Постановление Европейского суда по правам человека от 30.07.2009 «Дело Ананьев (Ananyev) против России» [англ.]

absence. At that point of the proceedings, the applicant was not represented by a lawyer whose services he had previously waived.
44. The Court observes at the outset that it is essential for the proper administration of justice that dignity and order in the courtroom be the hallmarks of judicial proceedings. The flagrant disregard by a defendant of elementary standards of proper conduct neither could nor should have been tolerated.
45. The Court accepts that the applicant's behaviour was of such a nature that it might have been justifiable to remove him from the courtroom and to continue the trial in his absence. However, it remained incumbent on the presiding judge to establish that the applicant could have reasonably foreseen what the consequences of his conduct would be (see Jones, cited above).
46. The Court discerns nothing in the materials in its possession to show that the applicant was made aware of the consequences of his removal from the courtroom, and, in particular, of the fact that, if the court decided to proceed to try him in his absence, it would do so without appointing counsel to represent him. In such circumstances, the Court is unable to conclude that, notwithstanding his disruptive and unruly behaviour, the applicant had unequivocally waived his right to be present or represented by counsel at the trial. His removal from the courtroom meant that he was not in a position to exercise either of those rights when the judge decided to proceed with the examination of the evidence in his absence.
47. Accordingly, the Court must now determine whether the appeal court made reparation for the violation of the applicant's right to be present and to defend himself at his trial (see De Cubber v. Belgium, 26 October 1984, § 33, Series A No. 86).
(b) Appeal proceedings
48. The Court observes that in Russia the jurisdiction of appeal courts extends both to legal and factual issues. The Regional Court thus had the power to fully review the case and to consider additional arguments which had not been examined in the first-instance proceedings. It would have also been open to the applicant to ask the Regional Court to question witnesses or examine other evidence.
49. Given the seriousness of the charges against the applicant and the severity of the sentence to which he was liable, as well as the precariousness of his situation as a result of his removal from the courtroom, the Court considers that the assistance of a legal-aid lawyer at this stage was essential for the applicant, as the lawyer would be able effectively to draw the appeal court's attention to any substantial argument in the applicant's favour which might influence its decision.
50. The Court further notes that, under the Russian Constitutional Court's interpretation of the Russian Code of Criminal Procedure, the onus of appointing a legal-aid lawyer lay on the relevant authority at each stage of the proceedings. Thus it was incumbent on the judicial authorities to appoint a lawyer for the applicant to ensure that he received effective protection of his rights.
51. The Government have acknowledged that the first set of appeal proceedings, which ended on 11 November 2003, failed to provide full guarantees in respect of legal assistance. However, they contended that this procedural defect had been rectified since the relevant appeal judgment had been quashed by way of supervisory review on 27 December 2006 and the applicant had subsequently been provided with legal aid at a new appeal hearing.
52. In this respect, the Court reiterates that the appointment of defence counsel in itself does not necessarily settle the issue of compliance with the requirements of Article 6 § 3 (c). A mere nomination does not ensure effective assistance since a lawyer appointed for legal-aid purposes may be prevented from performing, or shirk his or her dutie



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