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FIRST
SECTION
CASE OF KHAMETSHIN v. RUSSIA
(Application
no. 18487/03)
JUDGMENT
STRASBOURG
4 March 2010
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 Khametshin v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 9 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18487/03) 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 Rafail Nagimovich
Khametshin (“the applicant”), on 5 May 2003.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, the then Representative of the Russian
Federation at the European Court of Human Rights.
- On
11 April 2007 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3). The application was subsequently
transferred to the First Section of the Court.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in Yaroslavl.
- On
23 June 2002 the applicant tried to smuggle alcohol to his friends,
who were detained in prison. When police officers Mr S. and Mr A.
tried to arrest him he apparently resisted the arrest. Subsequently,
the applicant was accused of assaulting officer S.
- In
October 2002 the applicant was charged with violence against a public
official. The investigator in the Zavolzhskiy district prosecutor's
office of Yaroslavl noted in his decision that the applicant had
committed an administrative offence of smuggling prohibited goods to
detainees; he had resisted lawful arrest during the commission of
that offence; the latter act constituted a criminal offence
punishable under Article 318 of the Criminal Code. The investigator's
decision also contained a list of procedural rights under Article 47
of the Russian Code of Criminal Procedure (see paragraph 20 below).
It appears that the applicant was given a copy of the above decision.
- During
the preliminary investigation, officer S. explained that on 23 June
2002 when together with officer A. he was patrolling in the vicinity
of the prison they had noticed the applicant and two other persons
throwing certain objects over the prison wall. When they had
attempted to arrest them, the applicant and others had assaulted them
and tried to escape. Officer A confirmed his fellow officer's
statement.
- The
applicant disagreed with their version of the events and claimed in
essence that the police officers had been drunk and had beaten him up
and shot his friend.
- At
the trial, on 5 November 2002 the applicant made a written statement
declining the services of his counsel. He declared that this waiver
was not based on any “financial considerations” and that
he would continue to ensure his own defence. The hearing was
adjourned because certain witnesses, including officers S. and A.,
had not answered the court summons.
- Thereafter, the trial court received a note of a
telephone conversation between the court registry and A.'s
grandmother. The latter explained that Mr A. had resettled to Moscow
for permanent residence; that she had informed him on 5 November 2002
about the court summons and that he had asked her to inform the court
that he maintained his earlier statement and could not attend the
trial because his wife was about to be admitted to a maternity
hospital.
- On 11 November 2002 the trial judge received a note of
a telephone conversation between the court registry and investigator
M., who informed the judge that Mr A. had reportedly moved to the
Moscow Region without giving his new address; Mr S. was still an
officer and was living at the same address.
- On
15 November 2002, noting the officers' absence, the trial judge
enquired with the parties as to the admission in evidence of the
officers' pre-trial statements. As can be seen from the trial
verbatim record, both the prosecutor and the applicant consented to
the reading out of the officers' pre-trial statements.
- The
court also referred to the statements from the prison guard Mr P.,
who had been on duty that day and had seen several persons throwing
certain objects over the prison wall. The court also heard guard K.,
who had been patrolling at the territory of the prison and had seen
the bottles being thrown over the prison wall. According to two
medical reports, Mr S. and Mr A. were sober on 23 June 2002 and Mr S.
had various injuries on his body. During a pre-trial identification,
he had pointed to the applicant as his assailant.
- The
court rejected as unreliable the applicant's version of the events,
which was supported by three witnesses on his behalf. The court also
dismissed the fourth witness's allegation that one of the officers
had been drunk on 23 June 2002.
- By
a judgment of 18 November 2002, the Zavolzhskiy District Court
of Yaroslavl convicted the applicant as charged and sentenced him to
three years and six months' imprisonment.
- The
applicant appealed contending that the court had not given a proper
weight to the fact that despite the summons Mr S. and Mr A. had not
appeared before the trial court and thus had not been examined at the
trial.
- On 14 January 2003 the Yaroslavl Regional Court upheld
the judgment in the following terms:
“The court rightly founded the judgment on the
testimonies by S. and A. because those testimonies are coherent,
non-contradictory and correspond to the actual circumstances of the
case. They were corroborated by other evidence presented in the
judgment, such as the medical report indicating that S. had
[injuries], P.'s statement..., K.'s statement...The reference to the
failure of S. and A. to appear before the court on the summons is not
a valid reason for annulment of the judgment because the court
obtained the parties' opinion on the possibility of reading out their
depositions in view of their absence from the trial; [the applicant]
did not object to the reading out...”
- In
2003 the Regional Court dismissed the applicant's request for
supervisory review of the above judgments. In 2007 the Prosecutor of
the Yaroslavl Region applied for supervisory review, considering that
there was no corpus delicti and that there was no case to
answer against the applicant. On 25 October 2007 the Acting President
of the Regional Court dismissed the prosecutor's application and
refused leave to supervisory review.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure (CCrP)
- Under Article 47 § 3 of the CCrP, a defendant has
a right to adequate time and facilities for the preparation of his
defence. Article 47 § 4 contains a list of procedural rights,
including a right to legal assistance and to free legal
representation in certain circumstances, a right to participate in
hearings before first-instance and higher courts, to have access to
the trial record and to lodge comments on it. During the first
interview the defendant should be informed of the above procedural
rights (Article 47 § 6).
- All
evidence should normally be presented at a court hearing during which
the court should hear statements from the defendant, victim,
witnesses and so on and examine physical evidence (Article 240). The
reading of pre-trial depositions should only be allowable under
Articles 276 or 281 of the Code (ibid).
- Under
Article 281 § 1 of the Code, in its version before 10 July 2003,
the reading out of earlier statements made by the victim or witness
was allowable if the parties gave their consent to it and if (i)
there were substantial contradictions between the earlier and the
later statements, or (ii) the victim or witness had not appeared
before the trial court.
B. Supreme Court of Russia
- Sitting
as a court of appeal in a criminal case examined by the
first-instance court in 2003, the Supreme Court interpreted
Article 281 as requiring consent from both parties only when it was
the intention of the trial court ex officio to read out a
pre-trial statement rather than a request from one of the parties
(Appeal decision no. 3-74/03 of 19 February 2004).
C. Constitutional Court of Russia
- In
its admissibility decision of 27 October 2000 (no. 233-O), the
Constitutional Court held that the reading out of pre-trial
depositions should be considered as an exception to the court's own
assessment of evidence and should not upset the procedural balance
between the interests of the prosecution and those of the defence. If
a party insists on calling a witness whose testimony may be important
to the case, the court should take all available measures to ensure
this witness's presence in court. When that witness is available for
questioning, the reading out of his or her deposition should be
considered inadmissible evidence and should not be relied upon.
However, when the witness is not available for questioning, the
defence should still be provided with appropriate procedural
safeguards such as challenge to the read-out deposition, a request
for challenge by way of examining further evidence, as well as
pre-trial face-to-face confrontation between that witness and the
defendant when the latter was given an opportunity to put questions
to the former (see also the admissibility decision of 7 December 2006
(no. 548-O)).
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 §§ 1 and 3 (d) of the
Convention that he had not had a fair trial. In particular, he
complained of the trial court's assessment of the available evidence
and of the fact that he had not been afforded any opportunity to
examine officers S. and A. in the criminal proceedings against him.
Article 6 in the relevant parts reads as follows:
“1. In the determination of...any
criminal charge against him, everyone is entitled to a fair and
public hearing...
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;...”
- The
Government submitted that the criminal proceedings against the
applicant had complied with the requirements of Article 6 of the
Convention. The trial had been adjourned once, to ensure the presence
of officers S. and A.; the authorities had made reasonable efforts in
this respect but to no avail. The applicant had consented to the
reading out of their pre-trial statements. Thus, he had unequivocally
waived his right to examine them. This decision had been taken by him
without legal advice since he had voluntary declined the services of
counsel at an earlier hearing.
- The
applicant maintained his complaints.
A. Admissibility
- The
Court considers that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. General principles
- With regard to judicial decisions, the Court
reiterates that, in accordance with Article 19 of the Convention, its
only task is to ensure the observance of the obligations undertaken
by the Parties to the Convention. In particular, the Court is not
competent to deal with an application alleging that errors of law or
fact have been committed by the domestic courts, except where it
considers that such errors might have involved a possible violation
of any of the rights and freedoms set out in the Convention (see,
among other authorities, Schenk v. Switzerland, 12 July 1988,
§ 45, Series A no. 140).
- As
regards Article 6 of the Convention, the Court reiterates that the
admissibility of evidence is primarily a matter for regulation by
national law and as a general rule it is for the national courts to
assess the evidence before them. The Court's task under the
Convention is not to give a ruling as to whether statements of
witnesses were properly admitted as evidence, but rather to ascertain
whether the proceedings as a whole, including the way in which
evidence was taken, were fair (see Doorson v. the Netherlands,
judgment of 26 March 1996, § 67, Reports 1996-II,
and Van Mechelen and Others v. the Netherlands, judgment of 23
April 1997, § 50, Reports 1997-III).
- All the evidence must normally be produced at a public
hearing, in the presence of the accused, with a view to adversarial
argument. There are exceptions to this principle, but they must not
infringe the rights of the defence; as a general rule, paragraphs 1
and 3 (d) of Article 6 require that the defendant be given an
adequate and proper opportunity to challenge and question a witness
against him, either when he makes his statement or at a later stage
(see Lüdi v. Switzerland, judgment of 15 June 1992, § 49,
Series A no. 238). The same paragraphs, taken together,
require the Contracting States to take positive steps to enable the
accused to examine or have examined witnesses against him, such
measures being part of the diligence 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).
- However,
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 (see Saïdi v. France,
judgment of 20 September 1993, § 43, Series A
no. 261 C, and A.M. v. Italy, no. 37019/97,
§ 25, ECHR 1999 IX). If there has been no negligence
on the part of the authorities, the impossibility of securing the
appearance of a witness at the trial does not in itself make it
necessary to halt the prosecution (see Artner v. Austria,
judgment of 28 August 1992, Series A no. 242 A, § 21).
The rights of the defence are restricted to an extent that is
incompatible with the requirements of Article 6 if the conviction is
based solely, or to a decisive extent, on the depositions of a
witness whom the accused has had no opportunity to examine or to have
examined either during the investigation or at trial (see Delta v.
France, judgment of 19 December 1990, § 37,
Series A no. 191 A, and Isgrò v. Italy,
judgment of 19 February 1991, § 35, Series A
no. 194 A).
- Article
6 does not grant the accused an unlimited right to secure the
appearance of witnesses in court and it is normally for the national
courts to decide whether it is necessary or advisable to hear a
witness (see, among many other authorities, Bricmont v. Belgium,
judgment of 7 July 1989, § 89, Series A no. 158).
2. Application of those principles in the present case
- In
the present case the Court reiterates that the applicant maintained
that he had not had a fair trial and, under Article 6 §§ 1
and 3 (d) of the Convention, he referred in particular to the fact
that he had been unable to examine officers S. and A.
- Since
the requirements of paragraph 3 (d) of Article 6 represent
specific aspects of the right to a fair trial set forth in paragraph
1, the Court will examine the applicant's complaint under the two
provisions taken together (see Asch v. Austria, judgment of 26
April 1991, § 25, Series A no. 203).
- The
Government argued that the national authorities had taken reasonable
measures to enable the applicant to examine or have examined officers
S. and A. Indeed, after their initial failure to attend the trial,
the trial court ordered an adjournment to secure their presence at
the next hearing. However, in the Government's submission, the
officers were not available for questioning at the relevant time
despite the efforts made by the authorities.
- The
Court will first determine whether the applicant validly waived his
right under Article 6 § 3 (d) of the Convention. The Court
reiterates in that connection that neither the letter nor the spirit
of Article 6 of the Convention prevents a person from waiving of his
or her own free will, either expressly or tacitly, entitlement to the
guarantees of this provision (see Hermi v. Italy [GC],
no. 18114/02, § 73, ECHR 2006 XII). However, such a
waiver must, if it is to be effective for Convention purposes, be
established in an unequivocal manner, be attended by minimum
safeguards commensurate with its importance, and should not run
counter to any important public interest (ibid). Moreover, before an
accused can be said to have implicitly, through his conduct, waived
an important right under Article 6, it must be shown that he could
reasonably have foreseen what the consequences of his conduct would
be (see Panovits v. Cyprus, no. 4268/04, § 68, 11
December 2008).
- Turning
to the circumstances of the case, the Court observes that under the
Russian Code of Criminal Procedure, the reading out of pre-trial
statements made by a victim or witness was allowable if the victim or
witness did not appear before the trial court, provided that the
parties consented to the reading out. The trial record clearly states
that the applicant consented to the reading out of the officers'
statements. There is no reason to doubt the authenticity of the
record.
- The
Court also notes that there was no allegation that the applicant had
been compelled to refuse legal assistance at the trial or that he had
otherwise been prevented from taking informed decisions in the course
of the trial. Nor did the Court detect any shortcomings in the legal
representation by counsel. While not being directly concerned with
the question of the applicant's waiver of the right to legal
assistance, the Court considers on the basis of the available
materials that the applicant voluntarily and unequivocally chose to
defend himself at the trial. Moreover, it has not been argued,
and the Court does not consider, that the applicant was not
sufficiently aware of his procedural rights, including the right to
examine witnesses against him (see, by contrast, Panovits,
cited above, § 68, and Strzałkowski v. Poland,
no. 31509/02, § 54, 9 June 2009). The applicant did
exercise his right to call witnesses on his behalf at the trial. At
the same time, it does not transpire from the materials in the case
file that the applicant made any visible effort to obtain the
officers' presence in court or for them to be questioned at some
other stage of the proceedings (see, by contrast, Makeyev v.
Russia, no. 13769/04, § 37, 5 February 2009).
- Bearing
in mind the above factors, in the Court's opinion, it was incumbent
on the applicant, who chose self-representation at the trial, to make
an informed decision as to the necessity of examining the officers in
open court. There is no reason to believe that the applicant did not
understand that his consent to the reading out of the statements
implied the waiver of the right to examine them in the subsequent
proceedings at the trial. The materials before the Court do not
disclose any circumstance which would lead it to consider that the
trial judge himself should have taken any particular measure in this
respect (see, for instance, Talat Tunç v. Turkey, no.
32432/96, § 61, 27 March 2007, and Timergaliyev v.
Russia, no. 40631/02, § 59, 14 October 2008).
- Consequently,
the Court concludes that the applicant made an explicit waiver of his
right to examine the officers or have them examined. In the
circumstances of the case, there is no reason to consider that the
applicant was not sufficiently put on notice as to the consequences
of his consenting to the admission of the officers' pre-trial
statements (compare Craxi v. Italy (no. 1), no. 34896/97, §§
90-93, 5 December 2002, and Bonev v. Bulgaria, no.
60018/00, § 41, 8 June 2006).
- Lastly,
the Court does not consider that the case raised any questions of
public interest preventing the aforementioned procedural guarantee
from being waived (see Hermi [GC], cited above, § 79).
- The
foregoing considerations have led the Court to conclude that there
has been no violation of Article 6 of the Convention.
FOR THESE REASONS, THE COURT
- Declares unanimously the application admissible;
- Holds by four votes to three that there has been
no violation of Article 6 §§ 1 and 3(d) of the
Convention.
Done in English, and notified in writing on 4 March 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the following joint
dissenting opinion of Judges Rozakis,
Spielmann and Jebens is annexed
to this judgment.
C.L.R.
S.N.
JOINT DISSENTING OPINION OF JUDGES ROZAKIS, SPIELMANN
AND JEBENS
- We
disagree with the majority view that there has been no violation of
Article 6 §§ 1 and 3 (d) of the Convention.
- The
majority come to the conclusion that the applicant made an explicit
waiver of his right to examine the officers or have them examined
(see paragraph 41 of the judgment).
- We
disagree with this finding. A waiver is acceptable only if it meets
the quality requirement of being “unequivocal”. We would
like to emphasise that we are not satisfied that the alleged waiver
of the applicant's right to have both witnesses heard was an
“unequivocal” waiver, and hence a valid waiver, as
required by the Court's case-law. According to the Oxford
Dictionary of English (2nd edition revised),
“unequivocal” means “unambiguous”
or “leaving no doubt”. The Court in its case-law
has used such strong language to underline the importance of the
rights of the defence. In Hermi v. Italy ([GC], no. 18114/02,
ECHR 2006 XII) the Court held as follows:
“73. Neither the letter nor the spirit
of Article 6 of the Convention prevents a person from waiving of his
own free will, either expressly or tacitly, the entitlement to the
guarantees of a fair trial (see Kwiatkowska v. Italy
(dec.), no. 52868/99, 30 November 2000). However, such a waiver
must, if it is to be effective for Convention purposes, be
established in an unequivocal manner and be attended by minimum
safeguards commensurate with its importance (see Poitrimol,
cited above, pp. 13-14, § 31). In addition, it must not run
counter to any important public interest (see Sejdovic, cited
above, § 86, and Håkansson and Sturesson v. Sweden,
judgment of 21 February 1990, Series A no. 171 A, p. 20, § 66).”
- In
Panovits v. Cyprus (no. 4268/04, 11 December 2008) the Court
emphasised that
“68. ... before an accused can be said to have
implicitly, through his conduct, waived an important right under
Article 6, it must be shown that he could reasonably have foreseen
what the consequences of his conduct would be.”
- If
a defendant is not assisted by counsel, the trial judge has a duty to
apprise the applicant in detail of his right to examine prosecution
witnesses and to explain the consequences of waiving this right and
agreeing to the “reading out” of pre-trial statements.
- According
to the majority view, “there is no reason to believe that
the applicant did not understand that his consent to the reading out
of the statements implied the waiver of the right to examine them in
the subsequent proceedings at the trial” (paragraph 40 of
the judgment).
-
This is the wrong test. Instead of taking as a starting point that
“there is no reason to believe that the applicant did not
understand...”, the Court should be satisfied
that the applicant did understand that his consent to the
reading out of the statements implied the waiver of the relevant
right. In other words, it should transpire from the file that the
waiver was “unequivocal”. Then, and only then, should the
Court accept any waiver as “unequivocal”.
- Admittedly, and turning to the particular circumstances
of the case, the applicant did not dispute that he had consented to
the reading out of the officers' pre-trial depositions (see Vozhigov
v. Russia, no. 5953/02, § 57, 26 April 2007,
and Ozerov v. Russia (dec.), no. 64962/01, 3 November
2005). At the same time, there is no indication that the applicant
was clearly apprised of his right to examine prosecution witnesses.
Moreover, it did not follow from the wording of Article 281 of the
Code of Criminal Procedure that by giving his consent to the reading
out of the pre-trial statements the applicant definitely waived his
right to examine those witnesses. We would like to stress that the
applicant was not represented during the trial or on appeal and that
there is no indication that he was well versed in the law (see Bonev
v. Bulgaria, no. 60018/00, § 41, 8 June 2006;
Isgrò v. Italy, 19 February 1991, § 29,
Series A no. 194 A; and also, by contrast,
Andandonskiy v. Russia, no. 24015/02, § 54, 28
September 2006).
- Moreover,
being faced with the authorities' apparent unwillingness to make
further reasonable efforts to ensure S.'s and A.'s presence at the
trial, the applicant was left with no other significant option
regarding the possibility of questioning officers S. and A. Thus, we
are not satisfied that the applicant was sufficiently put on notice
as to the consequences of his refusing legal assistance or his
consenting to the admission of the officers' pre-trial statements. We
reiterate in that connection that the ultimate guardian of the
fairness of the proceedings was the trial judge (see Timergaliyev
v. Russia, no. 40631/02, § 59, 14 October 2008). It
is true that, on 15 November 2002, noting the officers' absence, the
trial judge enquired of the parties whether the officers' pre-trial
statements could be admitted in evidence (see paragraph 13 of the
judgment). But at the same time, as already mentioned, there is no
indication that the judge apprised the applicant of his right to
examine prosecution witnesses (see paragraph 5 above) and of the
consequences of a waiver of this right. Nor did the judge explain the
consequences of agreeing to the “reading out” of
pre-trial statements.
- In
view of the above, we consider that the applicant cannot be
considered to have waived his right to examine or have examined
officers S. and A. in the criminal proceedings against him.
- We
would further observe that no proof was adduced to show that the
national authorities had made every reasonable effort to provide the
applicant with an effective opportunity to examine or have examined
officers S. and A., whose testimony laid the foundations for the
prosecution's case against the applicant. After the officers had
failed to appear before the court on one occasion, it still remained
possible to ensure their presence at the trial. Despite this, no
effective measures were taken to bring them before the court.
- Bearing
in mind the importance of the officers' testimony and the
authorities' failure to ensure their presence at the trial, we
conclude that there has been a violation of Article 6 §§ 1
and 3 (d) of the Convention.
