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Постановление Европейского суда по правам человека от 22.12.2009 «Дело Макаренко (Makarenko) против России» [англ.]





ted that despite his refusal to attend hearings and his dismissal of his lawyers, the trial court should have ensured the best representation of his interests.

B. The Court's submissions

1. Admissibility

129. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

130. The Court observes that the applicant's complaint that his rights were violated is twofold, raising issues of his being absent from and unrepresented at the trial. As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaints under both provisions taken together (see, among other authorities, Poitrimol v. France, 23 November 1993, § 29, Series A No. 277-A). In deciding whether the proceedings against the applicant were fair, it will also consider them as a whole, including the decisions of the appellate courts (see Edwards v. the United Kingdom, judgment of 16 December 1992, § 34, Series A No. 247-A).
131. The Court reiterates that in the interests of a fair and just criminal process it is of capital importance that the accused should appear at his trial (see Lala v. the Netherlands, 22 September 1994, § 33, Series A No. 297-A; Poitrimol, cited above, § 35; and De Lorenzo v. Italy (dec.), No. 69264/01, 12 February 2004), and the duty to guarantee the right of a criminal defendant to be present in the courtroom - either during the original proceedings or in a retrial - ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria, No. 9808/02, § 56, 24 March 2005).
132. Although this is not expressly mentioned in paragraph 1 of Article 6, the object and purpose of the Article taken as a whole show that a person "charged with a criminal offence" is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 guarantee to "everyone charged with a criminal offence" the right "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", and it is difficult to see how he could exercise these rights without being present (see Colozza v. Italy, 12 February 1985, § 27, Series A No. 89, and Sejdovic v. Italy [GC], No. 56581/00, § 81, ECHR 2006-II).
133. However, it is also of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal (see Lala, cited above, § 33). For instance, in a number of cases the Court has already held that the fact that a defendant, in spite of having been properly summonsed, did not appear, could not - even in the absence of an excuse - justify depriving him of his right under Article 6 § 3 (c) of the Convention to be defended by counsel (see Pelladoah v. the Netherlands, 22 September 1994, § 40, Series A No. 297-B). It was for the courts to ensure that a trial was fair and, accordingly, that counsel who attended trial for the apparent purpose of defending the accused in his absence, was given the opportunity to do so (ibid., § 34 and § 41).
134. Turning to the facts of the present case the Court reiterates, and it was not disputed by the parties, that the applicant and his three lawyers were notified of and effectively participated in the trial until 6 February 2003. However, on 6 February 2003 the applicant informed the trial court of his decision to be absent from any subsequent trial hearings and to dismiss his three lawyers (see paragraph 50 above). The Court observes that in this respect the present case differs from a number of cases



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