On appeals, cassations and complaints to the European Court. HRO.org reports from the latest “Strasbourg Session”

1 March 2013 

Vera Vasilieva

Source: HRO.org 
On 1 January 2013 criminal appeals were introduced into Russian courts providing for the right for sentences handed down to be reviewed, both in terms of possible reduction and possible increase in the severity of the sentences, with no right of further appeal. On how this innovation will affect the ability of our citizens to take cases to the European Court of Human Rights (ECtHR) was the main topic of discussion among lawyers from the Centre for International Protection at the latest roundtable meeting of the so-called Strasbourg Sessions, which took place on 28 February 2013 at the Independent Press Centre in Moscow. 

Currently, a case is concluded once a case has been heard by a court of appeal. The court of first instance reviews the conclusions of the investigating authorities, analyses the facts, gives a legal assessment of the offence committed and delivers its ruling. An appeal will re-examine the case from the point of view of the legality of the conviction in terms of the facts and the law.

However, the introduction of criminal appeals will not do away with cassations. Participants of the judicial process still have the right to submit further cassation appeals. During a cassation appeal, the legality of the conviction should be examined. 

The topic of this Strasbourg Session was Appeals and cassations: effective means of legal defence for the European Court.

Head of projects for the Centre for International Protection, commissioner and member of the executive committee of the International Commission of Jurists, Karinna Moskalenko, said that as a result of the introduction of appeals for lawyers working with the ECtHR, the issue of the acceptance criteria for their appeals had become particularly acute.

"We are talking about two criteria for acceptance by the ECtHR which are highly interdependent. One criterion is the exhaustion of all legal avenues, and the other is the six-month time limit for submitting appeals. It's six months for now, but it could be reduced to four.

"So what does this time limit apply to - the appeal or the cassation? Does the cassation in this new situation amount to an effective means of legal defence?" asked Karinna Moskalaneko, describing the dilemma facing lawyers.

The lawyer recalled that if a complaint was made to the ECtHR before all legal avenues had been exhausted at the national level, then the complaint would be considered inadmissible. And if the six-month time limit set out in the ECtHR rules expires, then the case would be considered inadmissible by this criterion instead.

Before the introduction of criminal appeals the final effective means of legal defence was considered to be the court of cassation. After that a convicted person could appeal to Strasbourg without having to wait for for their appeal to be considered by the court of supervision, as the ECtHR does not recognise this as an effective means of legal defence.

The Centre's director Oksana Preobrazhenskaya, who joined the meeting via a teleconference from Strasbourg, said that in Ukraine all three stages had to be exhausted. That means that before someone can file an appeal with the ECtHR they first have to go to the court of first instance, as well as the appeal court and court of cassation.

At the same time Oksana Preobrazhenskaya would not rule out that cassations in Russia would now not be an effective means of legal defence.

Lawyer Aleksandr Manov, who was also taking part in the meeting, questioned whether the criminal appeal court would actually analyse cases as thoroughly as is prescribed in the law.

"You only have to look at the timetable and see that in one day there are 20 cases to get through. It's clear that one day is not enough to decide on even one case. And they don't just have to decide but deliver a verdict. That's impossible to do in one day, it's flawed from the outset. I think that questions should be asked about the responsibility of the legislator," he said.

On the question of cassation proceedings, Aleksandr Manov said that as part of this process grounds for repealing or amending a verdict are significant violations of the criminal or criminal procedural law. And not simply significant ones but any that could have affected the outcome of the trial.

"We have a conveyor belt, no one is going to consider any particular violation to be significant. It will be a purely formal procedure," said the lawyer, voicing his concerns.

However, Aleksandr Manov believes that appeals against court decisions in criminal, civil and commercial courts require a differentiated approach. Referring to his own experience, he said that generally speaking, in civil cases cassations and appeals are equally ineffective. Meanwhile "in commercial proceedings cassation is still a pretty serious authority." Drawung any final conclusions about the effectiveness of cassations in criminal proceedings will only be possible after some time has passed.