Постановление Европейского суда по правам человека от 08.01.2009 "Дело "Алексеенко (Alekseyenko) против Российской Федерации" [рус., англ.]

director of the prison authority.
51. Law No. 161-FZ of 8 December 2003 introduced further amendments to the Article. The European Court of Human Rights was added to the list of bodies with which the prisoner could correspond without censorship. The Law entered into force as of the date of its first official publication on 16 December 2003.

THE LAW

I. Alleged violation of Article 6 of the Convention

52. The applicant complained that the supervisory review proceedings before the Supreme Court on 18 October 2000 had been unfair in that the authorities had failed to notify and summon the defence whilst the prosecution had been present. He relied on Article 6 which, in so far as relevant, provides:
"In the determination of ...any criminal charge against him, everyone is entitled to a fair... hearing... by [a]... tribunal..."

A. The parties' submissions

53. The Government submitted that, at the relevant time, the summoning of a defendant in supervisory review proceedings had been the court's right but not its duty. In the present case, there had been no need to summon either the applicant or his counsel and their absence from the hearing had not been unlawful. In addition, domestic law only required the applicant or his counsel to be summoned if the applicant's personal situation stood to worsen as a result of the supervisory review proceedings.
54. The applicant disagreed and maintained his complaint.

B. The Court's assessment

1. Applicability of Article 6 of the Convention

55. The Court reiterates that Article 6 of the Convention applies to proceedings where a person is charged with a criminal offence until that charge is finally determined (see Adolf v. Austria, 26 March 1982, § 30, Series A No. 49, and Delcourt v. Belgium, 17 January 1970, §§ 22 - 26, Series A No. 11). It further reiterates that Article 6 does not apply to proceedings concerning a failed request to reopen a case. Only the new proceedings, after the reopening has been granted, can be regarded as concerning the determination of a criminal charge (see {Loffler} v. Austria, No. 30546/96, §§ 18 and 19, 3 October 2000, and {Jose} Maria Ruiz Mateos and Others v. Spain, No. 24469/94, Commission decision of 2 December 1994, Decisions and Reports 79).
56. The Court observes that on 18 October 2000, acting on the prosecutor's request for supervisory review, the Presidium of the Supreme Court of Russia initiated the supervisory review proceedings, reopened the applicant's criminal case and partly changed the decisions in the case. In particular, the court declared the prosecution in respect of the death threats time-barred and changed the legal characterisation of the applicant's criminal conduct in relation to one of the other charges. It upheld the first-instance judgment and the remainder of the appeal decision.
57. The Court is of the view that, in so far as these amendments were concerned, the supervisory review proceedings at issue concerned the determination of a criminal charge against the applicant. Accordingly, it finds that Article 6 § 1 of the Convention under its criminal head applied to these proceedings.

2. Compliance with Article 6 of the Convention

(a) General principles
58. The Court reiterates that it flows from the notion of a fair trial that a person charged with a criminal offence should, as a general principle, be entitled to be present and participate effectively in the first-instance hearing (see Colozza v. Italy, 12 February 1985, §§ 27 and 29, Series A No. 89).
59. The personal attendance of the defendant does not necessarily take on the same significance for an appeal hearing, even where an appellate court has full jurisdiction to revie



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