FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 17279/05
by Yevgeniy Viktorovich TIMOSHIN
against Russia
The European Court of Human Rights (First Section), sitting on 17 May 2011 as a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
George Nicolaou,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 28 March 2005,
Having regard to the comments submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Yevgeniy Viktorovich Timoshin, is a Russian national who was born in 1967 and is currently serving his sentence in Revda in the Murmansk Region. The respondent Government are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 May 2004 the Moscow Regional Court in a jury trial convicted the applicant of a number of serious criminal offences, including two counts of murder, attempted murder and robbery, and sentenced him to twenty-two years’ imprisonment and a fine in the amount of 2,500 roubles (RUB). During the trial the applicant, represented by a lawyer of his own choosing, protested his innocence.
On 26 May 2006 he lodged an appeal before the Supreme Court of the Russian Federation (“Supreme Court”). He also made a special request to ensure his participation, as well as the participation of his counsel, in the appeal hearing.
On 6 October 2004 the Supreme Court held an appeal hearing in which the applicant took part by videoconference. His lawyer did not appear. The public prosecutor was present and made his oral submissions. By the judgment of the same date, the Supreme Court of Russia upheld the applicant’s conviction and sentence.
On 6 October 2010, on request by the Deputy Prosecutor General, the Presidium of the Supreme Court, by way of supervisory review proceedings, quashed the judgment of 6 October 2004 on the ground that the applicant’s right to legal assistance had been infringed and remitted the case for a fresh examination before the appellate court.
On 30 November 2010 the Supreme Court held a fresh appeal hearing. The applicant participated in the hearing by video link. At the beginning of the hearing, the court introduced the applicant to Mr R., a court-appointed counsel who was present in the Supreme Court’s courtroom. The applicant asked the court to provide him with an opportunity to discuss confidentially the strategy of his defence with counsel by means of video link. His request was granted. The court then proceeded with the examination of the applicant’s appeal. It studied the case file and heard oral submissions by the applicant, his representative and the public prosecutor. Mr R., in particular, pointed to numerous procedural violations, and asked to quash the judgment of 18 May 2004 and remit the applicant’s case to the trial court for the fresh examination. By the judgment of the same date, the Supreme Court upheld the applicant’s conviction and reduced his sentence to twenty years’ imprisonment. According to the court record, the applicant had neither objections nor comments as regards the conduct of the proceedings.
COMPLAINTS
Without referring to any particular provision of the Convention, the applicant complained that he had not been able to participate effectively in the appeal hearing of 6 October 2004. In particular, he complained that the authorities had failed to provide him with legal assistance.
He also complained, in general terms, under Articles 3, 5, 6, 8, 10, 13 and 14 of the Convention about miscellaneous violations in the course of the preliminary investigation and the court proceedings, in particular, humiliation, a lack of impartiality of the domestic courts, poor quality of the videoconference arranged for the hearing on 6 October 2004, the outcome of the trial, disrespect for his private life and, finally, a lack of effective remedies and discrimination.
THE LAW
1. The applicant complained that his participation in the appeal hearing of 6 October 2004 had been ineffective owing to the lack of legal assistance. The Court considers that this complaint falls within the ambit of Article 6 §§ 1 and 3 (c) of the Convention which provides as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing ...”
The Government submitted that the alleged violation of Article 6 of the Convention had been remedied by the judicial decisions of 6 October 2010 and 30 November 2010 of the Presidium of the Supreme Court and the Supreme Court, respectively.
The applicant did not submit any specific comments.
By Article 34 of the Convention, “the Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...”. The question whether or not the applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see E. v. Austria, no. 10668/83, Commission decision of 13 May 1987, Decisions and Reports 52, p. 177).
In situations where an alleged violation has already occurred, subsequent events can give rise to a loss of the status of “victim”, provided that the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36).
The Court reiterates that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems (see Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, § 50, Series A no. 20; Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I; and Sisojeva and Others v. Latvia [GC], no. 60654/00, § 90, ECHR 2007-II).
In the present case the Presidium of the Supreme Court explicitly acknowledged the infringement of the applicant’s right to legal assistance in the appeal proceedings and ordered a fresh appeal hearing. The latter was held on 30 November 2010. The appeal court appointed a defence lawyer whose service was accepted by the applicant. Before the court started the examination of the appeal, the applicant and his counsel discussed the case and the strategy of the defence. Then both of them made their oral submissions. In this respect, the Court notes that the applicant did not allege that the time allotted for his communication with the counsel had been insufficient or that the means of communication failed to ensure due confidentiality. By the fresh judgment, the appeal court reduced the applicant’s sentence.
Having regard to the content of the judgments of 6 October and 30 November 2010 and, in particular, to the way the court hearing was organised and carried out on 30 November 2010, the Court considers that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention (see, by contrast, Sakhnovskiy v. Russia [GC], no. 21272/03, 2 November 2010, where the Court found a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c) in respect of the criminal proceedings on account of ineffectiveness of legal assistance provided to the applicant by
state-appointed counsel).
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.
2. The Court has examined the remainder of the applicant’s complaints. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 o f the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenNina Vajić
RegistrarPresident
Full & Egal Universal Law Academy