Постановление Европейского суда по правам человека от 17.12.2009 «Дело Шилбергс (Shilbergs) против России» [англ.]

's right to receive legal aid. The first, "lack of sufficient means to pay for legal assistance", is not in dispute in the present case. The only issue before the Court is therefore whether the "interests of justice" required that the applicant be granted such assistance free.
121. The Court observes that a similar situation has already been examined in another case against Russia in which the applicant, who had been convicted of murder and sentenced to thirteen years' imprisonment, complained of his inability to obtain legal representation during the appeal proceedings in the criminal case against him (see Shulepov v. Russia, No. 15435/03, §§ 34 - 39, 26 June 2008). In that case, the Court, taking into account three factors - (a) the fact that the jurisdiction of appeal courts in Russia extended to both legal and factual issues and that they were thus empowered to fully review the case and to consider additional arguments which had not been examined in the first-instance proceedings, (b) the seriousness of the charges against the applicant and (c) the severity of the sentence which he had faced - found that the assistance of a legal-aid lawyer at that stage was essential for the applicant, as "the former could have effectively drawn the appeal court's attention to any substantial argument in the applicant's favour, which could have influenced the court's decision". In addition, the Court, finding that the interests of justice demanded that, in order to receive a fair hearing, the applicant should have benefited from legal representation at the appeal hearing, held as follows:
"37. The Court further notes that according to the Russian Code of Criminal Proceedings, 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.
38. 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, notwithstanding the fact that he had failed to request this explicitly. In this respect the Court notes that the applicant never unequivocally waived his defence rights. However, no attempt whatsoever had been made to appoint a lawyer or to adjourn the appeal hearing in order to secure the presence of a lawyer later.
39. In view of the above considerations the Court finds that the proceedings before the Sverdlovsk Regional Court did not comply with the requirements of fairness. There has, therefore, been a breach of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention."
122. The Court considers that its reasoning in the case of Shulepov v. Russia (cited above) is fully applicable to the circumstances of the present case. The Court takes cognisance of the wide powers that the Kaliningrad Regional Court, acting on appeal, had over the applicant's case, including the power to dispose of his appeal. It also observes that the Regional Court's decision was final. The Court further accepts the applicant's assertion that the legal issues in his criminal case were of particular complexity, involving determination of the constituent elements of a number of aggravated criminal offences, assessment of the degree of liability of several co-defendants, including their level of personal culpability, establishment of a variety of mitigating and aggravating circumstances and examination of the negative of the defences raised. The Court also attributes particular weight to the fact that the applicant did not himself formulate the grounds for his appeal (see paragraph 15 above). The Court is therefore of the view that without the services of a legal practitioner the applicant was not in a position to articulate the arguments raised in the appeal statement and could not competently address the court on the legal issues involved, and thus was unable to defend hi



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