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SECOND
SECTION
CASE OF
VOLKOV v. RUSSIA
(Application
no. 64056/00)
JUDGMENT
STRASBOURG
4 December
2007
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 Volkov v. Russia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr A. Kovler,
Mr V.
Zagrebelsky,
Mrs A. Mularoni,
Mr D. Popović, judges,
and
Mrs F. Elens-Passos, Deputy Section Registrar,
Having
deliberated in private on 2 October and 13 November 2007,
Delivers
the following judgment, which was adopted on that last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 64056/00) 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, Mr Oleg Konstantinovich
Volkov (“the applicant”), on 28 November 2000.
- The
applicant was represented by Mr V. Kafarov, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented at the material time by Mr P. Laptev, Representative of
the Russian Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that his trial had not been public.
- By
a decision of 8 March 2005 the Court declared the application partly
admissible.
- The
Government, but not the applicant, filed further written observations
(Rule 59 § 1). The Chamber having decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine), the applicant replied in writing to the Government's
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and, before his conviction (described
below), he lived in Irtyshskiy, a town in the Omsk Region.
- On
16 April 1999 the police arrested and detained the applicant on
suspicion of murder. After the investigation, the police accused him,
inter alia, of shooting two persons and wounding two others,
and submitted the case for trial to the Omsk Regional Court.
- The
trial began on 17 November 1999. Before the hearing, the court
excluded the public from the court room. Once the hearing had begun,
the applicant's lawyer protested. He argued that the court had acted
unlawfully.
- The
widow of one of the applicant's purported victims, Ms G., had
requested in camera proceedings because she feared “the
defendant's friends and their threats”.
- The
applicant stated that he saw no reason to hold the hearing in
private. The public prosecutor supported Ms G.'s request “in
order to ensure the objectivity of the proceedings” because, in
his opinion, the victims and witnesses were under pressure and feared
testifying in public.
- The
court deliberated on the spot and decided to continue the hearing in
camera in order “to ensure a comprehensive and objective
examination of the case and to avoid any possibility of pressure on
the victims and witnesses”.
- On
26 November 1999 the court found the applicant guilty of the
premeditated murder of two individuals and the attempted murder of
another individual in May 1993. He was also convicted of the
intentional infliction of grievous bodily harm in April 1999. The
court sentenced the applicant to seventeen years' imprisonment.
- On
5 January 2000 the applicant appealed to the Supreme Court. His
lawyer argued, inter alia, that hearing the case in private
had been unlawful for a number of reasons. First, under the Code of
Criminal Procedure the intimidation of witnesses did not justify
hearings in private. Secondly, the court had failed to identify any
specific instance of intimidation. Thirdly, only bailiffs could
effectively ensure the witnesses' security.
- On
7 June 2000 the Supreme Court rejected the appeal after the
applicant's lawyers and a representative of the prosecution had been
heard. However, the appeal judgment disregarded the complaint about
the trial court hearing in private.
- On
6 December 2000 the Presidium of the Supreme Court reduced the
applicant's sentence to twelve years' imprisonment.
II. RELEVANT DOMESTIC LAW
- At
the time of the applicant's trial, criminal proceedings were
primarily governed by the Code of Criminal Procedure 1960 (“the
CCP”). Article 18 of the CCP established the principle that all
hearings should be public. Hearings in private were possible only in
cases which involved State secrets, sexual offences, cases where the
defendant was under sixteen years of age or where publicity could
damage the participants' private life.
- Apart
from the CCP, criminal proceedings were governed by the Basic Law on
the Criminal Procedure of the USSR of 1958, which remained in force
at the time of the applicant's trial. Under section 12 of the Basic
Law, hearings in private were also possible to ensure the security of
the victims and witnesses.
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
his trial had not been public. Article 6 § 1, in so far as
relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing
... by [a] ... tribunal... Judgment shall be pronounced publicly but
the press and public may be excluded from all or part of the trial
... where ... the protection of the private life of the parties so
require, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the
interests of justice.”
A. The parties' arguments
1. The Government
- The
Government argued that the Basic Law on the Criminal Procedure of the
USSR had expressly permitted private hearings in the interests of the
participants' security. Moreover, the Omsk Regional Court had
excluded the public from the hearing in order to protect Ms G. from
undue pressure. The court had indeed taken this decision without
asking the opinion of the other victims. However, the court had not
been obliged by law to seek such an opinion and, in any event, the
other victims had not objected to the in camera hearing.
- The
Government further submitted that the applicant had been found guilty
of a number of serious crimes, including premeditated murder. Before
his detention in April 1999, he had had “a real opportunity to
exert influence on the victims and witnesses, either personally or
through other people, and to threaten them by various means”.
- The
Government provided the following information: According to a report
of the Department for the Fight Against Organised Crime of the Omsk
Region (“the DFAOC”), the applicant had been recorded as
a “wanted” person for being the leader of an organised
criminal group. Before the trial had started, the Head of the DFAOC
had informed the trial court about psychological pressure being put
upon and threats being made to representatives of the victims so that
testimony would be altered in the applicant's favour. Accordingly, it
was proposed that the case be heard in camera. A similar request was
apparently lodged by the victims themselves, who deemed that holding
the trial in camera was essential. The widow of one of the victims,
Ms G., had raised the matter at the preparatory hearing. The trial
court had granted these requests.
- The
Government contended that the decision to hold the hearing in camera
had not worked against the full and objective examination of the
evidence. They argued that there had been exceptional circumstances
which had justified, according to the Court's case-law, dispensing
with a public hearing in the applicant's case (cf. Håkansson
and Sturesson v. Sweden, judgment of 21 February 1990, Series A
no. 171-A, p. 20, § 64; Fredin v. Sweden (no. 2),
judgment of 23 February 1994, Series A no. 283 A, pp. 10-11,
§§ 21-22; Allan Jacobsson v. Sweden (no. 2),
judgment of 19 February 1998, Reports of Judgments and
Decisions 1998 I, p. 168, § 46).
2. The applicant
- The
applicant contended that the exclusion of the public had not been
necessary. First, the court had excluded the public even before Ms G.
had announced her fears. These fears had been hypothetical as she had
not substantiated them. The court had failed to question Ms G. in
order to establish any facts about specific intimidation. Secondly,
the court's reasons had been as vague and speculative as Ms G.'s
fears. Thirdly, the court had not stated expressly that the exclusion
of the public had been intended to protect Ms G. This was only the
Government's interpretation of the court's decision. Fourthly, there
had been no evidence to suggest that the victims and witnesses had
been intimidated. No one else amongst the witnesses and victims had
complained of any threats from the applicant's friends.
- The
applicant argued that the fact that the Head of the DFAOC had
apparently considered him to be the leader of an organised criminal
group had no procedural meaning for his trial, and that the trial
court had never examined that allegation.
B. The Court's assessment
- The
Court reiterates that the public character of proceedings protects
litigants against the administration of justice in secret with no
public scrutiny; it is also one of the means whereby confidence in
the courts can be maintained. By rendering the administration of
justice visible, publicity contributes to the achievement of the aim
of Article 6 § 1, namely a fair trial, the guarantee of which is
one of the fundamental principles of any democratic society (see
Pretto and Others v. Italy, judgment of 8 December 1983, Series A
no. 71, § 21). There is a high expectation of publicity in
ordinary criminal proceedings, which may well concern dangerous
individuals, notwithstanding the attendant security problems (see
Campbell and Fell v. the United Kingdom, judgment of 28 June
1984, Series A no. 80, § 87).
- The
requirement to hold a public hearing is subject to exceptions. This
is apparent from the text of Article 6 § 1 itself, which
contains the provision that “the press and public may be
excluded from all or part of the trial ... where ... the protection
of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice”. Thus, it may on occasion be necessary under Article 6
to limit the open and public nature of proceedings in order, for
example, to protect the safety or privacy of witnesses, or to promote
the free exchange of information and opinion in the pursuit of
justice (see B. and P. v. the United Kingdom, nos. 36337/97
and 35974/97, § 37, ECHR 2001-III, with further references).
- The
Court's task in the present case is to establish whether the
exclusion of the public from the hearing before the Omsk Regional
Court was justified.
- The
Court notes the Government's submission that the DFAOC, which
considered the applicant to be the leader of an organised criminal
group, had informed the court of the pressure put upon witnesses, and
that this information had been a basis for the decision to hear the
case in camera. However, the Government submitted no documents to
show that the trial court had indeed received this information and
that those developments had openly formed a part of the proceedings
in the case.
- The
Court observes that, at the beginning of the closed hearing on
17 November 1999, the Omsk Regional Court had examined the
question of the character of the proceedings following the objection
by the applicant's lawyer to holding the trial in camera. It heard
the widow of one of the murdered people, Ms G., who submitted that
she feared the applicant's friends and their threats and requested
that the case be examined in a private hearing. It further heard the
applicant who stated that he saw no reason to hold the hearing in
private. It then heard the public prosecutor who supported Ms G.'s
request and submitted that the victims and witnesses were under
pressure and feared testifying in public.
- The
Court notes that the reasons given by the Omsk Regional Court for
holding the hearing in chambers, after deliberations on the spot,
were “to ensure a comprehensive and objective examination of
the case and to avoid any possibility of pressure on the victims and
witnesses”.
- The
Court considers these reasons to be regrettably cryptic. It would
have been preferable to have expanded this element to explain in more
detail why the witness was considered to have had legitimate grounds
for fearing to testify in public and why the concern for that
witness' safety outweighed the importance of ensuring the publicity
of the trial. Moreover, if the trial court had indeed taken into
account information provided by the DFAOC (paragraph 28 above), this
should have been presented to the parties, in particular the
applicant, so that an open discussion of the matter could have
occurred.
- However,
the Court notes that the Regional Court's decision to hold the trial
in chambers nevertheless had a clear basis in the request from an
important witness, the widow of one of the people whom the applicant
was alleged to have murdered. It reiterates that the court's decision
was taken after the prosecution and the defence had had an
opportunity to submit their arguments on the point. The Court finds
that, in the particular circumstances of the present case, the
Regional Court could reasonably conclude that the exclusion of the
public was required in the interests of justice.
- Consequently,
the Court finds that there has been no violation of Article 6 §
1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no
violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 4 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos F. Tulkens
Deputy Registrar President
