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

ight 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).
43. The personal attendance of the defendant does not necessarily take on the same crucial significance for an appeal hearing as it does for the trial (see Kamasinski v. Austria, 19 December 1989, § 106, Series A No. 168). The manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of appeal court therein (see Ekbatani v. Sweden, 26 May 1988, § 27, Series A No. 134).
44. Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the appeal or cassation court, provided that he had been heard by a first-instance court (see, among other authorities, Monnell and Morris v. the United Kingdom, 2 March 1987, § 58, Series A No. 115, as regards the issue of leave to appeal, and Sutter v. Switzerland, 22 February 1984, § 30, Series A No. 74, as regards the court of cassation).
45. In appeal proceedings reviewing 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, § 33, 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 appeal court, particularly in the light of the nature of the issues to be decided by it and of their importance to the appellant (see, among many other authorities, Kremzow v. Austria, 21 September 1993, § 59, Series A No. 268-B; Belziuk v. Poland, 25 March 1998, § 37, Reports of Judgments and Decisions 1998-II; and Hermi v. Italy [GC], No. 18114/02, § 62, ECHR 2006-...). For instance, where an appeal court has to make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he did not commit the act allegedly constituting a criminal offence (see Dondarini v. San Marino, No. 50545/99, § 27, 6 July 2004).
46. The Court further reiterates that the principle of equality of arms is another feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations made and the evidence adduced by the other party (see Brandstetter v. Austria, 28 August 1991, §§ 66 - 67, Series A No. 211).
(b) Application of the above principles to the instant case
47. The Court reiterates that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1. Therefore, it will examine the applicant's complaints under these provisions taken together (see Van Geyseghem v. Belgium [GC], No. 26103/95, § 27, ECHR 1999-I).
48. The Court notes at the outset that it has declared inadmissible the applicant's complaints relating to the alleged unfairness of the proceedings before the trial court, having found that they complied with the requirements of Article 6. In particular, the Court found that those proceedings comprised a public hearing during which the applicant and several witnesses were heard in person and the appli



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