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FIRST
SECTION
CASE OF KRIVOSHAPKIN v. RUSSIA
(Application
no. 42224/02)
JUDGMENT
STRASBOURG
27
January 2011
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 Krivoshapkin v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42224/02) 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 Yevgeniy Viktorovich Krivoshapkin (“the applicant”),
on 24 October 2002.
- The Russian Government (“the Government”)
were represented by Ms V. Milinchuk, the former
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged that he had not had a trial by an impartial
tribunal because his trial had been held in the absence of a
prosecutor and that he could not examine witnesses in open court.
- On
19 June 2007 the President of the First 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Volgograd.
- On
21 October 1999 he was arrested on suspicion of having committed
several robberies.
- On
10 November 1999 the case against him and three other accused
was submitted for trial to the Svetloyarskiy District Court of
Volgograd.
- On
13 March 2000 the District Court convicted the applicant of
theft and several counts of aggravated robbery. On 15 August
2000 the Volgograd Regional Court quashed his conviction on appeal
and remitted the case for a fresh examination.
- A
new conviction was handed down on 23 March 2001. It was upheld
on appeal on 9 October 2001 but was set aside on 7 December
2001 by the Presidium of the Volgograd Regional Court by way of
supervisory review proceedings. The case was then sent for a new
trial to the Krasnoarmeyskiy District Court of the Volgograd Region.
- On
21 May 2002 the District Court, composed of judge S.,
as president, and two lay assessors, held the first hearing. The
applicant and two of his co-defendants appeared before the court. At
the beginning of the hearing, it was found that all victims and
certain witnesses had failed to appear. Messrs. P. and R.,
victims in the case, did not appear because they lived far from
Volgograd. The summons which had been sent to Mr M.Kh., a
victim, had not been delivered as he had moved house. Mr M.M.,
also a victim in the case, was on a business trip and could not
attend. Mr V., the fifth victim, and the witnesses defaulted for
various reasons. The prosecutor did not appear either. Though all
defendants protested against the continuation of the hearing in the
absence of the prosecutor, the victims and the witnesses, the court
decided to proceed with the trial. The presiding judge read out the
bill of indictment and questioned the defendants who all protested
their innocence.
- On
the following day, 22 May 2002, the fifth victim and several
witnesses appeared in court. The prosecutor was not present. The
presiding judge again questioned the defendants, examined the victim
and witnesses and studied documents in the file. The applicant asked
the court to summon and examine attesting witnesses who had been
present when the victims, in particular Messrs. M.Kh.
and M.M., had identified him on a photograph. The court refused.
It then decided to read out the written depositions to the
investigative authorities by defaulting witnesses and by Messrs. R.,
M.Kh., M.M. and P. The last three were direct eyewitnesses of the
applicant's actions. The defendants and counsel unsuccessfully
objected to doing so and insisted that all the victims and witnesses
should be examined in open court. After the written depositions had
been read out, the applicant expressed doubts as to the credibility
of some of them.
- On
23 May 2002 the trial court continued reading out of the
depositions by the defaulting witnesses and then proceeded to hear
the final pleadings for the defence. The defendants and counsel
objected to the concluding of the judicial inquiry but their
objection was dismissed.
- By a judgment of the same date, the District Court
convicted the applicant of theft and several counts of aggravated
robbery and sentenced him to nine years' imprisonment in a
high-security colony. The judgment was based to a significant extent
on the written depositions by victims and the report on the
identification of the applicant from a photograph by
Messrs. M.Kh. and M.M. The court found
that the statements made by the four defaulted victims during the
pre-trial investigation “confirmed the guilt of all the
defendants”. As to the testimonies by the fifth victim and by
the appeared witnesses, they concerned circumstances unrelated to the
authorship of the incriminated offences, the defendants' alibi and
their alleged ill-treatment by the police.
- The
applicant lodged an appeal. He submitted in particular that the trial
court in the prosecutor's absence had assumed the prosecutorial
function. He also complained that the court had not examined the
victims and witnesses whose testimonies had been of significant
importance for the determination of his case.
- On 23 July 2002 the Volgograd Regional Court held
an open hearing. The prosecutor did not participate. The Regional
Court dismissed the applicant's appeal and upheld his conviction and
sentence in their entirety. It endorsed in a summary fashion the
findings of the District Court and made no comment in respect of the
applicant's complaints about the prosecutor's absence from the trial
and the alleged failure of the trial court to examine the key
witnesses.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Law on the participation of the prosecutor in a
trial
1. RSFSR Code of Criminal Procedure of 1960 in force
until 1 July 2002
- During
the preparation of a case for an examination a judge had to decide
whether a state prosecutor should participate in the trial. If the
judge found that the prosecutor's participation was necessary, his
decision was binding on the prosecutor. If the latter informed
the court, when submitting the case for trial, of his wish to sustain
the charges in the court, the judge could not hold otherwise
(Article 228).
- If
the prosecutor failed to appear, the court, after having heard
participants present at the hearing, decided whether it was possible
to examine the case in his absence or whether the hearing should be
adjourned (Articles 251 and 277).
- At
the trial, the prosecutor accused a defendant on behalf of the State,
participated in the examination of evidence and gave conclusions and
submissions, in particular in respect of law and punishment to be
applied to the defendant. If the prosecutor was convinced that
materials of the judicial investigation no longer supported charges
levelled against the defendant, he had to drop the charges
(Article 248).
2. Code of Criminal Procedure of 2001 in force since
1 July 2002
- The state prosecutor's participation is mandatory in
all trials in public prosecution cases (Article 246).
3. Case-law of the Constitutional Court of the Russian
Federation
- In its decision of 20 April 1999 the Constitutional
Court held that a criminal trial was based on the principles of
adversarial proceedings and equality of the parties, which meant
first of all strict separation of the judicial function and the
prosecution function which were to be carried out by different
actors. The adversarial nature of criminal trials implied that the
institution of criminal prosecution, the formulation of a charge and
its sustaining before the court, were insured by competent
bodies and officials, as well as victims. Imposing on the court the
obligation to substitute, in one or another form, for those bodies
and persons' prosecution activity, was incompatible with principle of
the separation of powers and with the role of the court as an
administrator of justice.
B. Law on the examination of witnesses at trial
1. RSFSR Code of Criminal Procedure of 1960 in force
until 1 July 2002
- Reading
out of earlier statements made by a victim, or a witness, was
permitted if they did not appear before the court owing to reasons
that made their attendance impossible (Articles 286 and 287).
2. Code of Criminal Procedure of 2001 in force since
1 July 2002
- 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 has not appeared before the court (Article 281 § 1).
- The
court may, without seeking the consent of the parties, read out
earlier statements by the defaulted victim, or the witness, in case
of (1) the death, (2) the serious illness, (3) the
refusal to appear by the victim or the witness if they are citizens
of other States or (4) the natural disaster or other force
majeure circumstances (Article 281 § 2).
C. Law on measures aimed at the ensuring of the
attendance of witnesses and victims
1. The 1993 Minsk Convention
- The Convention on Legal Assistance and Legal Relations
in Civil, Family and Criminal Matters (signed in Minsk on 22 January
1993 and amended on 28 March 1997, “the 1993 Minsk
Convention”), to which both Russia and Armenia are parties,
provides that a witness and a victim who are subjects of one
Contracting Party can be summoned, for the purpose of their
examination, by a “body of justice” of another
Contracting Party. The witness and the victim are entitled to
reimbursement of travelling, and certain other, costs and expenses
incurred in connection with their participation in the criminal
proceedings (Section 9).
2. RSFSR Code of Criminal Procedure of 1960 in force
until 1 July 2002
- If
a witness or a victim did not obey a summons to appear without a
valid reason, they could be brought to the courtroom under escort. A
witness could be fined, in addition (Articles 73 and 75).
- A witness and a victim were entitled to reimbursement
of costs and expenses incurred in connection with their participation
in the criminal proceedings (Article 106).
3. Code of Criminal Procedure of 2001 in force since
1 July 2002
- If
a witness or a victim does not obey a summons to appear without
a valid reason, they may be brought to a courtroom under escort
(Article 113).
- A
witness and a victim are entitled to reimbursement of costs and
expenses incurred in connection with their participation in the
criminal proceedings (Article 131).
- A
witness, or a victim, who live abroad, with their consent, may be
summoned for the participation in criminal proceedings conducted in
the territory of the Russian Federation (Article 456 § 1).
D. Law on powers of the appeal court
- Following
the examination of an appeal, the appeal court may decide (1) to
dismiss the appeal and uphold the judgment, (2) to quash the
judgment and terminate the criminal proceedings, (3) to quash
the judgment and remit the case for a new trial, or (4) to amend
the judgment (Article 378 of the Code of Criminal Procedure of
2001).
- A
judgment may be quashed or amended on appeal if there is an
inconsistency between conclusions reached by the trial court in the
judgment and facts established by that court. Violation of procedural
law and wrongful application of criminal law, as well as unfairness
of the judgment, also constitute grounds for reversing or changing
the judgment (Article 379 of the Code).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
ON ACCOUNT OF THE PROSECUTOR'S ABSENCE FROM THE TRIAL
- The
applicant complained that he had not obtained a hearing by an
“impartial tribunal” because the Krasnoarmeyskiy District
Court of the Volgograd Region had held his trial in the absence of a
public prosecutor. He relied on Article 6 § 1 of the
Convention which, in so far as relevant, reads as follows:
“In the determination ... of any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law”.
A. The parties' submissions
- The
Government noted that under the RSFSR Code of Criminal Procedure the
public prosecutor's participation in the examination of criminal
cases had not been compulsory, except for in jury trials. A trial
court had been at all times to adjudicate a case before it
impartially and objectively.
- They
further stated that in the present case, the bill of indictment had
been prepared by the prosecutor's office where its position as
regards the merits of the case had been well-articulated. The
District Court had decided to hold the trial in the prosecutor's
absence and that decision had fully complied with domestic law on
criminal procedure then in force.
- The applicant maintained his complaint.
B. The Court's assessment
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of
the Convention. No other grounds for declaring this complaint
inadmissible have been established. It must therefore be declared
admissible.
B. Merits
(a) General principles
- The
Court reiterates that it is of fundamental importance in a democratic
society that the courts inspire confidence in the public and above
all, as far as criminal proceedings are concerned, in the accused
(see Padovani v. Italy, judgment of 26 February
1993, Series A no. 257-B, p. 20, § 27). To
that end, Article 6 requires a tribunal falling within its scope to
be impartial. In order to establish whether a tribunal can be
considered “impartial”, two aspects must be taken into
account.
- First,
the tribunal must be subjectively impartial, that is, no member of
the tribunal should hold any personal prejudice or bias. Personal
impartiality is presumed unless there is evidence to the contrary
(see Le Compte, Van Leuven and De Meyere
v. Belgium, judgment of 23 June 1981, Series A
no. 43, p. 25, § 58).
- Secondly, the tribunal must also be impartial from an
objective viewpoint, meaning that it must offer sufficient guarantees
to exclude any legitimate doubt in this respect. Under the objective
test, it must be determined whether, quite apart from the judges'
personal conduct, there are ascertainable facts which may raise
doubts as to their impartiality. In this respect even appearances may
be of a certain importance. When deciding whether in a given case
there is a legitimate reason to fear that a particular body lacks
impartiality, the standpoint of those claiming that it is not
impartial is important. But what is decisive is whether the fear can
be held to be objectively justified (see, for example, Gautrin and
Others v. France, judgment of 20 May 1998, Reports
1998-III, § 58; and Kyprianou v. Cyprus [GC],
no. 73797/01, § 121, ECHR 2005 XIII).
- Finally,
the Court reiterates that the possibility certainly exists that a
higher or the highest court might, in some circumstances, make
reparation for defects that took place in the first-instance
proceedings (see De Cubber v. Belgium, judgment of
26 October 1984, Series A no. 86, § 33).
(b) Application of the above principles to
the instant case
- The
applicant did not raise a question regarding the judge's personal
conduct. The Court therefore will focus its examination on the
concept of objective impartiality. In particular, it will consider
whether the applicant's doubts as to the impartiality of the trial
court may be said to have been objectively justified on account of
the prosecutor's absence from the trial.
- In
so doing, the Court will have regard to the findings in its recent
judgment in Ozerov v. Russia (no. 64962/01, 18 May
2010) in which it stated:
“50. ...in relation to Article 6 § 1
and in the context of Article 5 § 3 of the Convention,
[the Court] has found doubts as to impartiality to be objectively
justified where there is some confusion between the functions of
prosecutor and judge (see, with regard to Article 6 § 1,
mutatis mutandis, Daktaras v. Lithuania,
no. 42095/98, §§ 35-38, ECHR 2000-X, and, regarding
Article 5 § 3, Brincat v. Italy, judgment
of 26 November 1992, Series A no. 249-A, pp. 11-12,
§§ 20-22; Huber v. Switzerland, judgment
of 23 October 1990, Series A no. 188, pp. 17-18,
§§ 41-43 ; and Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports 1998-VIII,
pp. 3298-99, §§ 146-50). It has reached the same
conclusion under Article 6 § 1 in the case of Kyprianou
concerning contempt of court, in which the decision to prosecute was
taken and a summary trial was conducted by the same judges as those
sitting in the proceedings at which the contempt occurred (see
Kyprianou v. Cyprus [GC], no. 73797/01, § 127,
ECHR 2005-XIII).
51. In the case of Thorgeir Thorgeirson v.
Iceland, which, similarly to the present case, raised the issue
of the prosecutor's absence from a trial, the Court found no
violation of Article 6 § 1, having established that such fears
of a lack of impartiality as the applicant may have had on account of
the prosecutor's absence from sittings at which the first-instance
court was not called upon to conduct any investigation into the
merits of a case and did not assume any functions which might have
been fulfilled by the prosecution had it been present, were not
objectively justified (see Thorgeir Thorgeirson v. Iceland,
judgment of 25 June 1992, Series A no. 239, pp. 2224,
§§ 46-54).
52. The present case differs from Thorgeir
Thorgeirson in that the prosecutor was absent from the entire
trial before the first-instance court. When transferring the case for
trial to Savelovskiy District Court the Moscow prosecutor's office
had requested that the case be examined with the participation of a
prosecutor. The judge had ordered that the trial be held with the
participation of a public prosecutor. There is no information in the
case file as to whether the prosecutor had been informed of the
hearing and what the reasons for his non-attendance were. Yet, the
District Court decided to hold the trial in the prosecutor's absence.
The Court notes that the Constitutional Court of Russia had by that
time, albeit in relation to different provisions of the Code of
Criminal Procedure, held that the institution of criminal
prosecution, the formulation of a charge and sustaining the charge
before the court were functions inherent for the prosecution which,
if performed by a court in one or another form, would have violated
the court's role, which is to administer justice independently and
impartially, as required by Article 120 § 1 of the Constitution,
as well as Article 6 of the Convention...”
- In
the case of Ozerov the Court found a violation of Article
6 § 1 on account of the prosecutor's absence from the
entire trial. It observed that the trial court had changed the body
of evidence which had then been put as a basis for the applicant's
conviction. In particular, the trial court had taken new
incriminating evidence of its own motion and had removed certain
evidence submitted by the prosecutor's office. The Court concluded
that by examining the case in such manner and convicting the
applicant, the trial court had confused the roles of prosecutor and
judge and had accordingly given the grounds for legitimate doubts as
to its impartiality (see Ozerov, cited above, §§
53-54).
- In
the present case, the prosecutor also did not appear during the
entire proceedings before the first-instance court. The applicant
objected to the trial being opened and concluded in the prosecutor's
absence, but to no avail. The court read out the bill of indictment
and proceeded to examine the evidence submitted by the prosecution.
It questioned the defendants and witnesses who attended the hearing.
Furthermore, it refused the applicant's request to summon and hear
witnesses on his behalf, in particular the persons who had been
present at the procedure when the victims had identified him on the
photograph. Whilst the applicant pleaded not guilty, the trial court
found his guilt established on the basis of the evidence examined in
this manner. In these circumstances, the Court cannot but
accept that the trial court did not preserve the guarantees of the
adversary nature of the criminal proceedings (see paragraph 20 above)
and confused the functions of prosecutor and judge: it took up the
prosecution case, tried the issues, determined the applicant's guilt
and imposed the sanction. Accordingly, the Court finds that the
applicant's doubts as to the impartiality of the trial court may be
said to have been objectively justified.
- As
to the further proceedings, even assuming that the appeal court had
the power to quash the judgment on the ground that the trial court
had not been impartial, it did not do so and upheld the conviction
and the sentence in their entirety. Moreover, it did not make any
separate comment in its judgment in reply to the applicant's
complaint concerning the prosecutor's absence from the trial. The
Court also notes that the appeal proceedings took place in July 2002,
that is when a new Code of Criminal Procedure was already in force.
According to the new Code, the prosecutor's participation was
mandatory for the examination of all criminal cases of public
prosecution (see paragraph 19 above). However, the examination
of the applicant's appeal was held in the prosecutor's absence. It
can be concluded that the appeal court did not remedy the shortcoming
at issue.
- There
has accordingly been a violation of Article 6 § 1 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1
and 3 OF THE CONVENTION ON ACCOUNT OF THE ABSENCE OF AN
OPPORTUNITY TO CHALLENGE WITNESSES IN OPEN COURT
- The
applicant complained that he had not been afforded an effective
opportunity to examine four witnesses at the trial. He also contended
that the reading out of their incriminating statements to the
investigative authorities and their admission in evidence had been
unlawful. He relied on Article 6 of the Convention, which, in
its relevant parts, reads as follows:
“1. In the determination of...any
criminal charge against him, everyone is entitled to a fair ...
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...”
A. The parties' submissions
- According
to the Government's submissions, the District Court took all possible
measures in order to secure the appearance at the trial of witnesses
and victims. In particular, it sent summonses and sought the
cooperation of relevant law-enforcement bodies and officials. As a
result of those measures, it was established that certain witnesses
could not appear due to illnesses. As to the victims in the case,
Mr R. had been unable to travel to attend the hearings owing to
financial difficulties. Mr P. lived in Armenia. Mr M.Kh.
had left his previous place of residence and, finally, Mr M.M.
had gone on a business trip for an unknown period. In such
circumstances, the trial court made a lawful decision to read out
their written depositions made during the pre-trial investigation and
the appeal court then approved that decision.
- The
Government further pointed out that in addition to those written
statements, the trial court had used the testimonies of the appeared
witnesses, documents and physical evidence for the applicant's
conviction. They finally stated that the court proceedings could not
be adjourned because otherwise it would have led to a violation of
the applicant's “right to a trial within a reasonable time”.
- The
applicant maintained his complaint.
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 of
the Convention. No other grounds for declaring this complaint
inadmissible have been established. It must therefore be declared
admissible.
2. Merits
(a) General principles
- 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,
among other authorities, Van Mechelen and Others
v. the Netherlands, 23 April 1997, § 50,
Reports 1997-III, and Doorson v. the Netherlands,
26 March 1996, § 67, Reports of Judgments and
Decisions 1996 IIn; see also Babkin v. Russia
(dec.), no. 14899/04, 8 January 2009).
- The Court further reiterates that all the evidence
must normally be produced at a public hearing, in the presence of the
accused, with a view to adversarial argument. 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
statements or at a later stage (see Van Mechelen and Others
v. the Netherlands, cited above, § 51, and
Lüdi v. Switzerland, 15 June 1992, § 49,
Series A no. 238). There are exceptions to this principle
but they must not infringe the rights of the defence. In the event
that the impossibility of examining of witnesses or having them
examined is due to the fact that they are absent or otherwise
missing, the authorities must make a reasonable effort to secure
their presence (see Bonev v. Bulgaria, no. 60018/00,
§ 43, 8 June 2006).
- However, in certain circumstances it may prove
necessary to refer to statements made during the investigative stage.
If the defendant has been given an adequate and proper opportunity to
challenge these statements, their admission in evidence will not in
itself contravene Article 6 §§ 1 and 3 (d)
of the Convention (see, for instance, Belevitskiy v. Russia,
no. 72967/01, § 117, 1 March 2007).
- The
Court reiterates, finally, that the conviction must not rest solely,
or in a decisive manner, 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 Artner v. Austria,
28 August 1992, § 22, Series A no. 242 A; Delta
v. France, 19 December 1990, § 37, Series A
no. 191 A; Isgrò v. Italy, judgment of
19 February 1991, Series A no. 194-A, p. 13, § 35 in
fine; and Solakov v. the former Yugoslav Republic
of Macedonia, no. 47023/99, § 57 in fine, ECHR
2001-X).
(b) Application of those principles in the
present case
- Messrs. R., M.Kh., M.M., and P., the victims, in
this case should for the purposes of Article 6 § 3 (d)
be regarded as “witnesses”, a term to be given an
autonomous interpretation (see Asch, judgment of 26 April
1991, Series A no. 203, p. 10, § 25),
because their written depositions made during the pre-trial
investigation were read out in court and used as evidence against the
applicant.
- It
is without doubt that in the present case the trial court based the
applicant's conviction to a significant extent on the testimonies of
Messrs. P., M.M. and M.Kh. They were
direct eyewitnesses of the actions incriminated to the applicant and
could establish the authorship of the offences. Moreover, as it
follows from the submitted materials, it was Messrs. M.M.
and M.Kh. who, in the course of the investigative proceedings, had
conclusively identified the applicant as a person who had robbed
them.
- The
Government in their submissions shortly stated that the applicant's
conviction had rested on numerous pieces of evidence, such as the
testimonies of the other witnesses, documents and physical evidence.
However, bearing in mind that the applicant and his co-defendants
insisted on their innocence and that the other evidence was of a
circumstantial character, the Court cannot accept this argument (see
paragraph 13 above in fine).
- The
Government further asserted that the trial court made all reasonable
efforts to secure the presence of the defaulting witnesses but in
vain.
- While
the Court understands difficulties encountered by the authorities in
terms of resources, it does not consider that calling at the trial
Mr P. who lived in a neighbouring country, reimbursing
travelling costs and expenses to Mr R., tracking down of
Mr M.Kh. and awaiting Mr M.M.'s return from his travel
would have constituted an insuperable obstacle (see, for example,
Artner, cited above, p. 10, § 21, where the
Austrian police was instructed by the trial court to make every
effort to find a missing witness; or Berisha v. the
Netherlands (dec.), no. 42965/98, 4 May 2000, where the
Dutch authorities tried to call a witness residing in the Slovak
Republic through the Slovak authorities; and Haas v. Germany
(dec.), no. 73047/01, 17 November 2005, where the German
authorities made considerable efforts to secure the attendance of a
witness serving a prison sentence in Lebanon).
- According
to the relevant provisions of international and domestic law, a
witness who lived in another country could be summoned for
questioning (see paragraphs 24 to 26 above). Nothing in the submitted
documents indicates however that the trial court ever considered the
possibility to summon Mr P. to come from Armenia. As regards
Messrs. R., M.M. and M.Kh., citizens and
residents of the Russian Federation, the respondent Government failed
to show that every appropriate measure had been taken in order to
bring them before the trial court. It can be concluded therefore that
the domestic authorities chose to eschew any efforts to secure the
attendance of those witnesses. As a result, Messrs.
P, R., M.M. and M.Kh. never appeared to testify in open court in the
presence of the applicant and counsel.
- The
Court is further unable to accept the Government's argument that
time-consuming efforts aimed at ensuring the attendance of the
missing witnesses could, or should, be abandoned for the sake of a
speedy determination of criminal charges. It is for the State to
organise its judicial system in such a way as to enable its courts to
comply with the requirements of the Convention, including those
enshrined in the procedural obligation of Article 6.
- It
does not appear from the file – nor has it been argued by the
Government – that the applicant had an opportunity to
cross-examine Messrs. P, R., M.M. and
M.Kh. at any other stage of the criminal proceedings.
- Finally,
the Court notes that, though the applicant had explicitly complained
to the appeal court about his inability to confront witnesses at the
trial, it did not comment on this issue in its judgement (see
paragraph 15 above). It follows that the appeal proceedings
failed to remedy the defect in question.
- Having
regard the foregoing, the Court concludes that there has been a
violation of Article 6 §§ 1 and 3 (d)
and of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
- Lastly,
the applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which, in so far as
relevant, reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. The parties' submissions
- According to the Government, the present complaint
should be examined in relation to two periods. The first period
lasted from 21 October 1999, when the applicant was arrested,
until 9 October 2001, when he was convicted in the final
instance. The second period lasted from 7 December 2001, when
his conviction was quashed by way of the supervisory review
proceedings, until 23 July 2002, when he was again convicted in
the final instance. The length of the first round of the proceedings
had been approximately two years and that of the second round
approximately eight months. The Government asserted that there had
been no significant delays in the examination of the applicant's
criminal case. Therefore, the domestic judicial authorities had
complied with the “reasonable time” requirement set out
in Article 6 § 1 of the Convention.
- The
applicant maintained his complaint.
B. The Court's assessment
- The
Court observes that the criminal proceedings against the applicant
started on 21 October 1999 and the final decision in his case
was handed down on 23 July 2002, that is approximately two years and
nine months. This period spanned the investigation stage and the
judicial proceedings, where the courts reviewed the applicant's case
three times with his conviction having been quashed on appeal and
then by way of supervisory review proceedings. The period from 9
October to 7 December 2001 should be excluded from the overall length
as the case was being examined on application for supervisory review
and was not pending. Accordingly, the period to be taken into
consideration amounted to approximately two years and seven months.
- The Court reiterates that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the following
criteria: the complexity of the case, the applicant's conduct and the
conduct of the competent authorities (see, among many other
authorities, Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999-II).
- The
present case was admittedly complex. It concerned at least four
defendants who had been involved in several crimes against five
persons.
- The
applicant does not appear to have caused any delays.
- As
regards the conduct of the domestic authorities, the Court notes that
they demonstrated sufficient diligence in handling the proceedings.
The hearings were held regularly and any adjournments attributable to
the court were relatively short. It also takes into account the fact
that the domestic courts examined the merits of the case in three
rounds at two levels of jurisdiction.
- Making
an overall assessment of the complexity of the case, the conduct of
the parties and the total length of the proceedings, the Court
considers that the latter did not go beyond what may be considered
reasonable in this particular case.
- 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.
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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
prosecutor's absence from the trial and the inability to confront
witnesses in open court admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the prosecutor's absence
from the trial;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (d) of the Convention on account of the
absence of a proper and adequate opportunity to challenge
statements of Messrs. P., M.M., M.Kh. and R.
to the investigative authorities;
Done in English, and notified in writing on 27 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
