminal liability and to sentencing, but only to the extent to which they have been complained against and only in respect of those convicted who were concerned by the appeal. They are empowered to examine the evidence and additional materials submitted by the parties directly. As a result of the examination, the appeal courts may dismiss the appeal and uphold the judgment, quash the judgment and terminate the criminal proceedings, quash the judgment and remit the case for a fresh trial, or amend the judgment. They may reduce the sentence but cannot impose a more severe penalty or apply a law of a more serious offence. However, in case of a disproportionately lenient sentence, the appeal courts may reverse the judgment (see "Relevant domestic law and practice" above, paragraphs 27 and 30 - 34).
52. In his statement of appeal the applicant contested his conviction on factual and legal grounds. He sought a re-characterisation of the criminal offence, from premeditated murder to murder committed as a result of exceeding limits of self-defence. In particular, he considered that the trial court's conclusion that S. had no axe in his hands had been inconsistent with the facts established by the trial court and the evidence submitted in trial. He also considered that the trial court had wrongly applied the law when it had imposed his sentence. The applicant requested the appeal court to quash his conviction and adopt a fresh decision in his case. The mother of S. sought the imposition of a heavier sentence on the applicant by sending the case for a fresh trial. The prosecutor asked for the conviction to be upheld. Consequently, the Court observes that in the instant case the issues to be determined by the appeal court in deciding the applicant's criminal liability were both factual and legal. Despite the fact that the applicant had confessed to causing the death of the victim, the appeal court was called to make a full assessment of his guilt or innocence regarding the charges of premeditated murder and to verify whether the sentence had been imposed correctly.
53. The Court further observes that the proceedings at issue were of capital importance for the applicant, who had been sentenced to twelve years' imprisonment and had not been represented. It also does not lose sight of the fact that the prosecutor and the mother of S. and her representative were present at the hearing and made submissions.
54. Having regard

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