AS TO THE ADMISSIBILITY OF
by Oleg Valeryevich SANKOV
The European Court of Human Rights (First Section), sitting on 7 July 2009, as a Chamber composed of:
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 16 June 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Oleg Valeryevich Sankov, is a Russian national who was born in 1969 and lives in Novocherkassk. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.
A. Arrest and ensuing investigation
The local police organised an undercover drug purchase operation targeting the applicant, who was suspected of involvement in drug dealing.
On 17 April 2002 a plain clothes police officer came to the applicant’s flat and asked if he could purchase opium. The applicant allegedly agreed and asked for 150 roubles (RUB) for a sachet of opium. The police officer presented the applicant with RUB 150 in marked bills, took the sachet and went down to a lower landing in the building where he handed the sachet with the opium to the other police officers in the presence of three attesting witnesses B., K., and Ya. The police officers and the said witnesses went to the applicant’s flat. The police conducted a search and found the marked bills and more opium. The applicant was arrested and detained pending investigation and trial.
On 29 April 2002 the investigator dismissed the applicant’s lawyer request for a dactylographic expert examination of the banknotes found at the applicant’s flat. In particular, the investigator indicated as follows:
“The fact that [the applicant] was guilty of selling 0.17 grams of opium to L. has been fully and objectively proven by the [evidence collected].”
B. First trial and appeal proceedings
During the trial the applicant maintained his innocence, alleging that the police had set him up. According to him, on 17 April 2002 an acquaintance, M., came to his flat to see his wife. As his wife was not home, M. left. The applicant was about to close the door after her when several policemen burst into the flat. One of them handcuffed him. Another one put three fifty-rouble bills on the cupboard. When the police checked them, they turned out to be marked. Then another policeman “found” opium in the breadbin. The opium was shown to B., K. and Ya., the three witnesses who had come with the police.
The court granted the prosecutor’s request to read out the records of the testimonies given by B., K. and Ya in the course of the investigation. The court overruled the applicant’s objection, noting that those persons did not live at the addresses they had indicated and that their current whereabouts were unknown to the authorities.
On 1 November 2002 the Novocherkassk Town Court of the Rostov Region found the applicant guilty of drug dealing and sentenced him to five years’ imprisonment.
The court based its findings on the following evidence: testimonies given in court by three policemen who had been involved in the undercover drug purchase, the applicant’s arrest and the search of his flat; records of the testimonies given by B., K. and Ya., who had been questioned in course of the criminal investigation and confirmed the policemen’s account of the events of 17 April 2002; records concerning the organisation of the undercover operation by the police, including the marking of the money bills, photocopies of the bills, and the report on the search of the applicant’s flat; and reports on forensic examination of the money bills, opium, and wipe samples from the applicant’s hands.
The court also heard evidence from M., who confirmed the applicant’s version of the events. The court, however, found her testimony unreliable, having regard to the fact that she was a friend of the applicant’s wife.
The applicant appealed. He complained, inter alia, that the money bills had not been subject to fingerprint examination and that he had not had the opportunity to confront witnesses B., K. and Ya.
On 4 March 2003 the Rostov Regional Court upheld the applicant’s conviction on appeal. As regards the fingerprint examination requested by the applicant, the court noted that it could not be performed because the bills had already been subjected to a series of other expert examinations that would render the results unreliable. As for the trial court’s failure to obtain the attendance of three witnesses, the court noted that the witnesses could not be found at the addresses they had indicated.
C. Review of the applicant’s conviction
On 10 June 2004 the Pervomaiskiy District Court of Rostov-on-Don reviewed the applicant’s conviction to take account of recent amendments to the Russian Criminal Code and reduced his sentence to four years and six months’ imprisonment.
On 14 October 2004 the Presidium of the Rostov Regional Court reclassified the charges against the applicant and reduced his sentence to four years and five months’ imprisonment.
On 30 November 2006 the Deputy General Prosecutor of the Russian Federation asked the Supreme Court of the Russian Federation for the supervisory review of the applicant’s conviction. The prosecutor argued, inter alia, that the trial court had failed to duly obtain the attendance of witnesses B., K., and Ya.
On 18 January 2007 the Presidium of the Supreme Court of the Russian Federation quashed the judgments of 1 November 2002 and 4 March 2003 by way of supervisory review and remitted the matter for fresh consideration. As regards the trial court’s use of the statements made by B., K. and Ya. the Supreme Court acknowledged that the trial court’s failure to obtain the witnesses’ attendance amounted to a violation of the applicant’s right set out in Article 6 § 3 (d). The Supreme Court noted that the authorities’ attempts to find the missing witnesses had not been satisfactory. According to the Supreme Court’s findings, all three witnesses had been students at the material time and had been residing in Novocherkassk temporarily. They had also provided the police with the addresses of their permanent residence. However, the trial court had kept on serving process on them at their old temporary addresses, and no attempt had been made to locate them at the permanent addresses they had indicated.
D. New trial
On an unspecified date the Novocherkassk Town Court of the Rostov Region opened a new trial. The court requested the bailiffs to obtain the attendance of witnesses B., K. and Ya. by serving process on them at their permanent residence.
On 21 May 2007 a bailiff in the town of Belaya Kalitva certified that witness B. could not be found at the address he had indicated and that his whereabouts were unknown.
On 22 May 2007 a bailiff in Novocherkassk certified that witness Ya. could not be found at his permanent place of residence. According to Ya.’s family, he had been working abroad since 2006 and they did not know when he was coming back.
On 21 September 2007 the Novocherkassk Town Court of the Rostov Region found the applicant guilty of drug dealing and sentenced him to four years and four months’ imprisonment. The court based its findings, as before, on the testimonies of the police officers and witnesses B., K. and Ya., records concerning the undercover operation, as well as forensic evidence. Witness K. testified in court, while witnesses B. and Ya. could not attend. The court read out statements obtained from them in the course of the investigation.
Both the applicant and the prosecutor appealed. The applicant maintained his innocence, claiming that the trial court had based its findings on contradictory evidence; that the investigator had failed to inform him of the decisions to commission forensic expert reports; that the trial court had failed to promptly examine M., who had later died and been unable to testify on his behalf.
On 27 November 2007 the Rostov Regional Court upheld the applicant’s conviction on appeal dismissing the applicant’s arguments as unsubstantiated.
“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...”
The Government submitted that the Presidium of the Supreme Court of the Russian Federation quashed the applicant’s conviction by way of supervisory review precisely on the grounds that the applicant had been denied the opportunity to confront witnesses B., K., and Ya. In that respect the Government contended that the Russian authorities had taken measures to remedy the violation of the applicant’s rights set out in Article 6 §§ 1 and 3 (d) at the domestic level and the applicant had lost his victim status.
The applicant maintained his complaint, alleging that a new trial conducted five years after his arrest could not constitute adequate redress.
The Court reiterates that an applicant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for, a breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-93, ECHR 2006-...).
The Court considers that the Presidium’s decision to quash the applicant’s conviction by way of supervisory review does amount to an acknowledgment that there had been a breach of Article 6 of the Convention. It remains, accordingly, to be ascertained whether the measures taken by the authorities, in the course of a new trial, afforded the applicant appropriate redress resulting in the loss of his victim status. In doing so, the Court must examine whether, in the new trial, the proceedings, as a whole, were conducted in such a way that the guarantees of Article 6 were complied with. More specifically, the Court will examine whether the taking of evidence related to witnesses B., K. and Ya. and its use complied with Article 6.
The Court reiterates that, in principle, all evidence must be produced in the presence of the accused at a public hearing with a view to an adversarial argument. This does not mean, however, that in order to be used as evidence, statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with Article 6 §§ 1 and 3 (d) provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings (see Kostovski v. the Netherlands, 20 November 1989, § 41, Series A no. 166). In situations where such a challenge has not been possible, the Court cannot exclude that the use of a witness statement as evidence would be permissible in the specific circumstances. However, it is not compatible with that provision, where there has been no opportunity to challenge the evidence given by witnesses, for a conviction to be based solely or to a decisive extent on their statements (cf. Unterpertinger v. Austria, 24 November 1986, § 33, Series A no. 110, and Asch v. Austria, 26 April 1991, § 30, Series A no. 203).
In the instant case the Court observes that in the new trial the court questioned witness K. in the presence of the applicant and his counsel, giving them an opportunity to cross-examine him. Following the bailiff’s failure to establish the whereabouts of B., who could not be found at his permanent place of residence, and Ya, who had left Russia, the court decided to read out statements obtained from them by the police.
In this respect the Court does not consider it necessary to decide whether the domestic authorities have taken sufficient measures to summon witnesses B. and Ya. and establish their whereabouts since, in any event, it is clear from the materials in the Court’s possession that their statements were not the only or decisive evidence used by the trial court to determine the criminal charge against the applicant. His conviction was supported by a strong evidentiary basis. In particular, the court relied on the testimonies of the police officers who had arrested the applicant, records concerning the organisation of the undercover operation by the police, including the marking of the money bills, photocopies of the bills, and the report on the search of the applicant’s flat, and reports on forensic examination of the money bills, opium, and wipe samples from the applicant’s hands. Besides, the statements of B. and Ya. did not disclose any new information. They merely corroborated the testimony given by K. who was questioned in court with the applicant and his counsel having ample opportunity to confront him.
In view of the above, the Court concludes that the trial court’s decision to read out the statements of witnesses B. and Ya. and their subsequent use as evidence did not fall short of the guarantees of a fair trial. The fact that it was impossible to question B. and Ya. at the trial did not, in the circumstances of the case, violate the rights of the defence and did not deprive the applicant of a fair trial as guaranteed by Article 6 of the Convention.
It follows that the measures taken by the authorities have provided appropriate redress to the applicant in respect of his right to examine witnesses against him. He may not, therefore, still claim to be a victim within the meaning of Article 34 of the Convention. It follows that this complaint must be rejected pursuant to Articles 34 and 35 §§ 3 and 4 of the Convention.
However, having regard to all the material in its possession, the Court finds that the facts complained of do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Articles 35 § 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.
Søren Nielsen Nina