Постановление Европейского суда по правам человека от 05.02.2009 "Дело "Сахновский (Sakhnovskiy) против Российской Федерации" [рус., англ.]

the Rules of Court.

Christos ROZAKIS
President

{Soren} NIELSEN
Registrar





In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Rozakis, Spielmann and Malinverni is annexed to this judgment.

C.L.R.

S.N.

JOINT CONCURRING OPINION
OF JUDGES ROZAKIS, SPIELMANN AND MALINVERNI

1. We voted in favour of finding a violation of Article 6 §§ 1 and 3 (c) of the Convention in that the applicant did not receive effective legal assistance during the appeal proceedings.
2. Our reasoning differs, however, from the majority's approach.
3. We would like to recall that on 31 October 2002 the Supreme Court of the Russian Federation examined the applicant's appeal. The applicant participated in the proceedings by video link but no defence counsel attended the hearing. The appeal was dismissed.
4. On 4 July 2007 the Presidium of the Supreme Court granted a request for supervisory review and quashed the Supreme Court's decision on the applicant's appeal. The Presidium found that the applicant's right to legal assistance had been breached in the appeal hearing and remitted the case for a fresh examination before the Court of Appeal. In our view this decision of the Presidium constituted an acknowledgment, at least in substance, of a violation and afforded redress in the form of fresh proceedings before the Court of Appeal. In paragraph 35 of the judgment, the majority rightly emphasises that the decision to quash the appeal judgment does amount to an acknowledgment that there had been a breach of Article 6 of the Convention.
5. However we cannot agree with the majority's conclusion that the applicant's rights under Article 6 of the Convention "in the earlier proceedings" (paragraph 52) were not sufficiently redressed. Indeed, we do not look at the trial as a whole. In our view, the authorities properly redressed the shortcomings of the appeal proceedings that led to the judgment of 31 October 2002, but they committed a new violation of Article 6 during the proceedings held after the quashing, as presented in paragraphs 21 to 25 of the judgment. This approach was taken by the Court, for example, in the case of Ponushkov v. Russia (No. 30209/04, 6 November 2008). It is in the interest of the subsidiary nature of the system established under the European Convention of Human Rights that national authorities are to be encouraged to redress procedural shortcomings at domestic level.






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