FIRST SECTION
DECISION
Application no. 22862/05
Oleg Anatolyevich KAYMASHNIKOV
against Russia
The European Court of Human Rights (First Section), sitting on 23 June 2015 as a Committee composed of:
Khanlar Hajiyev, President,
Julia Laffranque,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 11 May 2005,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Oleg Anatolyevich Kaymashnikov, is a Russian national, who was born in 1964 and is detained in Kamensk-Uralskiy.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant stood trial for attempted murder and robbery. During the first instance hearing the applicant was represented by legal aid counsel.
4. On 18 June 2004 the Sverdlovskiy Regional Court convicted the applicant and sentenced him to fifteen years’ imprisonment. The applicant appealed. On 17 January 2005 the Supreme Court of Russia examined the applicant’s case on appeal. The applicant participated in the hearing by video link. According to the applicant, the court rejected his request for free legal assistance. The prosecutor was present in the courtroom and made oral submissions. The court upheld the conviction.
5. On 2 March 2011 the Presidium of the Supreme Court granted an application for supervisory review by the Deputy Prosecutor General and quashed the appeal judgment of 17 January 2005. The Presidium found that the applicant’s right to legal assistance had been violated in the appeal proceedings and remitted the case for a fresh examination before the appellate court.
6. On 18 April 2011 the Supreme Court postponed the hearing till 25 April 2011 to allow the applicant and his lawyer to discuss the case.
7. On 23 May 2011 the Supreme Court upheld the first instance judgment. The applicant communicated with the court of appeal by video link and was represented by legal aid counsel.
COMPLAINTS
8. The applicant complained under Article 6 § 3 (c) of the Convention that the second instance court did not appoint a counsel to represent him at the appeal hearing.
9. The applicant also raised additional complaints with reference to various Articles of the Convention and its Protocols.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
10. The applicant submitted that, although the Supreme Court had appointed a defence lawyer to represent him at the new hearing, the legal assistance was not effective. In particular, the applicant and his lawyer could not communicate in private or study together the case file.
11. The Government did not submit any comments.
12. The Court observes that the applicant was not represented at the appeal hearing of 17 January 2005. The Court also notes that, further to the prosecutor’s intervention and the Supreme Court’s decision of 2 March 2011, on 23 May 2011 a new appeal hearing was held with the participation of a lawyer.
13. The Court reiterates that an applicant may lose his status as a “victim” of the alleged violation if two conditions are met: first, the authorities must have acknowledged, either expressly or in substance, the breach of the Convention and, second, they must have afforded redress for it. The alleged loss of the applicant’s victim status involves an examination of the nature of the right in issue, the reasons advanced by the national authorities in their decision and the persistence of adverse consequences for the applicant after the decision. The appropriateness and sufficiency of redress depend on the nature of the violation complained of by the applicant (see Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 67 and 70, 2 November 2010).
14. Turning to the present case, the Court observes that, by decision of 2 March 2011, the Supreme Court explicitly acknowledged a violation of the applicant’s right to legal assistance in the appeal proceedings and ordered a fresh appeal hearing. The latter was held on 23 May 2011.
15. The Court also notes that the applicant was represented by a lawyer at the hearing. In so far as the applicant complained that he did not have time to go over the case file with his lawyer, it is noted that, at the applicant’s request, the Supreme Court postponed the hearing for seven days to allow the applicant and his lawyer to discuss the matter.
16. In these circumstances, the Court considers that the rehearing of the case was an adequate redress for the breach of the applicant’s right to legal assistance in the first appellate hearing, capable of depriving him of victim status (see, by contrast, Sakhnovskiy, cited above, §§ 76-84 and 99-107).
17. It follows that the applicant can no longer claim to be a “victim” of the alleged violation of Article 6 §§ 1 and 3 (c) of the Convention within the meaning of Article 34 of the Convention and that this part of the application must be rejected pursuant to Articles 34 and 35 §§ 3 (a) and 4.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
18. The applicant also raised additional complaints with reference to various Articles of the Convention and its Protocols.
19. Having regard to all the material in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols in that part of the application.
20. It follows that the application in this part 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 16 July 2015.
André WampachKhanlar Hajiyev
Deputy RegistrarPresident
Full & Egal Universal Law Academy