THIRD SECTION

CASE OF SHVEDOV AND OTHERS v. RUSSIA

(Application no. 7148/06 and 16 others –

see appended list)

JUDGMENT

STRASBOURG

27 February 2018

This judgment is final but it may be subject to editorial revision.

In the case of Shvedov and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Helen Keller, President,
 Pere Pastor Vilanova,
 Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 6 February 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in seventeen applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals. Application numbers, dates of their lodging and of communication, the applicants’ names, their personal details and the names of their legal representatives are set out in the appended table below.

2.  The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 18 January 2017 the complaints concerning absence of the applicants and/or their lawyers from appeal hearings in criminal cases were communicated to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The parties submitted written observations on the admissibility and merits.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.   Between 2005 and 2012 the applicants were charged and subsequently convicted of different criminal offences. Their cases were examined by appeal courts in the absence of the applicants and/or their lawyers. Convictions were upheld.

5.  Information relevant to the criminal proceedings against the applicants appears in the appended table below.

II.  RELEVANT DOMESTIC LAW

6.  The relevant domestic legal provisions governing, at the material time, lawyer’s participation in appeal proceedings in a criminal case were summarised in the Court’s judgments in the cases of Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 31-39, 2 November 2010; Shumikhin v. Russia, no. 7848/06, § 17, 16 July 2015; Volkov and Adamskiy v. Russia, nos. 7614/09 and 30863/10, §§ 21-26, 26 March 2015; Eduard Rozhkov v. Russia, no. 11469/05, §§ 11-13, 31 October 2013, and Nefedov v. Russia, no. 40962/04, § 17, 13 March 2012.

THE LAW

I.  JOINDER OF THE APPLICATIONS

7.  In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical legal issues under the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION

8.  The applicants complained that they had not been represented on appeal in their criminal cases contrary to the requirements of Article 6 §§ 1 and 3 (c) of the Convention. Some applicants (applications nos. 62664/11, 73986/11 and 25114/12) also complained that they had been absent from the appeal hearings. Relevant provisions of the Convention read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

A.  Parties’ submissions

9.  The Government submitted that the complaints made by Mr Bardyshev, Mr Moiseyev, Mr Zverev, and Mr Vladykin (applications nos. 21040/07, 55811/07, 27533/08, and 54226/09) were belated due to the fact that the Court’s Registry had erred in the determination of the introduction date of their applications.

10.  The Government further submitted that applications by Mr Shvedov, Ms Ilaya, Mr Starikov, Mr Vasilyev, Mr Palenko, Mr Oskin, and Mr Senchishin (applications nos. 7148/06, 18562/10, 18654/10, 68152/10, 73986/11, 25114/12, and 5510/13) should be dismissed for non-exhaustion of domestic remedies since the applicants had failed to lodge a supervisory‑review complaints.

11.  With respect to complaints by Ms Ilaya, Mr Starikov and Mr Vasilyev (nos. 18562/10, 18654/10 and 68152/10) the Government claimed that the applicants had waived their right to legal assistance because they had not asked the appeal court to appoint counsel or to adjourn proceedings. It was also noted that Mr Senchishin (application no. 5510/13) made an oral waiver of his right to a lawyer before the appeal hearing.

12.  Finally, the Government submitted that complaints made by Mr Krylov (application no. 62664/11) were manifestly ill-founded because he had been represented by a lawyer at his appeal hearing.

13.  The Government made no observations on either admissibility or merits with respect to complaints made by Mr Nekrasov, Mr Belousov, Mr Kuleshov, Mr Ogarin and Mr Aleroyev (applications nos. 37536/07, 41469/06, 39173/07, 33308/09, and14024/11).

14.  The applicants maintained their complaints.

B.  The Court’s assessment

1.  Admissibility

15.  The Court will first address the Government’s argument related to the exhaustion of domestic remedies by Mr Shvedov, Ms Ilaya, Mr Starikov, Mr Vasilyev, Mr Palenko, Mr Oskin, and Mr Senchishin (applications nos. 7148/06, 18562/10, 18654/10, 68152/10, 73986/11, and 25114/12, 5510/13). In this respect, it reiterates that a supervisory-review application in criminal cases could not be regarded as an effective remedy for the purposes of the exhaustion under Article 35 § 1 of the Convention (see Sakhnovskiy, cited above, §§ 40-45). The Government’s objection concerning non-exhaustion of domestic remedies should therefore be dismissed.

16.  The Court will now turn to the Government’s submissions regarding the determination of the introduction dates for applications submitted by Mr Bardyshev, Mr Moiseyev, Mr Zverev, and Mr Vladykin (see paragraph 9 above).

17.  The Court finds that applications nos. 21040/07, 55811/07, 27533/08, 54226/09 were lodged by Mr Bardyshev, Mr Moiseyev, Mr Zverev, and Mr Vladykin, respectively, with reasonable expedition after the first communication with the Court and in compliance with instructions of the Registry. The Government’s objection related to the belated nature of these four applications should therefore be dismissed in view of the fact that the applicants had brought their cases to the Court within the six months after the final appeal judgment (for more details see the appended table below).

18.  The Court further observes that Mr Oskin (application no. 25144/12) only complained about his own absence from the appeal proceeding on 30 May 2012. Having regard to the fact that his appeal hearing had taken place on 26 October 2011, the Court declares this complaint inadmissible as belated, pursuant to Article 35 §§ 1 and 4 of the Convention.

19.  The remaining complaints under Article 6 §§ 1 and 3(c) raised by the applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. They must therefore be declared admissible.

2.  Merits

20.  The Court notes that the applicants’ cases are similar to other Russian cases concerning absence of applicants and/or their counsel in appeal proceedings in respect of criminal cases. In such cases the Court has consistently found violations of Article 6 §§ 1 and 3 (c) of the Convention (see Sakhnovskiy, cited above, §§ 99-109; Shumikhin, cited above, §§ 22-23; Volkov and Adamskiy, cited above, §§ 56-61; Eduard Rozhkov, cited above, §§ 21-26; and Nefedov, cited above, §§ 41-48). Having regard to the well‑established case-law on the subject and given the circumstances of the cases at hand, the Court finds no reason to depart from its earlier findings on the matter.

21.  The Court reiterates that courts are under an obligation to provide an accused in a criminal case with an effective defence. That obligation presupposes a proactive approach on the part of the national courts and cannot be discarded in view of a defendant’s failure to seek an appointment of new counsel or adjournment of the proceedings (see Shekhov v. Russia, no. 12440/04, § 42, 19 June 2014). That obligation also did not evaporate in case of an “oral waiver” of the right to a lawyer, as in Mr Senchishin’s case (application no. 5510/13), particularly so that the Russian law, as in force at the material time, required courts to appoint legal aid counsel to an unrepresented defendant in a criminal case, unless a defendant made an explicit written waiver refusing legal assistance (see Volkov and Adamskiy, cited above, § 23 and § 59). The Court thus finds that all applicants, save for Mr Krylov whose situation will be discussed shortly, were left without legal representation on appeal and that the national courts did not do anything to remedy that situation. It finally considers that the situation of Mr Pavlenko (application no. 73986/11) was further exacerbated by his own absence from the appeal hearing, and thus his having been left without any representation, either in person or through legal assistance, on appeal.

22.  As to Mr Krylov (application no. 62664/11), the Court observes that he was represented by a lawyer on appeal. However, the lawyer had only been appointed to represent the applicant at the appeal stage and had not been involved in the case before. The applicant was not present at the appeal hearing and from the material at hand the Court is unable to conclude that he had had been afforded an opportunity to consult his newly assigned representative, to build up the defence strategy which could have, to certain extent, remedied his own absence from the appeal hearing. In these circumstances, the Court cannot but conclude that Mr Krylov was also denied effective legal representation on appeal in his criminal case.

23.  Having regard to the fact that the applicants were unable to enjoy effective legal assistance and, in cases of Mr Palenko and Mr Krylov, to personally participate in the appeal proceedings, the Court holds that the criminal proceedings against them, taken as a whole, were incompatible with the notion of a fair trial. There has accordingly been a violation of Article 6 § 3 (c), taken in conjunction with Article 6 § 1 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

25.  The applicants in cases nos. 7148/06, 54226/09, 18562/10, 18654/10, 14024/11, 25114/12 and 5510/13 did not submit claims for just satisfaction. Accordingly, the Court considers that there is no reason to award them any sum under Article 41 of the Convention.

26.  The remaining applicants claimed various amounts in respect of non‑pecuniary and/or pecuniary damage.

27.  The Government contested the claims.

28.  With respect to claims for pecuniary damage, the Court does not discern a causal link between the claims and the violation found. Therefore, it rejects all claims under this head.

29.  With respect to claims for non-pecuniary damage, the Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV). The Court, having regard in particular to the fact that domestic law provides that criminal proceedings may be reopened if the Court finds a violation of the Convention, considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants (see Vladimir Romanov v. Russia, no. 41461/02, § 118, 24 July 2008).

B.  Costs and expenses

30.  Mr Zverev (application no. 27533/08) claimed 300 euros (EUR) as costs and expenses incurred at the domestic level and before the Court. Mr Ogarin (application no. 33308/09) asked the Court to assess the amount of costs and expenses incurred by him on the basis of documents attached. Mr Palenko (application no. 73986/11) claimed EUR 1,600 for compensation of his lawyer’s fees.

31.  The Government argued that the claims were groundless and excessive and reiterated that only reasonable costs should be reimbursed.

32.  Regard being had to the documents in its possession and to its case‑law, the Court rejects as unsubstantiated Mr Zverev’s and Mr Palenko’s claims for costs and expenses in their entirety. The Court further considers it reasonable to award Mr Ogarin the sum of EUR 220 in respect of legal fees incurred in the proceedings at the domestic level and before the Court, plus any tax that may be chargeable to him.

C.  Default interest

33.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

2.  Declares the complaint about the applicant’s absence from the appeal hearing in application no. 25144/12 inadmissible and the remaining complaints admissible;

3.  Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

4.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any damage sustained by the applicants;

5.  Holds

(a)  that the respondent State is to pay Mr Ogarin, within three months, in respect of costs and expenses, EUR 220 (two hundred and twenty euros), plus any tax that may be chargeable to him, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

6.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 27 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Fatoş Aracı Helen Keller
Deputy Registrar President

APPENDIX