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

a lawyer only in writing, and that the court was not bound by that waiver.

THE LAW

I. The Government's preliminary objections

A. Concerning the alleged non-exhaustion
of domestic remedies

40. In their request for referral the Government put forward two preliminary objections. The Government maintained that the applicant had failed to exhaust domestic remedies as regards his complaint about the second set of the appeal proceedings. In particular, he had not lodged an application for supervisory review against the judgment of 29 November 2007. In support of that position the Government referred to the decisions of the Constitutional Court of Russia and of the Presidium of the Supreme Court of Russia in other cases where legal assistance had been denied to defendants at the appeal stage (see paragraphs 38 - 39 above).
41. The applicant argued that the pursuit of that remedy (supervisory review) was a virtually interminable process and for that reason this Court had not considered it to be an "effective remedy". Further, he indicated that his own efforts to obtain supervisory review of the first judgment (that of 2002) had been futile until such time as the Prosecutor General's office had felt compelled to intervene following notification that the applicant had turned to this Court for redress.
42. The Court confirms that it has consistently refused to recognise a supervisory review appeal as an "effective remedy" for the purposes of Article 35 of the Convention (see Berdzenishvili v. Russia (dec.), No. 31697/03, ECHR 2004-II (extracts); Shulepov v. Russia, No. 15435/03, § 23, 26 June 2008; Adzhigovich v. Russia, No. 23202/05, § 21, 8 October 2009; and Shilbergs v. Russia, No. 20075/03, § 118, 17 December 2009). That approach is based to a large extent on the procedural particularity of the supervisory review in Russian criminal procedure, which does not establish any time-limits for bringing such an action. In Berdzenishvili the Court noted that, under the Code of Criminal Procedure supervisory-review appeals could be lodged at any time after a judgment became enforceable, even years later. The Court concluded that "if the supervisory-review procedure under [that Code] were considered a remedy to be exhausted, the uncertainty thereby created would render nugatory the six-month rule".
43. The domestic case-law referred to by the Government cannot support their assertion that a supervisory-review appeal would be an effective remedy. Even if it has worked in some other cases, it still has procedural features which have led the Court to characterise it as an extraordinary remedy and not part of the normal exhaustion process. None of the decisions referred to by the Government could have led to the automatic reopening of the applicant's case; access to the Presidium of the Supreme Court would still depend on the discretion of judges or prosecution officials and would remain, as the applicant put it, a "virtually interminable process" owing to the absence of time-limits.
44. Finally, the Court notes that the problem addressed by the Constitutional Court and the Presidium of the Supreme Court was not the same as the matter at issue in the present case. The decisions cited by the Government concerned the refusal to appoint a legal-aid lawyer in appeal proceedings. The Court points out that the Government's plea of non-exhaustion concerned the second set of the appeal proceedings, in which the applicant had been given a lawyer to represent him. The central question raised before this Court in respect of the hearing of 29 November 2007 was not the absence of the lawyer, but rather the absence of effective legal assistance by her. None of the cases cited by the Government concerned that issue and could not therefore be relied upon by the applicant in his supervisory-review complaints.



> 1 2 3 ... 5 6 7 ... 19 20 21

	Поделиться:	Tweet