CASE OF ANDANDONSKIY v. RUSSIA
(Application no. 24015/02)
28 September 2006
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 Andandonskiy v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič,
Mr C. Bîrsan,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 7 September 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's conviction
B. Evidence before the trial court and its assessment
“I am writing to inform you that I cannot appear in court in the case [of Andandonskiy] because of my state of health and my age. My statements in the case and my passport details are with a district police officer from police station no. 68 who recorded statements made by me. I confirm those statements again.”
Her letter was received by the court on 29 January 2001.
“[We leave this decision] to the discretion of the court.”
Having then heard evidence from the victim B. and the prosecutor, the court ordered that the case be adjourned and that the victim N. should submit for the next hearing a written request for examination of the case in his absence.
“...the court takes into account that this conclusion was made on the basis of the statements by the defendant Andandonskiy, the assessment of which the court has already made above. Furthermore, the victim also had other head injuries which could not have been caused solely by falling from a standing position (see case file, pp. ...). Therefore, the aforesaid expert conclusion (see case file, p. ...) did not refute the statements by the victims [N.] and [B.] and the witness [E.].”
“...in view of the nature of the defendant's actions – intentional beating of the victim's head against the pavement – and in view of the gravity of the injuries received by N., the court considers it necessary to classify the defendant Andandonskiy's actions as intentional infliction of grievous bodily harm, causing danger to human life, under Article 111 § 1 of the Criminal Code of the Russian Federation.”
C. Appeal proceedings
II. RELEVANT DOMESTIC LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“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
1. The Government
35. In failing to call witness E. and, instead, reading out her statements made during the preliminary investigation, the Moskovskiy District Court had not breached the domestic legislation on criminal procedure. It had received a request from witness E. in which she informed the court that, in view of her state of health and her age, she could not appear in court and asked the court to read out the statements she had given during the preliminary investigation. The court had taken into account, first of all, the poor state of health of the witness, and also her advanced age (she was 81 years old at the time of the trial). In view of the combination of these factors, the court had reasonably considered that there was good reason for her not to appear in court. Acting strictly in accordance with Article 286 of the Code of Criminal Procedure, the court had read out her statements given during the preliminary investigation and confirmed in her letter to the court of 23 January 2001. The Government emphasized that when an elderly person informed the court of his or her poor state of health and requested leave not to attend hearings, a court could scarcely be expected to take measures to secure the attendance of that witness at a hearing.
36. In submissions made following the admissibility decision in this case the Government indicated as follows:
“... at the hearings held in the course of examination of the criminal case of Mr Andandonskiy by the Moscow District Court of St Petersburg, neither the applicant nor his representative objected to the court's examination of the case (судебное следствие) being started and concluded in the absence of Ms [E.] (see, for example, enclosed copies of extracts from the record of the proceedings in the Moskovskiy District Court of St Petersburg dated 10 October and 19 November 2001).”
“... I cannot recall the circumstances of the criminal case against V.L. Andandonskiy ...
... between 2000 and 2002, as now, I rarely leave home. My close relatives take permanent care of me. I suffer from high blood pressure, heart pains, leg oedema and pain. ...”
According to Ms L., Ms E. had ceased working and leading an active life in 2000 on account of her advanced age. Since 2000-2001 she had not left home except for short walks.
38. The Government noted that the statements by witness E. tallied with those by the victim's wife, although they had not known each other before the events in question.
39. The Government concluded that there had been no violation of Article 6 in the applicant's case.
2. The applicant
40. The applicant noted that the Plenary Session of the Supreme Court of the Russian Federation, in its decisions of 21 April 1987, 31 October 1995 and 29 April 1996, had requested courts to proceed in administering justice from the fact that, under Article 15 § 4 of the Constitution of the Russian Federation, principles and norms of international law contained in international covenants, conventions and other documents, including international agreements of the Russian Federation, formed part of its legal system and, in the event of any conflict, took precedence over domestic law. It had further held that, under Articles 240 and 301 of the Code of Criminal Procedure, judgments should be based exclusively on evidence which had been the subject of thorough and objective examination at the court hearing.
41. The Moskovskiy District Court had convicted the applicant in breach of domestic law and of Article 6 of the Convention. It had based its judgment on statements by the victim N., his wife B., who had a vested interest in the outcome of the case, witness K., who was not an eyewitness, and witness E., who had given her testimony during the preliminary investigation. The last witness had not been questioned at the court hearing. Her testimony had been based on her assumptions and contradicted the expert opinion and statements by seven other witnesses who had been questioned at the court hearing and had refuted the allegations that the applicant was guilty.
42. All evidence had to be produced at a public hearing in the presence of the accused with a view to ensuring adversarial argument. There were exceptions to that principle, but they could not be allowed to infringe the rights of the defence. As a general rule, Article 6 of the Convention required that the accused be given an opportunity to cross-examine witnesses against him or her and challenge their statements.
43. In the applicant's case the Moskovskiy District Court of St Petersburg had done nothing to secure the attendance of witness E. at the hearing though it had been obliged to do so by law. It had considered her age to be a good reason for her non-appearance in court. That could not justify depriving the applicant of his right to ask that witness questions and challenge the reliability of her statements in a face-to-face dialogue. Therefore, the disadvantages for the defence had not been balanced out by the examination of the witness at the preliminary investigation stage.
B. The Court's assessment
51. Indeed, the Court notes that in the present case the applicant's conviction was based, inter alia, on statements from Ms E. given during the preliminary investigation and read out at the trial. There is no indication that the applicant confronted that witness at the preliminary investigation stage. In such circumstances it would clearly have been preferable for evidence to have been taken from Ms E. in person at the trial, in which case the applicant would have had an opportunity to challenge her statements and question her.
52. However, the judgment of the Moscovskiy District Court was not based solely or even to a decisive extent on the testimonies of Ms E. (see in this respect, mutatis mutandis, Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports of Judgments and Decisions 1997 III, pp. 711-712, §§ 51-55; see also Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166, p. 20, § 41). Thus, the District Court strongly relied on the testimonies of Ms B., the victim's wife, given at the hearing. In principle, it is not for this Court to decide whether or not Ms B. had had a “vested interest” in the outcome of the case, as the applicant suggested. In the domestic courts' view Ms B.'s testimony was credible. That finding was subjective but not arbitrary, so the Court sees no reason to disagree with it. Further, the domestic courts also referred to certain circumstantial evidence, which, although indirectly, confirmed the account of the incident proposed by the prosecution. In sum, the Court considers that Ms E.'s absence at the trial did not affect significantly the overall fairness of the proceedings.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.
Done in English, and notified in writing on 28 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič