EHRM, 02-11-2010, nr. 21272/03

The Government's central argument was that the quashing of the judgment and the very fact of the retrial were per se ‘sufficient redress’ for the violation complained of in the original application. In support of this they referred to a number of Russian cases: Ponushkov v. Russia, no. 30209/04, 6 November 2008; Ryabov v. Russia, no. 3896/04, 31 January 2008; Davidchuk v. Russia (dec.), no. 37041/03, 1 April 2008; Mikhail Brinzevich v. Russia (dec.), no. 6822/04, 11 December 2007; Babunidze v. Russia (dec.), no. 3040/03, 15 May 2007; Fedosov v. Russia (dec.), no. 42237/02, 25 January 2007; Nikishina v. Russia (dec.), no. 45665/99, 12 September 2000; and Wong v. Luxemburg (dec.), no. 38871/02, 30 August 2005.

As to the second set of the proceedings (the hearing of 29 November 2007), the Government claimed that even if the circumstances complained of amounted to a violation of Article 6, these new events bore no relation to the present case and should have been presented by the applicant as a new application and communicated to the Government as a separate case. The Government claimed that they had not had the opportunity to comment on those new submissions.

The Government maintained that the applicant's rights under Article 6 § 3 (c) had not been breached in the appeal hearing of 29 November 2007. The State could not be held responsible for every shortcoming on the part of counsel appointed for legal-aid purposes. The Government suggested that the applicant should bear the consequences of the conduct of Ms A. (the court-appointed lawyer) in the proceedings, namely her failure to ask in writing for a replacement lawyer or for an adjournment. The Government further claimed that the applicant had not requested a personal meeting with his lawyer in his additional statement of appeal or the additional motions he lodged with the Supreme Court before the start of the hearing. He had not asked the Supreme Court to replace the counsel, neither had he expressed the wish to be represented by counsel of his own choosing. The Government appeared to claim that in order to have the benefit of the legal-aid scheme he should have asked for a replacement lawyer whom he trusted. By failing to do so the applicant had waived his right to legal assistance.

The Government claimed that Ms A. herself had not considered that a personal meeting between her and the applicant had been necessary. She had taken her appointment quite seriously: she had studied the case file in advance, and had consulted with the applicant in private before the start of the hearing. She had not asked for a face-to-face meeting with the applicant; however, the authorities could not tell lawyers how to defend their clients, and whether or not a personal meeting was necessary.

The Government further maintained that the applicant's claim was far-fetched. Ms A. had acquired sufficient knowledge of the case, and the applicant had not disagreed with her position on legal matters. To the Supreme Court he had declared that he had wished to know her ‘as a person’. However, ‘personal relations were not of great importance to effective and adequate legal aid’. Ms A. had all the necessary legal skills to defend the applicant.

The last arguments raised by the Government concerned the hearing of 29 November 2007 as such. The Government acknowledged the importance of the right of the accused to participate effectively in his defence. However, they indicated that the Convention and the Court's case-law did not indicate the manner in which that right should be exercised. Participation in the proceedings through a video link was an acceptable form of participation (see Marcello Viola v. Italy, no. 45106/04, ECHR 2006-XI (extracts), and Golubev v. Russia (dec.), no. 26260/02, 9 November 2006). The transportation of a detainee from the Novosibirsk region to Moscow is a long and costly procedure; in addition, it would have caused the applicant a lot of inconvenience. The Government further claimed that the applicant had not complained about the quality of the video communication, and that it had not limited his ability to participate in the proceedings in any other way.

According to the applicant, the Government's contention that the Court should declare the supervisory-review decision a complete and adequate remedy per se, without any consideration of subsequent rehearing, was in direct contradiction with the principles enunciated in the Court's case-law. An upper court decision ordering a rehearing represented, at most, a promise of a correction, but the result — actual correction — could be obtained only in the subsequent proceedings.

In the applicant's view, the Government's reading of the Court's case-law was incorrect. None of the cases cited by the Government supported their proposition that an order for rehearing was in itself sufficient redress. On the contrary, the judgments or decisions in five of the above cases (Ponushkov, Fedosov, Babunidze, Gavrilova and Wong) were at odds with the Government's position, while the remaining three (Ryabov, Davidchuk and Nikishina) were so distinguishable from the present case on their facts as to be altogether inapposite.

The Chamber was correct in treating the second set of the proceedings as part of the domestic redress for the acknowledged breach of his right to a fair trial in the initial proceedings. This was compatible with the Court's previous case-law, in particular in the case of Scordino, where the Grand Chamber held that ‘[t]he issue as to whether a person [might] still claim to be the victim of an alleged violation of the Convention essentially entail[ed] on the part of the Court an ex post facto examination of his or her situation’ including, in particular, an examination of the ‘effectiveness of the remedy’ afforded by the national authorities (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 180–182, ECHR 2006-V). The Court's ex post facto examination of the situation had to focus on the practical results of the remedy's actual application. Thus, for example, where the claimed remedy for the excessive length of judicial proceedings was a subsequent action for compensation, the Court had to determine not only the availability of such an action under the domestic law, but also the timeliness of the adjudication of that action because ‘excessive delays in an action for compensation [would] render the remedy inadequate’ (see Cocchiarella v. Italy [GC], no. 64886/01, § 86, ECHR 2006-V).

According to the applicant, the Government's position in the case — that the applicant's complaints about the rehearing could not be considered within the context of the pending case but only on a new application — was essentially a way of evading this Court's review of the initial and repeated violations of the applicant's rights. Were the applicant to lodge a new application concerning the rehearing, the Government would insist on a new round of steps to exhaust domestic remedies and a new ‘opportunity to examine the applicant's allegations and remedy the violation of the rights guaranteed by the Convention’. Such an opportunity could then be used to obtain another decision identical to the decision of the Presidium of 4 July 2007, which the Government would again present as per se ending the applicant's victim status, and this cycle could continue ad infinitum.

The applicant denied that he had waived any of his rights under Article 6. There was no evidence that the applicant had expressly decided to forego any of the rights at issue or had engaged in any conduct from which such a waiver could be fairly implied. On the contrary, he had made express written requests to be present during the appeal proceedings and to have a meaningful opportunity to meet his lawyer in a private setting, and had informed the Supreme Court of disruptions in the video link. The applicant concluded that the responsibility for the fact that his rights had not been observed in connection with the rehearing lay solely with the authorities.

The applicant claimed that, notwithstanding the fact that the Supreme Court had appointed a defence lawyer to represent him at the rehearing, it had done so in a manner that had made it impossible for the lawyer to provide effective legal assistance. The applicant had formed the impression that the participation of Ms A. in the proceedings had been especially ineffective since she had been only partially familiar with the case.

The fact that the applicant's legal-aid counsel was appointed and introduced to him at the last minute, combined with the fact that they had been given only fifteen minutes to communicate by video link, had precluded any possibility of her serving as his defence lawyer other than nominally. That was why the Supreme Court's suggestion that the applicant should pick a different lawyer, in response to his objection, had been quite beside the point: he had not had any objection to Ms A. personally, even though he had not known her previously, but had pointed to the fact that they had been deprived of any opportunity to form even a semblance of a meaningful lawyer-client working relationship.

Two further facts had supported the Chamber's conclusion, in addition to those summarised in its judgment. First, given the setting in which he had had to converse with his lawyer, the applicant had not felt he could have a frank and open discussion with her. A comparison by the Court of that arrangement with such alternatives as a telephone line secured against any attempt at interception (see Marcello Viola, cited above, § 41) had revealed that the applicant's perception had been quite understandable. Second, since the applicant had not had any contact with his lawyer prior to the rehearing, he had been left to his own devices with respect to pre-hearing motions, all of which the Supreme Court had ultimately denied. Given that the reason the case had been sent back to the Supreme Court for a rehearing had been its violation of the applicant's right to legal representation at the initial hearing, and in view of the seriousness of the charges to be considered at the rehearing (double murder), this had surely been a case where the Supreme Court should have used its best endeavours to ensure that the applicant had effective representation.

The applicant alleged that he had not been afforded effective legal representation and an opportunity to confer privately with counsel, his ability to actively participate in and follow the proceedings in the courtroom had been impaired by technical disruptions in the video transmission. He had sought to disprove before the appeal court the evidence of certain witnesses at his original trial, and had thereby raised the issue of his own credibility, so his personal appearance was particularly crucial in such circumstances. Finally, he had not had an opportunity to present his case under the same conditions as the prosecution: the prosecutor had been present in the courtroom, whereas the applicant had participated via a video link.

The Court has developed two lines of case-law regarding the victim status of an applicant under Article 34 of the Convention. The first line concerns the nature and extent of the conditions for claiming to be a victim of a violation of the Convention when lodging an application with the Court, namely whether a person can be regarded as being directly affected by the impugned measure (see, among other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008-…). The second line of cases relates to the question whether, where an alleged violation has already taken place, subsequent events can give rise to a loss of victim status. The Court would emphasise that the two lines of case-law are independent of each other (see Senator Lines GmbH v. Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (dec.) [GC], no. 56672/00, ECHR 2004-IV). Having and losing victim status are two different situations, although they are both based on the notion of ‘victim’.

It is a well-established principle of the Court's case-law that an applicant may lose his victim status if two conditions are met: first, the authorities must have acknowledged, either expressly or in substance, the breach of the Convention and, second, they must have afforded redress for it (see, among many other authorities, Scordino, cited above, § 180). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Arat v. Turkey, no. 10309/03, § 46, 10 November 2009). The alleged loss of the applicant's victim status involves an examination of the nature of the right in issue, the reasons advanced by the national authorities in their decision and the persistence of adverse consequences for the applicant after the decision (see Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, § 68, 9 February 2006).

It is clear that in the present case the authorities acknowledged the original violation of the applicant's rights under Article 6 of the Convention, at least as regards the lack of appropriate legal aid in the appeal proceedings of 2002. Therefore, the Court should concentrate on the question whether they complied with the obligation to ‘redress’ it.

In Scordino (cited above) the Grand Chamber formulated the requirements for redress in respect of excessively lengthy civil proceedings. In particular, the Court held that excessive delays in an action for compensation may render the remedy inadequate (§ 195). Further, the access to a compensatory remedy should not be hindered by high court fees (§ 201). The Court also examined whether the monetary redress was sufficient in quantitative terms.

The Court notes that the above findings concerned a compensatory remedy for a breach of a very specific guarantee of Article 6 § 1 — the ‘reasonable time’ requirement. Breach of other provisions of the Convention may require other kinds of ‘redress’, to which the logic of Scordino does not necessarily apply. The Court also reiterates in this connection that different types of remedy may redress the violation appropriately (see, mutatis mutandis, the Court's analysis under Article 13 in Kudła v. Poland [GC], no. 30210/96, §§ 154-55, ECHR 2000-XI). The appropriateness and sufficiency of redress depend on the nature of the violation complained of by the applicant.

In the context of the criminal-limb guarantees of Article 6, full acquittal or discontinuation of the proceedings against the applicant have been regarded as appropriate redress (see, for example, Carboni v. Italy (dec.), no. 51554/99, 12 February 2004; Üstün v. Turkey, no. 37685/02, 10 May 2007, § 24; and Oleksy v. Poland (dec.), no. 1379/06, 16 June 2009). However, this is the case when an applicant is no longer affected and has been relieved of any effects to his disadvantage. An applicant can maintain his victim status if he has already served all or part of his sentence and no compensation has been offered or is available for the alleged violation (see, for example, Hooper v. the United Kingdom (dec.), no. 42317/98, 21 October 2003; Menesheva v. Russia (dec.), no. 59261/00, 15 January 2004; and Arat, cited above, §§ 46–47). In the case of Freimanis and Līdums, cited above, which concerned the question whether the case had been heard by a ‘tribunal established by law’, the Court took into account the persistence of adverse consequences for the applicants after a decision to quash a conviction and remit the case for fresh consideration (§ 68). The Court noted (in §§ 71–72) that the applicants did not complain about the unfairness of the new set of the proceedings, and the case was re-examined by a newly composed tribunal, which had this time been created in accordance with the law. In such circumstances the Court concluded that the defects of the previous proceedings had been remedied after the reopening.

There are two groups of cases concerning Russia which treat the issue of ‘victim status’ in criminal proceedings differently. In the first group, the Court has accepted the reopening of criminal proceedings as a form of redress in itself. Thus, the Government referred to the case of Ponushkov, cited above, where the Court had held, in a similar situation, as follows:

A similar line of reasoning was employed by the Court in the case of Ryabov, cited above, where it held:

The Court came to this conclusion despite the fact that the proceedings against the applicant were still pending, and there was no certainty that the defect complained of would be remedied during the retrial.

The second group of cases is consonant with the findings of the Chamber in the case at hand. For example, the case of Fedosov, referred to by the Government in support of their submissions, reflects the Chamber's position in the present case. In that case the Court did take into account the second set of the proceedings:

That decision suggests that, besides a retrial compatible with all the requirements of Article 6 the applicant should obtain something more — a mitigation of sentence, for instance.

Another case from this group is Babunidze (cited above), referred to by both parties. In that case the applicant had complained that he had been unable to attend hearings both before and after the quashing by the Supreme Court of the judgment in a civil case in which he was a defendant. In that case the parties agreed that the Supreme Court had acknowledged the violation of the applicant's rights by the district court's failure to summon him to the hearing of 19 March 2002. However, the applicant argued that in the course of the new examination the district and regional courts had once again failed to provide him with an effective opportunity to participate in the hearings. The Court accepted that the question of redress required the examination of ‘whether the applicant was provided with an opportunity to participate effectively in the re-examination of his case’. Having considered that in the circumstances of the case the applicant had been given ample opportunity to attend the hearings in the fresh set of proceedings, the Court concluded as follows:

The Court observes, against this background, that its case-law concerning the effects of reopening on the applicant's victim status needs to be clarified.

At the outset, the Court reiterates that the European system for the protection of human rights is founded on the principle of subsidiarity. The States should be given a chance to put right past violations before the complaint is examined by the Court; however, ‘the principle of subsidiarity does not mean renouncing all supervision of the result obtained from using domestic remedies’ (see Giuseppe Mostacciuolo v. Italy (no. 2) [GC], no. 65102/01, § 81, 29 March 2006). Moreover, the principle of subsidiarity should not be construed so as to allow the States to evade the Court's jurisdiction.

Indeed, a criminal defendant cannot claim to be a victim of a violation of Article 6 § 3 before he is convicted (see X v. the United Kingdom, no. 8083/77, Commission decision of 13 March 1980, Decisions and Reports 19, p. 223; Eğinlioğlu v. Turkey, no. 31312/96, Commission decision of 21 October 1998, unreported; Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003; and Witkowski v Poland (dec.), no. 53804/00, 3 February 2003). This is also true in respect of most of the guarantees of Article 6 § 1 of the Convention (with some exceptions concerning, for instance, the requirement of reasonable length of the proceedings, access to court, etc. — see, for example, Polonskiy v. Russia, no. 30033/05, §§ 160 et seq., 19 March 2009; Kart v. Turkey [GC], no. 8917/05, §§ 71 et seq., 3 December 2009; see also, in the context of civil proceedings, Mihajlović v. Croatia, no. 21752/02, §§ 26 et seq., 7 July 2005). It may appear that the reopening of the case ‘returns’ the applicant to the situation existing before he became a victim and restores the status quo ante.

However, in the opinion of the Court this approach is not appropriate in the circumstances of the present case. Acquiring and losing victim status are not necessarily governed by the same rules (see paragraph 66 above). It is clear that the applicant in the present case had become a victim before he lodged the application with the Court. It was for the State to provide the applicant with adequate and sufficient redress in respect of this complaint in a timely manner, that is to say before the Court examined the case (see mutatis mutandis the criteria established in the Scordino case, cited in paragraph 69 above).

In the Court's opinion, the mere reopening of the case was not sufficient to deprive the applicant of his victim status. This view is closely linked to the particular features of the Russian system of supervisory review, as it was at the material time (see paragraphs 42-45 above). In the first place, there were no limits as to the number of times and the circumstances in which the case could be reopened. Second, reopening depended on the discretion of the State prosecutor or judge who decided whether a supervisory-review complaint or application deserved to be examined on the merits. Whether it was a prosecutor lodging an application for reopening or the president of the court reversing a decision of a judge not to entertain a supervisory-review complaint, the decision might be taken proprio motu. This would make it possible for the respondent State to evade the Court's substantive review by continuously reopening the proceedings.

Such a possibility was not only theoretical. In a number of Russian cases domestic criminal proceedings were reopened shortly after the communication of a case to the Government, but many months or even years after the closure of the original case — see, among other examples, the cases of Zaytsev v. Russia, no. 22644/02, §§ 9–11, 16 November 2006; Laryagin and Aristov v. Russia, nos. 38697/02 and 14711/03, §§ 18–19, 8 January 2009; Sibgatullin v. Russia, no. 32165/02, § 13, 23 April 2009; Baklanov v. Russia (dec.), no. 68443/01, 6 May 2003; Mikadze v. Russia (dec.), no. 52697/99, 3 May 2005; Gorodnichev v. Russia (dec.), no. 52058/99, 3 May 2005; Fedorov v. Russia (dec.), no. 63997/00, 6 October 2005; Fedosov, cited above; and Makhkyagin v. Russia (dec.), no. 39537/03, 1 October 2009. Similar examples can be found in the case-law concerning the use of supervisory review in civil cases (see, for instance, Ryabykh v. Russia, no. 52854/99, ECHR 2003-IX and follow-up cases). These cases demonstrate a clear link between the communication and the reopening of a case.

Further, in certain cases the connection between communication of the case and the reopening has been even more evident. Thus, in the case of Nurmagomedov v. Russia ((dec.), no. 30138/02, 16 September 2004) it was not until the European Court intervened that the prosecutor lodged an application for supervisory review of a court's ruling, whereas earlier the same prosecutor had dismissed the applicant's complaint about that very ruling saying that it had been ‘well-reasoned and lawful’. In the case of Adzhigovich (cited above, §§ 11 and 12) the applicant's numerous supervisory-review appeals had been rejected several times prior to communication of the case, whereas the same appeals were accepted for examination after the case had been communicated to the respondent Government. Finally, in the present case the applicant's own efforts to obtain supervisory review of the first judgment were futile until such time as the Prosecutor General's office felt compelled to intervene following notification that the applicant had turned to this Court for redress (see paragraphs 24 and 25 above).

Against this background the Court has reached the following conclusion. Domestic proceedings are frequently reopened at the instigation of the Russian authorities when they learn that the case has been admitted for examination in Strasbourg. Sometimes it benefits the applicant, in which case the reopening serves a useful purpose. However, given the ease with which the Government uses this procedure, there is also a risk of abuse. If the Court were to accept unconditionally that the mere fact of reopening the proceedings was to have the automatic effect of removing the applicant's victim status, the respondent State would be capable of thwarting the examination of any pending case by having repeated recourse to supervisory-review proceedings, rather than correcting the past violations by giving the applicant a fair trial.

The Court considers that the reopening of proceedings by itself may not automatically be regarded as sufficient redress capable of depriving the applicant of his victim status. To ascertain whether or not the applicant retained his victim status the Court will consider the proceedings as a whole, including the proceedings which followed the reopening. This approach enables a balance to be struck between the principle of subsidiarity and the effectiveness of the Convention mechanism. On the one hand, it allows the States to reopen and examine anew criminal cases in order to put right past violations of Article 6 of the Convention. On the other hand, new proceedings must be conducted expeditiously and in accordance with the guarantees of Article 6 of the Convention. With this approach the supervisory review can no longer be employed as a means of evading the Court's review thereby preserving the effectiveness of the right of individual petition.

In sum, the Court finds that the mere reopening of the proceedings by way of supervisory review failed to provide appropriate and sufficient redress for the applicant. He may therefore still claim to be a victim within the meaning of Article 34 of the Convention. The Court therefore rejects the Government's objections under this head. It must now examine whether the hearing of 29 November 2007 was compatible with the requirements of fairness.

The requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, and therefore the applicant's complaints under paragraphs 1 and 3 of Article 6 should be examined together (see Vacher v. France, 17 December 1996, § 22, Reports of Judgments and Decisions 1996-VI).

The Court reiterates that while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to ‘defend himself in person or through legal assistance …’, it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Quaranta v. Switzerland, 24 May 1991, § 30, Series A no. 205). In that connection it must be borne in mind that the Convention is intended to ‘guarantee not rights that are theoretical or illusory but rights that are practical and effective’ and that assigning counsel does not in itself ensure the effectiveness of the assistance he or she may afford an accused (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275).

A person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance trial hearing. However, the attendance of the defendant in person does not necessarily take on the same significance for the appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case on questions of both fact and law, Article 6 does not always entail a right to be present in person. Regard must be had in assessing this question to, inter alia, the special features of the proceedings involved and the manner in which the defence's interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the appellant (see Helmers v. Sweden, 29 October 1991, §§ 31–32, Series A no. 212-A; Belziuk v. Poland, 25 March 1998, § 37, Reports 1998-II; Pobornikoff v. Austria, no. 28501/95, § 24, 3 October 2000; and Kucera v. Austria, no. 40072/98, § 25, 3 October 2002).

An accused's right to communicate with his lawyer without the risk of being overheard by a third party is one of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention (see Castravet v. Moldova, no. 23393/05, § 49, 13 March 2007). If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see inter alia the Artico judgment, cited above, § 33).

As regards the use of a video link, the Court reiterates that this form of participation in proceedings is not, as such, incompatible with the notion of a fair and public hearing, but it must be ensured that the applicant is able to follow the proceedings and to be heard without technical impediments, and that effective and confidential communication with a lawyer is provided for (see Marcello Viola, cited above).

It is not disputed by the Government that the first hearing before the appellate court (in 2002) fell short of the requirements of Article 6 § 3 (c) of the Convention. However, they claimed that the authorities had done everything in their power to ensure that at the rehearing of the case in 2007 the applicant received legal assistance. Therefore, the Court will concentrate on the second set of the appeal proceedings.

The Court observes that the original conviction was quashed by the Presidium of the Supreme Court in 2007 specifically because of the breach of the applicant's right to legal assistance. It is thus clear that for the authorities the case was complex enough to require the assistance of a professional lawyer. Given that, as well as the Court's own assessment of the complexity of the issues raised before the appellate court, the Court concludes that the assistance of a lawyer was essential for the applicant in the second set of the appeal proceedings.

The Court has considered the arguments of the Government in support of their position and accepts that Ms A. was a qualified lawyer and that there was no explicit disagreement between her and the applicant on the substance or strategy of his defence. While it is established that Ms A had read the case file, it is unclear how much time she spent on it and the Government have not submitted any specific information or evidence on this point. She was a priori prepared to assist the applicant, and this is, without doubt, a relevant consideration. However, these arguments are not decisive; the Court must consider whether the arrangements for the conduct of the proceedings, and, in particular, for the contact between Ms A. and the applicant, respected the rights of the defence.

The Court emphasises that the relationship between the lawyer and his client should be based on mutual trust and understanding. Of course, it is not always possible for the State to facilitate such a relationship: there are inherent time and place constraints for the meetings between the detained person and his lawyer. Moreover, in exceptional circumstances the State may restrict confidential contacts with defence counsel for a person in detention (see Kempers v. Austria (dec.), no. 21842/03, 27 February 1997, or Lanz v. Austria, no. 24430/94, § 52, 31 January 2002). Nevertheless, any limitation on relations between clients and lawyers, whether inherent or express, should not thwart the effective legal assistance to which a defendant is entitled. Notwithstanding possible difficulties or restrictions, such is the importance attached to the rights of the defence that the right to effective legal assistance must be respected in all circumstances.

In the present case, the applicant was able to communicate with the newly-appointed lawyer for fifteen minutes, immediately before the start of the hearing. The Court considers that, given the complexity and seriousness of the case, the time allotted was clearly not sufficient for the applicant to discuss the case and make sure that Ms A.'s knowledge of the case and legal position were appropriate.

Moreover, it is questionable whether communication by video link offered sufficient privacy. The Court notes that in the Marcello Viola case (cited above, §§ 41 and 75) the applicant was able to speak to his lawyer via a telephone line secured against any attempt at interception. In the case at hand the applicant had to use the video-conferencing system installed and operated by the State. The Court considers that the applicant might legitimately have felt ill at ease when he discussed his case with Ms A.

In addition, in the Marcello Viola case (cited above), counsel for the defendant had also been able to send a replacement to the video-conference room or, conversely, attend on his client personally and entrust the lawyer replacing him with his client's defence before the court. A similar conclusion was reached in the case of Golubev, cited above, where the Court did not find a violation of Article 6 on account of a hearing via video link because, inter alia, ‘the applicant's two lawyers were present at the appellate hearing [in the hearing room] and could have supported or expanded the arguments of the defence … The applicant was able to consult with his lawyer in private before the hearing. Furthermore, since the applicant had two lawyers, he could choose one of them to assist him in the detention centre during the hearing and to consult with him in private.’ None of the options described above was available to the applicant in the case at hand. Instead, the applicant was expected either to accept a lawyer he had just been introduced to, or to continue without a lawyer.

The Court notes that the Government did not explain why it was impossible to make different arrangements for the applicant's legal assistance. It accepts that transporting the applicant from Novosibirsk to Moscow for a meeting with his lawyer would have been a lengthy and costly operation (see paragraph 26 above). While emphasising the central importance of an effective legal assistance, the Court must examine whether in view of this particular geographic obstacle the respondent Government undertook measures which sufficiently compensated for the limitations of the applicant's rights. The Court notes in this respect that nothing prevented the authorities from organising at least a telephone conversation between the applicant and Ms A. more in advance of the hearing. Nothing prevented them from appointing a lawyer from Novosibirsk who could have visited the applicant in the detention centre and have been with him during the hearing. Furthermore, it is unclear why the Supreme Court did not confer the representation of the applicant to the lawyer who had already defended him before the first-instance court and prepared the original statement of appeal. Finally, the Supreme Court could have adjourned the hearing on its own motion so as to give the applicant sufficient time to discuss the case with Ms A.

The Court concludes that the arrangements made by the Supreme Court were insufficient and did not secure effective legal assistance to the applicant during the second set of the appeal proceedings.