AS TO THE ADMISSIBILITY OF
by Aleksei PERVUSHIN and Others
The European Court of Human Rights (Fifth Section), sitting on 29 September 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 20 October 2008,
Having deliberated, decides as follows:
The applicants, Mr Aleksei Pervushin (the first applicant), Ms Irina Nagaitseva (the second applicant) and Mr Vladislav Voronov (the third applicant), are Estonian nationals who were born in 1968, 1969 and 1970 respectively and live in Tallinn. They are represented before the Court by Mr A. Pilv, a lawyer practising in Tallinn.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The second applicant is the chairperson of the board of management of AS Kommiparadiis, a public limited company, and the first and third applicants are its members. The company runs confectionery shops in various locations.
On 2 April 2001 criminal proceedings concerning tax evasion were initiated against the applicants. According to the charges, they had paid part of the salary to the company’s employees in cash and had failed to declare and pay social tax on and deduct income tax from these parts of the salaries.
On 6 February 2008 the Harju County Court (maakohus) convicted the applicants as charged. It found that certain data entered on the company’s employees’ “personal account cards” referred to sums paid as salary in cash; these sums had not been declared and taxes had not been paid on them. The court mainly relied on statements of the defendants and witnesses, an expert opinion on the company’s accounting, “personal account cards” concerning the employees’ salaries and some additional accounting documents. Twelve witnesses were heard before the court. Statements of twenty-two witnesses, given during the pre-trial investigation, were read out in the court. In this respect the court relied on subparagraphs 2 and 3 of Article 246 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks) according to which statements given by witnesses during pre-trial investigation could be disclosed if they failed to appear or refused to give testimony at a court hearing or if their whereabouts were unknown. Furthermore, statements of seven anonymous witnesses also given during the pre-trial investigation were read out on the basis of subparagraph 4 of Article 246 § 1 of the Code of Criminal Procedure. The court noted that it could have ordered the examination of the anonymous witnesses on the basis of questions put to them by the parties to the proceedings but as the latter had not considered that necessary, the anonymous statements made during the pre-trial investigation were disclosed. The applicants were also ordered to pay 2,198,630 Estonian kroons (EEK, 140,500 euros (EUR)) for pecuniary damage caused to the State by their failure to pay the taxes.
The applicants appealed against the judgment. They were dissatisfied with the assessment of evidence by the first-instance court and considered that the judgment had been insufficiently reasoned. They insisted that the data in question referred to bonus points in the context of “a bonus system” where certain sums were to be paid to the employees in the future but no actual payments had yet been made. Only a minority of witnesses had testified that a part of their salaries had been paid in cash; the majority had confirmed the existence of “the bonus system”. Moreover, statements by anonymous witnesses had played a weighty role in the applicants’ conviction. However, the anonymity had been granted without any adequate reasons, notably in the absence of any threat to the security of the witnesses concerned.
On 6 May 2008 the Tallinn Court of Appeal (ringkonnakohus) upheld the judgment in substance. It endorsed the lower court’s reliance on the statements of the minority of the witnesses, explaining why their statements were more trustworthy. In respect of anonymous witnesses it pointed out that they had been subordinates to the applicants and that therefore their sense of security could have been imperilled. In any event, the impugned judgment had not been solely based on the statements of the anonymous witnesses. Moreover, even if the statements by all witnesses, whether anonymous or not, who had not been heard in open court were to be discarded, the applicants’ conviction was still safe on the basis of “the personal account cards”, tax declarations and statements by witnesses who had been heard in the court.
On 7 July 2008 the Supreme Court (Riigikohus) dismissed the applicants’ appeals.
B. Relevant domestic law
According to Article 79-1 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), as in force at the material time, anonymity could be applied in order to ensure the security of a witness or persons close to him or her.
Article 243 § 8 provided that that when a court deemed it necessary to hear an anonymous witness, the witness was heard in the absence of the participants in the proceeding on the basis of the questions submitted by them. The content of a testimony had to be disclosed at a court hearing.
Article 246, in so far as relevant, read as follows:
“(1) A testimony given by a witness in pre-trial investigation may be disclosed ... in the following cases: ...
2) if the witness fails to appear at a court hearing or refuses to give testimony at a court hearing;
3) if the whereabouts of the witness are unknown;
4) if anonymity has been applied with regard to the witness; ...”
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal....
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...”
The Court notes at the outset that, since the guarantees of paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of this Article, it will consider the complaint that there was no opportunity to examine the witnesses at issue under the two provisions taken together (see Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 40, ECHR 2002-VII).
Article 6 §§ 1 and 3 (d), in principle, require that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument (see, among many others, Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, § 34, 20 January 2009, and Krasniki v. the Czech Republic, no. 51277/99, § 75, 28 February 2006). There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Lüdi v. Switzerland, 15 June 1992, § 49, Series A no. 238).
The Court has held that the use of statements made by anonymous witnesses to found a conviction is not in all circumstances incompatible with the Convention (see Doorson v. the Netherlands, 26 March 1996, § 69, Reports 1996 II, and Van Mechelen and Others v. the Netherlands, 23 April 1997, § 52, Reports 1997 III). However, Article 6 § 1, taken together with Article 6 § 3 (d), require that the handicaps under which the defence labours should be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Doorson, cited above, § 72). With this in mind, an applicant should not be prevented from testing the anonymous witness’s reliability (see Kostovski v. the Netherlands, 20 November 1989, § 42, Series A no. 166). In addition, no conviction should be based either solely or to a decisive extent on anonymous statements (see, for example, Krasniki, cited above, § 76, and Van Mechelen, cited above, §§ 54-55).
The Court has also had regard to its rulings, in a series of cases concerning reliance on witness testimony which was not adduced before the trial court, that Article 6 § 3 (d) of the Convention only required the opportunity to cross-examine such witnesses in situations where this testimony played a main or decisive role in securing the conviction (see Krasniki, cited above, § 78). Lastly, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001 II). The Court’s role is confined to ascertaining whether the proceedings considered as a whole were fair (see, mutatis mutandis, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247 B).
Turning to the present case, the Court notes that it transpires from the charges brought against the applicants and the domestic courts’ judgments that the authorities relied on “the personal account cards”, the company’s tax declarations and some additional accounting documents on the basis of which the amounts of undeclared and unpaid taxes were established. They also referred to the witness statements; in all, statements of forty-one witnesses are mentioned in the County Court’s judgment. Furthermore, reliance was placed on a report presented by the accounting expert who was also heard at the court hearing.
It is true that only twelve witnesses were heard in open court whereas statements of twenty-nine – including seven anonymous – witnesses given during the pre-trial investigation were read out. The Court notes, however, that the statements of the witnesses in question were disclosed on the basis of Article 246 of the Code of Criminal Procedure according to which this could be done if a witness failed to appear at a court hearing or refused to give testimony, when his or her whereabouts were unknown or if he or she had been granted anonymity. It also notes that the Court of Appeal in its judgment dismissed the applicants’ argument that the grant of anonymity to some of the witnesses had been unfounded, finding that as subordinates of the accused the witnesses had reasonable grounds for fear. Moreover, the applicants had a possibility to put questions to the witnesses whose identity was not disclosed under Article 243 § 8 of the Code of Criminal Procedure but, as the County Court pointed out, they did not make use of this possibility. The Court considers that as the statements made by the witnesses who were not present at the court hearing were disclosed at the hearing, the applicants had the opportunity to contest their submissions on the merits, providing, notably, a convincing explanation as to the data entered to “the personal account cards” and to the overall functioning of “the bonus system”. However, according to the assessment of the domestic courts the applicants failed to do that.
The Court takes note of the applicants’ argument that most of the witnesses, whether heard or not in court, confirmed the existence of “the bonus system” or at least denied having been paid part of their salary in cash. However, the Court also takes note of the fact that the Court of Appeal in its judgment dismissed the applicants’ reliance on the quantitative factor in assessing the witness statements and observes that the national courts provided a thorough explanation as to why they attached greater importance to the statements of the minority of the witnesses – including two witnesses heard in open court – whose statements corroborated the documentary evidence. Moreover, the Court of Appeal found that even if all evidence challenged by the applicants was set aside, their conviction was still safe on the basis of “the personal account cards”, tax declarations and statements of witnesses heard in court. It transpires from the domestic courts’ judgments that they also attached importance to the defendants’ inability to provide conclusive and coherent explanations on the particulars of “the bonus system”.
Having regard to the circumstances of the case taken as a whole, the Court finds no grounds on which to hold that the degree to which the courts based the applicants’ conviction on the testimony of the witnesses to whom they were unable to put questions was incompatible with the standards of Article 6 §§ 1 and 3 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court, relying on its constant case-law (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I, considers that the judgments of the County Court and the Court of Appeal were sufficiently reasoned. The courts explained why they considered not all the evidence equally convincing. As concerns the alleged failure to follow the Supreme Court’s case-law, the Court notes that the domestic courts made reference to the Supreme Court’s case invoked by the applicant. In these circumstances, and noting that it has only limited power to deal with alleged errors of fact or law committed by the national courts, the Court finds no basis on which to substitute its view for that of the domestic courts. It considers that there is no appearance of a violation of the applicants’ right to a fair trial in the present case.
It follows that this part of the application must likewise be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning the length of the criminal proceedings;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen