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FIFTH
SECTION
CASE OF
KLIMENTYEV v. RUSSIA
(Application
no. 46503/99)
JUDGMENT
STRASBOURG
16
November 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 Klimentyev v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr A. Kovler,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 23 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 46503/99) against the Russian
Federation lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Andrey Anatolyevich
Klimentyev (“the applicant”), on 11 August 1998.
- The
applicant was represented by Mrs K. Moskalenko, a lawyer practising
in Moscow, and Mr G. R. Baum, a lawyer practising in Cologne. The
respondent Government were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant complained about the unfairness of criminal proceedings
against him, alleging, inter alia, that he had been unable to
question some witnesses whose statements had been read out in court
and to take part in the ordering of expert examinations, that the
case-file had lacked translations of certain documents, that he had
been denied proper access to some documents in the case-file, that
the first instance court had failed to furnish him with an amended
copy of the judgment of 27 May 1998, and that on 19 May 1998 he had
been unable to replace a lawyer who fell sick.
- The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
- By
decision of 21 June 2005 the Court declared the application partly
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Court having decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine), the parties replied in writing to each other's
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in the city of Nizhniy Novgorod.
1. First round of proceedings in the applicant's
criminal case
- On
7 March 1995 criminal proceedings were brought against the applicant
on suspicion of his involvement in a number of economic crimes.
- From
30 July to 28 October, on 15 November 1996 and on 15 and 16 January
1997 the applicant and his defence team studied the case-file.
- On
21 April 1997 the Nizhniy Novgorod Regional Court (“the
Regional Court”, Судебная
коллегия
по уголовным
делам
Нижегородского
областного
суда) convicted
the applicant of some charges and acquitted him of the rest,
sentencing him to one and a half year of imprisonment and the
forfeiture of part of his property.
- The
judgment of 21 April 1997 was quashed on appeal by the Supreme Court
of the Russian Federation (“the Supreme Court”, Верховный
Суд Российской
Федерации)
on 17 July 1997. The case was remitted for fresh examination at first
instance.
2. Fresh proceedings at first instance
- Between
30 September and 20 November 1997 the applicant and his counsel were
again given an opportunity to study the case-file.
- On
24 November 1997 the hearings recommenced at first instance.
(a) Hearings of 6, 8 and 19 May 1998 and
the applicant's request to admit Mrs Moskalenko
- The
applicant's civil defender Mr Chumak and his counsel Mr Kozlov failed
to attend the hearing of 6 May 1998.
- Mr
Chumak excused himself by reference to his previous engagements in a
different set of proceedings. It appears that Mr Kozlov was
undergoing medical treatment in a hospital.
- In
view of their absence, the court adjourned the hearing until 8 May
1998. On 8 May 1998 Mr Chumak and Mr Kozlov were again absent and,
despite the applicant's proposal to continue the examination of the
case in their absence, the court again adjourned the hearing, this
time until 19 May 1998.
- On
19 May 1998 both the civil defender and counsel Kozlov attended the
hearing.
- According
to the transcript, at the hearing the applicant requested the court
to admit Mrs Moskalenko as a “specialist in international law”.
The court considered the request unfounded and irrelevant as there
was no need for advice on international law at that stage of
proceedings.
- According
to the applicant, he requested to admit Mrs Moskalenko as a
replacement counsel for Mr Kozlov who was present and unfit
effectively to participate in the hearing due to his medical
condition.
- From
the hearing transcript it does not transpire that either the
applicant or his defence counsel objected to the decision rejecting
the applicant's request with reference to Mr Kozlov's alleged
inability to participate in the further examination of the case on
medical grounds.
(b) Assessment of the witnesses'
statements by the first instance court
- During
the trial the Regional Court heard more than thirty five witnesses in
total, both for the prosecution and the defence.
- The
court refused the applicant's requests to call certain witnesses,
including the former Regional Governor, the Regional Prosecutor and
other officials, and admitted and considered five witness statements
taken at the pre-trial stage of proceedings and during the first
round of proceedings at first instance without hearing the respective
witnesses in person.
i. Statements by witnesses R. and B.
- Two
of these witnesses were the Norwegian nationals R. and B. who had
both been questioned by the Norwegian National Authority for
Investigation and Prosecution of Economic and Environmental Crime
(“the Norwegian authority”, ØKOKRIM) and the
Russian investigators in Norway on 20 February 1996.
- The
trial court attempted to secure the presence of these witnesses in
person by making an official request to that effect to the Norwegian
authorities.
- By
letters of 26 and 27 January 1998 R. and B. refused to appear and
give evidence to the court, and on an unspecified date the Norwegian
authorities refused to secure their presence at the trial by force.
- Consequently,
the witnesses R. and B. did not attend the trial and the applicant
could not cross-examine them.
ii. Statements by witnesses P., M. and A.
- The
third witness was a German national P. who gave evidence at the
pre-trial stage of proceedings and during the first round of
proceedings in 1997. The applicant and his counsel were able to
cross-examine him during the first round of proceedings.
- The
trial court unsuccessfully tried to secure his presence but P. was in
Germany and could not be found.
- The
fourth and fifth witnesses, the Russian nationals M. and A., were
also questioned during the pre-trial investigation and during the
trial in 1997. The applicant and the defence team were able to
cross-examine them during the proceedings in 1997.
- From
the case-file and the documents presented by the Government it
transpires that during the hearings the court summoned these two
witnesses and the authorities repeatedly undertook various measures,
including questioning the close relatives and the witnesses'
connections, with a view to securing their presence at the trial.
Apparently these measures proved futile as the witnesses' whereabouts
could not be established.
(c) Assessment of evidence in foreign
languages by the first instance court
- It
appears that the prosecution case contained several documents in
English and Norwegian.
- All
documents admitted by the court as evidence were translated either by
certified translators or by the staff of the Norwegian embassy. Most
of the translations were attached to the case-file prior to the
beginning of the first instance hearings, whilst some of them on 24
April 1998 (numbering 28 pages) and 19 May 1998 (16 pages), were
submitted already after the beginning of the trial.
- According
to the Government, on one occasion the defence requested translation
of a document which had not been used by the prosecution or the
court. The request was granted and the necessary translation was
made.
(d) Assessment of expert examinations by
the first instance court
- The
court also admitted a number of expert reports (technical, medical,
graphologist and others) which had been ordered by the prosecution
during the pre-trial stage of proceedings.
- It
follows from the case-file that the applicant was officially notified
of most of the prosecution decisions to carry out expert examinations
(counting more than twelve) within a month from the date on which
such decisions had been taken.
- The
decisions of 22 December 1995, 18 and 22 January 1996 to carry out
expert examinations were served on the applicant on 12 April 1996.
The decision to carry out expert examination dated 28 March 1996 was
served on him on 16 May 1996.
- At
the time when these decisions were served, both the applicant and his
counsel were officially informed about the procedural rights of the
accused, including the right to challenge an expert, seek an
appointment of a particular person as an expert, adduce further
questions, be present during the expert examination in person and
make any comments and be informed of expert conclusions. The accused
also had an opportunity to make related requests and motions in
writing.
- In
respect of the decisions of 28 March and 30 April 1996 to carry out
technical examinations, the applicant requested to provide him with
copies of some documents. The copies were provided to him on 21 June
1996. As regards the decision of 22 January 1996 to carry out
technical examinations, the applicant stated that it “might
have been more objective” to carry out that examinations in
Moscow or St Petersburg.
- The
copies of the notification reports state that the applicant and his
counsel did not make any additional requests and motions.
(e) Judgment of 27 May 1998
- On
27 May 1998 the Regional Court found the applicant guilty on charges
of misappropriation, embezzlement, bribery and the attempt not to
return money from abroad.
- According
to the judgment, the applicant and a co-accused Mr K., the director
of a shipyard “Oka”, had tampered with documents with a
view to embezzling the shipyard's property. The director, acting on
behalf of the shipyard, was found to have arranged large-scale money
transfers under fraudulent contracts with the companies owned by the
applicant, whereas the applicant was found to have bribed the
director by opening bank accounts in the name of Mr K. in Norway and
transferring the stolen money there. Among other things, the
applicant was also convicted of having extorted money from a
marketplace owned and run by the companies “Zhanto” and
“NL TOP”, and from a casino owned and run by a company
“Slot”.
- In
total, the court sentenced the applicant to six years' imprisonment
and the confiscation of part of his property. The court also upheld
civil claims for damages by the shipyard “Oka” and three
other companies, “Zhanto”, “NL TOP” and
“Slot”.
- The
applicant's conviction was based on various pieces of evidence, i.e.
numerous documentary items, including accounting, financial and
contractual papers reflecting the operation of sham companies owned
and run by the applicant and Mr K. as well as oral and written
evidence given by more than thirty-five witnesses and various expert
examinations.
- A
copy of the judgment of 27 May 1998 was served on the applicant on 3
June 1998.
- Later
it was discovered that the copy contained errors and misprints.
- On
8 June 1998 the Regional Court corrected a number of clerical and
technical mistakes in the judgment and ordered that the applicant be
furnished with the amended version.
- The
applicant claims that he did not receive the amended version.
- The
records in the case-file indicate that the amended copy of the
judgment was served on the applicant against his signature on 11 June
1998.
(f) Trial records
- The
Government submit that the whole trial was taken down in shorthand
and taped and that the respective records were all available to the
interested parties, including the applicant and his counsel.
- On
28 May 1998 the applicant requested to study records, audiotape
recordings and shorthand records.
- The
applicant was provided with this opportunity on 10, 11, 15 and 16
June 1998.
- On
the last date a specialist of the Regional Court certified that the
applicant had been given access to the trial record, though he had
refused to study audio records and shorthand records.
- On
17 June 1998 a judge of the Regional Court decided that the defence
counsel should be given access to the records between 17 June and 23
June 1998.
- The
deadline for filing objections was set on 25 June 1998 accordingly.
- It
does not appear from the case-file that the applicant ever challenged
the accuracy of the trial records.
(g) Separate rulings of 27 May 1998
- On
27 May 1998 the Regional Court made a number of separate rulings
(частные определения)
in the case.
- In
one of these rulings the court noted that there had been breaches of
the relevant rules of criminal procedure during the investigation and
that these breaches had been remedied during the trial.
- In
particular, the court established that the defendants had been
informed about the commissioning of expert reports in the case only
after the respective examinations were over.
- The
court considered that this failure did not invalidate the conclusions
of the experts' reports and that the applicant had failed to contest
the results of the reports during the investigation or during the
trial or request additional or repeated examinations to be carried
out.
- The
court also noted that a number of documents in the case-file were in
foreign languages, but considered that this did not violate the
applicant's defence rights because the documents were similar to or
copies of other documents in Russian and that in any event all
relevant documents had been translated into Russian during the trial.
- The
court further noted that certain statements of witnesses had been
admitted as evidence, even though they gave no indication as to the
time or place of questioning. To verify the relevant points, these
witnesses as well as other witnesses had been questioned in the
courtroom on the circumstances of the questioning.
3. Appeal proceedings
(a) Points raised by the defence on appeal
- The
defence appealed against the judgment of 27 May 1998 to the Supreme
Court.
- In
their appeal, inter alia, the applicant's counsel contested
the admissibility of certain evidence admitted by the court such as
expert reports, documents in foreign languages, certain procedural
documents, statements of witnesses made during the pre-trial
investigation and at the first round of proceedings at first
instance, statements of witnesses taken by the Norwegian police, and
other evidence obtained in Norway, claiming that were allegedly in
breach of the domestic procedural rules.
- Furthermore,
it was stated that the applicant's defence had not had due access to
the trial records and the quality of the defence had been impaired by
the Regional Court's refusal to admit Mrs Moskalenko as a replacement
for a lawyer who was sick.
(b) Mrs Moskalenko's motions to adjourn an
appeal hearing
- On
16 June 1998 Mrs Moskalenko joined the defence team. In July and on
10 August 1998 she referred to various difficulties in organising the
defence and made several requests to the Supreme Court to adjourn the
hearing.
- She
also complained that the applicant had been served neither with the
final copy of the judgment, nor with the rulings of 27 May 1998 and
that the defence had had no access to the verbatim record and certain
volumes of the case-file.
- On
29 June 1998 the Supreme Court granted one of her requests to adjourn
the hearing. The hearing initially scheduled for 29 June 1998 was
postponed.
- Thereafter
Mrs Moskalenko failed to appear at the hearing on 30 July 1998.
- On
10 August 1998 Mrs Moskalenko requested to postpone a further hearing
claiming that the defence had not been properly notified of the
judgment and separate rulings.
- In
response to her request for adjournment, the Supreme Court ruled that
both the defence in general and Mrs Moskalenko in particular had had
sufficient time to examine the trial records, study the first
instance judgment and prepare for the case at least between 16 June
and 30 July 1998 and turned down the request as unfounded.
- The
appeal hearing took place on 10 August 1998.
(c) Decision of 10 August 1998
- On
10 August 1998, in the presence of the applicant's defenders, Mrs
Moskalenko and Mr Chumak, and the prosecution, the Supreme Court
examined the appeals and, with minor alterations, confirmed the
judgment of 27 May 1998.
- The
court concluded that there had been no significant breaches of
national procedural law or international standards during the trial.
- As
to the complaints about the handling and assessment of the evidence,
the court found that the lower court had properly admitted and
considered the evidence in the case and that the conclusions of the
lower court had been reasonable and substantiated. It also noted that
the defence had been furnished with Russian translations of foreign
documents during the hearing.
- The
court further considered that the applicant had been adequately
represented throughout the pre-trial investigation and the trial, and
that at no time during the proceedings had he been deprived of
professional legal advice.
- In
respect of the events of 19 May 1998, the court noted that the
applicant's lawyer had never applied for an adjournment of the
hearing for health reasons and the Regional Court's refusal to admit
Mrs Moskalenko as a further lawyer did not constitute a violation of
the applicant's right to defence.
II. RELEVANT DOMESTIC LAW
1. Expert examinations
- According
to Sections 78 and 80 of the Code of Criminal Procedure of the RSFSR
(the Russian Soviet Federal Social Republic) of 1960, as in force at
the relevant time, in cases requiring special knowledge of science,
technology, art or particular skill, an investigative authority or a
court may appoint an expert to carry out an expert examination. The
conclusions of an expert are not binding on an investigating
authority or a court but any disagreement with them must be
motivated. By Sections 81 and 290 of the Code incomplete, unclear,
unjustified or dubious expert conclusions may trigger a decision by a
court or an investigator ordering additional or repeated expert
examinations. In such cases the court takes the decision having heard
the opinions of the participants of the proceedings (Section 276 of
the Code).
- Section
185 of the Code states that an accused and his counsel have the right
to challenge an expert, seek an appointment of a particular person as
an expert, adduce further questions, be present during the expert
examination in person and make any comments and be informed of expert
conclusions. In case the respective request was granted, an
investigation alters its decision to carry out the examination
accordingly.
- By
Section 193 of the Code, expert conclusions should be presented to
the applicant who has the right to respond or object to these
conclusions as well as the right to request the authority to put
additional questions to the expert or carry out an additional or a
repeated expert examination.
2. Access to the case-file by the defence
- Having
decided that the collected evidence is sufficient to prepare the bill
of indictment, an investigator informs the accused that the
investigation is terminated and that the accused has the right to
study the entirety of the case personally and with the assistance of
his defence counsel and to request the investigator to carry out an
additional investigation (Sections 201, 202 and 203 of the Code). The
investigator should draw up a report reflecting the progress of the
defence in studying the case. The investigator cannot limit the time
for study, except in cases where the accused and his counsel
manifestly protract the process.
3. Translation of documents in the case-file
- According
to Section 17 of the Code, criminal proceedings are conducted in
Russian. The contents of documents relating to court proceedings and
investigation are made available to the accused in a language that he
understands.
- A
translator appointed by a court or an investigator is under an
obligation to make correct translations and may be held criminally
liable for incorrect translations under Section 57 of the Code and
Section 307 of the Criminal Code of Russia.
- By
Section 276 of the Code of Criminal Procedure, participants in the
proceedings, including the accused and his defendants, have the right
to make requests to summon new witnesses, experts and specialists or
retrieve items of evidence and documents etc. A court, having heard
other participants in the proceedings, should examine each such
request and either grant it or give a motivated decision refusing it.
- Section 292 of the Code provides that documents
adduced to the case or presented by a party during a hearing and
containing description of relevant facts should be read out.
4. Notification of the defence of a first instance
judgment
- By
Section 320 of the Code, a copy of the first instance judgment should
be served on an accused or an acquitted within three days from its
delivery.
5. The status of defender in criminal proceedings
- By
Section 249 of the Code, a defender takes part in examination of the
body of evidence, gives his opinion on various issues arising during
the court proceedings, including the substance of accusations, any
mitigating circumstances as well as the penalty and civil liability
for the commission of a crime.
- By
Section 47 of the Code, advocates (counsel) and representatives of
professional or other social unions may act as defenders. According
to Section 250 of the Code, representatives of social organisations
and staff may act as “civil defenders” (общественные
защитники).
As such they have the right to present evidence, take part in
examination of evidence, make motions and challenges, participate in
arguments as well as give their opinion on any mitigating or
acquitting circumstances and the penalty.
6. Questioning of witnesses at a trial
- Section
73 of the Code imposes an obligation on a witness to attend and to
give truthful evidence to the best of his knowledge as well as to
respond to questions. In case of failure to respect this obligation
the witness may be brought before the authority by force and punished
by a fine of up to a third of a monthly minimum wage and/or be held
liable of a criminal offence.
- According
to Sections 240 and 245 of the Code, a trial court must carry out a
first-hand examination of all evidence in the case, including, among
other things, hearing of witnesses, the participants in criminal
proceedings (a prosecutor, an accused, a defender, a victim, a civil
claimant and a civil respondent and their representatives) having
equal procedural rights concerning submission and examination of
evidence as well as making of various requests.
- Sections
277 and 286 of the Code state that in case of a witness's objective
inability to attend a court, having heard the participants of the
proceedings, may decide to read out the statements given by the
witness at earlier stages of the proceedings.
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. Article 6 § 1 of the Convention (equality of
arms)
- The
applicant complained that he had been unable to take part in the
decision-making process leading to the ordering of the expert
examinations.
- This
complaint falls to be examined under Article 6 § 1 of the
Convention which, insofar as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
1. The applicant's submissions
- The
applicant submitted that he had been prevented from taking part in
the ordering of the expert examinations because the notifications of
the decisions had been delayed.
2. The Government's submissions
- The
Government responded that the applicant and his defence counsel had
been properly notified of all decisions ordering expert examinations
and that the defence had had an ample opportunity to make related
requests and objections. All requests made by the defence were
granted and it does not appear that on any of the occasions the
defence objected to decisions to carry out expert examinations as
such, that they challenged the experts or that any of their requests
for additional expert examinations were refused. Furthermore, the
issue of admissibility of expert examinations was examined in detail
by the trial court which gave a reasoned decision in this connection.
In view of the above, the Government concluded that there had been no
violation of Article 6 in this respect.
3. The Court's assessment
- The
Court recalls that according to the principle of equality of arms, as
one of the features of the wider concept of a fair trial, each party
must be afforded a reasonable opportunity to present his case under
conditions that do not place him at a substantial disadvantage
vis-à-vis his opponent (see e.g. Jespers v. Belgium,
no. 8403/78, Commission decision of 15 October 1980, Decisions and
Reports (DR) 27, p. 61; Foucher v. France, judgment of 18
March 1997, Reports of Judgments and Decisions 1997 II,
§ 34; Bulut v. Austria, judgment of 22 February
1996, Reports of Judgments and Decisions 1996 II, p.
380-381, § 47).
- On
the facts, the Court observes that the case for the prosecution
rested, inter alia, on a number of expert reports (technical,
medical, graphological and other) ordered by the prosecution during
the pre-trial stage of proceedings in 1995 and 1996. Four out of more
than sixteen decisions ordering such reports were served on the
applicant with delays ranging from two to three and a half months,
whilst the remaining twelve decisions were served within a month from
the respective dates of their delivery (see paragraphs 34-37 in the
summary of facts). The applicant principally argued that the late
notification of these decisions had effectively deprived him of the
possibility to participate in the ordering of the expert examinations
and that the subsequent admission of the respective expert
examinations had been in breach of Article 6.
- Having
regard to the circumstances of the case, the relevant domestic law
and the parties' submissions, the Court cannot subscribe to the
applicant's argument. To begin with, the Court observes that at the
time of service of these sixteen decisions both the applicant and his
counsel were officially informed about the procedural rights of the
accused, including the right to challenge an expert, seek the
appointment of a particular person as an expert, adduce further
questions, be present during the expert examination in person and
make any comments and be informed of expert conclusions (see
paragraph 37 above). The applicant and his counsel had an
unrestricted opportunity to make related requests and motions in
writing and, indeed, there is no indication in the case-file that any
of the requests of the defence were turned down as belated or
otherwise inadmissible. On the contrary, the authorities granted and
implemented all of the applicant's requests in this respect.
Moreover, there is nothing in the case-file to suggest, and indeed
the applicant has not alleged that he was unable, personally or with
the assistance of his defence counsel, to study the impugned expert
examinations beforehand, contest them throughout the trial and appeal
proceedings or avail himself of his rights under Sections 89 and 290
of the Criminal Procedure Code by requesting the trial court to order
additional or repetitive expert examinations.
- In
view of the foregoing, the Court concludes that the late notification
of the decisions in question did not place the applicant at a
substantial disadvantage vis-à-vis the prosecution or
otherwise interfere with his rights under Article 6. There has,
therefore, been no violation of that provision in this respect.
B. Article 6 §§ 1 and 3 (b) of the Convention
- The applicant complained about the denial of access to
the entirety of the case-file, including the documents admitted by
the first instance court during the trial, both at the first instance
and on appeal. He further alleged that the trial court had admitted
certain documents without translation and that the court had failed
to furnish him with an amended copy of the judgment of 27 May 1998.
- These
complaints fall to be examined under Article 6 §§ 1 and 3
(b) of the Convention which, insofar as relevant, 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:
(b) to have adequate time and facilities for
the preparation of his defence...”
1. The applicant's submissions
- In
respect of the lack of access to the case-file, the applicant argued
that he had not been given the documents relating to his seized
property, that, more generally, the time for study of the case-file
had been insufficient, and that he had been refused proper access to
the trial records.
- The
applicant furthermore alleged that following the termination of the
preliminary investigation, the case-file had contained numerous
untranslated documents in foreign languages, that some of these
documents had been translated only during the trial, whilst others
had been left without translation. The applicant also contested the
translations of the documents as they had allegedly been made by
incompetent translators and that they were unlawful and inadmissible.
- Finally,
the applicant insisted that the first instance judgment of 27 May
1998 had not been properly served on the defence and that in view of
the fact that the judgment had contained numerous errors and had been
generally unlawful, the appeal court ought to have quashed it as
unlawful.
2. The Government's submissions
- As
to the applicant's allegedly impaired access to the entirety of the
case-file, the Government submitted copies of relevant parts of the
case-file and noted that both the applicant and his defence had had a
proper and timely access to the case-file after the pre-trial stage
of proceedings, during the first and second trial as well as after
the first instance judgment of 27 May 1998. In respect of the latter
period, the Government underlined that the applicant's lawyer Mrs
Moskalenko had had time at least between 16 June and 20 July 1998 to
study the amended version of the first instance judgment of 27 May
1998, the first instance transcripts and the case-file.
- As
regards the applicant's complaint about the admission of untranslated
documents, the Government observed that during the preliminary
investigation of the case the authorities had seized a large number
of documents in foreign languages most of which had been translated
into Russian. Furthermore, the defence was given an opportunity to
request the trial court to order translations of any of these
documents and at least on one occasion the applicant availed himself
of this right, and the required translation was ordered. As regards
the documents in Norwegian, their translation was added to the
case-file on 24 April 1998, i.e. already after the beginning of the
trial, and was fully available to the parties for study after that
date. In addition, the Regional Court discussed in detail the
decision to join to the case-file a number of untranslated documents
taken at the pre-trial stage of the proceedings and concluded that
all relevant documents had been translated into Russian during the
trial which had remedied violations of the criminal procedure. In
accordance with Sections 240 and 292 of the Code of Criminal
Procedure, all translations were examined by the trial court in the
presence of the applicant and his defence team who had ample
opportunities to contest them. The Government concluded that there
been no breach of Article 6 of the Convention in this respect.
- As
to the alleged failure to serve an amended copy of the judgment of 27
May 1998 on the applicant, the Government submitted copies of the
documents from the case-file certifying that this document had been
served on the applicant on 11 June 1998.
3. The Court's assessment
- Insofar
as the applicant is dissatisfied with the allegedly insufficient time
to study the case-file, the Court notes that from the copies of the
relevant parts of the case-file it transpires that the defence,
including the applicant and his counsel, studied the case-file
extensively on at least three occasion, i.e. immediately after the
investigation, during the first round of proceedings at first
instance and after the applicant's initial conviction of 21 April
1997 had been quashed on appeal by the Supreme Court (see paragraphs
9-12 above). In respect of the period between the first instance
judgment of 27 May 1998 and the appeal proceedings on 10 August 1998,
the Court observes that the applicant and his defence team had
sufficient time at least between 10 June and 20 July 1998 to study
the amended version of the first instance judgment of 27 May 1998,
the first instance transcripts and the case-file. The applicant was
provided with this opportunity on 10, 11, 15 and 16 June 1998, whilst
the defence counsel had access to the records between 17 June and 23
June 1998 (see paragraphs 51-53). In the Court's view, this time was
sufficient for the defence to prepare its appeal arguments. This
being so and given the lack of evidence of any unjustified
limitations on the applicant's ability to study the case-file, the
Court concludes that the time afforded by the authorities to study
the case-file was not as such insufficient and that the applicant's
rights under Article 6 have not been breached in this respect.
- As
regards his complaint about the fact that certain translations of the
documents in foreign languages were joined to the case after the
beginning of the trial and that the translations had been prepared by
incompetent translators, the Court reiterates that the principle of
equality of arms, which is one of the elements of the broader concept
of a fair hearing, requires each party to be given a reasonable
opportunity to present its case under conditions that do not place it
at a substantial disadvantage vis-à-vis its opponent
(see the references in paragraph 96 as well as Ankerl v.
Switzerland, judgment of 23 October 1996, Reports of Judgments
and Decisions 1996 V, p. 1567-68, § 38 and Helle
v. Finland, judgment of 19 December 1997, Reports of Judgments
and Decisions 1997 VIII, p. 2928, § 53). In
addition, the Court reiterates that it is not
its function to deal with errors of fact or of law allegedly
committed by national courts unless and in so far as they may have
infringed rights and freedoms protected by the Convention. While
Article 6 guarantees the right to a fair hearing, it does not lay
down any rules on the admissibility and assessment of evidence, which
are primarily a matter for regulation under national law (see, among
other authorities, Khan v. the United Kingdom, no. 35394/97, §
34, ECHR 2000 V).
On
the facts, the Court notes that trial court indeed joined 28 pages of
translations on 24 April 1998 and 16 pages of translations on 19 May
1998 which was already after the beginning of the first instance
hearings in the case (see paragraph 32 in the summary of facts). The
Court observes however that there is nothing in the case-file or the
parties' submissions to suggest that these translations were not read
out at the hearings, as required by Section 292 of the Code of
Criminal Procedure, and there is nothing in the case-file or in the
parties' submissions to suggest that they were not fully available to
the defence for study afterwards. Furthermore, as of these dates and
until 27 May 1998 which is the date of the delivery of the first
instance judgment, the applicant, personally and through his
defenders, had ample time and opportunity to challenge the contents
of these documents as well as call into question the competence of
those who translated them or arrange for additional or alternative
translations of relevant documents. In view of the above, the Court
finds that both the prosecution and the defence had equal
opportunities to make use of the evidence in question. The Court is
therefore unable to conclude that the admission of these translations
after the beginning of the trial placed the defence at a substantial
disadvantage vis-à-vis its opponents or adversely
affected the fairness of the proceedings.
- Insofar
as the applicant complains about the presence of documents in the
prosecution case-file which remained untranslated during the
proceedings, the Court observes that in contrast to cases where an
applicant could not understand or speak the language used in court
(see, e.g. Luedicke, Belkacem and Koç v. Germany,
judgment of 28 November 1978, Series A no. 29, § 40),
there is no indication in the present case that either the bill of
indictment or the applicant's first instance conviction relied on any
of these documents or that their presence in the prosecution
case-file could have otherwise undermined the fairness of the
proceedings. On the contrary, the presence of these materials was
fully compatible with the prosecution's duty of disclosure which
requires the investigative authorities to disclose to the defence all
material evidence both for and against the accused (see e.g. Edwards
v. the United Kingdom, judgment of 16 December 1992, Series A no.
247 B, p. 417, § 36). Throughout the proceedings the
defence in the present case was given an opportunity to request the
investigator and the trial court to order translations of any of
these documents and, according to the Government, at least on one
occasion the applicant availed himself of this right and necessary
translation was ordered. In view of the foregoing, the Court
concludes that the presence of non-translated documents in the
prosecution case-file was not incompatible with Article 6 of the
Convention.
- In
respect of the complaint about the trial court's failure to serve on
the applicant an amended copy of the judgment of 27 May 1998, the
Court, having regard to the documents presented by the parties, finds
that a copy of the judgment of 27 May 1998 was initially furnished to
the applicant on 3 June 1998. Thereafter the authorities discovered
that the copy had contained certain errors and misprints and by
decision of 8 June 1998 the Regional Court amended these mistakes.
The amended version of the judgment of 27 May 1998 was again served
on the applicant against his signature on 11 June 1998 (see
paragraphs 44-48 above). In view thereof, the Court finds that also
in respect of this part of the procedure there was no unfairness
contrary to Article 6 of the Convention.
- Accordingly,
the Court concludes that there has been no violation of Article 6 on
account of the alleged denial of access to the entirety of the
case-file, the trial court decision to admit certain documents
without translation, and the authorities' alleged failure to furnish
him with an amended copy of the judgment of 27 May 1998.
C. Article 6 §§ 1 and 3 (c) of the Convention
- The
applicant also complained that one of his lawyers fell sick and the
applicant had not been permitted to appoint another one during the
hearing of 19 May 1998.
- This
complaint falls to be examined under Article 6 §§ 1 and 3
(c) of the Convention which read in its relevant parts 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...”
1. The applicant's submissions
- The
applicant contended that on 19 May 1998 Mr Kozlov had been unable
effectively to participate in the proceedings due to his medical
condition and that he had requested the appointment of Mrs Moskalenko
as a replacement but had been refused.
2. The Government's submissions
- The
Government submitted that the applicant's defence team, Mr Kozlov and
Mr Chumak, had failed to appear at the hearing of 6 May 1998 and that
the trial court had decided to adjourn the examination of the case
until 8 May 1998. Since Mr Kozlov was unable to attend on the latter
date due to his medical condition, the court yet again adjourned the
case until 19 May 1998. Both Mr Kozlov and Mr Chumak were present on
that latter date. Furthermore, Mr Kozlov did not allege that he was
unfit to participate in the proceedings and did not make any motions
in this connection. As regards Mrs Moskalenko, the defence requested
her participation as a “specialist in international law”
and not as a replacement for the allegedly sick Mr Kozlov. Since the
court decided that there was no need for advice on international law,
the request was turned down. Accordingly, the Government concluded
that the applicant's right to defend himself in person or through
legal assistance of his own choosing had not been breached.
3. The Court's assessment
-
Whilst it is true that Article 6 §§ 1 and 3 (c) guarantee
to everyone charged with a criminal offence the right to represent
himself through legal assistance of his own choosing, this right, as
the Court has ruled on several occasions, is not absolute and may be
subject to reasonable restrictions (see e.g. Croissant v. Germany,
judgment of 25 September 1992, Series A no. 237 B, § 29;
X v. the United Kingdom, Commission decision of 9 October
1978, Decisions and Reports (DR) 15, p. 242)
- Turning
to the circumstances of the present case, the Court, having studied
the minutes of the first instance hearing of 19 May 1998, agrees with
the Government in that Mr Kozlov did not allege that he was unfit to
participate in the proceedings and did not file any motions in this
connection. Furthermore, the Court also finds that irrespective of
the procedural status which the defence claimed for Mrs Moskalenko,
the applicant did not request her participation as a replacement for
the allegedly sick Mr Kozlov (see paragraphs 14-20 in the summary of
facts).
- In
the absence of any indication that the applicant raised the argument
relating to Mr Kozlov's alleged illness before the trial court or
indeed any evidence that the applicant's defence team consisting of
counsel Kozlov and civil defender Chumak could not adequately
represent him and effectively participate in the hearing of 19 May
1998, the Court is unable to conclude that the applicant was
inadequately represented at that hearing and that the trial court's
refusal to admit Mrs Moskalenko with reference to the fact that there
was no need for advice on international law constituted an
unreasonable and disproportionate limitation on the applicant's right
to represent himself through legal assistance of his own choosing.
- In
these circumstances, the Court finds no breach of Article 6 on that
account.
D. Article 6 §§ 1 and 3 (d) of the Convention
- The
applicant complained he had been unable to question witnesses whose
statements had been read out in court.
- These
complaints fall to be examined under Article 6 §§ 1 and 3
(d) of the Convention which, insofar as relevant, 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:
(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...”
1. The applicant's submissions
- The
applicant submitted that his inability to question some of the
witnesses was contrary to Article 6 of the Convention. According to
the applicant, the evidence given by witnesses R. and B. was clearly
inadmissible as it was unclear which authority, when and on what
grounds had ordered to interrogate these witnesses. Furthermore,
their oral evidence was neither properly legalised nor translated by
competent translators. As regards P., A. and M., according to the
applicant, at the pre-trial stage of proceedings these witnesses gave
evidence against him, whilst at the trial they retracted their
previous statements and witnessed in his favour. The applicant
submitted that, in breach of Article 6, the court had preferred the
former evidence and had failed to take account of the latter.
Finally, the applicant submitted that the court ought to have
rejected that evidence as inadmissible.
2. The Government's submissions
- As
to the complaint that the applicant was unable to question witnesses
whose statements were read out in court, the Government recalled that
the trial court had repeatedly summoned the witnesses of Norwegian
nationality R., B., a witness of German nationality P. and the
witnesses of Russian nationality M. and A. The authorities did their
best to secure their presence at the trial but their attempts proved
futile as the Norwegian nationals resided in Norway, refused to
appear voluntarily and could not be compelled to come to Russia. The
court furthermore gave a motivated and justified decision to admit
the oral evidence given by these witnesses. As regards German
national P., he was away in Germany and could not be summoned, whilst
witnesses M. and A. were repeatedly searched for by the authorities,
but their whereabouts could not be established. Furthermore, these
three witnesses were present during the first round of proceedings
and the applicant and his defence team were fully able to
cross-examine them in person. Overall, in the Government's view,
Article 6 was respected.
3. The Court's assessment
- At
the outset the Court recalls that the
admissibility of evidence is primarily a matter for regulation by
national law and that, as a rule, it is for the national courts to
assess the evidence before them, the task of the Court being to
ascertain whether the proceedings considered as a whole, including
the way in which evidence was taken, were fair (see the references in
paragraph 108). The Court further recalls that, according to its
case-law, all evidence must normally be produced in the presence of
the accused at a public hearing with a view to adversarial argument.
This does not mean, however, that the statement of a witness must
always be made in court and in public if it is to be admitted in
evidence; in particular, this may prove impossible in certain cases.
Thus, the use of statements obtained at earlier stages of proceedings
is not in itself inconsistent with paragraphs 3 (d) and 1 of Article
6 of the Convention, 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, either when he was making his statements or at a
later stage of the proceedings (see Asch, cited above, §
27).
- In
the present case the Court notes as regards the statements of
witnesses P., M. and A. that the applicant and his defence team were
given a reasonable opportunity to cross-examine these witnesses
during the first round of criminal proceedings and to comment on the
evidence that they had given at the pre-trial stage of the
proceedings (see, by contrast, Kostovski v. the Netherlands,
judgment of 20 November 1989, Series A no. 166, §§ 39-45;
Windisch v. Austria, judgment of 27 September 1990, Series A
no. 186, §§ 25-31). Furthermore, from the case-file and
documents presented by the Government (see paragraph 30 in the
summary of facts) it transpires that reasonable measures were taken
by the court aimed at summoning these witnesses and it cannot be said
that their failure to attend was imputable to the lack of diligence
by the authorities in this respect (see, by contrast, Delta v.
France, judgment of 19 December 1990, Series A no. 191 A,
§§ 34-37). This being so and having regard to the fact
that the applicant's conviction was firmly corroborated by various
other pieces of evidence such as the statements of a number of other
witnesses, documentary evidence and expert examinations (see e.g.
Trivedi v. UK, no. 31700/96, Commission decision of 27 May
1997), the Court concludes that the admission of statements made by
witnesses P., M., and A. did not fail to respect
the rights of the defence.
- As
to the admission of statements of witnesses R. and B., the Court
observes that the witnesses were foreign residents who could not have
been compelled to come to the courtroom and who, in response to the
summons, refused to appear. Furthermore, the trial court carried out
a detailed analysis of the evidence in the case-file and found the
statements of these witnesses to be corroborated by a series of other
items of evidence (see in a somewhat similar context Ferrantelli
and Santangelo v. Italy, judgment of 7 August 1996, Reports of
Judgments and Decisions 1996 III, §§ 52-53).
Thus, the Court takes the view that there has been no violation of
Article 6 on account of admission of statements of witnesses R. and
B.
- Having
regard to the foregoing, the Court reaches the overall conclusion
that there has been no violation of Article 6 in respect of the
questioning of the witnesses R., B., P., M. and A. before the trial
court.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 of
the Convention.
Done in English, and notified in writing on 16 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
