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THIRD SECTION
CASE OF ANDANDONSKIY v. RUSSIA
(Application no. 24015/02)
JUDGMENT
STRASBOURG
28 September 2006
This judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Andandonskiy v. Russia,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr A. Kovler,
Mr V.
Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V.
Berger, Section Registrar,
Having deliberated in private on 7 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 24015/02)
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 a Russian national,
Vladimir Lvovich Andandonskiy (“the applicant”), on 4
June 2002.
- The applicant was represented by Ms T.S. Moyshina,
a lawyer practising in Rostov-on-Don. The Russian Government (“the
Government”) were represented by Mr P.A. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- The applicant alleged a violation of his right to
cross-examine a prosecution witness.
- The application was allocated to the Third Section of
the Court (Rule 52 § 1 of the Rules of Court). Within
that Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.
- By a decision of 8 December 2005, the Court declared
the application partly admissible.
- On 1 November 2004 the Court changed the composition of
its Sections (Rule 25 § 1). This case was assigned to the newly
composed Third Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1937 and currently lives in
the village of Veshenskaya, Sholokhovskiy District, Rostov Region.
A. The applicant's conviction
- On 13 June 2000 the Moskovskiy district prosecutor's
office of St Petersburg brought criminal proceedings against the
applicant on suspicion of the attempted murder of N. on 7 April 2000.
- On 31 January 2002 the Moskovskiy District Court of
St Petersburg examined the case in an open hearing in the
presence of the applicant, his counsel and a public prosecutor. It
convicted the applicant of intentionally inflicting grievous bodily
harm on N. and sentenced him to two years' imprisonment. Under an
amnesty law enacted on 26 May 2000, the court ordered that the
applicant be discharged. It further ordered that he should pay
pecuniary and non-pecuniary damages to the victim.
B. Evidence before the trial court and its assessment
- The court established the facts as follows. On 7 April
2000 at about 8 p.m., in the course of a quarrel with N., the
applicant attacked N., knocked him off his feet, sat on him, grabbed
his head and hit it several times against the asphalt pavement. As a
result of the applicant's actions N. sustained head injuries
including fractures to both parietal bones and a haematoma and a
graze in the right parietooccipital region (fractures to the
calvarium), a brain contusion, a haematoma in the region of the left
eye and grazes to the face. The fractures to both parietal bones and
the haematoma and the graze in the right parietooccipital region were
assessed as severe injuries and the remaining injuries as moderately
severe.
- The applicant's version of events was as follows. He
had been out walking with his one-year-old grandson when a man (N.)
and a woman (B., N.'s wife), previously unknown to him, had
approached them and rebuked him for not looking after the child
properly. In the course of the quarrel which broke out between them
N., who was in a state of inebriation, had insulted him and attempted
to kick him. The applicant had managed to grab N.'s leg. N. had
fallen and the applicant had fallen on top of him, resulting in N.'s
head injuries. He had not hit N.'s head against the pavement.
- It is clear from the judgment that the court based its
findings on statements by the victim N. and his wife B., the record
of a confrontation between the applicant and B. during the
preliminary investigation, statements by witnesses E. and K., and the
conclusions of the forensic medical examination.
- Thus, N. stated before the court that when out walking
with his wife he had seen a child and had called out, saying that the
child could hurt himself. The applicant had then attacked him from
behind. He did not remember what had happened next.
- B. asserted at the hearing that she and her husband N.
had seen the child and tried to attract someone's attention to the
situation. They had then been approached by the applicant who was in
a drunken state. He had insulted them using abusive language and had
tried to hit her husband. They had carried on walking. The applicant
had then attacked her husband, knocked him off his feet, sat on him,
grabbed his head and hit it about five times against the pavement. He
had then jumped to his feet and run away. An ambulance had been
called and her husband had been taken quickly to hospital.
- On 2 October 2000 during the preliminary investigation
the applicant confronted B. In the course of the confrontation B.
insisted that it was the applicant who had brought about the conflict
and that he had knocked her husband off his feet, sat on him, grabbed
his head and hit it about five times against the pavement.
- Witness E., who was summoned to the court, failed to
appear. On 23 January 2001 she wrote to the court as follows:
“I am writing to inform you that I cannot appear
in court in the case [of Andandonskiy] because of my state of health
and my age. My statements in the case and my passport details are
with a district police officer from police station no. 68 who
recorded statements made by me. I confirm those statements again.”
Her letter was received by the court on 29 January 2001.
- According to the record of the hearing before the
Moskovskiy District Court on 10 October 2001, submitted by the
Government, the applicant and his lawyer did not object to the
court's examination of the case (судебное
следствие)
being started in the absence of witness E., who had not yet been
examined at the trial. When, at the end of that hearing, they were
asked by the judge about the possibility of concluding the
examination of the case in the absence of E., who was not able to
attend for health reasons, and N., who had failed to appear due to
his illness and authorised his wife to represent him at the trial,
they replied:
“[We leave this decision] to the discretion of the
court.”
Having then heard evidence from the victim B. and the prosecutor, the
court ordered that the case be adjourned and that the victim N.
should submit for the next hearing a written request for examination
of the case in his absence.
- According to the record of the hearing before the
Moskovskiy District Court on 19 November 2001, submitted by the
Government, the applicant and his lawyer did not object to the
court's examination of the case being started in the absence of
witness E. The record also shows that at that hearing the court read
out, in accordance with Article 286 of the Code of Criminal
Procedure, the statements which E. had given on 6 July 2000
during the preliminary investigation, as she was unable to attend the
hearing for health reasons. No questions or additions followed from
the applicant or his lawyer. In reply to a question by the judge, the
applicant and his lawyer then expressly stated that they did not
object to the examination of the case being concluded in E.'s
absence. Having heard evidence from the victim B. and the prosecutor,
the court ordered that the examination of evidence be concluded. The
applicant and his lawyer made no comments in response. The court then
proceeded to the pleadings.
- In her statements made on 6 July 2000 during the
preliminary investigation, which the court read out at the hearing on
19 November 2001, E. stated that she had seen the applicant
knock the victim N. off his feet, hit his head at least five times
against the pavement and run away. Being a doctor, she had examined
the victim. She had seen that he was becoming unconscious and had
explained what had happened to some people who were at a meeting of
the residents of an adjacent block of flats. An ambulance had then
been called.
- The court heard evidence from witness K., who stated
that she had been at a meeting of the residents of a block of flats
when E. had run in and said that the applicant had killed a man.
Everyone had run out into the street and seen a man (N.) sitting on a
bench. There was blood on his head. She had not noticed whether he
was in a state of inebriation. He had been taken quickly to hospital
in an ambulance. She had learned from E. that the applicant had hit
the victim's head against the pavement.
- According to the report drawn up following the
forensic medical examination which established the victim's head
injuries, the blunt injury to the head (the fractures to the
calvarium) “could have been caused by blows from the hand
and/or by being hit against the pavement”.
- The court considered that the applicant had denied
beating the victim's head against the pavement in an attempt to
mitigate his responsibility.
- The court examined the medical
expert's conclusion to the effect that the possibility of N.'s having
sustained the injury in the parietooccipital region as a result of
falling down onto the pavement could not be ruled out. In assessing
that conclusion the court stated as follows:
“...the court takes into account that this
conclusion was made on the basis of the statements by the defendant
Andandonskiy, the assessment of which the court has already made
above. Furthermore, the victim also had other head injuries which
could not have been caused solely by falling from a standing position
(see case file, pp. ...). Therefore, the aforesaid expert conclusion
(see case file, p. ...) did not refute the statements by the
victims [N.] and [B.] and the witness [E.].”
- The court also examined statements by three witnesses,
who testified that the fight between the applicant and the victim and
his wife had been brought about by the latter who, being drunk, had
behaved offensively, and that the applicant had not beaten the
victim's head against the pavement. Two further witnesses stated that
the victim and his wife had been in an inebriated state. The court
considered that the above statements were aimed at helping the
applicant to avoid responsibility for what he had done. Another
witness, a member of the ambulance team who had examined the victim
at the scene of the accident and taken him to hospital, testified
that the victim N. had appeared to be in a state of inebriation. The
court found that those statements were unreliable as there was no
other corroborating evidence, for example blood-test results.
- The Moskovskiy District Court of St Petersburg
held:
“...in view of the nature of the defendant's
actions – intentional beating of the victim's head against the
pavement – and in view of the gravity of the injuries received
by N., the court considers it necessary to classify the defendant
Andandonskiy's actions as intentional infliction of grievous bodily
harm, causing danger to human life, under Article 111 § 1 of the
Criminal Code of the Russian Federation.”
C. Appeal proceedings
- The applicant appealed against the judgment on the
ground, inter alia, that it had been based on statements by
witness E., who had not been examined at the trial. He claimed that
he had acted in self-defence and in defence of the child.
- On 19 March 2002 the St Petersburg City Court upheld
the judgment on appeal. It heard submissions from the applicant and
his counsel, the victim's wife B. and the prosecutor. It stated, in
particular, that the statements by witness E., who was born in 1920,
had been read out at the trial in accordance with Article 286 of the
Code of Criminal Procedure, since the trial court had lawfully found,
on the basis of witness E.'s letter in which she referred to her age
and poor health, that her appearance at the trial had been
impossible. The trial court had taken account of the fact that B. and
E., previously unknown to each other, had consistently asserted that
the defendant had beaten the victim's head against the pavement more
than once. Their statements had been corroborated by the conclusions
of the forensic medical examination, and the fact that the victim N.
had injuries to his face which, as the expert report confirmed, could
not have been caused solely by falling and could have occurred before
the fracture of the parietal bones. The City Court held that in those
circumstances the judgment had been correctly based on the statements
by B. and E., which were corroborated by the expert's conclusions.
- Subsequent applications lodged by the applicant for
supervisory review proceedings to be initiated were unsuccessful.
II. RELEVANT DOMESTIC LAW
- Pursuant to Article 240 of the 1960 Code of Criminal
Procedure, in force at the material time, a first-instance court, in
considering a case, must directly examine the evidence. In
particular, it must question defendants, victims, witnesses and
experts.
- Under Article 286 of the Code, reading out at trial
statements made by a witness at the preliminary investigation stage
is allowed if the witness is absent from the hearing for reasons
which make his or her appearance in court impossible.
- Pursuant to Article 301 of the Code, the court must
base its judgment only on the evidence which has been examined at the
court hearing.
- Article 264 of the
Code regulates the keeping of a trial record in the first instance
court. It does not require a verbatim record of the trial to be kept,
but “a detailed record of the submissions”. In practice,
if a verbatim record exists, it is not attached to the official trial
record. A party to the proceedings may challenge the accuracy of the
official record within three days after having received a copy of it.
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The applicant complained under Article 6 of the
Convention that the Moskovskiy District Court of St Petersburg
had failed to examine at the trial witness E., on whose statements
his conviction was mainly based. Article 6, in its relevant parts,
reads:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. The parties' submissions
1. The Government
- The Government submitted that the
judgment of the Moskovskiy District Court had been based on
statements by witnesses, including witness E., and on an expert
report refuting the applicant's assertion that the victim's head
injuries had been caused as a result of his falling onto the
pavement.
35. In failing to call witness E. and,
instead, reading out her statements made during the preliminary
investigation, the Moskovskiy District Court had not breached the
domestic legislation on criminal procedure. It had received a request
from witness E. in which she informed the court that, in view of her
state of health and her age, she could not appear in court and asked
the court to read out the statements she had given during the
preliminary investigation. The court had taken into account, first of
all, the poor state of health of the witness, and also her advanced
age (she was 81 years old at the time of the trial). In view of the
combination of these factors, the court had reasonably considered
that there was good reason for her not to appear in court. Acting
strictly in accordance with Article 286 of the Code of Criminal
Procedure, the court had read out her statements given during the
preliminary investigation and confirmed in her letter to the court of
23 January 2001. The Government emphasized that when an elderly
person informed the court of his or her poor state of health and
requested leave not to attend hearings, a court could scarcely be
expected to take measures to secure the attendance of that witness at
a hearing.
36. In
submissions made following the admissibility decision in this case
the Government
indicated as follows:
“... at the hearings held in the course of
examination of the criminal case of Mr Andandonskiy by the
Moscow District Court of St Petersburg, neither the applicant nor his
representative objected to the court's examination of the case
(судебное
следствие)
being started and concluded in the absence of Ms [E.] (see, for
example, enclosed copies of extracts from the record of the
proceedings in the Moskovskiy District Court of St Petersburg dated
10 October and 19 November 2001).”
- The Government submitted written
statements made by E. and her daughter L. to the Prosecutor of the
Moskovskiy District of St Petersburg on 19 January 2006. Ms E.
stated as follows:
“... I cannot recall the
circumstances of the criminal case against V.L. Andandonskiy ...
... between 2000 and 2002, as now, I
rarely leave home. My close relatives take permanent care of me. I
suffer from high blood pressure, heart pains, leg oedema and pain.
...”
According
to Ms L., Ms E. had ceased working and leading an active
life in 2000 on account of her advanced age. Since 2000-2001 she had
not left home except for short walks.
38. The Government noted that the
statements by witness E. tallied with those by the victim's wife,
although they had not known each other before the events in question.
39. The Government concluded that there
had been no violation of Article 6 in the applicant's case.
2. The applicant
40. The applicant noted that the
Plenary Session of the Supreme Court of the Russian Federation, in
its decisions of 21 April 1987, 31 October 1995 and 29 April 1996,
had requested courts to proceed in administering justice from the
fact that, under Article 15 § 4 of the Constitution of the
Russian Federation, principles and norms of international law
contained in international covenants, conventions and other
documents, including international agreements of the Russian
Federation, formed part of its legal system and, in the event of any
conflict, took precedence over domestic law. It had further held
that, under Articles 240 and 301 of the Code of Criminal Procedure,
judgments should be based exclusively on evidence which had been the
subject of thorough and objective examination at the court hearing.
41. The Moskovskiy District Court had
convicted the applicant in breach of domestic law and of Article 6 of
the Convention. It had based its judgment on statements by the victim
N., his wife B., who had a vested interest in the outcome of the
case, witness K., who was not an eyewitness, and witness E., who
had given her testimony during the preliminary investigation. The
last witness had not been questioned at the court hearing. Her
testimony had been based on her assumptions and contradicted the
expert opinion and statements by seven other witnesses who had been
questioned at the court hearing and had refuted the allegations that
the applicant was guilty.
42. All evidence had to be produced at
a public hearing in the presence of the accused with a view to
ensuring adversarial argument. There were exceptions to that
principle, but they could not be allowed to infringe the rights of
the defence. As a general rule, Article 6 of the Convention required
that the accused be given an opportunity to cross-examine witnesses
against him or her and challenge their statements.
43. In the applicant's case the
Moskovskiy District Court of St Petersburg had done nothing to
secure the attendance of witness E. at the hearing though it had been
obliged to do so by law. It had considered her age to be a good
reason for her non-appearance in court. That could not justify
depriving the applicant of his right to ask that witness questions
and challenge the reliability of her statements in a face-to-face
dialogue. Therefore, the disadvantages for the defence had not been
balanced out by the examination of the witness at the preliminary
investigation stage.
- The only proof that it was impossible for an elderly
person to appear in court was a medical certificate stating that the
person was unable to participate in a court hearing on medical
grounds. The Moskovskiy District Court had had no
such certificate in respect of the witness E., who lived in the
immediate vicinity of the court and who, in reality, had not wished
to attend the hearing. Her unwillingness and the court's
unwillingness to secure her attendance could not be regarded as “a
reason which made her appearance in court impossible”, as
provided by Article 286 of the Code of Criminal Procedure.
- As regards the Government's argument that the
applicant and his lawyer had not objected to the examination of the
case being started and concluded in the absence of witness E., the
applicant argued that the official
record of the hearing on 10 October 2001, submitted by
the Government, was not exact.
He also argued that the fact that he and his lawyer had not objected
to the examination of the case being started at the hearing of
19 November 2001 in the absence of witness E. did not mean that
they had not objected to the reading-out of statements made by that
witness.
B. The Court's assessment
- At the outset the
Court notes that the defence did not challenge the accuracy of the
official record of the trial, whereas they were clearly able to do so
(see paragraph 32 above). Therefore, in absence of any proof to the
contrary, the Court will assume that the official trial record
produced by the Government is accurate.
- Further, the Court
recalls that the guarantees of paragraph 3 (d) of Article 6
are specific aspects of the right to a fair trial set forth in
paragraph 1 of this Article, cited above. Consequently,
the Court will consider the complaint concerning the failure to
examine witness E. at the hearing under the two provisions taken
together (see Asch v. Austria, judgment of 26 April 1991,
Series A no. 203, p. 10, § 25).
- The Court reiterates that the admissibility of
evidence is primarily governed by the rules of domestic law, and
that, as a rule, it is for the national courts to assess the evidence
before them. The task of the Court is to ascertain whether the
proceedings in their entirety, including the way in which evidence
was taken, were fair (see Asch cited above, p. 10, §
26).
- All evidence must normally be produced in the presence
of the accused at a public hearing with a view to adversarial
argument. However, the use in evidence of statements obtained at the
stage of the police inquiry and the judicial investigation is not in
itself inconsistent with paragraphs 3 (d) and 1 of Article 6,
provided that the rights of the defence have been respected. As a
rule, these rights require that the defendant be given an adequate
and proper opportunity to challenge and question a witness against
him or her either when that witness is making a statement or at a
later stage of the proceedings (see
Saïdi v. France, judgment of 20 September 1993, Series A
no. 261 C, Series A no. 261-C, p. 56, § 43). In
particular, the rights of the defence are restricted to an extent
that is incompatible with the requirements of Article 6 if the
conviction is based solely, or in a decisive manner, on the
depositions of a witness whom the accused has had no opportunity to
examine or to have examined either during the investigation or at
trial (see A. M. v. Italy, no. 37019/97, § 25,
ECHR 1999-IX, and Saïdi, cited above, §§
43-44).
- As to the notion of witness, given its autonomous
interpretation, the Court considers that, although Ms E. did not
testify at a court hearing, she should, for the purposes of Article 6
§ 3 (d), be regarded as a witness because her
statements, as taken down by the investigative authorities, were used
in evidence by the domestic courts (see Asch cited above, p.
10, § 25).
51. Indeed, the Court
notes that in the present case the applicant's conviction was based,
inter alia, on statements from Ms E. given during the
preliminary investigation and read out at the trial. There is no
indication that the applicant confronted that witness at the
preliminary investigation stage. In such circumstances it would
clearly have been preferable for evidence to have been taken from
Ms E. in person at the trial, in which case the applicant would
have had an opportunity to challenge her statements and question her.
52. However, the
judgment of the Moscovskiy District Court was not based solely or
even to a decisive extent on the testimonies of Ms E. (see in this
respect, mutatis mutandis, Van Mechelen and Others v. the
Netherlands, judgment of 23 April 1997, Reports of Judgments and
Decisions 1997 III, pp. 711-712, §§ 51-55; see
also Kostovski v. the Netherlands, judgment of 20 November
1989, Series A no. 166, p. 20, § 41). Thus, the District
Court strongly relied on the testimonies of Ms B., the victim's
wife, given at the hearing. In principle, it is not for this Court to
decide whether or not Ms B. had had a “vested interest”
in the outcome of the case, as the applicant suggested. In the
domestic courts' view Ms B.'s testimony was credible. That
finding was subjective but not arbitrary, so the Court sees no reason
to disagree with it. Further, the domestic courts also referred to
certain circumstantial evidence, which, although indirectly,
confirmed the account of the incident proposed by the prosecution. In
sum, the Court considers that Ms E.'s absence at the trial did not
affect significantly the overall fairness of the proceedings.
- Further, the Court notes that the Moskovskiy District
Court of St Petersburg received a letter from witness E. in
which she informed the court that she was unable to appear in court
because of her state of health and her age. According to the record
of the hearing of 19 November 2001, the applicant and his lawyer
were asked by the court if they considered it possible to begin the
examination of the case in the absence of that witness. They
explicitly stated that they had no objections. The court read out the
statements given by E. on 6 July 2000 during the preliminary
investigation. No questions or additions followed from the applicant
and his lawyer. At the end of the same hearing the judge solicited
the opinions of the applicant and his lawyer regarding the
possibility of concluding the examination of the case in E.'s
absence. They expressly answered that they had no objections. Having
heard evidence from the victim and the prosecutor, the court ordered
that the examination of the case be completed. The applicant and his
lawyer made no comments in response. The court then proceeded to the
pleadings. The Court notes that the applicant does not dispute the
authenticity of the above record of the hearing of 19 November
2001. His allegation that the transcript of the hearing submitted by
the Government to the Court was not authentic related only to the
transcript of the hearing on 10 October 2001 (see paragraph 45
above).
- The Court reiterates that waiver of the exercise of a
right guaranteed by the Convention, insofar as such waiver is
permitted in domestic law, must be established in an unequivocal
manner (see Colozza v. Italy, judgment of 12 February
1985, Series A no. 89, pp. 14-15, § 28). The Court
considers that the applicant, who was represented by legal counsel
throughout the trial, could have been expected to request the
examination of witness E. at that trial if he attached importance
thereto. The applicant has failed to demonstrate that he did so, and
the Court therefore finds that he can reasonably be considered to
have waived his right to cross-examine the prosecution witness in the
proceedings in question.
- In view of the above, the Court concludes that in the
circumstances of the case the failure to examine Ms E. at the
trial did not amount to a violation of Article 6 §§ 1 and 3
(d).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 §§
1 and 3 (d) of the Convention.
Done in English, and notified in writing on 28 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
