THIRD SECTION
\nDECISION<\/p>\n
Application no. 34839\/11
\nYelena Mikhaylovna VYBORNOVA
\nagainst Russia<\/p>\n
The European Court of Human Rights (Third Section), sitting on 26\u00a0March 2019 as a Committee composed of:<\/p>\n
Helen Keller, President,
\nPere Pastor Vilanova,
\nMar\u00edaEl\u00f3segui, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n
Having regard to the above application lodged on 27 May 2011,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Ms Yelena MikhaylovnaVybornova, is a Russian national, who was born in 1972 and lives in Praha. She was represented before the Court by Mr S. Nasonov, a lawyer practising in Moscow.<\/p>\n 2.\u00a0\u00a0The Russian Government (\u201cthe Government\u201d) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0In April 2004 the applicant was working as an economist in a private company.<\/p>\n 5.\u00a0\u00a0On 16 November 2004 criminal proceedings were initiated against Mr\u00a0K., deputy manager of the company OAO NeftyanayaKompaniya YUKOS for embezzlement.<\/p>\n 6.\u00a0\u00a0The investigation concluded that in 2004 a group of persons, including the applicant, had been involved in the misappropriation of funds belonging to OAO NeftyanayaKompaniya YUKOS and in money laundering.<\/p>\n 7.\u00a0\u00a0On 23 June and 1 July 2005 the applicant was questioned by the investigator as a suspect.<\/p>\n 8.\u00a0\u00a0On 23 June 2005 the applicant provided an undertaking not to leave the city.<\/p>\n 9.\u00a0\u00a0On 5 September 2005 the applicant was charged with embezzlement and money laundering and was put on a wanted list.<\/p>\n 10.\u00a0\u00a0On an unspecified date in September 2005 the applicant left Russia for the Czech Republic.<\/p>\n 11.\u00a0\u00a0On 15 September 2005 the Basmannyy District Court of Moscow held that the applicant should be placed in detention.<\/p>\n 12.\u00a0\u00a0On 30 August 2006 the applicant applied to the Ministry of the Interior of the Czech Republic for asylum.<\/p>\n 13.\u00a0\u00a0On 14 August 2006 the Prosecutor General of Russia asked the Czech Ministry of Justice to order the applicant\u2019s extradition to Russia.<\/p>\n 14.\u00a0\u00a0On 24 July 2008 the Ministry of Justice of the Czech Republic informed Russian authorities that on 23 March 2007 the Regional Court in Ostrava had refused extradition because the applicant had been granted subsidiary protection and had a minor child. On that basis, extradition would breach the obligations of the Czech Republic under treaties protecting the rights of the child and prohibiting torture or other inhuman or degrading treatment. On 2 June 2008 the Supreme Court of the Czech Republic upheld that decision on appeal.<\/p>\n 15.\u00a0\u00a0On 6 October 2010 the Taganskiy District Court of Moscow convicted the applicant of embezzlement and money laundering in the presence of Ms Z., her State-appointed lawyer.<\/p>\n 16.\u00a0\u00a0Ms Z. and a lawyer appointed by the applicant, Ms A., lodged appeals against the conviction, stating that the applicant had not been present at the hearing on 6\u00a0October 2010.<\/p>\n 17.\u00a0\u00a0On 24 December 2010 the Moscow City Court upheld the conviction on appeal, stating that the Code of Criminal Procedure allowed for a conviction in absentia where the accused had absconded and had not been prosecuted in a foreign State.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 1.\u00a0\u00a0Code of Criminal Procedure<\/em><\/p>\n 18.\u00a0\u00a0Under Article 247 \u00a7\u00a7 5 and 6 of the Code of Criminal Procedure a hearing in respect of serious crimes may, as an exception, be held in the absence of an accused who has left the territory of the Russian Federation and\/or who has absconded, if the accused has not been prosecuted in a foreign State in respect of the same criminal case. If that is the situation, participation of a lawyer or lawyers appointed by the accused or by the court is mandatory.<\/p>\n 19.\u00a0\u00a0Article 247 \u00a7 7 provides that if the above circumstances change, the conviction issued in absentia may, at the request of the convicted party or his or her lawyer, be quashed by the supervisory-instance court.<\/p>\n 20.\u00a0\u00a0Under Article 401.15 \u00a7\u00a7 1 and 2, a conviction may be quashed or changed on appeal in the event of a material breach in criminal law and\/or procedure which has had an impact on the outcome of the proceedings. If the circumstances provided for by Article 247 \u00a7 5 no longer exist, the convicted party or his or her lawyer may ask the appeal court to quash the conviction.<\/p>\n 2.\u00a0\u00a0Supreme Court of Russia<\/em><\/p>\n 21.\u00a0\u00a0According to point 13 of Ruling no. 28 of 22 December 2009 \u201con the application of criminal procedure law by courts when preparing a case for judicial proceedings\u201d, the exceptions referred to in Article 247 \u00a7 5 include the severity of the crime, significant damage to the victim, unsuccessful tracing of the suspect and the impossibility of extraditing the suspect.<\/p>\n COMPLAINT<\/strong><\/p>\n 22.\u00a0\u00a0The applicant complained under Article 6 of the Convention that she had been convicted in absentia.<\/p>\n THE LAW<\/strong><\/p>\n 23.\u00a0\u00a0The applicant complained that she had been convicted in absentia without having had an opportunity to present her defence before the domestic courts. She relied on Article 6 of the Convention, which provides, in so far as relevant:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (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 …\u201d<\/p>\n A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 24.\u00a0\u00a0The Government submitted that the applicant had had full knowledge of the criminal proceedings against her and that her right to defence had been fully secured. At the hearing on 6 October 2010 she had been represented by a State-appointed lawyer, Ms Z. The applicant\u2019s lawyer, Ms A., could not have attended the hearing on 6 October 2010 as she had received her warrant only on 20 October 2010. However, she had received a copy of the judgment and had submitted an appeal. Ms A. had informed the court, initially by telephone and later by her letter of 23\u00a0December 2010, that her agreement with the applicant had been rescinded. Therefore, at the appeal hearing on 24\u00a0December 2010 the applicant had been represented by Ms Z. The appeal court had examined the appeals submitted by both lawyers and upheld the conviction. The Government concluded that there had been no violation of Article 6.<\/p>\n 25.\u00a0\u00a0The applicant maintained her complaint.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 1.\u00a0\u00a0General principles<\/em><\/p>\n 26.\u00a0\u00a0Although proceedings that take place in the accused\u2019s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself (see Colozza v. Italy, 12 February 1985, \u00a7 29, Series\u00a0A no. 89; Einhorn v. France (dec.), no. 71555\/01, \u00a7 33, ECHR 2001\u2011XI; Krombach v. France, no. 29731\/96, \u00a7 85, ECHR 2001-II; and Somogyi v. Italy, no. 67972\/01, \u00a7 66, ECHR 2004-IV) or that he intended to escape trial (see Medenica v. Switzerland, no. 20491\/92, \u00a7 55, ECHR 2001\u2011VI).<\/p>\n 27.\u00a0\u00a0Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v.\u00a0Italy (dec.), no. 52868\/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Poitrimol v.\u00a0France, 23 November 1993, \u00a7 31, Series A no. 277\u2011A). Furthermore, it must not run counter to any important public interest (see H\u00e5kansson and Sturesson v. Sweden, 21 February 1990, \u00a7 66, Series A no. 171-A).<\/p>\n 28.\u00a0\u00a0The Court has held that where a person charged with a criminal offence had not been notified in person, it could not be inferred merely from his status as a \u201cfugitive\u201d (which itself had been founded on a presumption that had not had a sufficient factual basis) that he had waived his right to appear at the trial and defend himself (seeColozza, cited above, \u00a7 28). It has also had occasion to point out that before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Jones v. the United Kingdom (dec.), no. 30900\/02, 9 September 2003). At the same time, it is open to the national authorities to assess whether the accused showed good cause for his absence or whether there was anything in the case file to warrant finding that he had been absent for reasons beyond his control (see Medenica, cited above, \u00a7 57, and Sejdovic v. Italy[GC], no. 56581\/00, \u00a7 88, ECHR 2006\u2011II).<\/p>\n 2.\u00a0\u00a0Application of the above principles in the present case<\/em><\/p>\n 29.\u00a0\u00a0In previous cases concerning convictions in absentia, the Court has held that to inform someone of a prosecution brought against him is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused\u2019s rights; vague and informal knowledge cannot suffice (see Somogyi, cited above, \u00a7 75). The Court cannot, however, rule out the possibility that certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and either does not intend to take part in the trial or wishes to escape prosecution. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or where he succeeds in evading an attempted arrest (see Iavarazzo v. Italy (dec.), no. 50489\/99, 4 December 2001), or where materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces (see Sejdovic, cited above, \u00a7 99).<\/p>\n 30.\u00a0\u00a0The Court notes that in the present case the police had questioned the applicant as a suspect before she left for the Czech Republic in the summer of 2005. In September 2005 the applicant was charged with embezzlement and money laundering and the domestic court remanded her in custody. In August 2006 the applicant applied for asylum in the Czech Republic, stating that she was being prosecuted in Russia on charges related to the YUKOS scandal and that she feared an unfair trial, imprisonment and the removal of her minor child if she returned to Russia. Her request was allowed and she was granted subsidiary protection. The Russian authorities\u2019 requests to extradite the applicant were rejected. Therefore, it is evident to the Court that the applicant decided to stay away from Russia and to refrain from direct involvement in the criminal proceedings against her long before the trial. In such circumstances she may be regarded as having been sufficiently aware of the prosecution and the charges against her and as having deliberately chosen not to attend the hearings at the first-instance and appeal courts.<\/p>\n 31.\u00a0\u00a0The Court further notes that the domestic courts verified whether the applicant and her representatives had been duly notified of the hearing. They established that the authorities had put the applicant on the wanted list and had unsuccessfully tried to extradite her. The courts concluded that, in those circumstances, her failure to appear would not preclude the examination of the case under Article 247 \u00a7 5 of the Code of Criminal Procedure.<\/p>\n 32.\u00a0\u00a0Moreover, the applicant\u2019s interests during the proceedings were defended by a privately financed lawyer, Ms A., and a State-appointed lawyer, Ms Z. The State-appointed lawyer was notified of the various steps in the proceedings, including the applicant\u2019s conviction. It seems that in the beginning Ms A. had some difficulties in getting access to the case because she had failed to comply with certain formalities. However she was allowed to engage in the case after the formalities had been respected. Moreover, it seems that she was in contact with the State-appointed lawyer and submitted an appeal against the conviction. In these circumstances, the Court cannot but conclude that the applicant\u2019s rights during the criminal proceedings were secured.<\/p>\n 33.\u00a0\u00a0Accordingly, having regard to all the material in its possession and the conclusions above, the Court finds that the complaint related to the applicant\u2019s trial in absentia is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 18 April 2019.<\/p>\n Stephen Phillips\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Helen Keller
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n