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

o the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Quaranta v. Switzerland, 24 May 1991, § 30, Series A No. 205). In that connection it must be borne in mind that the Convention is intended to "guarantee not rights that are theoretical or illusory but rights that are practical and effective" and that assigning counsel does not in itself ensure the effectiveness of the assistance he or she may afford an accused (see Artico v. Italy, 13 May 1980, § 33, Series A No. 37, and Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A No. 275).
96. A person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance trial hearing. However, the attendance of the defendant in person does not necessarily take on the same significance for the appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case on questions of both fact and law, Article 6 does not always entail a right to be present in person. Regard must be had in assessing this question to, inter alia, the special features of the proceedings involved and the manner in which the defence's interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the appellant (see Helmers v. Sweden, 29 October 1991, §§ 31 - 32, Series A No. 212-A; Belziuk v. Poland, 25 March 1998, § 37, Reports 1998-II; Pobornikoff v. Austria, No. 28501/95, § 24, 3 October 2000; and Kucera v. Austria, No. 40072/98, § 25, 3 October 2002).
97. An accused's right to communicate with his lawyer without the risk of being overheard by a third party is one of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention (see Castravet v. Moldova, No. 23393/05, § 49, 13 March 2007). If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see inter alia the Artico judgment, cited above, § 33).
98. As regards the use of a 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 that effective and confidential communication with a lawyer is provided for (see Marcello Viola, cited above).
(b) Application to the present case
99. It is not disputed by the Government that the first hearing before the appellate court (in 2002) fell short of the requirements of Article 6 § 3 (c) of the Convention. However, they claimed that the authorities had done everything in their power to ensure that at the rehearing of the case in 2007 the applicant received legal assistance. Therefore, the Court will concentrate on the second set of the appeal proceedings.
100. The Court observes that the original conviction was quashed by the Presidium of the Supreme Court in 2007 specifically because of the breach of the applicant's right to legal assistance. It is thus clear that for the authorities the case was complex enough to require the assistance of a professional lawyer. Given that, as well as the Court's own assessment of the complexity of the issues raised before the appellate court, the Court concludes that the assistance of a lawyer was essential for the applicant in the second set of the appeal proceedings.
101. The Court has considered the arguments of the Government in

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