Постановление Европейского суда по правам человека от 08.04.2010 «Дело Сабаев (Sabayev) против России» [англ.]

n appeal (see Lala v. the Netherlands, 22 September 1994, § 33, Series A No. 297-A).
35. The principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The latter means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see Brandstetter v. Austria, 28 August 1991, §§ 66 and 67, Series A No. 211).
(b) Application of the above principles to the instant case
36. The Court observes that the supervisory review proceedings under the Code of Criminal Procedure of 1960 were different from "ordinary" appeal proceedings in that, among other things, the power to initiate them was vested with certain senior judicial and prosecution officers, and not with the parties.
37. The fact remains, however, that the supervisory review court was not bound by the scope of the request for supervisory review but had the power to carry out a full-scale judicial review of the decisions in the case by quashing or amending them, remitting the case to lower courts or an investigator, or terminating the criminal proceedings partly or altogether (see paragraph 21). The Supreme Court did exercise its power by amending the conviction and the applicant's sentence, thereby determining a criminal charge against him (see paragraph 16).
38. Having regard to the above, the Court considers that in order to satisfy the principle of fairness enshrined in Article 6 of the Convention the Supreme Court should have notified the applicant or his defence lawyer of the contents of the prosecution's supervisory review request and the date and place of the hearing. Since the prosecution was later present at the supervisory review hearing of 19 November 2002 and made submissions, the principle of adversarial proceedings also required that the defence be present at that hearing in order to be able to contest and comment on the arguments advanced by the prosecution. In such circumstances, the Court rejects as irrelevant the Government's reference to the fact that the absence of the applicant and his counsel from the hearing was not unlawful under domestic law.
39. On the facts, the Court notes that the applicant was denied a proper opportunity to familiarise himself with the contents of the Deputy President's supervisory review request (see paragraphs 11 - 15). This made prior notice of the date of the supervisory review hearing (see paragraph 12) meaningless in practical terms, as the applicant was unable to present his arguments to the Supreme Court not only in person or through his defence counsel (see paragraphs 14 and 15), but also in writing. The Court cannot agree with the Government's reference to the notification and service of the relevant supervisory review request on the applicant's former counsel. The documents submitted by the applicant (see paragraph 13) clearly demonstrated that at the relevant time he was not represented by the lawyer in question or indeed by any other lawyer, and in the absence of a clear indication to the contrary the Supreme Court should have clarified this issue with the applicant himself.
40. Overall, the Court finds the above considerations sufficient to conclude that the supervisory review proceedings before the Supreme Court did not comply with the requirements of fairness.
41. There has therefore been a breach of Article 6 § 1 of the Convention.

II. Other alleged violations of the Convention

42. Lastly, as to the applicant's complaint about the trial court's allegedly unlawful composition, the Court notes that the grievance was brought out of time, as the last decision in the applicant's criminal case was taken on 19 Novem



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