Постановление Европейского суда по правам человека от 02.11.2010 «Дело Сахновский (Sakhnovskiy) против России» [англ.]

ements of Article 6 the applicant should obtain something more - a mitigation of sentence, for instance.
74. Another case from this group is Babunidze (cited above), referred to by both parties. In that case the applicant had complained that he had been unable to attend hearings both before and after the quashing by the Supreme Court of the judgment in a civil case in which he was a defendant. In that case the parties agreed that the Supreme Court had acknowledged the violation of the applicant's rights by the district court's failure to summon him to the hearing of 19 March 2002. However, the applicant argued that in the course of the new examination the district and regional courts had once again failed to provide him with an effective opportunity to participate in the hearings. The Court accepted that the question of redress required the examination of "whether the applicant was provided with an opportunity to participate effectively in the re-examination of his case". Having considered that in the circumstances of the case the applicant had been given ample opportunity to attend the hearings in the fresh set of proceedings, the Court concluded as follows:
"Therefore, having regard to the content of the Supreme Court's judgment of 14 October 2003 and the subsequent re-examination of the applicant's case during which he had been afforded an effective opportunity to attend hearings and present his arguments, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention which occurred as a result of the authorities' failure to summons the applicant to the hearing of 19 March 2002..."
75. The Court observes, against this background, that its case-law concerning the effects of reopening on the applicant's victim status needs to be clarified.
(c) Application to the present case
76. At the outset, the Court reiterates that the European system for the protection of human rights is founded on the principle of subsidiarity. The States should be given a chance to put right past violations before the complaint is examined by the Court; however, "the principle of subsidiarity does not mean renouncing all supervision of the result obtained from using domestic remedies" (see Giuseppe Mostacciuolo v. Italy (No. 2) [GC], No. 65102/01, § 81, 29 March 2006). Moreover, the principle of subsidiarity should not be construed so as to allow the States to evade the Court's jurisdiction.
77. Indeed, a criminal defendant cannot claim to be a victim of a violation of Article 6 § 3 before he is convicted (see X v. the United Kingdom, No. 8083/77, Commission decision of 13 March 1980, Decisions and Reports 19, p. 223; {Eginlioglu} v. Turkey, No. 31312/96, Commission decision of 21 October 1998, unreported; Osmanov and Husseinov v. Bulgaria (dec.), Nos. 54178/00 and 59901/00, 4 September 2003; and Witkowski v. Poland (dec.), No. 53804/00, 3 February 2003). This is also true in respect of most of the guarantees of Article 6 § 1 of the Convention (with some exceptions concerning, for instance, the requirement of reasonable length of the proceedings, access to court, etc. - see, for example, Polonskiy v. Russia, No. 30033/05, §§ 160 et seq., 19 March 2009; Kart v. Turkey [GC], No. 8917/05, §§ 71 et seq., 3 December 2009; see also, in the context of civil proceedings, {Mihajlovic} v. Croatia, No. 21752/02, §§ 26 et seq., 7 July 2005). It may appear that the reopening of the case "returns" the applicant to the situation existing before he became a victim and restores the status quo ante.
78. However, in the opinion of the Court this approach is not appropriate in the circumstances of the present case. Acquiring and losing victim status are not necessarily governed by the same rules (see paragraph 66 above). It is clear that the applicant in the present case had become a victim before he



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