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FIRST
SECTION
CASE OF DAMIR SIBGATULLIN v. RUSSIA
(Application
no. 1413/05)
JUDGMENT
STRASBOURG
24
April 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Damir Sibgatullin
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 3 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1413/05) 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 Damir Darifovich
Sibgatullin (“the applicant”), on 6 December 2004.
- The
applicant, who had been granted legal aid, was represented by Mr M.
Rachkovskiy, a lawyer practising in Moscow. The Russian Government
(“the Government”) were represented by Mrs V. Milinchuk,
former Representative of the Russian Federation at the European Court
of Human Rights.
- The
applicant alleged, in particular, that he had been tried and
convicted by a jury certain members of which had been partial, and
that he had been unable to confront any witness for the prosecution.
- On 3 September 2007 the application was communicated to
the Government. It was also decided to rule on the admissibility and
merits of the application at the same time (former Article 29 §
3 of the Convention). When communicating the application to the
Government, the Court asked them to produce copies of the witnesses’
statements, for the purpose of clarifying the evidentiary basis for
his conviction.
- On 22 November 2007 the Government submitted their
observations on the admissibility and merits of the application,
enclosing a number of items from the applicant’s criminal case
file, but not including the witnesses’ depositions. They
informed the Court that the requested documents would be submitted as
soon as the Government had received them “from the relevant
bodies of the Russian Federation”.
- By
letter on 30 November 2007 the Court acknowledged receipt of the
Government’s observations, with the enclosures, and invited
them to submit copies of the statements as soon as possible.
- On
20 December 2007 the Government provided the Court with the English
translation of their observations. No attachments were enclosed apart
from those submitted by the Government on 22 November 2007.
- Following
the receipt of the applicant’s observations in which he raised
an issue of the Government’s compliance with their obligations
under Article 38 of the Convention, on 13 February 2008 the
Court notified the Government that copies of the witnesses’
statements had still not reached it. The Court once again reiterated
its request for documents.
- The Government requested an oral hearing. However, the
Chamber decided not to hold a hearing in the case. The Government did
not submit the documents required by the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and is serving a sentence in a
correctional colony in Kineshemskiy District, Ivanovo Region.
- Criminal
proceedings were instituted against the applicant in Uzbekistan. The
prosecution suspected that in February 1998 he and a Mr A. had
robbed and murdered an elderly woman in Tashkent. After the murder
they had allegedly packed the victim’s body in a box and given
the box to bus drivers at a local market to transport it to a
supermarket in another town. The applicant and his accomplice had
also allegedly sold the victim’s property, including furniture,
carpets, clothes, and household utensils, to a number of individuals
in the days following the murder.
- According
to the Government, after committing the criminal offences the
applicant fled Uzbekistan and returned to Russia. On an unspecified
date Russian prosecution officials opened a criminal case against the
applicant for crimes allegedly committed in Uzbekistan. On
17 November 2003 the applicant was arrested and placed in a
detention facility in Ivanovo.
- In
2004 the applicant was committed for jury trial.
- On
24 April 2004 the Ivanovo Regional Court initiated the jury selection
process. Twenty-five people reported for jury duty on that day.
- Three
potential jurors were excused for personal reasons. The prosecution
successfully challenged one potential juror for cause and made two
successful peremptory challenges. The defence made two jury
challenges for cause and two peremptory challenges, which were
accepted.
- A
jury of twelve was selected and two alternates appointed. It appears
from the record of the jurors’ responses to the questions asked
by the presiding judge that close relatives of five jurors worked for
the police and at the Service for Execution of Sentences. In
particular, the husband of juror no. 2 and the son of juror no. 4
worked as traffic police officers. The son-in-law of juror no. 3 was
employed by the Service for the Execution of Sentences. The husbands
of jurors nos. 11 and 13 worked for the police as telecommunications
and radio operators respectively. In addition, two jurors on the
panel had been victims of criminal offences. In 2000 juror no. 1 had
been attacked by a drunk person, but the matter was subsequently
settled out of court. In 1994 the son of juror no. 6 died as a result
of a house collapse.
- After
the jury had been empanelled and sworn in, defence counsel challenged
the entire jury venire upon account of partiality. The defence
alleged that the fact that certain jurors had been victims of
criminal offences could influence their judgment. The challenge for
the array was dismissed.
- On
24 November 2003 the President of the Ivanovo Regional Court sent a
letter to Uzbek law-enforcement officials asking for assistance. The
letter, in so far as relevant, read as follows:
“In compliance with the Convention on Legal
Assistance and Legal Relations in Civil, Family and Criminal Matters
(Minsk, 22 January 1993), which came into force for Uzbekistan on 19
March 1994 and for Russia on 10 December 1994, the Ivanovo Regional
Court asks competent officials of the Republic of Uzbekistan to
provide legal assistance in a criminal case...
According to the case-file materials all the witnesses
the court wants to call to testify in the present case live in the
Republic of Uzbekistan.
In this respect, [I] ask you to provide legal assistance
in ensuring the appearance of the witnesses in the criminal case
before the Ivanovo Regional Court... at 10 a.m. on 20 January
2004, by serving the individuals listed below with the enclosed
summons and by providing [the Ivanovo Regional] court with documents
confirming that the summonses have been served:
[The Ivanovo Regional Court enclosed a list of thirteen
witnesses, including their dates of birth and home addresses. All but
two of the witnesses, lived in Tashkent. The remaining two were
registered in the town of Dzhizak].”
A
similar letter was sent on 26 November 2003 by the Russian Ministry
of Justice to the Ministry of Justice of the Republic of Uzbekistan.
- On
20 February 2004 the Ivanovo Regional Court issued a decision, which
read as follows:
“[The applicant] is accused of murdering, on 22
February 1998, together with Mr A., an elderly woman, Ms B., in
Tashkent, with the intention of taking her property.
[The prosecution] included Mr A. on the list of those to
be heard in court as witnesses for the prosecution... Mr A. [who had
already been found guilty of those offences by a court in Uzbekistan
and sentenced to eighteen years’ imprisonment] is currently
serving his sentence in [a correctional colony] in the town of
Almalyk in the Tashkent Region of Uzbekistan.
Having regard to the fact that pursuant to Article 240
of the Russian Code of Criminal Procedure all items of evidence in a
case, including statements by witnesses, are to be examined in open
court, [I] consider it necessary to take steps to ensure the presence
of that witness at a court hearing, in compliance with the
requirements of international law.
Paragraph 5 of Article 456 of the Russian Code of
Criminal Procedure, which defines how a person who is detained in a
foreign State is to be called to a court hearing, refers to paragraph
3 of Article 453 of the Russian Code of Criminal Procedure, by virtue
of which a request for legal assistance is to be submitted in
accordance with an international agreement between the Russian
Federation [and the foreign State]. The Convention on Legal
Assistance and Legal Relations in Civil, Family and Criminal Matters
(Minsk, 22 January 1993...)... plays the role of that international
agreement in the present case.
Article 78.1 of the Convention provides for the
possibility of conveying a person who is serving a sentence (if he
agrees) to be questioned as a witness, following a decision by the
Prosecutor General of the requesting State.
By virtue of Article 80 of the Convention the actions in
question which require authorisation by a prosecutor (a court) are to
be carried out by prosecuting authorities within the procedure
defined by the Prosecutors General of the two States.”
On
the same day the President of the Ivanovo Regional Court, relying on
the norms of the Convention on Legal Assistance and Legal Relations
in Civil, Family and Criminal Matters (“the Minsk Convention”),
sent similar letters to the offices of the Prosecutor General of the
Russian Federation and that of the Republic of Uzbekistan. The court
president asked the prosecuting authorities of the both countries to
convey the applicant’s associate, Mr A., to Russia for him to
testify in open court in the criminal case against the applicant.
- In January 2004 the Ivanovo Regional Court received
information regarding attendance by two witnesses from the list. A
judge from the Dzhizak Town Court in Uzbekistan informed the Regional
Court that the whereabouts of one witness were unknown and that
another witness could not travel to Russia in view of his difficult
financial situation. The judge also noted that the second witness
stood by the statements he had given to the investigating
authorities.
On 17
and 19 April 2004 the Regional Court received e-mails from two other
witnesses who, in similar wording and citing their difficult family
situation and poor health, informed the court that they were unable
to attend the trial. The witnesses also gave their full support to
the statements made during the pre-trial investigation. A telegram
from another witness arrived on 23 April 2003. This witness refused
to travel to Russia, citing poor health. The Regional Court did not
receive any information pertaining to the remaining witnesses.
- On
22 April 2004 the Ivanovo Regional Court held a trial hearing.
- The
prosecution requested the Regional Court to read out statements made
by the prosecution witnesses and the applicant’s associate, Mr
A., to the Uzbek authorities, arguing that it was impossible to
obtain their attendance. Four witnesses failed to appear for various
personal reasons and the remaining witnesses lived in Uzbekistan. The
applicant and his counsel objected, relying on the defendant’s
right to cross-examine witnesses testifying against him. The
applicant noted that during the pre-trial investigation he had
repeatedly asked the investigating authorities to hold confrontation
interviews with the witnesses. However, his requests had been
dismissed without any explanation.
- The Regional Court agreed to read out statements by
the four prosecution witnesses who had failed to appear for
personal reasons, finding those reasons to be valid. As regards
statements by the remaining witnesses and Mr A., the Regional Court
held as follows:
“During the last six months the court has taken
all lawful steps to ensure the witnesses’ presence, and certain
witnesses have sent in information which confirmed that they had been
summoned properly. Due to the fact that other witnesses live in
another State, and taking into account that they confirmed their
statements in a court hearing in the Tashkent City Court [during the
trial against Mr A.], [the court] considers that the present
extraordinary circumstances preclude their attendance [and] decides
to read out the statements of the ... witnesses who failed to
appear.”
The
Regional Court read out statements by the remaining six prosecution
witnesses and by Mr A. It also announced the results of
photo-identification parades conducted by the Uzbek investigating
authorities during which the witnesses had identified the applicant
and Mr A.
- A copy of the court hearing records presented to the
Court by the parties show that in addition to the witnesses’
depositions the Regional Court studied the records of the crime scene
examinations of 15 and 20 March 1998, an autopsy report, a
document confirming the victim’s identity, a search report, a
warrant for the applicant’s arrest and records of pre-trial
confrontation interviews between Mr A. and the witnesses whose
statements had been read out by the Regional Court. The Court further
heard the applicant and his parents, who denied the applicant’s
involvement in the robbery and murder and insisted that at the time
of the crime he was staying with his family in Russia.
- At
the same hearing the applicant accused the prosecution of jury
tampering and sought the discharge of the entire panel. He claimed
that juror no. 1 had tapped the prosecutor on the hand and the
prosecutor had responded with a nod of the head. Defence counsel
supported the accusation claiming that he had witnessed the incident.
The prosecutor denied the incident, stating that he was not
acquainted with juror no. 1. Juror no. 1, in response to questions
from the presiding judge, stated that he had not known the prosecutor
before the trial and that he had never had a conversation with him.
The presiding judge, without giving any reasons, dismissed the
applicant’s challenge to the empanelled jury.
- The
parties’ closing arguments followed. The defence argued that
there was no material evidence, such as fingerprints, bloodstains and
so on, linking the applicant to the criminal offences, and that the
applicant had been denied an important right to cross-examine
witnesses against him.
- On
7 May 2004 the jury, by eight to four votes, found the applicant
guilty of aggravated murder and robbery.
- On
12 May 2004 the Ivanovo Regional Court accepted the verdict and
sentenced the applicant to eighteen years’ imprisonment.
- The
applicant and his lawyer appealed, arguing that the jury had not been
fair and impartial because certain jurors had been victims of
criminal offences and the prosecution had tried to exert improper
influence on at least one of the jurors. They further alleged a
violation of the applicant’s rights, having regard to the fact
that at no stage of the proceedings had either he or his lawyer been
offered the opportunity to question the prosecution witnesses.
- On
8 July 2004 the Supreme Court of the Russian Federation upheld the
conviction, finding that the investigating authorities and the
Regional Court had not committed any serious violations of the
criminal procedural law.
II. RELEVANT DOMESTIC LAW
A. Jury selection process
- The
Russian Code of Criminal Procedure provides that an officer of a
court or a judge’s assistant has to compile a list of jury
candidates for the trial. The candidates are to be drawn at random
from the district or regional list of jurors. The candidates’
names are entered in the list in the order in which their lots were
drawn. The list of jury candidates is then served on the parties. The
parties have the right to make an unlimited number of challenges for
cause and two peremptory challenges to potential jurors. The
presiding judge decides on the challenges. After deleting the names
of the successfully challenged candidates, the court secretary or the
judge’s assistant makes up the list of the remaining jury
candidates, whose names are to appear in the same order as in the
first list. The twelve candidates whose names appear first on the
list form the jury, and the two candidates whose names appear next
become substitutes. Before the jury is sworn in, the parties may
challenge the entire panel if they argue that due to particular
features of a criminal case the panel will be unable to render an
objective verdict. The presiding judge is to decide on any such
challenge to the empanelled jury (Articles 326–330).
B. Witnesses
1. General provisions
(a) Code of Criminal Procedure of 2001 in
force since 1 July 2002
- Earlier
statements made by a victim or witness may be read out 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 a victim or witness in case of
(1) death, (2) serious illness, (3) the refusal to
appear by a victim or the witness who is a citizen of another States
or (4) natural disaster or other force majeure
circumstances (Article 281 § 2).
- Chapter 5 of the Code determines steps to be taken
when asking foreign authorities for legal assistance. In particular,
Article 453 provides that a prosecutor, an investigator or a court,
when they need to carry out an interrogation, a search, seizure or
any other procedural action in the territory of a foreign State, may
ask assistance from investigating or judicial officials of that State
to organise/perform that procedural action. Records of procedural
actions performed by foreign officials on a request by Russian
authorities will have the same evidentiary weight as evidence
received by Russian officials in the territory of the Russian
Federation (Article 455). Article 456 deals with the issue of
summoning witnesses who live outside the Russian Federation to give
statements regarding a criminal case pending before Russian
authorities.
2. Law on measures aimed at ensuring the attendance of
witnesses and victims
(a) 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 Uzbekistan 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 travel, and certain other, costs and expenses
incurred in connection with their participation in the criminal
proceedings (Section 9).
(b) Code of Criminal Procedure
- 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).
- Witnesses and victims are entitled to reimbursement of
costs and expenses incurred in connection with their participation in
criminal proceedings (Article 131).
- Witnesses
and victims who live abroad may be summoned, with their consent, to
criminal proceedings conducted in the Russian Federation (Article
456 § 1).
C. Reopening of criminal proceedings
- Article 413 of the Russian Code of Criminal Procedure,
setting out the procedure for reopening of criminal cases, reads, in
so far as relevant, as follows:
“1. Court judgments and decisions which
became final should be quashed and proceedings in a criminal case
should be re-opened due to new or newly discovered circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms committed by a court of the Russian Federation during
examination of a criminal case and established by the European Court
of Human Rights, pertaining to:
(a) application of a federal law which runs
contrary to provisions of the European Convention for the Protection
of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the
Convention for the Protection of Human Rights and Fundamental
Freedoms;
(c) other new circumstances.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
40. The
applicant complained, under Article 6 §§ 1 and 3 (d) of the
Convention, that he had been denied a fair hearing in that he had not
been given an opportunity to confront any witness testifying against
him. He further complained of irregularities in the
jury selection process and prosecution’s attempts to tamper
with the jury, as well as various procedural violations allegedly
committed by the trial court. Article 6 reads, in so far as relevant:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by an independent and impartial tribunal established by
law....
...
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. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
1. Alleged violation of Article 6 of the Convention on
account of inability to confront witnesses
(a) Submissions by the parties
- Having
cited the Court’s judgments in the cases of Isgrò v.
Italy (19 February 1991, Series A no. 194 A), and Lüdi
v. Switzerland (15 June 1992, Series A no. 238), the Government
argued that the Convention does not preclude the use of statements by
witnesses who have only been interviewed by investigating authorities
and whose appearance before a trial court cannot be obtained. The
Government further turned to the assessment of the circumstances in
the present case. In particular, they stated that the applicant was
responsible for the investigating authorities’ inability to set
up confrontation interviews with the witnesses, as he had absconded
and left Uzbekistan. The applicant had asked for an opportunity to
question the prosecution witnesses only after the criminal case
against him had been opened in the Russian Federation. The Government
stressed that the Russian authorities had taken every reasonable step
to obtain attendance by the witnesses. They had sent requests for
legal assistance to Uzbek officials, asking for the witnesses to be
summoned. However, the witnesses had been unable to attend, for
family or health reasons. The whereabouts of one witness had been
unknown. Given the fact that it had taken the Russian officials
almost six months to settle the issue of the witnesses’
attendance, the Government considered it logical that the Ivanovo
Regional Court had accepted a request from the prosecution for
reading out of the pre-trial statements, despite the applicant’s
and his lawyer’s objections. Furthermore, the Government
insisted that, when summoned for the hearings in Russia and
questioned on the reasons for their inability to attend, the
witnesses had also been asked to corroborate or dispute their
statements made during the pre-trial investigation. The witnesses had
fully supported their account of the events, of which the Regional
Court had been notified by electronic mail messages. The Government
concluded by noting that the Russian courts had assessed the entire
set of evidence and had taken the correct decision on the applicant’s
guilt. The Government reminded the Court that the assessment of
evidence was within the exclusive competence of the domestic courts.
- Having
denied responsibility for the absence of confrontation interviews
between him and the witnesses, the applicant submitted that, even
assuming that his leaving Uzbekistan had made it impossible for the
Uzbek authorities to set up such interviews, he could not bear
responsibility for the Russian authorities’ failure to comply
with their obligation under Article 6 § 3 (d) of the Convention.
The applicant further argued that the witnesses the Uzbek authorities
had been able to find when requested to do so by the Ivanovo Regional
Court and who lived in different towns, had sent similar e-mails at
the same time. The e-mails had not been signed and it was impossible
to verify whether they were authentic and whether, in fact, the
witnesses had been able to recollect and confirm their statements
made during the pre-trial investigation. The applicant insisted that
the only direct evidence implicating him in the crimes he had been
found guilty of was the statements by the prosecution witnesses.
Therefore, it was important for the trial court to hear the witnesses
in person and to provide the applicant with an opportunity to
cross-examine them.
(b) The Court’s assessment
- Given
that the guarantees in paragraph 3 of Article 6 are specific aspects
of the right to a fair trial set forth in paragraph 1, it is
appropriate to examine these complaints under the two provisions
taken together (see Asch v. Austria, 26 April 1991, §
25, Series A no. 203).
- The
Court observes that the Ivanovo Regional Court read out statements by
ten prosecution witnesses and Mr A., the applicant’s alleged
accomplice in the murder and robbery. Neither the witnesses nor Mr A.
appeared before the jury or gave statements in open court. At this
juncture the Court would like to note that Mr A. in this case should,
for the purposes of Article 6 § 3 (d), be regarded as a
“witness”, a term to be given an autonomous
interpretation (see Asch, cited above, p. 10, § 25),
because his written depositions made during the pre-trial
investigation were read out in court and used as evidence against the
applicant.
i. Waiver of the right to examine
witnesses
- The
first question to be decided is whether by leaving Uzbekistan, where
the majority of the pre-trial investigative actions, including
interviewing witnesses, had been carried out, the applicant had, as
the Government put it, waived his right to have those witnesses
examined, and thus exempted the Russian authorities from their
commensurate obligation under the Convention. On this point, the
Court reiterates its constant case law that 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, including the right to
examine or have examined witnesses testifying against him (see Hermi
v. Italy [GC], no. 18114/02, § 73, ECHR 2006 XII,
with further references, and, more recently, Vozhigov v. Russia,
no. 5953/02, § 57, 26 April 2007). However, a waiver must not
run counter to any important public interest, must be established in
an unequivocal manner and requires minimum guarantees commensurate to
the waiver’s importance (see Blake v. the United
Kingdom, no. 68890/01, § 127, 26 September 2006).
- The
Court does not interpret the applicant’s alleged actions as an
express or implied waiver of his right to confront the witnesses
against him. It is not convinced by the Government’s argument
that if the applicant had stayed in Uzbekistan he could have had an
opportunity to take part in confrontation interviews with the
prosecution witnesses, and there could accordingly have been no issue
as regards the witnesses’ absence from the trial. Firstly, the
Court reiterates that the very fact of the participation of an
accused person in confrontation interviews with witnesses during the
pre trial stage cannot of itself strip him or her of the right
to have those witnesses examined in court (see Melnikov v. Russia,
no. 23610/03, §§ 79 81, 14 January 2010). Should
it be otherwise, prosecution authorities would be left with virtually
unlimited powers and would replace courts in their truth-finding
function, with the fundamental requirement for a fair trial having
little reality or worth. Furthermore, in the Court’s view,
there can be no question of waiver by the mere fact that an
individual could have avoided, by acting diligently, the situation
that led to the impairment of his rights. The conclusion is more
salient in a case of a person without sufficient knowledge of his
prosecution and of the charges against him and without the benefit of
legal advice to be cautioned on the course of his actions, including
on the possibility of his conduct being interpreted as an implied
waiver of his fair trial rights. The Court reiterates that the
applicant was only notified in person of the criminal proceedings
against him upon his arrest in Russia in November 2003. It thus could
not be inferred merely from his status as a fugitive from justice,
which was founded on a presumption with an insufficient factual
basis, that he had waived his right to a fair trial (see Sejdovic
v. Italy [GC], no. 56581/00, §§ 99-101,
ECHR 2006 II).
- The
Court further observes that as a matter of principle the waiver of
the right must be a knowing, voluntary and intelligent act, done with
sufficient awareness of the relevant circumstances. 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 Talat Tunç v. Turkey, no. 32432/96, 27 March
2007, § 59, and Jones v. the United Kingdom (dec.),
no. 30900/02, 9 September 2003). It is not to be ruled out that,
after initially being advised of his rights, an accused may himself
validly renounce them and agree to proceed with the trial without,
for instance, being afforded an opportunity to examine witnesses
against him. The Court, however, considers that the right to confront
witnesses, being a fundamental right among those which constitute the
notion of fair trial, is an example of the rights which require the
special protection of the knowing and intelligent waiver standard.
The Court is not satisfied that sufficient safeguards were in place
in the present case for it to be considered that the applicant had
decided to relinquish his right. There is no reason to conclude that
the applicant should have been fully aware that by leaving Uzbekistan
he was abandoning his right to confront witnesses, or, for that
matter, that he understood the nature of that right and could
reasonably have foreseen what the consequences of his conduct would
be (see Bonev v. Bulgaria, no. 60018/00, § 40,
8 June 2006, with further references, and Bocos-Cuesta v. the
Netherlands, no. 54789/00, § 66, 10 November 2005).
ii. Inability to confront witnesses and
use of their pre-trial statements as the basis for conviction
- The
Court must further establish whether the use of the statements by the
prosecution witnesses made during the pre-trial investigation,
coupled with the fact that the applicant was not able to confront
them in court, amounted to a violation of his right to a fair trial.
- According to the Court’s case-law, the right to
a fair trial requires that the defendant be given an adequate and
proper opportunity to challenge and question a witness against him or
her, either when the statements were made or at a later stage of the
proceedings (see Saïdi v. France, 20 September 1993,
§ 43, Series A no. 261-C, and A.M. v. Italy,
no. 37019/97, § 25, ECHR 1999-IX). The
Court reiterates the principles laid down in its
judgment of Al-Khawaja and Tahery v. the United
Kingdom ([GC],
nos. 26766/05 and 22228/06,
§§ 119 and 147, 15 December 2011), according to which
where a conviction
is based solely or decisively on the evidence of absent witnesses,
the Court must subject the proceedings to the most searching
scrutiny. The
question in each
case is whether there are sufficient counterbalancing factors in
place, including measures that permit a fair and proper assessment of
the reliability of that evidence to take place. This would permit a
conviction to be based on such evidence only if it is sufficiently
reliable given its importance in the case.
51. The
Court further observes that the
rights of the defence require that the defendant be given an adequate
and proper opportunity to challenge and question a witness against
him or her either when the statements were made or at a later stage
of the proceedings (see Saïdi, cited above, § 43;
and A.M., cited above, § 25). The use in evidence of
statements obtained at the stage of the police inquiry and the
judicial investigation is not in itself inconsistent with paragraphs
1 and 3 (d) of Article 6, provided that the rights of the defence
have been respected. In particular, in the event that the witnesses
cannot be examined and that this is due to the fact that they are
missing, the authorities must make a reasonable effort to secure
their presence (see Artner v. Austria, 28 August 1992, § 21
in fine, Series A no. 242 A; Delta
v. France, 19 December 1990, § 37, Series A
no. 191 A; and Rachdad v. France, no. 71846/01,
§ 25, 13 November 2003).
- Turning
to the facts of the present case, the Court reiterates that the
applicant’s conviction was based on the pre-trial depositions
by the eleven witnesses for the prosecution, including the
applicant’s alleged accomplice Mr A., and material evidence.
The applicant and his parents, heard by the trial court, argued that
the fact that he was in Russia at the time of the crime rendered it
impossible for him to be the guilty party.
- As
to the material evidence, the records, materials and exhibits
presented by the prosecution were proof that the murder and robbery
had, in fact, taken place. They did not have any probative value
allowing the conclusion that the applicant had committed the criminal
offences in question (see paragraph 24 above).
- The Court notes that it was not
able to study the content of the statements by the eleven prosecution
witnesses, because the Government had failed to furnish the said
records. Drawing inferences from the Government’s
conduct (see Velikova v. Bulgaria, no. 41488/98, § 77,
ECHR 2000 VI) and taking into account the
evidential value of the material evidence, the Court concludes that
the depositions made by the eleven witnesses during the pre-trial
investigation and read out by the Regional Court constituted
virtually the sole direct and objective evidence on which the court’s
findings of guilt were based.
- The
Court observes that the witnesses, who were all in Uzbekistan, did
not appear at the trial for various reasons: Mr A. was serving a
sentence, the whereabouts of one witness could not be established,
and the remaining nine witnesses, according to the Government, failed
to appear for personal reasons, such as lack of financial means,
family situation or poor health (see paragraph 20 above). The Court,
however, notes that the Regional Court did not have information
explaining the reason for the absence of five of the eleven witnesses
from the prosecution list. In fact, the trial court was not even
aware whether the witnesses had been summoned (see paragraphs 20 and
23 above). It also appears that it never received a response from the
Uzbek authorities regarding Mr A.’s attendance. The Regional
Court, nevertheless, proceeded with the reading out of the
depositions by those five witnesses and Mr A., having noted that
attempts to obtain their presence had already taken six months (see
paragraph 23 above). While the Court is not unmindful of the domestic
courts’ obligation to secure the proper conduct of the trial
and avoid undue delays in the criminal proceedings, it does not
consider that a stay in the proceedings for the purpose of obtaining
witnesses’ testimony or at least clarifying the issue of their
appearance at the trial, in which the applicant stood accused of a
very serious offence and was risking a lengthy prison term, would
have constituted an insuperable obstacle to the expediency of the
proceedings at hand (see Vladimir Romanov v. Russia,
no. 41461/02, § 104, 24 July 2008, with further references, and,
most recently, Krivoshapkin v. Russia, no. 42224/02,
§ 60, 27 January 2011). The
authorities chose to eschew that stay. As a result, those witnesses
never appeared to testify before a court in the presence of the
applicant.
- The
Regional Court excused the remaining witnesses, considering their
absence to be justified either in view of their personal
circumstances or because Uzbek officials had been unsuccessful in
their attempts to find them. Regard being had to the circumstances of
the case, the Court has serious doubts that the decision to accept
the explanations and to excuse the witnesses could indeed be accepted
as warranted. It considers that the Regional Court’s review of
the reasons for the witnesses’ absence was not convincing.
Whilst such reasons as inability to bear the costs of travel to
Russia, poor health or a difficult family situation are relevant, the
trial court did not go into the specific circumstances of the
situation of each witness, and failed to examine whether any
alternative means of securing their depositions in person would have
been possible and sufficient. It also does not escape the Court’s
attention that under the relevant provisions of the Russian law
witnesses were afforded a right to claim reimbursement of costs and
expenses, including those of travel, incurred as a result of their
participation in criminal proceedings (see paragraphs 35 and 37
above). The Court reiterates that paragraph 1 of Article 6 taken
together with paragraph 3 requires the State to take positive steps,
in particular to enable the accused to examine or have examined
witnesses against him. Such measures form part of the diligence which
the Contracting States must exercise in order to ensure that the
rights guaranteed by Article 6 are enjoyed in an effective manner
(see Sadak and Others v. Turkey, nos. 29900/96, 29901/96,
29902/96 and 29903/96, § 67, ECHR 2001-VIII). The Court is
concerned with the Regional Court’s failure to look beyond the
ordinary means of securing the right of the defence to cross-examine
witnesses, for instance by setting up a meeting between the
applicant’s lawyer and witnesses in Uzbekistan (see paragraph 34
above and, mutatis mutandis, Mirilashvili v. Russia,
no. 6293/04, § 223, 11 December 2008) or using modern means
of audio-visual communication to afford the defence an opportunity to
put questions to the witnesses. Furthermore, while the Court
understands the difficulties encountered by the authorities in terms
of resources, it does not consider that reimbursing travel costs and
expenses to the key witnesses for them to appear before the trial
court would have constituted an insuperable obstacle (see
Krivoshapkin, cited above, § 60, with
further references). Having regard to the above
considerations, the Court finds that the decision to excuse witnesses
from appearing was not sufficiently convincing, and that the
authorities failed to take reasonable measures to secure their
attendance at the trial.
- The
Court would also like to address the Government’s argument
regarding the fact that those witnesses whom the Uzbek authorities
had been able to contact on the Regional Court’s behalf had
entirely corroborated their statements given on previous occasions.
The Court finds it of relevance that the applicant was never provided
with an opportunity to follow up the manner in which the witnesses
had been questioned by the investigator or to test the credibility of
his accusers and the reliability of their statements during a
face-to-face confrontation. Furthermore, as the witnesses’
statements to the investigator were not recorded on video, neither
the applicant nor the jury was able to observe their demeanour under
questioning and thus form their own impression of their reliability
(see, a contrario, Accardi and Others v. Italy (dec.),
no. 30598/02, ECHR 2005 II). The Court does not doubt that
the domestic courts undertook a careful examination of the witnesses’
statements, took into account the fact that they had not changed
their account of events, and gave the applicant an opportunity to
contest them at the trial, but this can scarcely be regarded as a
proper substitute for a personal observation of the leading witnesses
giving oral evidence (see Vladimir Romanov, cited above,
§ 105).
- In
these circumstances, the Court finds that the applicant cannot be
regarded as having had a proper and adequate opportunity to challenge
the witnesses’ statements, which were of decisive importance
for his conviction and consequently he did not have a fair
trial. There has thus been a violation of Article 6 §
1 taken together with Article 6 § 3 (d) on that account.
2. Other alleged violations of Article 6 of the
Convention
- The
Court reiterates that the applicant raised additional complaints
under Article 6 of the Convention, having alleged various procedural
violations on the part of the trial court, including those that
called into question its composition and partiality. In this
connection the Court reiterates its finding that the fairness of the
criminal proceedings against the applicant was undermined by the
limitations imposed on the rights of the defence due to the absence
of an opportunity to confront the witnesses. It therefore considers
it unnecessary to examine separately whether the fairness of the
proceedings was also breached in view of other irregularities
complained of by the applicant (see Komanický v. Slovakia,
no. 32106/96, § 56, 4 June 2002).
II. THE GOVERNMENT’S COMPLIANCE WITH ARTICLE 38 OF
THE CONVENTION
- Relying on Article 38 of the Convention, the applicant
alleged that the Government had not cooperated sufficiently with the
Court. The relevant provisions of Article 38 § 1, as they stood
at the material time, read as follows:
“If the Court declares the application admissible,
it shall
(a) pursue the examination of the case,
together with the representatives of the parties, and if need be,
undertake an investigation, for the effective conduct of which the
States concerned shall furnish all necessary facilities;”
- The
applicant complained that the Government had failed to submit copies
of the statements by the prosecution witnesses, which were necessary
for the examination of the application. He also denounced the fact
that the Government had not even indicated the date by which they had
intended to provide the requested documents.
- By
a letter of 3 March 2008 containing their further observations in the
case, the Government stressed that they had submitted their
observations on 22 November 2007 and the attachments on 27 November
2007. Although, according to the Government, the attachments had been
sent a week after the observations, they had, nevertheless, submitted
them within the time-limit set out by the Court in its communication
letter. The Government thus considered that they had complied with
their obligations under the Convention.
- Noting
that Article 29 § 3 of the Convention, as that provision stood
at the material time, was applied at the time of communication of the
present application (see paragraph 4 above), the Court considers
that in the absence of a separate decision on admissibility it
retained jurisdiction under Article 38 of the Convention, as it read
at the material time, to examine the relevant events which took place
during the subsequent proceedings (see Enukidze and Girgvliani v.
Georgia, no. 25091/07, § 295, 26 April
2011).
- The
Court reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
under Article 34 of the Convention that States should furnish all
necessary facilities to make possible a proper and effective
examination of applications (see Tanrıkulu v. Turkey
[GC], no. 23763/94, § 70, ECHR 1999-IV). This obligation
requires the Contracting States to furnish all necessary facilities
to the Court, whether it is conducting a fact-finding investigation
or performing its general duties as regards the examination of
applications. Failure on a Government’s part to submit such
information which is in their hands, without a satisfactory
explanation, may not only give rise to the drawing of inferences as
to the well-foundedness of the applicant’s allegations, but may
also reflect negatively on the level of compliance by a respondent
State with its obligations under Article 38 of the Convention (see
Medova v. Russia, no. 25385/04, § 76, 15 January 2009,
and Timurtaş v. Turkey, no. 3531/94, § 66, ECHR
2000-VI).
-
The Court notes that on 22 November 2007 it received the Government’s
observations, with ten documents attached. The attachments did not
include copies of the witness statements requested from the
Government by the Court in the communication letter of 6 September
2007. The Government’s initial explanation for their failure to
enclose the statements was that the documents were in the possession
of unspecified authorities in the Russian Federation. The Government
also insisted that they had fulfilled their obligation under the
Convention, as they had submitted the attachments on 27 November
2007.
- However,
the Court, received no further documents related to the present case
after the Government’s letter of 22 November 2007. On
30 November 2007, noting that the Government had not complied
with the request to provide copies of the witness statements, the
Court asked them to send those documents as soon as possible. The
Court notes that upon receipt of the repeated request for the
documents the Government did not contact the Court to clarify the
issue, as, according to them, by that time the documents were already
in the Court’s possession.
- The
Court also does not overlook the fact that the Government’s
letter of 20 December 2007, with the English translation of their
observations and enclosures, did not list copies of the witness
statements among the documents which the Government had sent to the
Court. It was not until March 2008, following the applicant’s
complaint under Article 38 of the Convention and the Court’s
third request to submit copies of the witness statements, that the
Government replied that they had submitted the documents as
attachments on 27 November 2007. However, the Court observes
that the Government formulated their reply in general terms and did
not explicitly state that the witness statements had been among the
attachments. It was also open to the Government to resubmit the
records of the witness statements or to enclose a copy of the letter
which had allegedly been sent to the Court on 27 November 2007.
However, they did not do so. The Court therefore cannot but conclude
that the Government failed to produce a copy of the witness
statements, despite repeated requests to that effect.
- Having
regard to the importance of cooperation by the respondent Government
in Convention proceedings and the difficulties associated with the
establishment of the facts in cases such as the present one, the
Court finds that the Russian Government’s failure to respond
diligently to the Court’s requests for the evidence it
considered necessary for the examination of the application, such as
witness statements, cannot be reconciled with the Government’s
obligations under Article 38 of the Convention.
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.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government submitted that the claim was excessive and unreasonable.
- The
Court considers that an award of just satisfaction must be based in
the present case on the fact that the applicant did not have a fair
trial because he had no opportunity to examine the witnesses against
him. He undeniably sustained non-pecuniary damage as a result of the
breach. Making its assessment on an equitable basis, the Court awards
the applicant EUR 4,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
- Lastly, the Court refers to its settled case-law to
the effect that, where it finds that an applicant has been convicted
despite a potential infringement of his rights as guaranteed by
Article 6 of the Convention, he should, as far as possible, be put in
the position in which he would have been had the requirements of that
provision not been disregarded, and that the most appropriate form of
redress would, in principle, be trial de novo or the reopening
of the proceedings, if requested (see Öcalan v. Turkey
[GC], no. 46221/99, § 210 in fine, ECHR 2005-IV;
Popov v. Russia, no. 26853/04, § 264, 13
July 2006; and Vladimir Romanov, cited above, §
118). The Court notes in this connection that by virtue of
Article 413 of the Russian Code of Criminal Procedure the applicant
has the right to have the criminal proceedings against him reopened
when the Court finds a violation of the Convention.
B. Costs and expenses
- The
applicant did not make any claims for costs and expenses incurred
before the domestic courts and the Court.
- Accordingly,
the Court does not award anything under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 taken together with Article 6 § 3 (d) on account
of the absence of a proper and adequate opportunity to challenge the
statements by the prosecution witnesses;
- Holds that it is not necessary to examine
separately the applicant’s further complaints under
Article 6 pertaining to the impartiality of the jury
and various procedural irregularities at the trial;
- Holds that there has been a violation of Article
38 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 4,000 (four thousand euros) in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on the date of the settlement, plus any tax that may
be chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement, simple interest shall be payable on the
above amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period, plus three
percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
