Постановление Европейского суда по правам человека от 17.12.2009 «Дело Шилбергс (Shilbergs) против России» [англ.]

nt complained that his defence rights had been violated by the appeal court which had heard the criminal case against him as it had failed to appoint legal-aid counsel to represent him. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows:
"1. In the determination of... any criminal charge against him, everyone is entitled to a fair... 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 or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."

A. Submissions by the parties

116. The Government submitted that in February 2003 the applicant had asked the Kaliningrad Regional Court to appoint legal-aid counsel to represent him in the appeal proceedings. The request was not examined as the Regional Court believed that the Russian Code of Criminal Procedure did not provide for mandatory legal representation for defendants at the appeal stage. The Government stressed that the Regional Court's approach had been based on well-established judicial practice. However, they further submitted that the Constitutional Court of the Russian Federation, in its decision of 18 December 2003, had criticised that interpretation of the domestic legal norms as being erroneous. Following that decision by the Constitutional Court, the failure of an appeal court to guarantee the defendant's right to legal assistance constituted grounds for the institution of supervisory-review proceedings. The Government drew the Court's attention to the fact that the applicant had never filed a supervisory-review application.
117. The applicant submitted that he should have been provided with the assistance of legal-aid counsel during the appeal proceedings as the case had been a complex one and since he had no legal training or background he had been unable to represent his interests effectively, whereas the prosecution had been represented by professional lawyers who were experts in the field of criminal law.

B. The Court's assessment

1. Admissibility

118. The Court takes note of the Government's submission that the applicant had not sought the institution of supervisory-review proceedings with a view to remedying the defects which occurred at the appeal stage. In so far as the Government's objection can be understood as an allegation that the applicant failed to exhaust domestic remedies, the Court notes that it has already found in a number of cases against Russia that supervisory-review proceedings are not an effective remedy for the purpose of Article 35 § 1 of the Convention (see Gusinskiy v. Russia (dec.), No. 70276/01, 22 May 2003; Berdzenishvili v. Russia (dec.), No. 1697/03, 29 January 2004; and, more recently, Sutyagin v. Russia (dec.), No. 30024/02, 8 July 2008). In addition, the Court does not lose sight of the fact that, apart from a passing reference to the possibility of lodging a supervisory-review application, the Government did not provide the Court with any evidence (copies of judgments, etc.) confirming the existence of automatic review of final convictions in cases where legal assistance was denied to defendants at the appeal stage. In the circumstances, the Court rejects the Government's non-exhaustion objection.
119. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

120. The Court reiterates that sub-paragraph (c) of paragraph 3 of Article 6 attaches two conditions to an accused

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