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

to the criminal proceedings against the applicant in their entirety and to the above elements, the Court considers that the appeal court could not properly determine the issues before it without a direct assessment of the evidence given by the applicant in person. Neither could it ensure equality of arms between the parties without giving the applicant the opportunity to reply to the observations made by the mother of the victim and by the prosecutor at the hearing. It follows that in the circumstances of the present case, it was essential to the fairness of the proceedings that the applicant be present at the appeal hearing.
55. It remains to be determined whether, as argued by the Government, the applicant lost the opportunity to be present at the appeal hearing by failing to submit a special request, in other words whether he had waived his right to take part in the appeal hearing.
56. In that respect the Court reiterates that while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to "defend him in person or through legal assistance..." it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their legal systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirement for a fair trial (see Quaranta v. Switzerland, 24 May 1991, § 30, Series A No. 205). The Court considers that the requirement to lodge a prior request for participation in the appeal hearing would not in itself contradict the requirements of Article 6, if the procedure is clearly set out in the domestic law.
57. The Court further reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner; it must not run counter to any important public interest (see Sejdovic v. Italy [GC], No. 56581/00, § 86, ECHR 2006-...), and it must be attended by minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A No. 277-A). Furthermore, in view of the prominent place held in a democratic society by the right to a fair trial Article 6 of the Convention imposes on every national court an obligation to check whether the defendant has had the opportunity to apprise himself of the date of the hearing and the steps to be taken in order to take part where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit (see, mutatis mutandis, Somogyi v. Italy, No. 67972/01, § 72, ECHR 2004-IV, and Hermi, cited above, § 76).
58. The Court observes that no explicit waiver was made in the present case. The question is whether there was a tacit one. On 27 June 2002 the applicant was informed that the appeal hearing had been set for 1 July 2002. However, the Court has strong doubts as to whether the applicant had been properly informed of the procedure to follow if he wished to take part in the hearing. The Government contended that the trial court had informed the applicant about the procedure after pronouncing the judgment. The applicant argued that he had been informed only of the time-limits for lodging his appeal. It is true that the record of proceedings stated that the procedure for appealing against the judgment and the time-limits had been explained to the parties. However, it is not certain whether it had been explained to the applicant that he had to make a special request if he wished to take part in the appeal hearing. It is also true that the notice informing the applicant of the appeal hearing stated that attendance at the appeal hearing was not obligatory. It may be argued that f

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