AS TO THE ADMISSIBILITY OF
Application no. 22644/02
by Yuriy Mikhaylovich ZAYTSEV
The European Court of Human Rights (First Section),
3 March 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr Søren Nielsen, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 13 May 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Yuriy Mikhaylovich Zaytsev, is a Russian national, who was born in 1977 and lives in Novomoskovsk, Tula Region. The respondent Government are represented by Mr Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 September 2001 the Novomoskovskiy Town Court of the Tula Region convicted the applicant, a school teacher, of cruel treatment of his pupils and sentenced him conditionally to one year and six months' imprisonment. The applicant and his counsel were present at the hearing. The court heard statements from a number of witnesses and victims and examined a transcript of a meeting of the school disciplinary commission.
The applicant appealed against the judgment on points of fact.
On 26 October 2001 the Tula Regional Court upheld the judgment on appeal. The applicant was not present at the hearing. The appeal court reviewed the applicant's conviction both on points of law and on points of fact. The prosecutor, who was present at the hearing, made his submissions directed at having the conviction to stand. The appeal court did not hear any witnesses and there is no evidence that they were summoned.
On 28 February 2002 the applicant received a copy of the judgment on appeal.
B. Relevant domestic law
Article 336 of the Code of Criminal Procedure of 1960, in force at the material time, provided that the appellants should be notified about the date of the hearing on appeal. The failure of the appellants, notified about the respective date, to appear at the hearing did not preclude the court from examining the case. A notice informing of the time of the hearing on appeal should be placed in the court not later that three days before the hearing.
The applicant alleges that the criminal proceedings against him were unfair within the meaning of Article 6 § 1 of the Convention. In particular, he complains about assessment of evidence by the trial court and alleges that the court accepted inadmissible evidence and collected certain evidence of its own motion. Invoking also Article 6 § 3 (c) he complains that he was not notified of the hearing on appeal and that the appeal court delivered a judgment in his absence without his consent.
The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were unfair. He alleges, in particular, that the trial court erred in assessment of evidence, accepted inadmissible evidence and collected certain evidence of its own motion. He further complains under Article 6 §§ 1 and 3 (c) of the Convention about the failure to notify him of the hearing on appeal resulting in his absence at the hearing. He maintains that this deprived him of the right to make his submissions before the appeal court and violated his defence rights precluding him from being represented in the hearing by a counsel.
Article 6, insofar as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require[.]”
The Government contend that there were no procedural irregularities in the proceedings before the trial court. They further maintain that the applicant was duly notified about the hearing on appeal but failed to appear or apply for postponement of the hearing. They submit copies of three notices for the hearing which, they assert, were sent to the applicant, his counsel and his father who was admitted to participate in the proceedings as his representative.
The applicant disagrees with the Government's assertions as regards the proceedings before the trial court and restates the arguments put forward in support of his complaint. He further avers that neither he nor his counsel or his father ever received the notices. He contests the evidence produced by the Government arguing that mere copies of the notices allegedly sent to him and his representatives may not be considered as a proof of their notification of the hearing. In the applicant's view, it could only be proved by their signatures acknowledging the receipt on the counterfoil of the notices, which the Government failed to produce since they never existed. The applicant further notes that, since the appeal court had to review the case primarily on points of fact so as to decide whether he was guilty of the imputed offence, his presence in the hearing was indispensable.
The Court considers, in the light of the parties' submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Søren Nielsen Christos Rozakis
ZAYTSEV v. RUSSIA DECISION
ZAYTSEV v. RUSSIA DECISION