Information Note on the Court’s case-law No. 135
November 2010
Sakhnovskiy v. Russia [GC] - 21272/03
Judgment 2.11.2010 [GC]
Article 6
Article 6-3-c
Defence through legal assistance
Lack of personal contact prior to appeal hearing with legal-aid counsel who had to plead the applicant’s case on the basis of submissions of another lawyer: violation
Article 34
Victim
Reopening of proceedings by way of supervisory review: victim status upheld
Facts – In 2001 the applicant was convicted of murder and sentenced to a term of imprisonment. In 2002 the Supreme Court dismissed his appeal. In 2007 the Presidium of the Supreme Court granted a request for supervisory review, quashed the appeal decision and remitted the case for fresh examination, finding that the applicant’s right to legal assistance had been violated at the appeal hearing. In the new appeal proceedings the applicant followed the hearing from a detention facility by video link as the Supreme Court rejected his request to attend it in person. Before the start of the hearing he was introduced to his new legal-aid counsel, who was present in the courtroom, and they were allowed fifteen minutes of confidential communication by video link. The applicant attempted to refuse the assistance of the counsel on the grounds that he had never met her in person. The Supreme Court rejected his objection to the counsel’s assistance as unreasonable, noting that the applicant had not requested replacement counsel or leave to retain counsel privately. In a separate decision the Supreme Court decided that it would not accept a new statement of appeal from the applicant and would consider his position on the basis of the submissions made by his former counsel before the previous appeal hearing in 2002. On the same day the Supreme Court examined the merits of the case and upheld the judgment of 2001.
Law – Article 6 § 1 in conjunction with Article 6 § 3 (c)
(a) Victim status – The authorities had acknowledged the original violation of the applicant’s rights under Article 6, at least as regards the lack of appropriate legal aid in the appeal proceedings of 2002. However, in the Court’s opinion, the mere reopening of the case had not been sufficient to deprive the applicant of his victim status. This view was closely linked to the particular features of the Russian system of supervisory review, as it operated at the material time. In the first place, there were no limits as to the number of times or the circumstances in which the case could be reopened. Second, reopening was at the discretion of the State prosecutor or judge who decided whether a supervisory-review complaint or application deserved to be examined on the merits. Whether it was a prosecutor lodging an application for reopening or the president of the court reversing a decision of a judge not to entertain a supervisory-review complaint, the decision might be taken proprio motu. This would make it possible for the respondent State to evade the Court’s substantive review by continuously reopening the proceedings. Moreover, domestic proceedings were frequently reopened at the instigation of the Russian authorities when they learned that the case had been admitted for examination in Strasbourg. Sometimes it benefited the applicant, in which case the reopening served a useful purpose. However, given the ease with which the Government used this procedure, there was also a risk of abuse. If the Court were to accept unconditionally that the mere fact of reopening the proceedings was to have the automatic effect of removing the applicant’s victim status, the respondent State would be capable of thwarting the examination of any pending case by having repeated recourse to supervisory-review proceedings, rather than correcting the past violations by giving the applicant a fair trial. To ascertain whether or not the applicant retained his victim status the Court would consider the proceedings as a whole, including the proceedings which had followed the reopening. This approach enabled a balance to be struck between the principle of subsidiarity and the effectiveness of the Convention mechanism. In the instant case, the mere reopening of the proceedings by way of supervisory review had failed to provide appropriate and sufficient redress for the applicant.
Conclusion: preliminary objection dismissed (unanimously).
(b) Re-communication of applicant’s complaint – The Government had argued that the Court should have brought to their attention the applicant’s complaints concerning the second set of appeal proceedings. The applicant had complained about the second appellate hearing of November 2007 by submitting additional pleadings in March 2008. A copy of those pleadings had been sent to the Government in good time. Nothing had prevented the Russian authorities from submitting comments in turn. As the Court had later accepted the Government’s request for the examination of the case by the Grand Chamber, the Government had had yet another opportunity to make comments. Therefore, the Government had been placed on an equal footing with the applicant to present their position in the case.
(c) Waiver of legal assistance – In 2007 the applicant had expressed his dissatisfaction with how his legal assistance had been organised by the Supreme Court and had refused to accept his newly-appointed lawyer’s services. Indeed, he had not asked for a replacement lawyer or for an adjournment of the hearing, but, given that he had had no legal training, he could not have been expected to make specific legal claims. His failure to do so could not, therefore, be considered a waiver of his right to legal assistance.
(d) Effectiveness of legal assistance – It was clear that for the authorities the case was complex enough to require the assistance of a professional lawyer. While the newly-appointed lawyer was qualified and had a priori been prepared to assist the applicant, these arguments were not decisive. The applicant had been able to communicate with the lawyer for only fifteen minutes, immediately before the start of the hearing. Given the complexity and seriousness of the case, the time allotted had clearly not been sufficient for the applicant to discuss the case and make sure that the lawyer’s knowledge of the case and legal position were appropriate. Moreover, it was questionable whether communication by video link had offered sufficient privacy. In the case at hand, the applicant had had to use the video-conferencing system installed and operated by the State. He might legitimately have felt ill at ease when he discussed his case with the lawyer. The Government had not explained why it had been impossible to make different arrangements for the applicant’s legal assistance. It was true that transporting the applicant to Moscow for a meeting with his lawyer would have been a lengthy and costly operation. While emphasising the central importance of effective legal assistance, the Court had to examine whether in view of this particular geographic obstacle the Government had undertaken measures which had sufficiently compensated for the limitations of the applicant’s rights. Nothing had prevented the authorities from organising at least a telephone conversation between the applicant and the lawyer more in advance of the hearing. Nor had anything prevented them from appointing a lawyer from the town where the applicant was held who could have visited the applicant in the detention centre and been with him during the hearing. Furthermore, it was unclear why the Supreme Court had not assigned the representation of the applicant to the lawyer who had already defended him before the first-instance court and prepared the original statement of appeal. Finally, the Supreme Court could have adjourned the hearing on its own motion so as to give the applicant sufficient time to discuss the case with the new lawyer. The arrangements made by the Supreme Court had been insufficient and had not secured effective legal assistance to the applicant during the second set of appeal proceedings. Accordingly, the second set of appeal proceedings had failed to cure the defects of the first: in neither 2002 nor 2007 had the applicant been able to enjoy effective legal assistance.
Conclusion: violation (unanimously).
Article 41: EUR 2,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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