BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF KARPENKO v. RUSSIA
(Application
no. 5605/04)
JUDGMENT
STRASBOURG
13
March 2012
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 Karpenko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5605/04) 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 Kirill Valeryevich
Karpenko (“the applicant”), on 17 December 2003.
- The
applicant, who had been granted legal aid, was represented by
Ms L. Churkina, a lawyer practising in Yekaterinburg. The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, former Representative of the Russian Federation at
the European Court of Human Rights.
- The
applicant alleged, in particular, that he had been unable to confront
prosecution witnesses in open court and that the authorities had
refused to ensure his presence in proceedings concerning his parental
rights.
- On
24 October 2007 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and lived until his arrest in
Yekaterinburg. He is serving a sentence in a correctional colony in
the town of Nevyansk, in the Sverdlovsk Region.
A. Criminal proceedings in respect of the charge of
robbery
1. Proceedings in 1998 against the applicant’s
presumed accomplices
- On 8 April 1998 the Revdinsk Town Court found Mr Sh.
and Mr B. guilty of several counts of aggravated robbery. In
particular, the Town Court found it established that on 5 October
1995 the defendants, acting together with the applicant, the criminal
proceedings against whom had been adjourned in view of his absconding
during the investigation, and Mr O., the criminal case against
whom had been closed following his death, had robbed a warehouse in
the village of Vavozh in the Udmurtiya Republic. The Town Court
further held that on 19 November 1995 defendant B., assisted by
Mr R., the criminal proceedings against whom had been stayed
following his escape, the applicant and Mr O. had robbed several
warehouses in the village of Kungurka in the Sverdlovsk Region. At
the same time, the court acquitted Mr Sh. of an additional robbery
charge, having found no evidence in support of the accusation that on
17 September 1996 he and Mr R., Mr O., Mr V. and the applicant
had participated in another robbery in the village of Novoye Selo in
the Sverdlovsk Region
- As regards the robbery in the village of Vavozh, the
conviction was based on testimonies by defendant Sh. and the director
general of the company and owner of the warehouse, Mr P., and on
written depositions made during the pre-trial investigation by a
warehouse guard, Mr M., and Mr O. The statements were as follows:
-
defendant Sh. partly admitted his guilt. He argued that, having
agreed to the applicant’s proposal and acting on the latter’s
detailed instructions, he had gone to the warehouse. The applicant
had forced him to watch over the warehouse guard, whom the applicant
had beaten and tied up. Mr Sh. also admitted that he had helped the
applicant and Mr R. to load stolen goods into a car and had received
money from the applicant for his participation in the robbery;
- in
his written statements Mr O. had given a similar account of the
events;
- the
company director stated that on the morning of 5 October 1995 he had
been informed of the robbery. Having arrived at the warehouse, he had
noticed that the guard had been severely beaten up;
- the
warehouse guard testified that on 5 October 1995 two unknown
individuals, whom he was unable to identify, had attacked him, beaten
and tied him up. He had then heard someone robbing the warehouse.
- As
to the robberies in the village of Kungurka, the grounds for the
conviction were testimonies made by defendant B. and the
representative of the owner of the warehouse, Mr A., in open court
and on written depositions by a warehouse guard, Mr Kh. and late Mr
O., which they had made to the investigating authorities.
- Defendant B. partly admitted his guilt and stated that
in November 1995 the applicant, taking advantage of his trust, had
asked him to help load a car. They had gone to the warehouse. Acting
on the orders of the applicant, of whom he was afraid, Mr B. had
helped to move the goods from the warehouse.
- The
representative of the owner of the warehouse confirmed that there had
been a robbery at the warehouse.
- In
his statements to the investigators, Mr O. had admitted to having
helped the applicant and Mr R. to rob the warehouse.
- The
guard Kh. stated that on 19 November 1995 two unknown persons
had broken into the warehouse, tied him up and stolen goods.
- The
Town Court’s decision to acquit defendant Sh. of the robbery
charge pertaining to the events in the village of Novoye Selo was
based on the testimony by Mr Sh. and written depositions by a
warehouse guard, Mr Me., and by Mr O.
- Mr Sh. insisted that in September 1996 the applicant
had asked him to drive him to the village, having promised money for
his help. He had agreed on the condition that his assistance would
not involve any criminal activities. Mr Sh. claimed to have had no
knowledge that the applicant and Mr R. had committed the robbery.
- The
warehouse guard, Mr Me., stated that on 17 September 1996 an
unknown man had attacked him, beaten and tied him up. He did not
remember the attacker.
- In his written depositions Mr O. admitted having
assisted the applicant and Mr R. in their plan to rob the warehouse.
- The
judgment of 8 April 1998 became final on 20 May 2000, having been
upheld on appeal.
2. Proceedings in 2001-2004 against the applicant
- As
indicated above (see paragraph 6 above), the applicant had absconded
and the criminal proceedings against him had therefore been
adjourned. On 25 September 2001 he was arrested in the town of
Neftekamsk. Two days later he was transferred to Yekaterinburg and
placed in temporary detention facility no. 1.
- A month later the Sverdlovsk Regional Prosecutor
served the applicant with a bill of indictment, accusing him of
organising the robberies of the warehouses in the villages of Vavozh,
Kungurka and Novoye Selo. The charges were based, inter alia,
on statements made by Mr Sh. and Mr B. during interrogations and
confrontation interviews between them and the applicant in the course
of the criminal proceedings against the applicant. The two
accomplices maintained their testimony given during the 1998 criminal
proceedings (see paragraphs 7, 9 and 14 above). In June 2002 the case
was committed for trial.
- On 19 February 2003 the Revdinsk Town Court held the
first trial hearing, to which the applicant’s alleged, and
already convicted, accomplices in the robberies, Mr Sh. and Mr B., as
well as other persons whose written depositions or testimony in open
court had served as the basis for the judgment of 8 April 1998, were
summoned as witnesses (see paragraphs 6-16 above). None of them
attended. The Town Court noted in the minutes of the hearing that the
guard of the warehouse in Novoye Selo had died, Mr B. had travelled
to Chelyabinsk on a business matter and Mr Sh. lived in another
town. The reasons for the absence of the remaining witnesses were
unknown. The Government provided the Court with a typed copy of a
letter of 27 January 2003 from Mr Sh. informing the Town Court that
in view of financial difficulties and his inability to leave his
business matters unattended he had been unable to attend the trial.
The Government also submitted a copy of a telegram sent by Mr Sh. to
the Town Court on 3 February 2003. Mr Sh. had confirmed his
inability to appear at the trial against the applicant and fully
maintained the statements he had made during the pre-trial
investigation and the court proceedings leading to his conviction in
1998.
- The
applicant’s lawyer successfully asked the Town Court to hear
evidence from Mr V., an accomplice to the robbery committed in Novoye
Selo on 17 September 1996, and Mr Ma.
- During
the hearing Mr V. testified that in 1995, having been approached by
Mr R., he had driven to the warehouse. On arrival, he had witnessed
Mr R., Mr O. and two unknown persons taking goods from the warehouse.
The goods had been loaded up on his car. Mr V. had not seen the
applicant and had not been aware of his alleged participation in the
robbery.
- Mr
Ma. stated that in 1997 Mr R. had brought metal objects to him and
had asked him to store them. He had subsequently learnt from the
police that the goods had been stolen from a warehouse.
- At
the same hearing, the Town Court heard evidence from a representative
of the owner of the warehouse in the village of Novoye Selo, Ms L.,
who confirmed the theft of goods from the warehouse on 17 September
1996.
- Upon the parties’ request, the Town Court again
sent summonses to the witnesses. On 11 April and 19 May 2003 it
issued orders to a bailiff’s office requiring it to ensure Mr
B.’s presence at the hearing. The orders indicated that Mr B.
had been properly summoned to the hearings but had failed to attend.
- No witnesses appeared before the Town Court at the
following hearing on 28 May 2003. In view of their absence, the
prosecutor asked the Town Court to read out the statements they had
made to the investigating authorities in the 1998 proceedings. The
applicant and his lawyer objected to the reading out of the
statements by the presumed accomplices in the robberies, Mr Sh., Mr
B., Mr R. and Mr O., noting that the applicant had been “denied
an effective opportunity to confront those witnesses”. At the
same time, the applicant argued that during the confrontation
interviews the investigator had warned Mr Sh. and Mr B. against
changing their earlier statements, threatening them with revocation
of their parole and criminal prosecution.
- The
Town Court rejected the objection. Having noted that it was
impossible to hear certain witnesses in open court owing to their
deaths, and having taken into account that the applicant had had
confrontation interviews with Mr B. and Mr Sh. during the pre-trial
investigation against him, the court proceeded with the reading out
of the witnesses’ statements.
- On
29 May 2003 the Revdinsk Town Court found the applicant guilty of
aggravated robbery committed in the village of Vavozh on 5 October
1995, in the village of Kungurka on 19 November 1995 and in the
village of Novoye Selo on 17 September 1996 and sentenced him to
eight years’ imprisonment. In addition to the written
depositions by the witnesses, the conviction was based on records of
crime-scene examinations and inventories showing that goods had been
stolen from the warehouses.
- In the judgment of 29 May 2003 the Town Court
addressed the applicant’s objection to the use of the
statements by witnesses whom he had been unable to cross-examine in
open court. It held as follows:
“The court cannot agree with [the applicant’s]
and his lawyer’s statement that the accusations against him are
based on statements by persons with a vested interest [in his
conviction] and who cannot be trusted.
The fact that Mr Sh., Mr B., Mr R. and Mr O. had taken
part in the criminal acts of which [the applicant] stands accused
cannot call into question the truthfulness of their statements. In
exposing [the applicant] they, at the same time, [admitted to their
own guilt] in [respect of] those crimes. In particular, Mr B. and Mr
Sh. have already been punished for that.
As the case-file materials show ... Mr R. willingly went
to the Sverdlovsk Regional Police Department and wrote a confession
statement in which he described the robberies he had committed
together with [the applicant], Mr Sh., Mr O., Mr B. and Mr V.. At the
same time, he did not play down the importance of his role in the
criminal acts.
[The applicant’s] statement that Mr B., Mr Sh. and
Mr O. had slandered him because Mr R. had forced them to do so is
wanton and unsubstantiated. The fact that Mr Sh. had been convicted
of having slandered other persons in the course of unrelated criminal
proceedings cannot serve as an undisputable ground for doubting the
truthfulness of his statements in the present case.
The court cannot accept [the applicant’s] and his
lawyer’s argument that the court has violated the principle of
direct examination of evidence at a court hearing and the defendant’s
right to defend himself. The statements which were read out at the
court hearing are admissible evidence because interrogations and
confrontations with those persons had been conducted in accordance
with the requirements of the Code of Criminal Procedure. The court
did not have an opportunity to question those persons at the court
hearing because, despite every possible measure taken, it was unable
to establish their places of residence.
However, the law allows the reading out in court of
statements by defaulters.”
- The
applicant and his lawyer appealed. In particular, they argued that
the conviction was exclusively based on statements by the witnesses
questioned by the investigating authorities whom the applicant had
been unable to confront in open court.
- On
19 September 2003 the Sverdlovsk Regional Court upheld the judgment,
endorsing the reasons given by the Town Court. In response to the
applicant’s arguments concerning the admissibility of evidence,
the Regional Court held as follows:
“The pre-trial investigation and trial were
conducted thoroughly and objectively, in accordance with the
requirements of the criminal procedural law and in compliance with
the rights and lawful interests of the [applicant] and other parties
to the criminal proceedings. [The applicant’s] right to defence
was not violated. Confrontations between [the applicant] and Mr B.
and between [the applicant] and Mr Sh. were conducted in accordance
with the requirements of Articles 162 and 163 of the RSFSR Code of
Criminal Procedure, [and] the lawyer... protected the [applicant’s]
interests in the course of those investigative procedures.
The court correctly established the factual
circumstances and the conclusions set out in the judgment completely
correspond to [the facts]. The judgment is based on evidence examined
at the court hearing and the court gave a correct interpretation to
it. The court fully and objectively examined the materials of the
criminal case file ...
At the hearing the court examined the prosecutor’s
motion to read out the statements by [ten witnesses, including the
four alleged accomplices]; it heard the parties’ opinion
concerning that issue and ... it issued a decision.
The decision taken by the court to read out the
statements of the above-mentioned persons is appropriately reasoned,
substantiated and correct. The court considered that the statements
which were to be read out at the hearing had been collected in
accordance with the requirements of the criminal procedural law, that
by virtue of Article 128 of the Constitution of the Russian
Federation justice is executed on the basis of equality of the
parties, that by virtue of Article 15 § 1 of the Constitution of
the Russian Federation [the Constitution] has supreme legal effect in
the Russian Federation and other laws cannot contradict its
principles and rules. Mr O. ... had died before the trial commenced,
Mr R. absconded [and] his place of residence was unknown to the
court, the other witnesses defaulted despite being summoned by the
court, [the applicant] had confrontations with Mr Sh. and Mr B.
during which they entirely confirmed their statements.
In such circumstances, the reading out of the statements
by the abovementioned persons corresponded to the principle that
criminal proceedings in the Russian Federation should be adversarial;
the court compared the statements to other evidence in the case and
evaluated them in accordance with the requirements of the law.
[The applicant’s] guilt was confirmed by the
statements by the [witnesses, including those by the alleged
accomplices] and evidence contained in the written materials of the
file. The court examined the arguments of the defendant and his
lawyer that [the alleged accomplices] had slandered [the applicant]
and it correctly concluded that there were no grounds for doubting
their statements because they completely correspond to the
circumstances of the case and are corroborated by other evidence.
[The alleged accomplices], while exposing [the applicant’s]
guilt, did not play down their own involvement in the case; Mr Sh.
and Mr B. were convicted of the crimes committed. In such
circumstances the court had no reason to doubt the statements by
[those witnesses].”
B. Criminal proceedings in respect of the murder charge
- On
20 May 2003, having studied the voluminous case file comprising
material, documentary and expert evidence and having heard a
substantial number of witnesses, the Sverdlovsk Regional Court found
the applicant, who was represented by counsel throughout the
proceedings, guilty of unlawful possession of a weapon and forgery of
documents. The applicant was also found guilty of having aided and
abetted aggravated murder and was sentenced to fifteen years’
imprisonment.
- The judgment became final on 9 October 2003 when the
Supreme Court of the Russian Federation upheld the conviction for
murder and unlawful possession of a weapon, discontinued the criminal
proceedings in respect of the charge of forgery of documents and
reduced the sentence by two months. The Supreme Court noted that the
Regional Court’s findings were based on a thorough and
well-reasoned analysis of extensive evidence presented both by the
prosecution and defence.
- According
to the applicant, while the criminal proceedings against him were
still pending, local newspapers published several articles expressing
the opinion that he was guilty of the murder.
C. Proceedings for termination of parental rights
- While
the applicant was serving his sentence, his former wife lodged an
action before the Kirovskiy District Court of Yekaterinburg seeking
termination of the applicant’s parental rights over their
child.
- In
January 2005 the District Court sent a copy of the statement of claim
with attachments to the correctional colony where the applicant was
held, asking him to provide observations in reply by 1 March 2005.
- The
observations from the applicant arrived on 14 April 2005. At the same
time, the applicant asked the District Court to call Ms S. as his
representative and provided a list of witnesses to be called on his
behalf, including his parents and sister. Two weeks later Ms S.
sought leave with the District Court for the applicant to appear in
court.
- On
25 October 2005 the applicant received a copy of a decision by which
the Kirovskiy District Court had fixed a preliminary hearing. The
applicant immediately sent a letter to the District Court explaining
that he was serving a prison sentence and seeking leave to attend.
- In
November 2005 the applicant repeated his request. No reply followed.
- A
prosecutor who attended the hearings before the District Court sought
dismissal of the action, arguing that the applicant had been unable
to actively participate in his child’s life for practical
reasons but was interested in maintaining a relationship with the
child. The prosecutor noted that the applicant’s relatives
regularly passed on information to him about his child.
- It
appears from the parties’ submissions that the District Court
called one witness from the applicant’s witness list, his
sister, having refused to call his parents.
- On
16 December 2005 the Kirovskiy District Court, in the presence of the
applicant’s representative, upheld the action and terminated
the applicant’s parental rights, having considered that his
absconding from the law-enforcement authorities and being on the run
for a long time could not be accepted as a valid justification for
his failure to fulfil his parental responsibilities. The District
Court stressed that the applicant and his representative had not
provided it with evidence to demonstrate that the applicant had
effectively carried out his parental role.
- A
month later the applicant received a copy of the judgment. He lodged
an appeal, arguing that he had been unable to present his arguments
before the District Court due to his absence from the hearings. He
further asked that his presence at the appeal hearing be ensured.
- On
28 February 2006 the Sverdlovsk Regional Court, in the presence of
the applicant’s representative, upheld the judgment of 16
December 2005. Having ruled on the subject of the applicant’s
attendance, the Regional Court held that the law did not require
civil courts to obtain attendance by the parties and that the
District Court’s responsibility was limited to duly notifying
the parties of the hearings.
II. RELEVANT DOMESTIC LAW
A. Witnesses
1. Code of Criminal Procedure of 2001 in force since
1 July 2002
- The
reading out of earlier statements made by a victim or a witness is
permitted if the parties give their consent to it and if (1) there
are substantial discrepancies between the earlier statement and the
later statement before the court or (2) the victim or the
witness is not present before the court (Article 281 § 1).
- The
court may, without seeking the consent of the parties, read out
earlier statements by the absent victim or witness in the case of
(1) death, (2) serious illness, (3) refusal
to appear by the victim or the witness if they are citizens of other
States or (4) natural disaster or other force majeure
circumstances (Article 281 § 2).
- If
a witness or a victim does not obey a summons to appear without
a valid reason, they may be brought to the courtroom under
escort (Article 113).
-
Witnesses and victims are entitled to the reimbursement of costs and
expenses incurred in connection with their participation in the
criminal proceedings (Article 131).
B. Reopening of criminal proceedings
- Article 413 of the Russian Code of Criminal Procedure,
setting out the procedure for the reopening of criminal cases, reads,
in so far as relevant, as follows:
“1. Court judgments and decisions which
became final should be quashed and proceedings in a criminal case
should be reopened if there are new or newly discovered
circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms committed by a court of the Russian Federation
during examination of a criminal case and established by the European
Court of Human Rights, pertaining to:
(a) application of a federal law which runs
contrary to provisions of the European Convention for the Protection
of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the
Convention for the Protection of Human Rights and Fundamental
Freedoms;
(c) other new circumstances.”
C. Provisions on attendance at hearings
- The Code of Civil Procedure of the Russian Federation
(“the CCP”) provides that individuals may appear in court
in person or may act through a representative (Article 48 § 1).
- The Penitentiary Code provides that convicted persons
may be transferred from a correctional colony to an investigative
unit if their participation is required as witnesses, victims or
suspects in connection with certain investigative measures (Article
77 § 1). The Code does not mention any possibility for a
convicted person to take part in civil proceedings, whether as a
plaintiff or a defendant.
- On several occasions the Constitutional Court has
dismissed as inadmissible complaints by detainees whose requests for
leave to attend hearings were refused by civil courts. It has
reasoned that the relevant provisions of the Code of Civil Procedure
and the Penitentiary Code do not, as such, restrict a detainee’s
access to court. The Constitutional Court has emphasised nonetheless
that an imprisoned person should be able to make submissions to a
civil court, either through a representative or in any other way
provided by law. If necessary, a hearing should be held at the
convict’s place of detention, or the court committed to hear
the civil case may instruct the court with territorial jurisdiction
over the convict’s place of detention to obtain his/her
submissions or to take any other procedural steps (decisions 478-O of
16 October 2003, 335-O of 14 October 2004 and 94-O of 21 February
2008).
D. Other relevant provisions of the CCP
- Under Articles 58 and 184 of the CCP a court may hold
a session elsewhere than in a courthouse if, for instance, it is
necessary to examine evidence which cannot be brought to the
courthouse.
- Article 392 of the CCP contains a list of situations
which may justify the reopening of a finalised case on account of
newly discovered circumstances. A judgment of the European Court of
Human Rights finding a violation of the European Convention on Human
Rights in a case in respect of which an applicant lodged a complaint
with the Court should be considered a new circumstance warranting a
reopening (Article 392 § 4 (4)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF INABILITY TO CONFRONT WITNESSES IN THE PROCEEDINGS ON
ROBBERY CHARGES
55. The
applicant complained, under Article 6 §§ 1 and 3 (d) of the
Convention, that he had been denied a fair hearing in that he had not
been given an opportunity to confront, in open court, his four
alleged accomplices in the robberies he was charged with. Article
6 reads, in so far as relevant:
“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;”
A. Submissions by the parties
- The
Government argued that the Redvinsk Town Court had read out
statements by ten witnesses. The applicant and his lawyer had only
opposed the reading out of the statements by his four presumed
accomplices in the series of robberies carried out in 1995 and 1996.
The Town Court had thoroughly examined the objection and dismissed
it, having found that the statements had been made in compliance with
the requirements of the Russian Code of Criminal Procedure and that
it had been impossible to obtain attendance by those four witnesses.
One of the former accomplices had died and the whereabouts of the
remaining three had been unknown. The Government pointed out that the
Town Court had taken every possible measure to ensure the witnesses’
attendance. Summonses had been sent and the trial court had ordered
that Mr Sh. and Mr B. be brought to the hearings under escort.
However, the court’s orders could not be followed through as Mr
Sh. had moved to another city and his relatives had not known his new
address and Mr B. had been on a business trip outside the Sverdlovsk
Region. Failing all the attempts to obtain the witnesses’
testimony in open court, the Town Court had had no choice but to
accept the prosecutor’s request for the statements they had
made to the investigating authorities to be read out.
- The
Government considered it important that the applicant had been
afforded the opportunity to confront Mr Sh. and Mr B. during the
pre-trial investigation. He had also been able to challenge their
written depositions in open court. In conclusion, the Government drew
the Court’s attention to its findings in the cases of Lüdi
v. Switzerland (15 June 1992, Series A no. 238) and Lucà
v. Italy, (no. 33354/96, ECHR 2001 II). They stressed that
it had been the Court’s long-standing position that evidence
obtained at earlier stages of proceedings could be used at trial on
the condition that the defendant be given an adequate opportunity to
challenge it, either at the moment when such evidence was collected
or at a later stage of the proceedings.
- The
applicant stated that with the admission of the pre-trial statements
by his four alleged accomplices the Town Court had violated the
requirements of the Russian law on criminal procedure. He insisted
that such an admission would only have been possible upon his
consent, which he had not given. The applicant further argued that it
should have been evident to the Town Court that the witnesses had
been forced to slander him. In that situation, it had been
particularly important to hear evidence from those witnesses in
person, to observe their demeanour and verify their credibility.
B. The Court’s assessment
1. Admissibility
- Given
that the guarantees in paragraph 3 of Article 6 are specific aspects
of the right to a fair trial set forth in paragraph 1, it is
appropriate to examine this complaint under the two provisions taken
together (see Asch v. Austria, 26 April 1991, §
25, Series A no. 203).
- The
Court notes that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and that it
is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
(a) General principles
- According
to the Court’s case-law, the right to a fair trial presupposes
that all the evidence must normally be produced at a public hearing,
in the presence of an accused, with a view to adversarial argument.
The Court reiterates the principles laid down in its
judgment of Al-Khawaja and Tahery v. the United Kingdom ([GC],
nos. 26766/05 and 22228/06,
§ 147, 15 December 2011), according
to which where a conviction is based solely or decisively on
the evidence of absent witnesses, the Court must subject the
proceedings to the most searching scrutiny. The question in each
case is whether there are sufficient counterbalancing factors in
place, including measures that permit a fair and proper assessment of
the reliability of that evidence to take place. This would permit a
conviction to be based on such evidence only if it is sufficiently
reliable given its importance in the case.
- The
Court further observes that the rights of the defence require
that the defendant be given an adequate and proper opportunity to
challenge and question a witness against him or her either when the
statements were made or at a later stage of the proceedings (see
Saïdi v. France, 20 September 1993, § 43, Series A
no. 261-C, and A.M. v. Italy, no. 37019/97, § 25, ECHR
1999-IX). 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 1 and 3 (d) of Article 6, provided that
the rights of the defence have been respected. In particular, in the
event that the witnesses cannot be examined and that this is due to
the fact that they are missing, the authorities must make a
reasonable effort to secure their presence (see Artner v. Austria,
28 August 1992, § 21 in fine, Series A no. 242 A;
Delta v. France, 19 December 1990, § 37, Series A
no. 191 A; and Rachdad v. France, no. 71846/01,
§ 25, 13 November 2003).
(b) Application of the general principles
to the present case
- The
Court observes that the Revdinsk Town Court read out statements by
ten prosecution witnesses, including Mr Sh., Mr B., Mr O. and Mr R.,
the applicant’s alleged accomplices in the robberies. None of
them attended the trial or gave statements in open court. In
the light of the applicant’s complaints, the Court must
establish whether the use of the statements made by the four
accomplice witnesses to the investigating authorities, coupled with
the fact that the applicant was not able to confront them in court,
amounted to a violation of his right to a fair trial.
- The Court reiterates that in addition to the pre-trial
depositions by the ten witnesses, the Town Court relied on material
evidence. Another witness for the prosecution, Ms L., testified
before the trial court that the warehouse had been robbed on
17 September 1996. The two witnesses for the defence, Mr V. and
Mr Ma., denied any knowledge of the applicant’s involvement in
the robberies and implicated Mr R. The applicant pleaded innocent.
- As
to the statements by the prosecution witnesses, excluding the four
accomplice witnesses, the Court observes that those witnesses did not
provide any information which could have, even remotely, implicated
the applicant in the robberies and only made observations on the fact
of the commission of the crimes. None of them identified the
applicant as the alleged perpetrator. The material evidence presented
by the prosecution had the same evidentiary
weight. The records, materials and inventories were species of
proof that the robberies had, in fact, taken place. They did not have
any probative value which would allow the conclusion that the
applicant had committed the criminal offences in question.
- The conclusion is, however,
different when the Court comes to examine the statements made by the
four remaining witnesses for the prosecution. At the same time, the
Court considers it necessary to distinguish the depositions made by
Mr O. and Mr R. from those made by Mr B. and Mr Sh.. It reiterates
that, unlike Mr B. and Mr Sh., who testified both as defendants
during the criminal proceedings against them and as witnesses in the
course of the pre-trial investigation against the applicant, Mr O.
and Mr R. were only questioned as co-accused in the criminal case
against them (see paragraphs 6 and 19 above). Mr O.’s death and
Mr R.’s escape made their questioning or confrontation with the
applicant at a later stage impossible. In this respect, the
Court reiterates that a higher degree of
scrutiny should be applied to the assessment of statements by
co-accused, because the position in which accomplices find themselves
while testifying is different from that of ordinary witnesses. They
do not testify under oath, that is, without any affirmation of the
truth of their statements which could render them punishable for
perjury for wilfully making untrue statements. The Court has already
held on a number of occasions that for
the guarantees of Article 6 of the Convention to be respected on
account of the admissibility of a guilty plea by a co-accused, such a
plea should only be admitted to establish the fact of the commission
of a crime by the person making the plea, and not the other
defendant, and a judge should make it clear that the guilty plea by
itself does not prove that the defendant was involved in that crime
(see, for instance, Vladimir Romanov v. Russia,
no. 41461/02, § 102, 24 July 2008, with further
references). The Court, therefore, considers
that neither Mr O. nor Mr R. was a material witness whose evidence
was crucial for the applicant’s conviction. Given this finding,
it does not consider it necessary to look any further into the
reasons for their absence from the trial and the applicant’s
inability to confront them. Having regard to the evidential value of
the witnesses’ statements and material evidence, the Court
considers that the depositions made by Mr B. and Mr Sh. during the
pre-trial investigation and read out by the Town Court constituted
virtually the sole direct and objective evidence on which the courts’
findings of the applicant’s guilt were based.
- The
Court observes that the main thrust of the applicant’s
complaint was the alleged lack of an adequate opportunity to examine
Mr B. and Mr Sh., or have them examined, in court, in particular
on account of the alleged lack of any reasonable effort on the part
of the national authorities to ensure their presence at the trial. In
this respect, the Court reiterates that the
applicant took part in confrontation interviews with Mr B. and Mr Sh.
during the pre-trial investigation which, according to the
Government, dispensed the Town Court from the obligation to obtain
their attendance (see paragraph 19 above).
- The
Court, however, considers that a close look at its case-law does not
allow it to conclude that the very fact of an accused’s
participation in confrontation interviews with witnesses at the
pre-trial stage can, in itself, strip him or her of the right to have
those witnesses examined in court. The Court has consistently held
that the evidence must be produced “live” before the body
called upon to assess the case and determine the facts. This relates
in the first place to the trial, which is the central aspect of
criminal proceedings and applies to witness evidence, which the
defence must be able to question in open court (see Lüdi,
cited above, § 27; Van Mechelen and Others v. the
Netherlands, 23 April 1997, § 51, Reports of Judgments
and Decisions 1997 III; Solakov v. “the former
Yugoslav Republic of Macedonia”, no. 47023/99, § 57,
ECHR 2001 X; and S.N. v. Sweden, no. 34209/96, § 44,
ECHR 2002 V).
- On
the issue of the confrontation interviews between the applicant and
his two alleged accomplices, Mr Sh. and Mr B., the Court reiterates
its finding in a similar case against Russia. In particular, in the
case of Melnikov v. Russia (no. 23610/03, §§ 79-81,
14 January 2010) the Court held that a confrontation interview
conducted, in the absence of defence counsel, by an investigator who
did not meet the requirements of independence and impartiality, and
had a large discretionary power to block questions during the
confrontation could not in the circumstances be considered an
appropriate substitute for the examination of the witness in open
court. The Court has also held that the appearance of a key witness
before the trial court was of crucial importance to enable it to make
an effective assessment of his demeanour and of the reliability of
his deposition (ibid, §§ 79-81, with further references).
The Court abides by this finding in the present case. It observes
that the Government did not allege that the applicant benefited from
legal assistance during the confrontation interviews. The Court does
not doubt that the domestic courts undertook a careful examination of
Mr B.’s and Mr Sh.’s written statements and gave the
applicant an opportunity to contest them at the trial, but this can
scarcely be regarded as a proper substitute for a personal
observation of the leading witnesses giving oral evidence (see
Bocos-Cuesta v. the Netherlands, no. 54789/00, § 71,
10 November 2005). The present conclusion is even more salient
in a situation when one of the leading witnesses had already been
held liable for lying under oath (see paragraph 29 above) and there
was a possibility that the witnesses had been intimidated into
maintaining the statements they made on earlier occasions (see
paragraph 26 above). The Court, therefore, is unconvinced that the
applicant’s participation in the pre-trial confrontation
interview with Mr Sh. and Mr B. could have been, on its own, taken by
the Town Court as a circumstance relieving it of the responsibility
to hear those two witnesses in person.
- Having
said that, the Court reiterates that it occasionally accepted that
the reading out of witness statements obtained at the pre-trial stage
was not inconsistent with Article 6 §§ 1 and 3 (d) of the
Convention. At the same time, it has seen that situation as an
exception which required convincing justification, such as an
impossibility to examine an absent or otherwise missing witness when
the authorities’ reasonable efforts to secure his or her
presence were futile (see, for instance, Artner, cited above,
§§ 20 24); an interest in keeping the identity of
the witness secret – such as, for example, where undercover
agents were involved (see, for example, Lüdi, cited
above, §§ 45-50); the need to protect the life, liberty or
security of the witness intimidated by the accused or his associates
(see Doorson v. the Netherlands, 26 March 1996, Reports
1996 II); and the necessity to protect victims-witnesses of
sexual offences who risk being further traumatised by confrontations
with the alleged perpetrator (see P.S. v. Germany, no.
33900/96, 20 December 2001).
- However, the Court has never limited its analysis to
the mere finding that a case falls under one of those exceptions. If
the respondent Government relied in its arguments on one of these
exceptional situations and the Court established that the conviction
was based solely or to a decisive extent upon the untested witness
statement, it proceeded in three steps. It commenced the review with
an examination of the reasons invoked as an exception and determined
whether they had actually existed and whether they had been subject
to thorough examination by the national authorities. The Court then
considered whether the restrictions on the defence rights had been
kept to a very minimum, and whether they had been strictly necessary
in order to satisfy a legitimate aim. The final step in the Court’s
review was an examination of whether the shortcomings in safeguarding
the rights of the defence were adequately compensated for (see
Al-Khawaja and Tahery, cited above, §
152).
- Having
found that the applicant’s conviction was based, to a decisive
extent, on Mr B.’s and Mr Sh.’s pre-trial depositions
(see paragraph 66 above), the Court will assess the circumstances of
the present case in line with the test described in the previous
paragraph.
- The
Court takes note of the Government’s argument that the absence
from the trial of the two witnesses was due to the Town Court’s
inability to establish their whereabouts despite every possible
effort. In particular, they stated that Mr Sh. had moved to another
town without informing his relatives of his new address and Mr B. had
been on a business trip outside the Sverdlovsk Region. The
Court, however, observes that at least on two occasions in January
and February 2003 Mr Sh. informed the Town Court of his whereabouts,
noting that a difficult financial situation and business matters
precluded his attending the trial (see paragraph 20 above). There is
no indication that the Town Court responded to the information from
Mr Sh. in any other way than by sending new summonses to him. As to
Mr B.’s attendance, the Court does not lose sight of the fact
that the Town Court issued orders urging the bailiff’s office
to ensure his presence at the trial, including by escorting him to
the hearings. The Court, however, is unable to find any evidence
confirming the Government’s argument that Mr B. had left the
Sverdlovsk Region on matters of business. The case-file materials
presented by the Government do not provide any information as to the
reasons for Mr B.’s failure to attend, or to what actions, if
any, the bailiffs’ office took to obtain his attendance. At the
same time, the Court is particularly mindful of the Town Court’s
reliance, in its orders of 11 April and 19 May 2003, on the
assumption that the summonses had reached Mr B. (see paragraph 25
above).
- Regard
being had to the circumstances of the case, the Court has serious
doubts as to whether the Town Court’s conclusion that
it was impossible to secure the witnesses’ attendance
can indeed be accepted as warranted. The Town Court’s review of
the reasons for the witnesses’ absence was superficial and
uncritical. Given the Government’s explanations and the
materials in the file, the Court is not satisfied that the Town Court
was, in fact, unaware of the witnesses’ whereabouts. The Court
notes that the Town Court decided to proceed with the reading out of
the written depositions by the defaulting witnesses, given
that the attempts to obtain their presence had already caused a
lengthy stay in the proceedings. While keeping in mind the domestic
courts’ obligation to secure the proper conduct of the trial
and avoid undue delays in the criminal proceedings, the Court does
not consider that a stay in the proceedings for the purpose of
obtaining the witnesses’ testimony, or at least clarifying the
issue of their appearance at the trial, in which the applicant stood
accused of a very serious offence and risked a long term of
imprisonment, would have constituted an insuperable hindrance to the
expediency of the proceedings at hand (see Vladimir
Romanov, cited above, § 104, with further references, and,
most recently, Krivoshapkin v. Russia, no. 42224/02,
§ 60, 27 January 2011). The
authorities chose to eschew that stay. As a result, the witnesses
never appeared to testify in court in the presence of the applicant.
- In
this respect, the Court reiterates that paragraph 1 of Article 6,
taken together with paragraph 3, requires the State to take positive
steps, in particular, to enable the accused to examine or have
examined witnesses against him. Such measures form part of the
diligence which the Contracting States must exercise in order to
ensure that the rights guaranteed by Article 6 are enjoyed in an
effective manner (see Sadak and Others v. Turkey, nos.
29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR
2001-VIII). Having regard to the above considerations, the Court
finds that the decision to excuse the absence of the witnesses was
not sufficiently convincing and that the authorities failed to take
reasonable measures to secure their attendance at the trial.
- Having
found that the Town Court’s decision to dispense with the
witnesses’ appearance had no justification and bearing in mind
the earlier mentioned test (see paragraph 71
above), the Court, in principle, does not need to consider
further what effect that decision had on the overall fairness of the
criminal proceedings against the applicant and
whether the handicap arising from the witnesses’ absence from
the trial was counterbalanced by the confrontation interviews between
the applicant and the witnesses at the pre-trial stage, as the
very concept of fairness enshrined in Article 6 requires that judges
form their own impression of the witness’s reliability and
credibility by observing his or her demeanour under questioning in
open court, unless the restriction on the right to cross-examine the
witness is exceptionally imposed for good cause and with weighty
reasoning (see Vladimir Romanov, cited above, § 71).
- In
these circumstances, the Court finds that the applicant cannot be
regarded as having had a proper and adequate opportunity to challenge
Mr B.’s and Mr Sh.’s statements, which were of
decisive importance for his conviction, and consequently he did not
have a fair trial. There has thus been a violation of
Article 6 § 1 taken together with Article 6 § 3 (d) on
that account.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN
THE PROCEEDINGS ON MURDER, ARMS POSSESION AND DOCUMENTS FORGERY
CHARGES
- Relying
on Article 6 of the Convention, the applicant alleged that the
criminal proceedings in which he had stood accused of murder, arms
possession and documents forgery charges had been unfair as the
courts had erred in their assessment of the facts and evidence and
had incorrectly applied the domestic law. In his subsequent
application forms logged with the Court on 24 July 2006 and 6 July
2007 the applicant amended his complaints, having claimed various
procedural violations on the part of the Russian investigating and
judicial authorities in those proceedings. The relevant part of
Article 6 is cited above.
- The Court, firstly, observes that the complaints
raised by the applicant in the application forms of 24 July 2006 and
6 July 2007 were submitted more than six months after the Supreme
Court of the Russian Federation had issued the final judgment in the
criminal case on 9 October 2003 (see paragraph 33 above). It
follows that this part of the application has been submitted too late
and must be rejected pursuant to Article 35 §§ 1 and 4
of the Convention
- As to the remaining complaints raised by the applicant
in his original application, the Court notes that it is not its task
to act as a court of appeal or, as is sometimes stated, as a court of
fourth instance, in respect of the decisions taken by domestic
courts. It is the role of the domestic courts to interpret and apply
the relevant rules of procedural or substantive law. It is the
domestic courts which are best placed to assess the credibility of
witnesses and the relevance of evidence to the issues in the case. It
is also for the domestic courts to exclude evidence which is
considered to be irrelevant (see, among many other authorities, Vidal
v. Belgium, 22 April 1992, § 32, Series A no. 235 B and
Edwards v. the United Kingdom, 16 December 1992, § 34,
Series A no. 247-B).
- To that end, the Court observes that the applicant’s
conviction of murder, arms possession and documents forgery charges
was based on extensive documentary, witness and expert evidence and
that, in the well reasoned judgment of 20 May 2003, which was
subsequently upheld on appeal, no additional evidence was found to be
useful or relevant. The Court also observes that the applicant was
duly represented throughout the proceedings and was, therefore,
afforded ample opportunity, which he took, to state his case before
the domestic court and to challenge the admissibility and use of the
evidence.
- The
Court considers that, in so far as the remainder of the “fairness”
complaints under Article 6 of the Convention has been substantiated,
it raises issues which are of no more than a fourth-instance nature,
and which the Court has a limited power to review under that
Article (see García Ruiz v. Spain [GC], no.
30544/96, § 28, ECHR 1999-I).
- In
sum, the Court considers that, to the extent that the applicant
complied with the six-month time-limit, his complaints relating to
the “fairness” of his trial are manifestly ill-founded.
- It
follows that the relevant part of the application must be rejected in
accordance with Article 35 §§ 1, 3 (a) and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF ABSENCE FROM HEARINGS IN CIVIL PROCEEDINGS
- The
applicant
complained that both the Kirovskiy District Court and the Sverdlovsk
Regional Court had refused to ensure his attendance in the
proceedings concerning his parental rights. He relied on Article 6 §
1, which provides, in so far as relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public ... hearing
... by [a] ... tribunal ...”
A. Submissions by the parties
- The
Government explained that the courts’ refusals to secure the
applicant’s attendance at the hearings had resulted from the
absence of a legal norm permitting participation in hearings before
civil courts of convicts serving sentences of imprisonment. They also
stressed that the applicant’s presence had in any case been
unnecessary, as he had been represented and the representative had
attended the hearings, had made submissions and presented evidence,
including by calling witnesses.
- The
applicant maintained his complaint, having argued that the
representative had been unable to substitute him in the proceedings
as he had had no first-hand knowledge of his relations with his
former wife and his child. The opportunity to objectively present his
case had been further diminished by the District Court’s
refusal to hear evidence from witnesses on his behalf. The applicant
proceeded by disputing the Government’s reading of the Russian
law on civil procedure, arguing that there was no legal norm
preventing him from appearing in court, despite his being a convict.
B. The Court’s assessment
1. Admissibility
-
The Court considers that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention and that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
- The
Court reiterates that the principle of adversarial proceedings and
equality of arms, which is one of the elements of the broader concept
of a fair hearing, requires that each party be given a reasonable
opportunity to have knowledge of and comment on the observations made
or evidence adduced by the other party and to present his case under
conditions that do not place him or her at a substantial disadvantage
vis-à-vis his or her opponent (see Krčmář
and Others v. the Czech Republic, no. 35376/97, § 39,
3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27
October 1993, § 33, Series A no. 274).
- Article
6 of the Convention does not expressly provide for a right to a
hearing in one’s presence; rather, it is implicit in the more
general notion of a fair trial that a criminal trial should take
place in the presence of the accused (see, for example, Colozza v.
Italy, 12 February 1985, § 27, Series A no. 89).
However, in respect of non-criminal matters there is no absolute
right to be present at one’s trial, except in respect of a
limited category of cases, such as those where the character and
lifestyle of the person concerned is directly relevant to the subject
matter of the case, or where the decision involves the person’s
conduct (see, for example, Kabwe and Chungu v. the United Kingdom
(dec.), nos. 29647/08 and 33269/08, 2 February 2010).
- The
Court has previously found a violation of the right to a fair hearing
in several cases against Russia, in which parties to civil
proceedings were deprived of the opportunity to attend the hearings
because of belated or defective service of the summonses (see
Yakovlev v. Russia, no. 72701/01, §§ 19 et
seq., 15 March 2005; Groshev v. Russia, no. 69889/01,
§§ 27 et seq., 20 October 2005; and Mokrushina v.
Russia, no. 23377/02, 5 October 2006). It also found a
violation of Article 6 in a number of cases where Russian courts
refused leave to appear in court to imprisoned applicants who had
wished to make oral submissions on their civil claims. For instance,
in the case of Kovalev v. Russia (no. 78145/01, § 37,
10 May 2007), despite the fact that the applicant was
represented by his wife, the Court considered it relevant that his
claim of ill-treatment by the police had been largely based on his
personal experience and that his submissions would therefore have
been “an important part of the plaintiff’s presentation
of the case and virtually the only way to ensure adversarial
proceedings”. In the case of Khuzhin and Others v. Russia
(no. 13470/02, §§ 53 et seq., 23 October 2008) the
Court found that, by refusing to ensure that the imprisoned
applicants could attend hearings, and by failing to consider other
legal means of ensuring their effective participation in defamation
proceedings, the Russian courts had violated the principle of
equality of arms. A similar conclusion was reached by the Court in
other cases against Russia where the authorities had failed to secure
imprisoned applicants’ appearance before the civil courts
examining their complaints about the conditions of their detention
(see, for instance, Shilbergs v. Russia, no. 20075/03,
§§ 107-113, 17 December 2009; Artyomov v. Russia,
no. 14146/02, §§ 204-208, 27 May 2010; and Roman
Karasev v. Russia, no. 30251/03, §§
65-70, 25 November 2010). In the cases cited above, the
Court consistently held that given the nature of the applicants’
claims, which were, to a significant extent, based on their personal
experience, the effective, proper and satisfactory presentation of
the case could have only been secured by the applicants’
personal participation in the hearings. The applicants’
testimony pertaining to the facts of the case, of which only they
themselves had first-hand knowledge, would have constituted an
indispensable part of the plaintiffs’ presentation of the case.
- Turning
to the facts of the present case, the Court notes, and the Government
did not argue otherwise, that the applicant insisted on his presence
at the hearings. However, his leave to appear in court was dismissed
both by the District Court and the Regional Court. The Court does not
lose sight of the fact that the applicant was represented in the
proceedings. However, as in the previous cases concerning the
attendance of civil hearings by imprisoned applicants, the Court
attributes particular importance to the nature of the dispute to
which the applicant was a party. The Court reiterates that the
proceedings at hand concerned the termination of parental rights and
required assessment by the domestic courts of the very special legal
and factual relationship which exists between a parent and a child.
The Court considers that before taking a decision to permanently
sever that special relationship, the courts should have heard
evidence from the applicant in person. The applicant’s defence
was, to a major extent, based on his personal experience. In this
situation, the Court is not convinced that the representative’s
appearance before the courts secured an effective, proper and
satisfactory presentation of the applicant’s case. The Court
considers that the applicant’s testimony describing his
relationship with the child, which only he himself had first-hand
knowledge of, would have constituted an indispensable part of his
presentation of the case (see Kovalev, cited above, § 37).
Only the applicant himself could have presented his case and answered
the judges’ questions, if any.
- The
Court reiterates the Government’s argument that the domestic
courts refused the applicant leave to appear in court in view of the
absence of a legal provision requiring his presence at the trial and
permitting the transport of detainees to civil courts. In this
connection, the Court is also mindful that the Constitutional Court
has pointed out to other possibilities which were open to the
domestic courts as a way of securing the applicant’s
participation in the proceedings (see paragraph 52 above). The
domestic courts did not, however, make use of those options.
- In
these circumstances, the Court finds that the domestic courts
deprived the applicant of the opportunity to present his case
effectively. There has therefore been a violation of
Article 6 § 1 of the Convention on
account of the authorities’ failure to afford the applicant an
adequate opportunity to present his case effectively before the civil
courts.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as these complaints fall within the Court’s competence,
it finds that they do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 502,500 euros (EUR) in respect of non-pecuniary
damage.
- The
Government stated that the claim was manifestly ill-founded and
excessive.
- The
Court considers that an award of just satisfaction must be based in
the present case on the fact that the applicant did not have a fair
trial on account of his inability to examine the witnesses against
him and was unable to effectively present his case before the civil
courts. He undeniably sustained non-pecuniary damage as a result of
the violations of his rights. However, the sum claimed appears to be
excessive. Making its assessment on an equitable basis, the Court
awards the applicant 5,200 euros (EUR) in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
- Lastly,
the Court refers to its settled case-law to the effect that when an
applicant has suffered an infringement of his rights guaranteed by
Article 6 of the Convention, he should, as far as possible, be put in
the position in which he would have been had the requirements of that
provision not been disregarded, and that the most appropriate form of
redress would, in principle, be the reopening of the proceedings, if
requested (see, mutatis mutandis, Öcalan v. Turkey
[GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and
Popov v. Russia, no. 26853/04, § 264, 13 July
2006). The Court notes, in this connection, that Article
413 of the Russian Code of Criminal Procedure and Article 392 of the
Russian Code of Civil Procedure provide the basis for the reopening
of the proceedings if the Court finds a violation of the Convention
(see paragraphs 49 and 54 above).
B. Costs and expenses
- The
applicant did not make any claims for costs and expenses incurred
before the domestic courts and the Court.
- Accordingly,
the Court does not award anything under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
applicant’s inability to cross examine the prosecution
witnesses in open court and inability to attend hearings before the
civil courts admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 taken together with Article 6 § 3 (d) on account
of the absence of a proper and adequate opportunity for the applicant
to challenge the statements by the prosecution witnesses;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the
authorities’ failure to afford the applicant an adequate
opportunity to present his case effectively before the civil courts;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,200 (five
thousand and two hundred euros) in respect of non-pecuniary
damage, to be converted into Russian roubles at the rate applicable
on the date of the settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement,
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
