Постановление Европейского суда по правам человека от 05.02.2009 "Дело "Сахновский (Sakhnovskiy) против Российской Федерации" [рус., англ.]

00; and Kucera v. Austria, No. 40072/98, § 25, 3 October 2002).
43. As regards the use of the video link, the Court reiterates that this form of participation in proceedings is not as such incompatible with the notion of a fair and public hearing, but it must be ensured that the applicant is able to follow the proceedings and to be heard without technical impediments, and effective and confidential communication with a lawyer must be provided for (see Marcello Viola v. Italy, No. 45106/04, ECHR 2006-... (extracts)).
44. Finally, neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, entitlement to the guarantees of a fair trial (see Talat {Tunc} v. Turkey, No. 32432/96, § 59, 27 March 2007). Such a waiver must however be established unequivocally and must not run counter to any important public interest (see Sejdovic v. Italy [GC], No. 56581/00, § 86, ECHR 2006-...).
(b) Application of the above principles to the instant case
45. The Court observes that in Russia the jurisdiction of appeal courts extends both to legal and factual issues. The Supreme Court thus had the power to fully review the case and to consider additional arguments which had not been examined in the first-instance proceedings. Given the seriousness of the charges against the applicant and the severity of the sentence to which he had been liable, the Court considers that the assistance of a legal-aid lawyer at this stage was essential for the applicant, as the former could effectively draw the appeal court's attention to any substantial argument in the applicant's favour which might influence the court's decision.
46. The Court further notes that according to the Russian Code of Criminal Procedure, as interpreted by the Russian Constitutional Court, the onus of appointing a legal aid lawyer rested upon the relevant authority at each stage of the proceedings (see paragraphs 28 - 29 above). Thus it was incumbent on the judicial authorities to appoint a lawyer for the applicant to ensure that the latter received the effective benefit of his rights.
47. It has been acknowledged by the Government that the first set of proceedings that ended on 31 October 2002 fell short of the guarantees related to legal assistance. However, they contended that the supervisory review conducted in 2007 removed that procedural defect by quashing the appeal decision taken in the absence of the applicant's lawyer.
48. To assess whether the supervisory review has indeed remedied the defects of the original proceedings, as alleged by the Government, the Court will have to verify whether the guarantees in question have been afforded in the ensuing proceedings. It follows from the Supreme Court's decision of 29 November 2007, taken on the preliminary point of procedure, that in the new appeal proceedings the applicant was assigned a legal-aid counsel, Ms A., who was present in the courtroom in Moscow. However, the applicant, who followed the hearing from a detention facility in Novosibirsk by video link, attempted to refuse her assistance on the grounds that he had never met that counsel other than through the video link immediately before the start of the hearing. It had been noted by the Supreme Court that despite the guarantee of confidentiality of communication with Ms A. offered to the applicant at the beginning of the hearing (which was achieved by ordering everyone out of the courtroom in Moscow), the applicant insisted that he would not accept counsel he had not met in person. The Supreme Court also noted that the applicant had not requested replacement counsel or leave to retain one privately and concluded that the applicant's refusal had been unreasonable, confirming his representation by Ms A.
49. It follows that the defence counsel appointed to represent the applicant in the ne

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