the application...". The Court points out in this respect that the applicant presented his complaints about the alleged violations of his Convention rights in a letter sent to the Court on 10 March 2004, as confirmed by the postmark. In such circumstances it accepts that the applicant introduced his application on 10 March 2004 having complied with the six-month rule. Hence the Government's objection in this respect should be dismissed.
75. In so far as the Government may be understood to claim that the applicant failed to exhaust available domestic remedies, since Mr K. did not claim in his supervisory review request that he had been deprived of an opportunity to be present at the appeal hearing, the Court reiterates that, according to its constant practice, an application for supervisory review is not a remedy to be used for the purposes of Article 35 § 1 of the Convention (see Berdzenishvili v. Russia (dec.), No. 31697/03, 29 January 2004, and Nazarov v. Russia, No. 13591/05, § 94, 26 November 2009). The Government's objection in this respect must therefore be dismissed.
76. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
(a) The applicant's absence from the appeal hearing
77. The Court reiterates at the outset that Article 6 of the Convention, read as a whole, guarantees the right of an accused to participate effectively in his criminal trial. This includes, inter alia, a right not only to be present, but also to hear and follow the proceedings (see, for example, Stanford v. the United Kingdom, 23 February 1994, § 26, Series A No. 282-A, and {Barbera, Messegue} and Jabardo v. Spain, 6 December 1988, § 78, Series A No. 146). This right is implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained in sub-paragraphs (c), (d) and (e) of paragraph 3 of Article 6 - "to defend himself in person", "to examine or have examined witnesses", and "to have the free assistance of an interpreter if he cannot understand or speak the language used in court" (see Colozza v. Italy, 12 February 1985, § 27, Series A No. 89). It is difficult to see how a person "charged with a criminal offence" could exercise these rights without being present (see Russu v. Moldova, No. 7413/05, § 26, 13 November 2008).
78. The Court notes at the same time that the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for a trial hearing (see Kamasinski v. Austria, 19 December 1989, § 106, Series A No. 168). Even where the court of appeal has jurisdiction to review the case both as to facts and as to law, Article 6 does not always require a right to a public hearing, still less a right to appear in person (see Fejde v. Sweden, 29 October 1991, § 31, Series A No. 212-C). In order to decide this question, regard must be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant's interests were actually presented and protected before the appellate court, particularly in the light of the nature of the issues to be decided by it and of their importance to the appellant (see Hermi v. Italy [GC], No. 18114/02, § 62, ECHR 2006-XII).
79. As to the specific features of the proceedings in question, the Court reiterates that criminal appeals in the Russian legal system deal with both facts and law (see Metelitsa v. Russia, No. 33132/02, § 31, 22 June 2006). When quashing a first-instance judgment, an appeal court is empowered both to remit a case for a new examination to a lower court and to amend the judgment (see paragraph 65 above). Given the wide spectrum of powers accorded to appellate c
> 1 2 3 ... 5 6 7 8 ... 9
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
