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FIFTH
SECTION
CASE OF
DOROKHOV v. RUSSIA
(Application
no. 66802/01)
JUDGMENT
STRASBOURG
14
February 2008
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 Dorokhov v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Anatoli
Kovler,
Javier
Borrego Borrego,
Mark
Villiger,
judges,
and Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 22 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 66802/01) 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 Gennadiy Valentinovich
Dorokhov (“the applicant”), on 21 July 2000.
- The applicant, who had been granted legal aid, was
represented by Ms L.I. Alekseyeva, a lawyer practising in
London. The Russian Government (“the Government”) were
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged that the conditions of detention in the remand
prison where he had been placed pending investigation and trial had
amounted to inhuman and degrading treatment. He further complained
that he had had no fair hearing of his case, since the court had
refused to call certain witnesses.
- By
a decision of 30 June 2005, the Court declared the application partly
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Chamber decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in Moscow.
A. Criminal investigation and detention
- The
applicant used to work as a public prosecutor. In 1998 the police
charged him with blackmail and abuse of office. They alleged that the
applicant had extorted several cars from the managers of a car repair
shop, threatening to harass their business with criminal
investigations. Thus, according to the prosecution, in 1997 the
applicant was given a car in exchange for the discontinuation of the
investigation into the allegedly illegal activities of the shop. Some
time later he received from them another car of the same model. In
1998 he was given a new car which was more expensive than the
previous one. The prosecution also accused the applicant of illegal
possession of firearms, namely a gas handgun found at his place
during the search.
- On
2 October 1998, the police arrested the applicant and detained him in
remand prison IZ–48/1, Matrosskaya Tishina, in Moscow. On
admission to the prison, the applicant was put in cell no. 210. The
rest of the time he spent in four other cells, namely cells nos. 212,
260, 739 and 740.
1. Cell 212
- On
8 February 1999, the applicant was put into cell no. 212. The
parties' descriptions of this cell differ.
- According
to the applicant, the environment in this cell was so poor that he
developed a skin rash.
- According
to the Government, that cell measured 18.8 square metres and had six
bunk beds. The cell had cold running water, a sink, and a toilet
partitioned off from the rest of the cell. The prisoners' food met
quality standards established by regulations. There was no infection
in the cell. The prisoners had an hour's daily exercise. Once a week
they had a bath and received fresh bedding.
2. Cell 260
- On
11 February 1999, the applicant was moved to cell no. 260. The
parties' descriptions of this cell differ too.
- According
to the applicant, this cell measured about 30 square metres and
housed between eighteen and twenty-nine prisoners at different times
(or twenty-five on average). Because the cell was overcrowded, during
most of the seven months he was there the applicant had to share his
bunk bed with other prisoners. But even on those few occasions when
he had the bed to himself, he could not sleep because the lights and
TV were always on, the ventilation was always off, and the prisoners
talked day and night. Metal shutters covered both windows, keeping
fresh air out. The toilet was not partitioned off from the rest of
the cell and was in front of the guards' peephole.
- According
to the Government, that cell measured 38.9 square metres and had
eighteen bunk beds. The cell had cold running water, a sink, and a
toilet partitioned off from the rest of the cell. The prisoners' food
met statutory standards of quality. There was no infection in the
cell. The prisoners had an hour's daily exercise. Once a week they
had a bath and received fresh bedding.
- Following
the admissibility decision the applicant produced a written statement
by Mr M., who had been detained in cell no. 260 between September
1997 and December 1999. He confirmed the applicant's account of the
conditions of detention there, namely that periodically the cell held
up to twenty-nine people.
3. Cells 739 and 740
- On
19 May 1999, the applicant was moved to cell no. 739, then to cell
no. 740. These were hospital cells, and the applicant was put there
while being treated for a broken leg.
- According
to the Government, the area of the cells was 21.6 square metres and
24.5 square metres correspondingly. The first cell was equipped with
four bunk beds and the second one had eight.
- According
to the applicant, even though the prison administration knew that he
was a former prosecutor, he had to share these cells with ordinary
criminals. With a broken leg, the applicant would have been helpless
had the criminals wished to attack him in revenge.
- According
to the Government, the applicant was detained separately from
ordinary criminals.
- On
7 June 1999, the applicant was returned to cell no. 260, where he
stayed until his removal from the prison on 4 February 2000.
B. Trial
- On
31 March 1999, on termination of the investigation the applicant and
his lawyer were given access to the materials of the case file. On an
unspecified date later the prosecution submitted the case file with
the bill of indictment to the Zamoskvoretskiy District Court of
Moscow for trial. The applicant was accused of having received
three cars from the managers of the car repair shop as a bribe. The
applicant was also accused of illegal possession of firearms.
- On
9 June 1999, referring to Article 223 of the Code of Criminal
Procedure the applicant requested the District Court to summon two
additional witnesses, Ms V. and Ms G. In his words, those witnesses
worked in the prosecutor's office at the material time; they had seen
him pay for the first of the allegedly extorted three cars and
therefore could arguably provide evidence for his acquittal. He
indicated in his request that in the course of the pre-trial
investigation he had asked for those people to be questioned but it
had been refused.
- The
request of 9 June 1999 was received by the administration of the
detention facility the next day. However, it is unclear when they
posted it.
- On
18 June 1999 the judge of the District Court examined the materials
of the case file in camera and found the case ready for trial. The
parties disagree as to whether the applicant's request under Article
223 to call Ms V. and Ms G. had reached the court by that date:
according to the applicant, it must have reached the court well
before 18 June 1999; according to the Government, the request reached
the court only on 23 June 1999, so the judge was unable to examine
it.
- At
the first hearing preceding the examination of the case on the merits
the court asked the applicant whether he wished to call additional
witnesses. The parties disagree as to whether the applicant used this
opportunity to call Ms V. and Ms G.: according to the Government, he
did not; according to the applicant, he did. From the transcript of
the hearing provided by the applicant, it appears that the first
hearing took place on 28 October 1999. The applicant asked the
District Court to examine his request lodged earlier under Article
223 of the CCrP. The District Court replied that that motion had been
received after the assignment of the case for trial. However, the
District Court noted that it would be examined later, at the
preliminary hearing stage.
- The
applicant agreed that he was a client of the car repair shop and knew
its managers. He also confirmed that he had bought several cars from
them. However, in his words, those cars were sold to him and were not
given as a bribe, as the prosecution suggested. He indicated that in
mid-July 1997 Ms V. had seen him paying for the car; he had paid Mr
Sh., who acted as an intermediary between the applicant and the car
repair shop. The applicant also testified that Ms G. had been present
at the time when he had handed money to Mr Sh., and that later the
applicant had told her about the deal. In his words, he gave money to
Mr Sh. in a closed envelope and did not specify what was in it, since
Mr Sh. knew that it was money for the car. Later in the course of the
trial the applicant referred on three occasions to the episode of
July 1997 where Ms V. and Ms G. had been present.
- The
court made several attempts to secure the attendance of Mr Sh. at the
trial. However, Mr Sh. was absent from his address and according to
his mother his whereabouts were unknown. The court decided to proceed
with the case in his absence and read out the testimonies of that
witness given during the face-to-face confrontation with the
applicant.
- At
the trial several witnesses were heard. The court heard Mr B r.,
Mr S., Mr G. and Mr A., who worked at the shop at the material time
and had contacts with the accused. They stated that the applicant had
threatened them with criminal prosecution and that they had bribed
him with the cars. They had also given him cash, to be transferred to
other law-enforcement agencies for their “protection”.
The court also heard Mr B-k., who had bought the third car in Germany
for the applicant. In his words, he had received the money for that
car from Mr A., the managers of the car repair shop. Ms P., who had
worked in the prosecutor's office at the material time, testified at
the trial that the applicant had asked her to suspend the
investigation into the activities of the shop. Some time later the
applicant had asked her to help the shop to obtain several licences
necessary for their professional activities.
- The
court further examined written statements from several witnesses
obtained by the police during the preliminary investigation. It also
examined material evidence and documents seized by the prosecution
authorities which related to the applicant's professional activities.
- Finally,
the court examined wiretapping records made secretly by the Federal
Security Service in the applicant's office. The court noted that the
wiretapping had been authorised by the Moscow City Court at the
request of the Federal Security Service and therefore was admissible
evidence. In the court's opinion, the records of his telephone
conversations corroborated the testimonies of witnesses heard at the
trial and those questioned by the investigative authorities.
- The
examination of evidence was followed by pleadings by both parties.
The applicant pleaded not guilty.
- On
15 November 1999, the court convicted the applicant as charged and
sentenced him to seven years' imprisonment.
- After
the trial, on 20 December 1999, the applicant asked the court to
correct record of the hearing, because his request to call Ms V. and
Ms G. had been omitted from the transcript of the first day of the
hearing (28 October 1999). On 17 January 2000 the court refused
to change the record, on the ground that it was true as it was.
- The
applicant appealed. In the points of appeal he indicated that on 28
November 1998 he had requested the District Court to call witnesses
Ms V. and Ms G., who could have confirmed that the applicant had
paid for the cars. However, in the applicant's words the court had
ignored that request.
- On
1 March 2000, the Moscow City Court upheld the conviction on appeal,
without, however, examining the applicant's argument about witnesses
Ms V. and Ms G.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Under Article 21 of the Detention Act of 1995, all
detainees' correspondence should go through the administration of the
remand prison. Letters addressed to the courts should be posted by
the administration within one day of their receipt from the detainee.
- At
the time of the relevant events the Code of Criminal Procedure of
1960 (“the old CCrP”) was in force. Under Article 46 of
that code the accused had the right to lodge procedural requests with
the trial court.
- Under
Article 221 of the old CCrP, after having received the case file from
the prosecution with the bill of indictment, the judge, sitting in
camera and without the parties, should decide whether or not the case
is ready for trial. Under Articles 222 and 223 the judge should also
examine written requests lodged by the defence. If the case is ready
for trial the judge fixes the date for the preliminary hearing and
draws up a list of witnesses to be called. This stage of the
proceedings is called “assignment of the case to trial”.
- The
trial commences with a preliminary hearing. Under Article 276 of the
old CCrP, the judge should ask the parties whether they wish to call
additional witnesses. If such a request is made, the court should
hear the parties on that matter and give decision in the form of a
ruling, which should be reasoned. The court may also call new
witnesses of its own motion.
- In
1975 the Supreme Court of the Russian Soviet Federative Socialist
Republic in a plenary session adopted Ruling no. 5, in which it
directed the lower courts as follows:
“Requests received after the case has been
assigned to trial but before the trial has begun, should be examined
at the preliminary hearing. However, in order to secure their prompt
examination the presiding judge may make certain preparatory
arrangements beforehand (requests for information, references, and so
on).”
The
rulings of the Supreme Court adopted in plenary sessions had the
force of law. Ruling no. 5, as amended later, was in force at the
time of relevant events.
- After
the preliminary hearing the court passes to the stage of “judicial
investigation” (sudebnoye sledstviye, Chapter 23 of the
old CCrP). This is the part of the trial when the court and the
parties examine the evidence, hear and question witnesses, experts
and so on. Once the “judicial investigation” is over, the
court asks the parties whether they want to supplement the “judicial
investigation” with any new elements of proof (Article 294 of
the Code). At this moment the defence may ask again for new witnesses
to be called.
- Following
the “judicial investigation” the trial passes to the
stage of pleadings. The accused person has the right to pronounce a
speech called “the last word”. If in this “last
word” he informs the court of important new elements of the
case, the court should reopen the “judicial investigation”
(Article 297 of the Code).
- Article 264 regulates the keeping of a trial record in
the first instance court. It does not require a verbatim record of
the trial to be kept, but “a detailed record of the
submissions”. In practice, if a verbatim record exists, it is
not attached to the official trial record. A party to the proceedings
may challenge before the presiding judge the accuracy of the official
record within three days of receiving a copy of it.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that the
conditions in the remand prison had been inhuman. Article 3 reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
- The
Government submitted, referring to their description of the cells,
that the prison conditions were satisfactory. The prison was indeed
overcrowded, but no worse than any other Russian prison in those
years. Moreover, the authorities had had no intention of making him
suffer. According to the Government, it was impossible to establish
how many people had been detained with the applicant at the relevant
time, since the official records had been destroyed in 2004 following
the expiration of their storage period.
- Further,
in the Government's submissions, the applicant had always been
provided with an individual sleeping place and necessary bedding: a
mattress, a blanket, a pillow, two bed sheets and a pillowcase. The
Government also provided written statements by prison guards. They
confirmed that at the relevant time cells nos. 212, 260, 739 and 740
had contained “former officials [of law enforcement agencies]”.
- Finally,
in recent years conditions in the prison had improved significantly.
Thus, in 2004 the number of detainees in the remand prison where the
applicant had been detained was 2.2 times lower than in 1998.
- The
applicant insisted, referring to his description of the cells, that
the prison conditions had been unsatisfactory. His case was not
unique: the Court knew from other cases that conditions in Russian
prisons were very poor. The authorities had intended to make him
suffer because they had deliberately placed him in a cell with
ordinary criminals. Furthermore, the recent improvements in general
prison conditions were of no consequence for his case.
B. The Court's assessment
- An
outline of the Court's case-law under Article 3 of the Convention
concerning the conditions of detention can be found in a number of
judgments concerning Russia (see, in particular, Kalashnikov v.
Russia, no. 47095/99, §§ 95 et seq., ECHR 2002 VI,
and Mayzit v. Russia no. 63378/00, §§ 34 et
seq., 20 January 2005), and the Court does not consider it necessary
to repeat it here.
- As
to the complaint that the applicant had been placed in a cell with
hostile cellmates, the parties disagreed about the facts. However, in
the Court's view, there is no need to resolve this disagreement. Even
if the cellmates did hold something against the applicant, there is
no evidence that they actually mistreated him in any way. Their
potential aggression never materialised, and the mere fear of
ill-treatment in the circumstances of the case does not seem to be
real enough to raise an issue under Article 3.
- As
to the physical conditions of detention, the parties' accounts also
differ in many respects. The Court will consequently start with an
issue that lends itself to more or less precise quantification,
namely that of the overcrowding of the cells where the applicant had
been detained, in particular, in cell no. 260.
- The
Court emphasises that it cannot but welcome the efforts of the
domestic authorities aimed at the improvement of the conditions of
detention in Russian prisons by reducing the overall number of
detainees (see paragraph 47 above). However, the Court's task within
the present case is to examine the applicant's personal situation as
it was at the relevant time. The Court notes that the applicant
stayed in remand prison IZ 48/1 between 2 October 1998 and 4 February
2000. Therefore, the Government's argument that the number of
detainees in 2004 was significantly lower than in 1998 is irrelevant.
- The
Government admitted that the cells where the applicant had been
detained had been overcrowded. The Government's assertion that the
applicant had been assigned an “individual sleeping place”
does not contradict this fact – the same sleeping place could
have well been assigned to another detainee or detainees. The
Government were unable to provide any figures as to the exact number
of detainees there since the relevant records had been destroyed. At
the same time they did not claim that the applicant's account in
respect of the number of detainees was untrue.
- The
Court recalls its findings in Mayzit v. Russia, cited above, §
40, where it held as follows:
“From similar cases (see Kalashnikov v. Russia,
cited above) the Court is aware that overcrowding in pre-trial
detention facilities is a general problem in Russia (ibid., § 93).
In these circumstances the Court does not find it of crucial
importance to determine the exact number of inmates in the cells
during the periods concerned. The material available suggests that at
any given time there would be less than two square metres of space
per inmate. Thus, in the Court's view the cells were overcrowded,
something which in itself raises an issue under Article 3 of the
Convention.”
- The
Court further noted that for nine months the applicant in that case
had been confined to his cell with very limited space for himself. It
transpires from the judgment that the severe and prolonged
overcrowding of the cell was sufficient for the Court to find a
violation of Article 3 of the Convention (ibid., §§ 41 and
42).
- By contrast, in other cases no violation of Article 3
was found, as the restricted space for sleeping was compensated for
by the freedom of movement enjoyed by the detainees during the
daytime (see Valašinas, cited above, §§ 103
and 107, and Nurmagomedov v. Russia (dec.), no.
30138/02, 16 September 2004).
- In
the present case the Court observes that the applicant spent about
ten months in cell no. 260. He claimed that within that period the
cell, measuring thirty square metres, contained twenty-five people on
average. The applicant's account was confirmed by his former
cell-mate Mr M. In the absence of any official data as to the number
of detainees, the Court accepts the applicant's account and concludes
that the cell was severely overcrowded (less than two square metres
of space per inmate).
- The
Court further notes that such a long period of detention in cramped
conditions must have caused him serious physical discomfort and
mental suffering. The one-hour exercise periods were not sufficient
to attenuate the negative effects of the overcrowding in the cells.
Furthermore, such overcrowding precluded any privacy in everyday
life, which is in itself a very traumatising experience. It is true
that the authorities had not intended to humiliate the applicant or
make him suffer. However, that does not remove the situation
complained of from the scope of Article 3 of the Convention (see, for
example, Peers v. Greece, no. 28524/95, § 74, ECHR
2001-III).
- In
sum, the above factors are sufficient to conclude that, as regards
cell no. 260, the applicant was detained in degrading conditions, in
breach of Article 3. Since the issue of severe and prolonged
overcrowding of the cell in itself warrants a finding of a violation
of Article 3, the Court will not go any further and explore other
aspects of the conditions of detention in detention facility no.
IZ-48/1.
- The
Court therefore finds that there has been a violation of Article 3 of
the Convention on account of the conditions of the applicant's
detention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 § 3 (d) of the Convention
that the court had not questioned crucial witnesses on his behalf.
Article 6 § 3, as far as relevant, reads as follows:
“Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him ...”
A. The parties' submissions
- The
Government argued that the applicant's rights had not been interfered
with for the following reasons. First, requests to call witnesses
were usually examined at preparatory hearings. But the court had been
unable to examine the applicant's request because it had been
received after the preparatory hearing, namely on 23 June 1999.
Second, since the applicant had not repeated the request at the main
hearing, the court had had no reason to call Ms V. and Ms G.
- The
applicant insisted on his complaint for the following reasons. First,
for a careful reader of the prosecution file the necessity of calling
Ms V. and Ms G. was self-evident. Second, the request must have
reached the court well before the preparatory hearing, because the
prison administration usually dispatched prisoners' mail within one
day. Third, even if the request had reached the court late, the court
should have answered it as soon as it came. Fourth, the applicant had
repeated the request in the main hearing, in his last plea, and in
his appeal.
B. The Court's assessment
1. General principles
- The
Court points out that the guarantees of paragraph 3 (d) of Article 6
are specific aspects of the right to a fair trial set forth in
paragraph 1 of this Article, cited above. Consequently, the
Court will consider the complaint concerning the failure to call
witnesses Ms V. and Ms G. at the hearing under the two provisions
taken together (see Asch v. Austria, judgment of 26 April
1991, Series A no. 203, p. 10, § 25).
- The
Court further reiterates that the right to call witnesses for the
defence is not absolute and can be limited in the interests of the
proper administration of justice. As a general rule, it is for the
national courts to assess the evidence before them as well as the
relevance of the evidence which defendants seek to adduce. More
specifically, Article 6 § 3 (d) leaves it primarily to them to
assess whether it is appropriate to call witnesses; it does not
require the attendance and examination of every witness on the
accused's behalf: its essential aim, as it is indicated by the words
“under the same conditions”, is full equality of arms in
the matter (see, for example, Vidal v. Belgium, judgment of 25
March 1992, Series A no. 235-B, pp. 32 33, § 33). In
respect of witnesses on behalf of the accused, only exceptional
circumstances could lead the Court to conclude that a refusal to hear
such witnesses violated Article 6 of the Convention (see Bricmont
v. Belgium, judgment of 7 July 1989, Series A no. 158, §
89).
- Finally,
the Court reiterates that its task is to ascertain whether the
proceedings in their entirety, including the way in which evidence
was taken and examined at the trial, were fair (see Asch,
cited above, p. 10, § 26).
2. Application of those principles in the present case
- The
first point of controversy is whether or not the applicant made his
request to call witnesses in an appropriate manner. The Court notes
in this respect that on 9 June 1999 the applicant asked the court to
summon two witnesses: Ms V. and Ms G. That request was lodged through
the administration of the remand prison, as provided by the Detention
Act 1995. The applicant's letter was dispatched by the prison
administration or should have been dispatched (see paragraph 36
above) on 10 June 1999. However, according to the Government, the
letter reached the court only on 23 June 2003, which was almost a
week after the case had been assigned to trial and the necessary
arrangements had been made.
- The
Government may be understood as claiming that the belated receipt of
the request absolved the court from the duty to examine it. However,
the Court notes that under Russian law the applicant had no other
choice but to dispatch his request through the prison administration
(see § 36). In such circumstances it was for the prison
administration to ensure that it was delivered within a reasonable
time. Given that the remand prison and the court were situated in the
same city, the two weeks' delivery time seems to be unusually long.
It raises certain doubts as to when the request of 9 June 1999
was posted by the prison administration.
- Be
that as it may, there is no need to speculate on this matter. The
Court observes that Ruling no. 5 of 1975 by the Supreme Court clearly
required the judge to examine the applicant's request at the
preliminary hearing, even if it was received after the assignment of
the case to trial. The Government did not explain why the court had
failed to do so.
- The
applicant further alleged that during the trial he had repeated his
request to call Ms V. and Ms G. The trial record did not contain any
reference to such a request. However, the Court notes that at the
first hearing the presiding judge clearly stated that he would return
to the requests lodged under Article 223 later, which could have been
reasonably interpreted as relating to the applicant's request to call
Ms V. and Ms G. Further, in the course of the trial the applicant's
lawyer drew the court's attention to those two witnesses. Finally,
the court of appeal remained silent about the reasons why the
first-instance court had not summoned Ms G. and Ms V. If it was just
for a simple omission or laxity on the part of the applicant, who had
not made himself sufficiently clear, the court of appeal could have
easily have said so. In such circumstances the Court concludes that
the defence employed all lawful means at their disposal to obtain the
attendance of the two witnesses.
- The
Court thus concludes that the applicant made a reasonable effort to
obtain the attendance of witnesses in his defence. The Government's
objection should therefore be dismissed. The next question to answer
is whether the trial court, by not securing their attendance,
breached the applicant's right under Article 6 § 3 (d).
- The
Court notes that, according to the prosecution, in 1997 the applicant
had received the first car as a bribe. The applicant claimed that he
had bought it and that Ms V. and Ms G. had seen him pay for it. In
his request of 9 June 1999 the applicant explained what Ms V. and Ms
G. would say and indicated their whereabouts. Therefore, the request
to call witnesses was sufficiently reasoned, relevant to the subject
matter of the accusation and could arguably have led to the
applicant's acquittal (see, in this respect, Perna v. Italy [GC],
no. 48898/99, § 29, ECHR 2003 V, and Guilloury
v. France, no. 62236/00, § 64, 22
June 2006). In other words, it was not a clearly vexatious
request to which the court was not supposed to answer.
- The
Court further notes that the applicant's offer to produce evidence
was implicitly rejected by the trial court, without any reasons
having been given. Moreover, the court of appeal did not address the
applicant's argument concerning the refusal of the lower court to
call witnesses. The Court further notes that the applicant asked the
first instance court to rectify the hearing record by putting on it
his request to call Ms V. and Ms G. However, that request was
rejected (see paragraph 33 above).
- The
Court reiterates that the applicant's request was clearly relevant to
the subject matter of the accusation. However, as was confirmed by
the defence in the course of the trial, neither Ms V. nor Ms G. had
seen him paying money for the car to Mr Sh. In his words, he handed
Mr Sh. a closed envelope and did not say what was inside. Only
afterwards did he mention to Ms G. that he had paid money for the car
to Mr Sh. In sum, the probative value of the testimony of Ms G. and
Ms V. was very low. On the contrary, the arguments in favour of the
applicant's guilt were quite weighty. Several people testified at the
trial that they had bribed him with the car. Therefore, even if Ms G.
and Ms V. had been called and heard, their testimony would most
likely not have led to the applicant's acquittal. The Court
reiterates in this respect that, although the silence of the trial
court and the court of appeal in that respect is regrettable, regard
must be had to the proceedings as a whole. In Vidal, cited
above, the applicant's conviction rested mostly on the materials of
the case file and the testimonies of the co-defendants (§ 34).
In the present case, on the contrary, the conviction was supported by
a solid evidentiary base, in particular by the testimonies of several
independent witnesses given at the trial. In view of that it is
possible to distinguish the present case from Vidal, cited
above.
- The
Court concludes that the implicit refusal of the domestic courts to
call witnesses for the defence, in the particular circumstances of
the case, did not affect the overall fairness of the trial.
Therefore, there has been no violation of Article 6 § 3 (d)
taken in conjunction with Article 6 § 1.
III. 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.”
- Under
Article 41 the applicant claimed 500,000 United States dollars. In
his words, he needed that money to compensate his material losses,
including legal costs, to carry out a public campaign for the
restoration of his good name, and to cover expenses for medical
treatment for himself and the members of his family.
- The
Government maintained that the applicant's claims under Article 41
were unsubstantiated and unreasonable. As to the non-pecuniary damage
allegedly sustained by him, the Government noted that only two of his
complaints had been declared admissible. Further, the applicant had
not substantiated his claims in so far as they related to any
“material loss” allegedly sustained by him.
- The
Court notes that that the amount claimed by the applicant apparently
included both pecuniary and non-pecuniary damage and his costs and
expenses. As regards the pecuniary damage allegedly caused, the
applicant did not specify what material losses he had suffered as a
result of the poor conditions of his detention. The same applies to
his legal costs: he did not indicate what they comprised. The Court
also observes that the applicant received legal aid, which is
supposed to cover at least some of his expenses related to his
representation. In sum, the Court concludes that the applicant's
claim in respect of pecuniary damage and legal costs is not set out
in sufficient detail and should be dismissed.
- As
to the non-pecuniary damage, it is unclear what part of the amount
claimed is supposed to cover it. However, given the nature of the
violations found in the present case, the Court admits that the
applicant must have suffered as a result of the conditions of his
detention, both mentally and physically. In sum, on an equitable
basis the Court awards the applicant 7,000 euros, under the head of
non-pecuniary damages, plus any tax that may be chargeable on this
amount.
- The
Court considers it appropriate that the default interest 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
- Holds unanimously that there has been a
violation of Article 3 of the Convention on account of conditions of
the applicant's detention;
- Holds by five votes to two that there has been
no violation of Article 6 § 3 (d) taken in conjunction with
Article 6 § 1 of the Convention on account of the failure of the
court to call witnesses for the defence;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 7,000 (seven thousand
euros) in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of 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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 14 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint partly dissenting opinion
of Judges Lorenzen and Tsatsa-Nikolovska is annexed to this judgment.
P.L.
C.W.
JOINT PARTLY DISSENTING OPINION OF JUDGES LORENZEN
AND TSATSA-NIKOLOVSKA
While
we agree with the majority that there has been a violation of Article
3 of the Convention, we are not able to find that there has been no
violation of Article 6 § 3 (d) taken in conjunction with 6 §
1 of the Convention.
According
to Article 6 § 3 (d) everyone has a right “... to obtain
the attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him”. It has been the
Court's constant case-law that this article does not grant an
unlimited right to have witnesses heard and that it is primarily for
national courts to assess whether witnesses requested by the defence
to be heard are relevant to the case. Only in exceptional
circumstances would a refusal to hear such witnesses violate Article
6, cf. paragraph 65 of the judgment. However, in our opinion the
article implies that when a request by the defence to hear witnesses
is not accepted, the national court should – unless the
witnesses are clearly irrelevant – give a reasoned decision why
it is not appropriate to call them.
In
the present case the applicant at the investigation stage requested
to hear two witnesses and gave reasons why he considered them
important. However, the request only reached the trial judge after
the case was found ready for trial – either because the prison
authorities forwarded it belatedly or because of a clerical error in
the District Court. The parties disagree as to what the applicant
answered to a question of the trial court whether he wanted to call
additional witnesses, but it appears from the transcript of the
hearing on 28 October 1999 that the court knew about his earlier
request and noted that it would be examined later, at the preliminary
hearing stage. However, it does not appear that the District Court
took any decision in that respect. Nor did the appeal court examine
his complaint that his request was left unanswered by the District
Court.
The
majority considers that the applicant's request was “clearly
relevant” and that the silence of the national courts in that
respect is “regrettable”. We can of course agree to that,
but not to the majority's approach that in such circumstances it is
for the Court to assume the role of the national courts and assess
what would have been the possible importance of statements from those
witnesses had they been called. In our opinion the total failure of
the national courts to examine and give a reasoned decision to a
request to have relevant witnesses heard is not compatible with the
requirements of Article 6 § 3 (d) taken in conjunction with
Article 6 § 1 of the Convention. Accordingly there has been a
violation of those articles.
