Rejection of a request for an extension of the time limit for appeal against a conviction without a sufficient reason. Violation of a right to a dual degree of jurisdiction in matters of criminal law
JUDGMENT
Y.B. v. Russia 20.07.2021 (app. no. 71155/17)
SUMMARY
Right to review by a higher court a conviction. Extension of the deadline for filing an appeal and lack of justification for rejecting a relevant request.
The applicant was sentenced to 15 years in prison for illegally distributing pornographic material and abusing minors. He did not file an appeal on time but requested an extension of the deadline for filing an appeal citing a reason for the extension. His request was rejected in his absence without sufficient reason. He brought an action before the ECtHR for violation of Article 2 of the 7th Protocol.
The Court reiterated that the restrictions contained in national law on the right of reconsideration of criminal proceedings referred to in that provision must, in proportion to the right of access to a court set out in Article 6 § 1 of the ECHR, pursue a legitimate aim and not to violate the very core of the right.
The ECtHR found that the respondent State provided in its legislation for three cases of appeal against a conviction. As a general rule, an appeal could be lodged within 10 days of the issuance of the first instance decision, but if this deadline had elapsed, the accused could appear before the competent court requesting the annulment of the decision with an overdue appeal. He could also request a new deadline for an appeal if the extension of the deadline was justified. The applicant chose the latter case.
In the present case, Strasbourg observed that the applicant requested an extension of the time limit for lodging an appeal without appearing in person before the court. The domestic court rejected his request without issuing a reasoned decision, as required by law. Thus, the applicant could not have his criminal case re-examined in the second instance.
The ECtHR ruled by a majority that the applicant had been deprived of the possibility of exercising his right to a dual degree of jurisdiction in criminal matters effectively and found a violation of Article 2 of Protocol No. 7.
PROVISION
Article 2 of Protocol no. 7
PRINCIPAL FACTS
The applicant, Mr Y.B., is a French national who was born in 1978 and lives in France.
The case concerns his complaint that he was unable to appeal against his conviction in Russia for
production and distribution of pornography and child pornography and for child molestation. He was
convicted in his absence and sentenced to 15 years’ imprisonment.
Relying on Article 2 of Protocol No. 7 (right of appeal in criminal matters) to the Convention, the
applicant complains that the Russian courts refused to accept and examine his statement of appeal,
noting that conviction in absentia was not amenable to appeal.
THE DECISION OF THE COURT…
The Court reiterates that the Contracting States in principle enjoy a wide margin of appreciation in determining how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both points of fact and points of law, or be confined solely to points of law. Furthermore, in certain countries, a defendant wishing to appeal may sometimes be required to seek permission to do so. However, any restrictions contained in domestic legislation on the right to a review mentioned in that provision must, by analogy with the right of access to a court embodied in Article 6 § 1 of the Convention, pursue a legitimate aim and not infringe the very essence of that right (see Krombach v. France, no. 29731/96, § 96, ECHR 2001‑II; and, mutatis mutandis, Naït-Liman v. Switzerland [GC], no. 51357/07, §§ 114-15, 15 March 2018; and Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 195, 25 June 2019).
The Court further reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of the interpretation are compatible with the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018, and Molla Sali v. Greece [GC], no. 20452/14, § 149, 19 December 2018). However, the authorities should respect and apply domestic legislation in a foreseeable and consistent manner (see Jovanović v. Serbia, no. 32299/08, § 50, 2 October 2012). In cases concerning access to court, it may fall to the Court to determine, in particular, whether the applicant was able to count on a coherent system that struck a fair balance between the authorities’ interests and his own interests (see De Geouffre de la Pradelle v. France, 16 December 1992, § 34, Series A no. 253‑B, and Maširević v. Serbia, no. 30671/08, § 48, 11 February 2014).
As regards Russian national law, the Court notes that it provides a defendant convicted in absentia with three avenues, as regards a possibility to challenge a conviction. As a general rule, it is possible to lodge an appeal against a conviction within ten days of the delivery of the judgment by the court at first level of jurisdiction. Furthermore, once the ten-day limit has passed and the judgment has become final, the defendant may either present him- or herself physically before the competent court asking for his conviction to be quashed, by way of cassation appeal, and a retrial, or ask for reinstatement of the time-limit for appeal should he or she consider such reinstatement justified. In this last case the law does not require that the defendant present him- or herself in person to lodge such application. The competent court is to hold a hearing on the issue and to deliver a reasoned decision which itself is amenable to appeal.
Turning to the circumstances in the present case, the Court observes that the applicant opted for the third avenue. He chose to apply for the reinstatement of the time-limit for appeal without presenting himself physically before the court. In response, the District Court’s President refused to entertain the applicant’s request noting, in a non-procedural letter, that conviction in absentia was not amenable to appeal. There was no hearing held. Nor did the President issue a reasoned decision on the matter, as required by law.
The Court reiterates, in this connection, that it is of capital importance that a defendant should appear in person in the criminal proceedings and that the legislature must accordingly be able to discourage unjustified absences (see Poitrimol v. France, 23 November 1993, § 35, Series A no. 277‑A). Nevertheless, it does not lose sight that the domestic legislation clearly provides for the right to apply for reinstatement of the time-limit for appeal against conviction in absentia and does not require the applicant’s physical presence for the examination of such request, irrespective of the obligation of the defendant to be eventually physically present at the trial on the merits of the charges brought against him or her once the time-limit for appeal has been reinstated.
As the applicant has been deprived of the possibility to have a hearing – even in his absence – on his request to have the time-limit for appeal reinstated, it appears that the dismissal of his relevant request deprived him of a possibility to exercise this right effectively. There has been accordingly a violation of Article 2 of Protocol No. 7 to the Convention.
