THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 22502/02
by Jānis KARULIS
against Latvia
The European Court of Human Rights (Third Section), sitting on 2 November 2010 as a Chamber composed of:
	Josep Casadevall, President,
	Elisabet Fura,
	Boštjan M. Zupančič,
	Alvina Gyulumyan,
	Ineta Ziemele,
	Luis López Guerra,
	Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 31 May 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1.  The applicant, Mr Jānis Karulis, is a Latvian national who was born in 1953. He is currently serving a prison sentence in Latvia. The applicant is represented by Ms. I. Lielpinka, a lawyer practising in Rīga. The respondent Government are represented by Mrs I. Reine.
A.  The circumstances of the case
1.  Per-trial investigation
2.  The facts of the case, as submitted by the parties, may be summarised as follows.
3.  On 3 August 1999 the applicant was arrested and taken into custody on suspicion of a murder of his former co-inmate S., committed in 1996.
4.  Questioned as a suspect, the applicant pleaded guilty to inflicting bodily injuries on the victim. The applicant contended that during their dispute S. threatened him with an axe. Aiming to hit the axe out of S’s hands, the applicant took a metal bar and accidentally hit S. on the head. Afterwards he hit S. three more times until the latter fell to the ground and let go of the axe.
5.  Questioned as an accused the applicant, contended that S. had attacked him and, in order to defend himself, the applicant hit S. on the head until the latter fell to the ground.
6.  On 7 December 1999 the applicant’s girlfriend O.B. was questioned as a witness and the testimony was video-recorded. She told that the murder took place in the applicant’s house where, after having a fight with S., the applicant took a metal bar and hit the victim in head. Then S. fell to the ground and the applicant continued to hit him on the head and face. After realizing that S. was dead, the applicant buried him in the garden.
7.  During the pre-trial investigation O.B. refused to be cross-examined with the applicant, contending that the latter had threatened her. According to the materials of the case, in June 1998 she complained to the Olaine Police Department that the applicant had beaten her and injured her with a knife. At a later stage the criminal proceedings, which where instituted against the applicant at the O.B.’s complaint, were discontinued at O.B.’s request.
8.  Upon the conclusion of the preliminary investigation, the applicant’s criminal case was transmitted to Rīga Regional Court. Throughout the first- and second-instance court proceedings the applicant was represented by state-appointed defence counsel, a member of the Latvian Bar Association.
2.  The trial before the first-instance court
9.  The hearing of the applicant’s criminal case at Rīga Regional Court was held on 27 to 29 March 2001.
10.  On 27 March 2001, at the beginning of the trial, the court observed that a summons sent to witness O.B. was returned to the court with a notice that she did not live at that address.
11.  The applicant subsequently insisted on the attendance of witness O. B. In addition, for the first time the applicant asked the court to summon witness Z. on behalf of the defence. The applicant explained that during the pre-trial investigation he had not referred to this witness because he had expected that O.B. would refer to him. The applicant contended that witness Z. went to see him the day after the events at issue took place.
12.  The court decided to commence adjudication of the criminal case and to leave the request open concerning witness O. B.
13.  During the court adjudication the applicant confessed that he had inflicted bodily injuries on the victim, however, he contended that he had done so to defend himself against attack by the victim, who was allegedly holding an axe.
14.  The court further questioned witness B. who testified, as he had during the pre-trial investigation, that the applicant had told him that he [the applicant] had won a fight with the victim and had buried the body. Further, disregarding the applicant’s objections, the court read out the statements made by O. B. during the pre-trial investigation, and also viewed a video record of O.B.’s statements. The applicant commented that O.B’s testimony was false, without providing detailed arguments as to which statements were false.
15.  At 3.10 p.m. on 28 March 2001 the court announced a break in the adjudication of the criminal case and adopted a decision that the Olaine Police Department should bring witness O.B. to court compulsorily at 10 a.m. on 29 March 2001.
16.  On 29 March 2001 the Olaine Police department informed the court that they had visited two addresses in Olaine and that O. B. could not be found at either of them.
17.  As to witness Z., the court noted that it could not establish the exact whereabouts of the witness. The court also mentioned that witness Z. had not been referred to by the applicant during the pre-trial investigation and, according to the materials in the case file, he was not an eyewitness, therefore the request to summon this witness was dismissed.
18.  On 30 March 2001 Rīga Regional Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. The court recognised that the applicant’s statements concerning the circumstances of his fight with S. and the alleged necessity of self-defence (see paragraph 5) were inconsistent with his earlier testimony (see paragraph 4), O.B.’s statements and the expert report which described the multiple serious facial injuries inflicted on S. The court established that by hitting S. several times on the head and face the applicant intended to murder him. The court also relied on statements by witness B. given during the pre-trial investigation and the trial, and statements by a policeman on duty at the time.
3.  The proceedings before the appeal court
19.  The applicant appealed against the first-instance court judgment, asking for witnesses O. B. and Z. to be summoned for examination. He complained that the first-instance court had found him guilty taking into account solely the incriminating statements of witness O. B., whom he could not challenge or question.
20.  On 5 September 2001 the Supreme Court summoned witness O.B. again, by sending the summons to another address, where she might possibly be located. On 10 September 2001 the summons was returned to the court with an indication that the addressee could not be reached there.
21.  On 24 October 2001 at the beginning of the hearing the court observed that witness O.B. had not appeared. The applicant referred to a letter of an unspecified date from O.B., addressed to him, in which O.B. had expressed willingness to testify before the court. It appears that the letter did not contain an address for the witness.
22.  When asked by the court, the applicant did not object to adjudication of the appeal on the merits.
23.  During the appeal hearing, the applicant testified that he had inflicted bodily injuries on the victim and that “probably it was not necessary to hit him so many times”. As to O.B.’s testimony the applicant commented that O.B. had probably not seen that the victim had an axe. During the trial the applicant refused to watch the video statement given by witness O.B.
24.  On 24 October 2001 the Criminal Chamber of the Supreme Court upheld the judgment, finding that the first-instance court had thoroughly analysed the evidence available and had expressly indicated in its judgment which facts it considered to be established as well as the reasons for its conclusion.
4.  The proceedings before the court of cassation
25.  The applicant submitted a cassation appeal against the decision of the second-instance court. He complained that his procedural rights had not been observed because he could not question witness O.B.
26.  On 5 December 2001 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law as manifestly ill-founded, at a sitting held in camera. It considered that the applicant had not demonstrated the existence of arguable grounds which would justify holding a hearing in the cassation proceedings. The Senate concluded that O.B.’s witness statements had been sufficiently examined by the first- and second-instance courts. The Senate did not establish that there had been any violations of procedural and substantive law which would have stood in the way of a thorough, complete and objective investigation of the case.
B.  Relevant domestic law
27.  The relevant provisions of the Code of Criminal Procedure (Latvijas Kriminālprocesa Kodekss), applicable at the material time (in force until 1 October 2005), are found in Pacula v. Latvia, no. 65014/01, §§ 34-39, 15 September 2009, and Ž. v. Latvia, no. 14755/03, § 56, 24 January 2008.
COMPLAINT
28.  The applicant complained under Article 6 of the Convention that he had been deprived of a fair trial, as key witness O. B. and witness Z. had not been summoned for examination at the first- and second-instance courts.
THE LAW
29.  The applicant complained that proceedings in his criminal case had been unfair, in particular, that the domestic courts had failed to ensure the appearance of witnesses O.B. and Z. to the trial and, therefore, he had not been given the opportunity to question them. He invoked Article 6 of the Convention, the relevant parts of which provide:
“1.  In the determination of...any criminal charge against him, everyone is entitled to a fair hearing...by and independent and impartial 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;...”
30.  The Government invited to conclude that the complaint is manifestly ill-founded, in that the applicant was not convicted solely on the basis of the testimony of O.B. and that, despite the efforts of the national authorities, it was not possible to ensure the appearance of witness O.B., nevertheless the applicant was still provided with sufficient safeguards, such as the opportunity to comment on O.B.’s video testimony.
31.  The applicant argued that there were no grounds for denying him a confrontation with O.B. during the pre-trial investigation. He also denied that the domestic courts had used effective methods in summoning both the witnesses.
32.  At the outset the Court refers to the general principles established by the Court’s case-law governing the application of the specific guarantees of Article 6 § 3 (d), as summarised in Pacula, cited above, § 50, and Ž. v. Latvia, cited above, §§ 94-95.
33.  By applying the above principles to the facts of the present application, the Court will observe whether the domestic authorities have made sufficient effort to ensure the attendance of the main witness. Further, it will examine whether the testimony of the witnesses concerned was decisive in the conviction of the applicant and whether the defence was in possession of other sufficient safeguards against any possible unfairness of the trial.
34.  Having regard to the materials brought before it, the Court observes that during the trial the domestic authorities attempted to ensure O.B.’s attendance at court by using at least three different addresses where the witness could be reached (see paragraphs 10, 16 and 20 above). Although the applicant alleged that the witness had confirmed her willingness to make a statement (see paragraph 21 above), it appears that even if the witness was aware of the ongoing trial, she was unwilling to disclose her whereabouts, either to the applicant or to the authorities. In the above circumstances and after various unsuccessful attempts to bring the witness to the trial, the domestic court relied on O.B.’s video statements recorded during the pre‑trial investigation.
35.  In the present case the Court notes the aforementioned efforts of the national authorities to locate the whereabouts of the witness (contrast Melnikov v. Russia, no. 23610/03, § 82, 14 January 2010).
36.  In assessing whether during the proceedings there were sufficient procedural safeguards to counterbalance the difficulties caused to the defence, such as an absence of a witness as in the case at issue, due weight must be given to the outcome of the assessment as to whether the disputed statements were decisive for the conviction of the applicant (see Dzelili v. Germany (dec.), no. 15065/05, ECHR 29 September 2009).
37.  In the case at issue, during the investigation phase and the trial, the applicant himself did not deny that he had inflicted serious bodily injuries on S. (see paragraphs 4 and 23 above). His version of the defence of necessity was contradicted by the forensic medical report, which concluded that the injuries inflicted on the late S. did not correspond to the applicant’s submissions (see paragraph 18 above).
38.  It has to be also noted that witness B. testified throughout the criminal proceedings that the applicant had told him about the murder, and the applicant did not dispute those statements. The applicant also did not specify which statements made by witness O.B. were allegedly false (see paragraph 14 above). According to him, O.B. might not have witnessed certain things at the time the crime was committed (see paragraph 23 above).
39.  In the light of the above the Court observes that the applicant was not convicted solely on the basis of the testimony of witness O.B. (contrast Pacula, cited above, § 53), and even if for the interests of the defence it would have been preferable for O.B. to be cross-examined during the trial, the applicant’s conviction was supported by other evidence, as noted above.
40.  The Court shall examine the efficiency of other procedural safeguards provided to the applicant. The Court notes that the statements made by O.B. during the investigation phase were video recorded and viewed by the defence during the trial, and the defence was able to exercise its right to comment on them (see Accardi and Others v. Italy (dec.), no. 30598/02, ECHR 2005-II ).
41.  It must also be noted that although the applicant had requested that witness O.B. be present during the trial, neither he nor his lawyer had produced any questions to be put to O.B. or the police officer who questioned the witness (see, mutatis mutandis, Mika v. Sweden (dec.), no. 31243/06, § 41). Also, the applicant did not object to commencing the appeal hearing without the witness O.B. (see Ž. v. Latvia, cited above, § 97)
42.  Observing that the submissions of witness O.B. were corroborated with other evidence in the applicant’s criminal case, the Court concludes that the domestic authorities have acted with sufficient diligence in granting procedural safeguards to the defence (contrast Pacula, cited above, § 56).
43.  Having regard to the above-mentioned, the Court concludes that the complaint under Article 6 of the Convention in respect of witness O.B. is inadmissible under Article 35 § 3 of the Convention as manifestly ill-founded.
44.  As to witness Z., in addition to the fact that the witness was never questioned by the prosecution and the defence has not submitted how the particular witness could support the position of the defence (see Ž. v. Latvia, cited above, § 100), the applicant has not referred to this witness in his appeal on points of law (see paragraph 25 above), thus failing to exhaust domestic remedies in this regard.
For these reasons, the Court unanimously
Declares the application inadmissible.
	Santiago Quesada	Josep Casadevall
	Registrar	President