YANECHKO v. RUSSIA (European Court of Human Rights) Application no. 46603/11

Last Updated on September 22, 2021 by LawEuro

THIRD SECTION
DECISION

Application no. 46603/11
Oleg Nikolayevich YANECHKO
against Russia

The European Court of Human Rights (Third Section), sitting on 23 October 2018 as a Committee composed of:

Helen Keller, President,
Pere Pastor Vilanova,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 14 July 2011,

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 FACTS

The applicant, Mr Oleg Nikolayevich Yanechko, is a Russian national who was born in 1968 and lives in Yekaterinburg.

The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to 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 9 July 2007, as established subsequently by the domestic courts, A. entered the premises of a campsite owned by the applicant to meet with his ex-wife despite the latter’s request for him not to do so. A. refused to leave despite the applicant’s requests. They got into an argument which led to an altercation during which the applicant shot A. in the right leg.

On an unspecified date the applicant was indicted on charges of having made a death threat to A. (Article 119 § 1 of the Russian Criminal Code) and having caused bodily harm to him (Article 112 § 1 of the Russian Criminal Code).

On 13 March 2009 a justice of peace of Judicial Circuit no. 6 of Pervouralsk found the applicant guilty as charged. The court sentenced the applicant to two and a half years’ imprisonment but suspended the sentence. The applicant maintained his innocence, arguing that he had acted in self‑defence.

On 18 May 2010 the Pervouralsk Town Court of Sverdlovsk Region upheld the applicant’s conviction, in substance, on appeal. The court relieved the applicant from serving the sentence in respect of the death threat charge, but it gave him a two-year suspended sentence in respect of the remaining charge of having caused bodily harm.

The applicant appealed, maintaining his innocence. He reiterated that his actions had amounted to self-defence, given A.’s behaviour. The prosecutor submitted that the case should be remitted for fresh consideration to the Town Court in view of certain procedural irregularities.

On 14 January 2011 the Sverdlovsk Regional Court delivered a new judgment in the case. The court established that, having behaved with impropriety and aggression, A. had provoked the applicant’s actions. The court amended the charges against the applicant and found him guilty of having caused bodily harm to A. under the influence of extreme emotional disturbance (Article 213). The court sentenced the applicant to six months’ imprisonment but suspended the sentence and relieved him from serving it.

B.  Relevant domestic law and practice

In its Ruling no. 28 of 23 December 2008 On appeal proceedings, in effect at the relevant time, the Plenary of the Supreme Court of the Russian Federation explained that an appellate court was competent to amend the charges against a defendant provided such amending (1) did not have an adverse impact on the defendant’s situation or (2) did not violate the defendant’s rights. In particular, the appellate court had a right to amend the charges as less serious. New charges should not differ significantly from the original ones and should not result in the imposition of a more severe sentence.

COMPLAINTS

The applicant complained under Article 6 §§1 and 3 (a) and (b) of the Convention that on 14 January 2011 the Sverdlovsk Regional Court had amended the charges against him without informing him thereof and without providing him with the opportunity to prepare his defence.

THE LAW

The applicant complained that the amending of the criminal charges against him by the appellate court had amounted to a violation of Article 6 of the Convention, which, in so far as relevant, reads as follows:

“1.  In the determination … of any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal…

3.  Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)  to have adequate time and facilities for the preparation of his defence[.]”

The Government contested that argument. They submitted that the appellate court had acted in full compliance with the rules of criminal procedure, which had provided for the amending of the charges, in the circumstances of the case. The new charge had not been significantly different from the original one. The appellate court had merely added that the applicant had committed the offence in the state of an extreme emotional disturbance.

The applicant maintained his complaint. He submitted that the appellate court had significantly amended the charges against him, depriving him of the opportunity to adjust his defence accordingly.

The Court observes that the principles concerning the right to be informed of the nature and the cause of the accusation and the accused’s right to prepare his or her defence are well-developed in the Court’s case‑law and have been summarised in the case of Pélissier and Sassi(Pélissier and Sassi v. France [GC], no. 25444/94, §§ 51-54, ECHR 1999‑II).

Turning to the circumstances of the present case and having examined the parties’ submissions, the Court notes that, when finding the applicant guilty, the appellate court, unlike the lower courts, considered that the applicant had committed an offence under the influence of extreme emotional disturbance. However, this fact alone, in the circumstances of the case, is insufficient to support the applicant’s allegations that his right to a fair trial was impaired. While it is true that the appellate court, unlike the lower courts, relied in its findings on Article 213 and not Article 212 of the Russian Criminal Court, the Court considers that it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation (see, among the most recent authorities, G.I.E.M. S.R.L. and Others v. Italy (merits) [GC],nos. 1828/06 and 2 others, § 259, 28 June 2018).

In this connection, the Court observes that, at the outset of the criminal proceedings the applicant was charged with having made a death threat to A. and having caused bodily harm to him. The judicial authorities at two levels of jurisdiction found the applicant guilty as charged. Having heard the parties to the proceedings, the appellate court delivered a new judgment in the applicant’s case. It dropped the death-threat charge, a fact which cannot but be construed as having been favourable to the applicant’s case, and characterised the facts as falling within the definition of the offence of causing bodily harm under the influence of extreme emotional disturbance. It did not change the timing of the commission of that offence or the description of the factual situation. Relying on the applicant’s submissions, the appellate court merely accepted that the victim’s behaviour had been such as to provoke the applicant’s actions and concluded that the applicant had committed the offence in extenuating circumstances and reduced his sentence.

The appellate court’s reliance on the extenuating circumstance, in the Court’s view, does not constitute an element in respect of which it was necessary for the applicant to prepare a new line of defence (contrast Pélissier and Sassi, cited above, §§ 57-62).

The Court concludes, accordingly, that the applicant had sufficient opportunity to defend himself in the appeal proceedings and, in particular, to contest all relevant legal and factual aspects of the conviction. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 November 2018.

FatoşAracı                                                         Helen Keller
Deputy Registrar                                                      President

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