CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 27 février 2018

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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 No. Application no. Lodged on Applicant name Date of birth Place of residence Represented by Court of 1st instance Conviction date Court of Appeal Date of appeal judgment   7148/06 10/01/2006 Vadim Vladimirovich SHVEDOV 30/11/1977 Smolensk     The Promyshlennyy District Court of Smolensk 22/06/2005 The Smolensk Regional Court 02/08/2005   41469/06 08/09/2006 Kirill Valeryevich BELOUSOV 16/02/1973 St Petersburg     The Vyborgskiy District Court 23/12/2005 The St Petersburg City Court 16/03/2006   21040/07 31/01/2007 Yevgeniy Aleksandrovich BARDYSHEV 27/10/1978 Omsk     The Lyublinskiy District Court of Moscow 11/10/2006 The Moscow City Court 29/11/2006   37536/07 26/07/2007 Aleksey Nikolayevich NEKRASOV 01/04/1975 Kursk   Yuriy Yurievich CHURILOV The Promyshlennyy District Court of Kursk 30/05/2007 The Kursk Regional Court 09/08/2007   39173/07 26/07/2007 Andrey Anatolyevich KULESHOV 15/09/1974 Toguchin       The Kalininskiy District Court of Novosibirsk 10/01/2007 The Novosibirsk Regional Court 26/02/2007   55811/07 19/09/2007 Yevgeniy Vitalyevich MOISEYEV 07/12/1959 St Petersburg     The Staryy Oskol City Court 05/04/2007 The Belgorod Regional Court 06/06/2007   27533/08 08/05/2008 Nikolay Yuryevich ZVEREV 06/04/1970 Angarsk     The Irkutsk Regional Court 15/08/2006 The Supreme Court of Russia 15/11/2007   33308/09 06/03/2009 Gennadiy Aleksandrovich OGARIN 05/01/1957 Furmanov   The Furmanovsk Town Court 26/08/2008 The Ivanovo Regional Court 23/10/2008   54226/09 08/09/2009 Sergey Leontyevich VLADYKIN 23/04/1965 Severnyy   The Zheleznodorozhyy District Court 28/01/2009 The Ulyanovsk Regional Court 11/03/2009   18562/10 01/03/2010 Yelena Gennadyevna ILAYA 29/01/1966 Izhevsk     The Pervomayskiy District Court of Izhevsk 22/04/2009 The Supreme Court of the Udmurtiya Republic 17/12/2009   18654/10 16/03/2010 Valeriy Nikolayevich STARIKOV 17/08/1963 Nevyansk     The Kurgan Town Court 31/08/2009 The Kurgan Regional Court 03/11/2009   68152/10 05/10/2010 Rustam Rashitovich VASILYEV 28/07/1973 Mamonovo   The Oktyabrskiy District Court of Kaliningrad 14/04/2010   The Kaliningrad Regional Court 25/05/2010   14024/11 04/02/2011 Artur Taliyevich ALEROYEV 17/05/1975 Kharp     The Megionskiy District Court 09/07/2010 The Megion Town Court of the Khanty-Mansi Region 01/09/2010   62664/11 15/09/2011 Vladimir Viktorovich KRYLOV 11/04/1974 Prokopyevsk     The Rudnichnyy District Court of Prokopyevsk 28/12/2010 The Kemerovo Regional Court 31/05/2011   73986/11 08/11/2011 Andrey Fedorovich PALENKO 23/01/1986 Krymsk   Ruslan Khamsudinovich HUSHT The Temryukskiy District Court 03/08/2011 The Krasnodar Regional Court 28/09/2011   25114/12 27/03/2012 Aleksandr Sergeyevich OSKIN 12/10/1981 Yavas     The Kovylkinskiy District Court 26/08/2011 The Supreme Court of the Mordoviya Republic 26/10/2011   5510/13 20/12/2012 Yevgeniy Valeryevich SENCHISHIN 12/04/1985 Alekseyevka   The Oktyabrskiy District Court of Belgorod 20/07/2012 The Belgorod Regional Court 05/09/2012