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Cite as: [2009] ECHR 1190
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
75330/01
by Vyacheslav SHARKUNOV and Aleksey MEZENTSEV
against
Russia
The European Court of Human Rights (First Section), sitting on 2 July 2009 as a Chamber composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 20 August 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Vyacheslav Viktorovich Sharkunov and Mr Aleksey Aleksandrovich Mezentsev, are Russian nationals who were born in 1969 and 1971 respectively. They are serving a sentence of imprisonment in the Kurgan Region. They were represented before the Court by Mr I. Timofeyev, a lawyer practising in Yekaterinburg. The Russian Government (“the Government”) were represented by Mr P. Laptev, the then Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The first applicant’s arrest and detention
On the night of 5 to 6 May 1999 the first applicant was brought to a police station on suspicion of a Mr M.’s murder. According to the applicant, the police officers placed a canvas bag over his head, beat him and applied electrics shock to extract a confession from him. The applicant made no admissions. A medical check in the local sobering-up centre disclosed no injuries; the applicant was admitted to the Shadrinsk temporary detention centre.
On 6 May 1999 the first applicant was summoned for questioning by an investigator. According to the minutes of this interview, the applicant was apprised of his rights, including the privilege against self-incrimination, the right to remain silent and the right to legal representation. He waived the right to legal assistance and refused to speak.
The medical report drawn up on 7 May 1999 stated that the first applicant had no physical injuries. On 8 and 15 May 1999 the applicant was examined by a medical emergency doctor, apparently in relation to an abstinence withdrawal syndrome and abdominal pains.
According to the Government, on 12 May 1999 he was interviewed in the presence of counsel and remained represented throughout the pre-trial investigation and trial. On 17 May 1999 the first applicant was transferred from the temporary detention centre to a remand prison. On the same date his mother lodged a complaint with the prosecutor’s office, alleging that her son had been ill-treated in police custody on 5 and 6 May 1999.
As transpires from a medical certificate issued on 20 May 1999, the first applicant had blue bruises on the hip and blue injection marks on his arms, and was suffering from withdrawal symptoms.
On 1 June 1999 the Shadrinsk Inter-District Prosecutor’s Office refused to institute criminal proceedings against the officers allegedly responsible for the first applicant’s ill-treatment. It was established that he had been examined during his placement in the temporary detention centre; the applicant explained that the bruising on his hip had been self-inflicted and had resulted from horse-riding; no injuries had been detected during his placement in the remand centre.
On 20 December 1999 and 21 February 2000 the first applicant unsuccessfully asked the Shadrinsk District and Kurgan Regional prosecutors for permission to be visited by an Orthodox priest.
On 21 February 2000 the first applicant lodged another complaint about the events of 5 and 6 May 1999. On 28 February 2000 the Kurgan Regional Prosecutor’s Office dismissed it on the same grounds as before.
2. The second applicant’s arrests and detention
The second applicant submitted that on 9 December 1999 he was arrested and taken to a police station. The police officers connected wires to his little fingers and applied electric shocks. When he fainted they hit him on the head so that he would regain consciousness. A canvas bag was placed over his head, restricting his airflow. He could not withstand the pain, waived legal representation and pleaded guilty to the killing of a Mr K. On the same day, the second applicant was questioned by an investigator. According to the interview record, the second applicant was informed of his rights, including the right to remain silent, the right to legal representation and the privilege against self-incrimination. The minutes further indicated that the second applicant had agreed to testify without counsel. He confessed to having been an accessory to K.’s murder, committed by the first applicant. It appears that the interview was videotaped.
On 15 December 1999 he was (again) taken to the police station where the ill-treatment allegedly resumed. While in the police station, he cut his veins on both arms. At an interview on the same day he confirmed that he had been informed of his rights and pleaded innocent; he declined legal assistance and refused to testify. According to the Government, the second applicant self-mutilated because the first applicant had put pressure on him while in the Shadrinsk remand centre.
Refuting the allegation of ill-treatment, the Government only referred to the events of 15 December 1999. According to them, on an unspecified date the second applicant was transferred from remand centre no. 43/1 in the town of Kurgan to remand centre no. 43/2 in the town of Shadrinsk.
In December 1999 and January 2000 the second applicant lodged complaints with the prosecutor’s office, alleging that he had been forced to confess to the murder and to make false accusations against other persons.
On 27 January 2000 he was examined by a medical expert who found numerous scars on his forearms and concluded that he could have inflicted them on himself in December 1999. The expert did not record any traces of electric torture or blows to the second applicant’s head.
On 28 January 2000 the Shadrinsk District Prosecutor’s office refused to institute criminal proceedings in relation to the alleged ill-treatment. The prosecutor relied on statements by the officers and the report of 27 January 2000. On 31 January 2000 the second applicant asked the prosecutor to appoint legal-aid counsel. He was questioned in the presence of counsel on 4 February 2000 and retracted the confession made on 9 December 1999 as given under duress.
On 5 May 2000 the investigator in charge of the case refused to institute criminal proceedings and dismissed the second applicant’s allegations of ill-treatment as unsubstantiated.
3. Other relevant facts and the trial
In November 1999 the police questioned a Mr V in the framework of unrelated criminal proceedings. He was questioned again on 8 and 11 February 2000. At the interview he was informed of his rights and declined the legal assistance offered to him. In substance, he stated that he had served as a driver on the day when a murder had been committed and that he had heard about another murder and arson, allegedly committed by the first applicant. On 19 April 2000 Mr V retracted his statement, alleging ill-treatment in November 1999 and February 2000.
The applicants and Mr V were accused of several criminal offences, including murder and arson. On 6 and 10 May 2000 they and their counsel studied the materials of the case-file, including a ballistic report dated 6 August 1999. On 18 May 2000 the investigator refused to carry out a confrontation (очная ставка) with a Ms Va, a witness in relation to one of the murder counts.
On 7 June 2000 the Kurgan Regional prosecutor adopted the bill of indictment. The first applicant was charged with two counts of murder, unlawful possession of firearms, arson and extortion. The second applicant was charged with murder and arson.
As regards the murder of Mr K, the bill of indictment indicated that he had been alive when a witness, Mr O, had found him. Mr O and other persons who had talked to K in hospital – the latter’s wife and Mr P - claimed that Mr K had not identified his aggressor.
The charge of arson was based, in particular, on a statement by Ms S, an eye-witness, who had identified the second applicant as the arsonist. It appears that during the pre-trial stage the second applicant had a confrontation with Ms S. The arson victim stated at the trial that he had had “tensions” with both applicants.
On 19 July 2000 the Kurgan Regional Court held the first hearing. The applicants pleaded not guilty. The second applicant stated that his confession of 9 December 1999 had been obtained under duress after seven or eight hours of torture. The applicants’ co-defendant, Mr V, also stated that he had been severely beaten by police officers and, in consequence, had falsely denounced the applicants. He submitted that the officers had beaten him up on the upper part of his body but that the blows had left no traces.
The trial court heard witnesses, including Mr Pa and Mr G, who alleged that the police had exerted undue pressure on them during the questioning.
On 21 July 2000 the court heard further witnesses. The trial court established that Mr Sy had heard from a Mr Zh that the first applicant had left Zh’s flat shortly before the killing of the victim. Mr Sy alleged that he had been ill-treated by police officers.
On the same day the court heard Ms Va. The applicants were removed from the courtroom when she took the witness stand. Ms Va confirmed her pre-trial statement but refused to testify, relying on the privilege against self-incrimination. The court therefore read out her previous statement. Thereafter the defendants were brought back to the court room, and she replied to the question put by the presiding judge, the prosecutor, counsel and the defendants.
Ms S was also called to testify at the trial. According to a report dated 21 July 2000, a bailiff visited her at her home but she refused to appear before the trial court, alleging that she had to nurse her underage child.
Despite the applicants’ request the trial court did not hear a Mr T whose whereabouts could not be established.
According to the applicants, they unsuccessfully asked the trial court to examine a number of other persons (Mr Zh, Mr Po, Mr U, Mr B, Mr L and Mr Ku) apparently as defence witnesses.
On 28 August 2000 the trial court heard other witnesses, including statements by a Mr F, and decided to close the examination of evidence.
On 4 September 2000 the Regional Court found the first applicant guilty on two counts of murder, unlawful possession of firearms and instigation to arson and sentenced him to twenty years’ imprisonment. He was acquitted on the charge of extortion. The second applicant was found guilty of murder and arson and sentenced to sixteen years’ imprisonment. The conviction was founded on the second applicant’s confession, testimony by witnesses, including those of Mr V, Mr Sy, Mr P, and Ms S, certain forensic reports and physical evidence. The court dismissed the defendants’ allegations of ill-treatment as unsubstantiated because “no injuries had been identified on the applicants’ bodies during the preliminary investigation”.
The applicants appealed alleging inter alia that the trial court had failed to summon various witnesses and had wrongly assessed some pieces of evidence, including the (self)incriminating statements made by the second applicant and other persons. On 2 April 2001 the Supreme Court of the Russian Federation upheld, in essence, the judgment of 4 September 2000. The charge against the first applicant of unlawful possession of a gas pistol was dropped.
On 19 September 2001 the Presidium of the Supreme Court, sitting in supervisory review, acquitted the first applicant of unlawful possession of firearms and reduced his sentence by six months.
B. Relevant domestic law and practice
1. Judicial review
The Constitution of the Russian Federation provides, in so far as relevant:
Article 46
“Everyone shall be guaranteed judicial protection of his or her rights and freedoms.”
“Decisions and actions or lack of action of State bodies, bodies of local self-government, public associations and officials may be appealed against in court.”
According to the 1960 Code of Criminal Procedure (CCrP), as in force at the relevant time, a prosecutor, investigator or judge was competent to examine complaints and information about any offence committed and to open or refuse a criminal investigation, or to transmit the matter to a competent authority (Article 109). A prosecutor’s refusal to open a criminal investigation could be appealed to a higher prosecutor; a judge’s refusal could challenged before a higher court (Article 113 § 4).
On 29 April 1998 the Constitutional Court of the Russian Federation invalidated Article 113 § 4 of the Code because it did not allow for judicial review of a prosecutor’s or investigator’s refusal to institute criminal proceedings. The Constitutional Court ruled that Parliament should amend the legislation on criminal procedure inserting a possibility of review. It also held that until such amendments were enacted, the national authorities, including courts, should apply directly Article 46 of the Constitution requiring judicial review of administrative acts. The ruling was published in May 1998.
On 14 January 2000 the Constitutional Court held that a court could annul any unsatisfactory decision and instruct the investigating authority to carry out additional inquiries and to take a new decision on whether a criminal case should be opened.
The 1993 Judicial Review Act (Federal Law No. 4866-1 on challenging acts and decisions infringing individual rights and freedoms), as amended in 1995, provides for a judicial avenue for claims against public authorities. It states that any act, decision or omission by a public authority or official can be challenged before a court if it encroaches on an individual’s rights or freedoms or unlawfully imposes an obligation or liability on that individual. In such proceedings the court is entitled to declare the disputed act, decision or omission unlawful, to order the public authority to act in a certain way vis-à-vis the individual, to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom. If the court finds the disputed act, decision or omission unlawful this gives rise to a civil claim for damages against the State.
2. Legal assistance in criminal proceedings
Pursuant to Article 47 of the CCrP, counsel could participate in the proceedings from the moment when a person was informed of the charges against him or her. If a suspect was arrested or detained, counsel could step in the proceedings from the moment when the suspect was given access to the arrest record or detention order.
In its ruling of 27 June 2000 (no. 11-П) the Constitutional Court held that Article 47 of the CCrP was contrary to the Constitution in so far it excluded a possibility of legal representation at the very initial stages of proceedings, that before any charges were brought or before access was given to the arrest/detention record.
COMPLAINTS
THE LAW
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government submitted that the applicants had failed to exhaust the domestic remedies. They should have appealed to a court, for instance under Article 46 of the Constitution and the 1993 Judicial Review Act against the refusals to prosecute the police officers. The Government contended that the applicants had not been ill-treated, and accounted for the first applicant’s injuries with reference to drug addiction. They alleged that the scars on the second applicant’s forearms had been self-inflicted on 15 December 1999.
The applicants maintained their complaint. They alleged that at the relevant period of time there had been a judicial practice of declining jurisdiction under the Judicial Review Act in relation to appeals against refusals to institute criminal proceedings. The first applicant had been ill-treated in order to obtain from him a confession in respect of M’s murder. His injuries were confirmed by the certificate dated 20 May 1999. The authorities’ affirmation that the applicant was a drug addict was unsubstantiated and could not explain hip bruises. The first applicant was questioned at night without the benefit of legal assistance. As to the second applicant, the certificate of 27 January 2000 was based on the assessment made forty-nine days after the alleged ill-treatment. Regarding the investigation of the ill-treatment complaints, the applicants contended that the trial court had failed to question the police officers.
The Court observes at the outset that it was unable to determine whether the applicants had been provided with a copy of the refusals to prosecute the police officers. Thus, it cannot determine at this stage whether the applicants were given an opportunity to challenge them before national courts.
The Court further notes that the question of domestic remedies is so closely linked to the merits of the complaint that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this objection to the merits.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Consequently, it concludes that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
The Court notes that the relevant period of the applicants’ detention ended on 4 September 2000 when they were convicted by the regional court, but that they lodged their application with the Court on 20 August 2001, that is, more than six months later. Nothing in the file suggests that any decisions on the issue of detention on remand were taken after the former date. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
A. The parties’ submissions
The Government denied the applicants’ allegations. They submitted that after his arrest the first applicant had been informed of his rights, including the right to be represented and to remain silent. He had acknowledged in writing that he waived legal representation. On the same day he pleaded innocent and refused to give any further statements. On 12 May 1999 he had been interviewed in the presence of counsel and remained represented throughout the pre-trial investigation and trial. The Government further noted that the second applicant had likewise waived his right to legal representation and had refused to testify on 15 December 1999. He had been subsequently provided with legal assistance and the following interview, on 4 February 2000, had been held in the presence of legal counsel. At no time during the pre-trial investigation had the applicants been subjected to ill-treatment. As regards the witness statements allegedly obtained under coercion, the Government submitted that Mr T and Mr V had lodged complaints with the prosecutor’s office alleging that they had been tortured during questioning. The prosecutor’s office dismissed those complaints as unsubstantiated.
The applicants responded that during the first interview they had been forced to waive the right to legal assistance and such waiver could not be considered valid. Furthermore, no legal assistance had been readily available to them on those dates. They further maintained that the second applicant and Mr Sy had been tortured.
B. The Court’s assessment
The Court observes that the applicants’ allegations under this head are twofold:
(1) the alleged recourse to ill-treatment, duress or coercion for the purpose of obtaining confessions from them and for securing incriminating statements from several other persons; and
(2) the alleged refusal of access to counsel at the initial stage of the investigation.
The Court will examine these complaints in turn.
1. Use of evidence obtained through coercion or ill-treatment
The Court reiterates at the outset that incriminating evidence – whether in the form of a confession or physical evidence – obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture should never be relied on as proof of the victim’s guilt, irrespective of its probative value (see Harutyunyan v. Armenia, no. 36549/03, § 63, ECHR 2007 ...; see also Örs and Others v. Turkey, no. 46213/99, § 60, 20 June 2006; Jalloh v. Germany [GC], no. 54810/00, § 99, ECHR 2006 ; Söylemez v. Turkey, no. 46661/99, § 23, 21 September 2006; Göçmen v. Turkey, no. 72000/01, 17 October 2006; Hacı Özen v. Turkey, no. 46286/99, § 101, 12 April 2007).
(a) As to the applicants’ allegations that their conviction was based on the statements made by Mr T, Mr Pa and Mr G under pressure, the Court observes that there is no factual basis to substantiate such allegations. Besides, the statements by Mr T or Mr Pa did not form part of the evidence used to convict the applicants. Mr G testified only on the charge of extortion against the first applicant, of which he was acquitted.
As regards the applicants’ allegation that they were convicted on one count of murder on the basis of a statement by Mr Sy obtained by coercion, the Court notes that the trial court established only that Mr Sy had heard from Mr Zh that the first applicant had left Zh’s flat shortly before the killing of the victim. The Court has not been provided with any evidence which would prove beyond reasonable doubt that Mr Sy was subjected to treatment proscribed under Article 3 of the Convention.
Finally, the Court observes that the applicants did not maintain their initial allegation that Mr V’s pre-trial admissions, allegedly made under torture, had been prejudicial to their defence. Thus, the Court does not find it necessary to make any findings in that respect.
It follows that the above complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) In so far as the applicants complained that their conviction had been based on their own confessions allegedly made under torture, the Court observes at the outset that the first applicant made no self-incriminating statements and it has not been alleged that he was convicted on the basis of any evidence obtained from him under torture. However, it should be open to him to complain under Article 6 of the Convention about his own conviction on the basis of the second applicant’s pre-trial confession allegedly obtained under duress.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. Legal assistance in police custody
As regards the provision of legal assistance after arrest, the Court reiterates that Article 6 § 3 (c) may be relevant at the stage of the preliminary investigation in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Salduz v. Turkey [GC], no. 36391/02, § 50 et seq., 27 November 2008 and Panovits v. Cyprus, no. 4268/04, § 64 et seq., 11 December 2008).
(a) As regards the first applicant, the Court notes the applicant’s argument that he was not provided with legal assistance for his interrogations on 5 and 6 May 1999. The Government contended that the first applicant had validly waived his right to legal assistance. The Court considers that the question of waiver is so closely linked to the merits of the complaint that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this objection to the merits.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
(b) As to the second applicant, the Court observes that he did make self-incriminating statements during the preliminary investigation. The Court notes that those statements were used for convicting him at the trial. They were also prejudicial to the first applicant at the trial. Thus, it should be open to both of them to complain that they were convicted on the basis of the incriminating evidence obtained from the second applicant without benefit of legal advice.
The Court further notes that the Government contended that the second applicant had validly waived his right to legal assistance. The Court considers that the question of waiver is so closely linked to the merits of the complaint that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this objection to the merits.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Consequently, it concludes that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
“3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence.”
The Government challenged the applicants’ allegations. They submitted a copy of the interrogation record dated 6 and 10 May 2000, confirming that the applicants had had access to the case file, including the ballistics report of 6 August 1999.
The applicants did not dispute the Government’s assertion. They contended, however, that the investigating officer should have informed them in advance of the decision to appoint a ballistics study, so as to enable them to suggest questions to be raised before an expert.
The Court notes at the outset that this specific allegation by the applicants was not part of the initial complaint and was only raised after the communication of the case to the respondent Government. Thus, the Court will not take it into account and will only examine the applicants’ complaint in so far as it concerned the delay in communicating the expert report to them.
The Court finds in this connection that the applicants took cognisance of the report in May 2000, that is, approximately two months before the opening of the trial. The Court reiterates that the facilities which everyone charged with a criminal offence should enjoy include the opportunity to acquaint himself for the purposes of preparing his defence with the results of investigations carried out throughout the proceedings (see Galstyan v. Armenia, no. 26986/03, § 84, 15 November 2007, with further references). When studying the materials of the case file, the applicants were assisted by counsel and had sufficient time and opportunity to arrange their defence position in relation to the findings made in the above report, for instance by asking for a supplementary ballistics study (see Klimentyev v. Russia, no. 46503/99, §§ 95-98, 16 November 2006; compare Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, § 38 et seq., 5 April 2007). In any event, it has not been suggested and the Court does not consider, that the trial court was in law bound by the expert’s findings or that that report was the main piece of evidence having a preponderant influence on the assessment of the facts by that court (compare Mantovanelli v. France, 18 March 1997, § 36, Reports 1997 II). In view of the above considerations, the Court is not convinced that the applicants’ access to this piece of evidence was restricted to the extent which could have interfered with the adequate preparation of their defence.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
“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
The Government contended that the applicants had not asked for the examination of Mr Zh, Mr U, Mr B, Mr L and Mr Ku. Nor was it the prosecution’s intention to call those persons as witnesses. The trial court had granted the applicants’ request to examine Mr F who was heard in the presence of the applicants and their counsel. The unavailability of the other witnesses could not be attributed to the authorities. Mr O did not have the financial means to travel from Shadrinsk to Kurgan. A search-and-arrest warrant had been issued against Mr T. Ms S could not attend the trial because she had to care for her underage child. The Government confirmed that the applicants had been removed from the courtroom when Ms Va had taken the stand. However, she had not been heard because she had chosen to invoke the privilege against self-incrimination and her previous statement had been read out. Thereafter the applicants were brought back into the courtroom and put questions to her, as recorded in the hearing minutes.
The applicants responded that the State’s failure to obtain the attendance of Mr O and Ms S, eye-witnesses to the acts of which the applicants had been accused, had not been justified. They further submitted that they had been unable to put questions to Ms Va.
B. The Court’s assessment
1. General principles
The Court reiterates that, as a general rule, the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see Asch v. Austria, 26 April 1991, § 26, Series A no. 203). All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. The applicant must be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings (see Saïdi v. France, 20 September 1993, § 43, Series A no. 261 C).
Article 6 § 3 (d) does not guarantee the accused an unlimited right to secure the appearance of witnesses in court. It is for the domestic courts to decide whether it is appropriate to call a witness. Nor will the domestic authorities be held responsible where it is impossible to obtain the attendance of a particular witness required by the defence (see Ubach Mortes v. Andorra (dec.), no. 46253/99, ECHR 2000-V). It is equally not sufficient for applicants to complain that they have not been allowed to question certain witnesses. They must, in addition, support their request by explaining why it was important for the witness concerned to be heard and his evidence was necessary for the establishment of the truth (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003 V).
2. Application in the present case
(a) In so far as the complaint concerns the authorities’ failure to obtain the attendance of Ms S, the Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
(b) To the extent the complaint relates to the fact that Ms Va was questioned in the absence of the applicants, the Court observes that the minutes of the hearing on 21 July 2000 indicate that the applicants were removed from the courtroom and Ms Va’s statements were read out because she had refused to testify. The Court further notes that counsel for the applicants were present and put questions to her. Furthermore, the applicants were afforded an opportunity to question the witness once they were brought back into the courtroom. The Court finds accordingly that the applicants were provided with an effective opportunity to examine that prosecution witness.
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(c) As to the State’s failure to secure the attendance of Mr T, the Court notes that his statement did not form part of the evidence used to convict the applicants. Moreover, it appears that he was not available for questioning at the time of the trial. The authorities tried to establish his whereabouts but to no avail. Indeed, it has not been contended by the applicants that the authorities failed to make every reasonable effort to secure Mr T’s presence at the trial. In these circumstances the Court concludes that reasonable efforts were made to obtain Mr T’s attendance during the trial and that the fairness of the trial did not suffer due to T’s absence.
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(d) In so far as the applicants alleged that the trial court had failed to obtain the attendance of Mr F, the Court notes that that claim is not supported by the facts of the case. According to the trial minutes, Mr F testified in court on 28 August 2000 in the presence of the applicants and their counsel, all of whom had been able to question him. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(e) As to the State’s failure to obtain the attendance and examination of Mr O, the Court observes that, contrary to the applicants’ submissions, there is nothing in the case to suggest that Mr O had witnessed the killing of Mr K. According to the bill of indictment, he talked to the injured Mr K immediately after the attack, but Mr K had not identified the attacker. A statement in the same vein had been given by Mr P, who had also spoken to Mr K, and who was questioned at the trial. In these circumstances, the Court finds that the applicants have not shown that the evidence from Mr O would have been decisive in proving them innocent of the offence with which they were charged. Furthermore, in the circumstances the Court finds that the domestic court did not go beyond its discretion to hear evidence when deciding that it was unnecessary to hear Mr O.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(f) Finally, in so far as the applicants complained about the courts’ failure to examine Mr Zh, Mr Po, Mr U, Mr B, Mr L and Mr Ku, the Court was not provided with any evidence showing that the applicants had asked the trial court for the attendance of the witnesses in question. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
It has been submitted by the Government and not disputed by the applicant that he had never complained about this matter to any domestic authority.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Joins to the merits the Government’s objection concerning exhaustion of domestic remedies by the applicants in relation to their complaint about the alleged ill-treatment;
Joins to the merits the Government’s objection concerning the second applicant’s waiver of his right to legal assistance at the initial stage of the criminal proceedings;
Declares admissible, without prejudging the merits, the following complaints:
- the complaint concerning the alleged ill-treatment of the applicants;
- the complaint that the criminal proceedings against the applicants were unfair and contrary to Article 6 of the Convention due to (i) the absence of legal counsel for the initial interrogations of both applicants; (ii) the trial court’s reliance on the second applicant’s confession made at the pre-trial stage of the proceedings allegedly under duress and without legal advice, and (iii) the impossibility to obtain the attendance and examination of Ms S;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
Registrar President