THIRD SECTION
\nDECISION<\/p>\n
Application no. 46603\/11
\nOleg Nikolayevich YANECHKO
\nagainst Russia<\/p>\n
The European Court of Human Rights (Third Section), sitting on 23\u00a0October 2018 as a Committee composed of:<\/p>\n
Helen Keller, President,
\nPere Pastor Vilanova,
\nMar\u00eda El\u00f3segui, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 14 July 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 The applicant, Mr Oleg Nikolayevich Yanechko, is a Russian national who was born in 1968 and lives in Yekaterinburg.<\/p>\n The Russian Government (\u201cthe Government\u201d) were represented by Mr\u00a0M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n On 9\u00a0July 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\u2019s request for him not to do so. A. refused to leave despite the applicant\u2019s requests. They got into an argument which led to an altercation during which the applicant shot A. in the right leg.<\/p>\n On an unspecified date the applicant was indicted on charges of having made a death threat to A. (Article\u00a0119\u00a0\u00a7\u00a01 of the Russian Criminal Code) and having caused bodily harm to him (Article\u00a0112\u00a0\u00a7\u00a01 of the Russian Criminal Code).<\/p>\n On 13\u00a0March 2009 a justice of peace of Judicial Circuit no.\u00a06 of Pervouralsk found the applicant guilty as charged. The court sentenced the applicant to two and a half\u00a0years\u2019 imprisonment but suspended the sentence. The applicant maintained his innocence, arguing that he had acted in self\u2011defence.<\/p>\n On 18\u00a0May 2010 the Pervouralsk Town Court of Sverdlovsk Region upheld the applicant\u2019s 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.<\/p>\n The applicant appealed, maintaining his innocence. He reiterated that his actions had amounted to self-defence, given A.\u2019s behaviour. The prosecutor submitted that the case should be remitted for fresh consideration to the Town Court in view of certain procedural irregularities.<\/p>\n On 14\u00a0January 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\u2019s 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\u00a0213). The court sentenced the applicant to six months\u2019 imprisonment but suspended the sentence and relieved him from serving it.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n In its Ruling no.\u00a028 of 23\u00a0December 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\u2019s situation or (2) did not violate the defendant\u2019s 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.<\/p>\n COMPLAINTS<\/strong><\/p>\n The applicant complained under Article 6\u00a0\u00a7\u00a71 and 3\u00a0(a) and (b) of the Convention that on 14\u00a0January 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.<\/p>\n THE LAW<\/strong><\/p>\n 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:<\/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 …<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n (a)\u00a0\u00a0to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;<\/p>\n (b)\u00a0\u00a0to have adequate time and facilities for the preparation of his defence[.]\u201d<\/p>\n 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.<\/p>\n 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.<\/p>\n The Court observes that the principles concerning the right to be informed of the nature and the cause of the accusation and the accused\u2019s right to prepare his or her defence are well-developed in the Court\u2019s case\u2011law and have been summarised in the case of P\u00e9lissier and Sassi(P\u00e9lissier and Sassi v. France [GC], no. 25444\/94, \u00a7\u00a7\u00a051-54, ECHR 1999\u2011II).<\/p>\n Turning to the circumstances of the present case and having examined the parties\u2019 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\u2019s 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\u00a0213 and not Article\u00a0212 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<\/a>, \u00a7\u00a0259, 28 June 2018).<\/p>\n 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\u2019s case. It dropped the death-threat charge, a fact which cannot but be construed as having been favourable to the applicant\u2019s 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\u2019s submissions, the appellate court merely accepted that the victim\u2019s behaviour had been such as to provoke the applicant\u2019s actions and concluded that the applicant had committed the offence in extenuating circumstances and reduced his sentence.<\/p>\n The appellate court\u2019s reliance on the extenuating circumstance, in the Court\u2019s view, does not constitute an element in respect of which it was necessary for the applicant to prepare a new line of defence (contrast P\u00e9lissier and Sassi, cited above, \u00a7\u00a7\u00a057-62).<\/p>\n 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\u00a035 \u00a7\u00a7 3 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 22 November 2018.<\/p>\n Fato\u015fArac\u0131\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 Helen Keller
\nDeputy Registrar\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