AS TO THE ADMISSIBILITY OF
by Anatoliy BABKIN
The European Court of Human Rights (First Section), sitting on 8 January 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 26 April 2004,
Having regard to the partial decision of 12 May 2005,
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 Anatoliy Ivanovich Babkin, is a Russian national who was born in 1930 and lives in Moscow. He was represented before the Court by Ms K. Kostromina, a lawyer with the International Protection Centre in Moscow. The respondent Government were represented by Mr P. Laptev, former 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.
The applicant was a professor and a research scientist at the Bauman Moscow State Technical University.
On 28 March 2000 the Investigations Division of the Federal Security Service of the Russian Federation (“the FSB”) opened a criminal investigation into disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code.
On 3 and 4 April 2000 the applicant's home and office were searched and a body search was carried out on his person. Reports containing technical information on Russian-made missiles and related engineering drawings were found during the searches.
On 12 April 2000 the applicant was charged with disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code. On 13 June 2000 the charge was amended to that of high treason (Article 275 of the Criminal Code). The applicant was accused of having transmitted five reports containing State secrets to Mr P., a United States citizen and retired naval officer employed by the University of Pennsylvania. He was also accused of collecting classified engineering drawings which he supposedly intended to transmit to Mr P. He had allegedly received remuneration for his services.
In August 2000 the applicant had a heart attack. The proceedings against him were stayed pending his convalescence.
On 6 December 2000 the Moscow City Court found Mr P. guilty of espionage under Article 276 of the Criminal Code and sentenced him to twenty years' imprisonment in a high-security colony. On 14 December 2000 Mr P. was amnestied by a special decree of the Russian President, expelled from Russia and prohibited from re-entering the country.
On 7 February 2001 the proceedings against the applicant were resumed.
At the trial the applicant testified that he had participated in a cooperation project with the University of Pennsylvania. He admitted that he had communicated information to Mr P. in connection with that project. He insisted, however, that that information had been transmitted through the official university channels and had not contained State secrets. He denied receiving any remuneration. He further confirmed that he had obtained engineering drawings from Mr I. but claimed that they had been necessary for his work. He had had no intention of making them available to Mr P.
The court questioned several participants in the cooperation project with the University of Pennsylvania. They testified that the applicant had collected information on the missiles, had personally prepared five reports describing the technical characteristics of those missiles and had transmitted the reports to Mr P. He had received remuneration for his work.
The prosecutor then requested the court's permission to read out the statements made by Mr P. during his trial and statements that Mr I. had made as a prosecution witness during the pre-trial investigation. It was impossible to obtain Mr P.'s attendance as he had been expelled from Russia and had been prohibited from re-entering the country. Mr I. had refused to appear, referring to his unstable condition following his heart attack and a medical opinion that he was not fit to appear in court. The applicant did not object to the reading out of Mr P.'s statements. However, he made an objection to admitting Mr I.'s depositions in evidence.
The court allowed the prosecutor's request and the statements by Mr P. and Mr I. were read out. Mr P. confirmed that he had received reports containing technical information on the missiles from the applicant and had paid him for that task. Mr I. testified that the applicant had obtained engineering drawings from him in order to pass them on to Mr P.
The court further examined expert reports submitted by the prosecutor. The experts established that the reports transmitted by the applicant to Mr P. and the engineering drawings found on the applicant contained classified information.
Finally, the court listened to audio recordings and watched video recordings of the applicant's meetings with Mr P. During the meetings the applicant had received instructions from Mr P. as to the nature of the information to be collected and transmitted. The applicant and Mr P. had also discussed the amount of remuneration the applicant was to receive for his services.
On 19 February 2003 the Moscow City Court found the applicant guilty of high treason committed in the form of espionage, an offence under Article 275 of the Criminal Code. Relying on the statements by the applicant's colleagues, Mr P.'s depositions and the audio and video recordings, the court found that the applicant had personally transmitted reports containing information on Russian-made missiles to Mr P. and had received money for doing so. The classified nature of the communicated information had been established by the experts. Finally, referring to the testimony by Mr I., the court found that the applicant had collected engineering drawings with the intention of transmitting them to Mr P. It considered that the applicant's actions had undermined the external security of the Russian Federation. Having regard to the applicant's age and frail health, the court sentenced him to eight years' imprisonment conditional on five years' probation.
Both the prosecution and the defence appealed against the judgment. The applicant submitted, in particular, that Mr P. had not been summoned as a witness against him. He had not had any procedural status in the proceedings and the trial court had been barred from relying on his statements. He further complained that the trial court had failed to secure the attendance of the prosecution witness Mr I.
On 6 November 2003 the Supreme Court of the Russian Federation upheld the judgment of 19 February 2003. As to the alleged procedural defects, it found as follows:
“...The case materials were reviewed with sufficient thoroughness; in particular, an assessment of the statements by Mr P[.], whose conviction had become final and whose depositions were read out in accordance with Article 281 of the Code of Criminal Procedure, was made; there have been no substantial breaches of the rules of criminal procedure in the trial ...”
The Supreme Court also quoted the deposition by the witness Mr I., without indicating the reasons for his non-attendance.
B. Relevant domestic law
1. The Criminal Code
The Criminal Code of the Russian Federation provides as follows:
Article 275: High treason
“High treason, that is, espionage, disclosure of State secrets or assistance otherwise provided to a foreign State, a foreign organisation or their representatives for ... subversive activities undermining the external security of the Russian Federation, committed by a Russian national, shall be punishable by twelve to twenty years' imprisonment and confiscation of property...”
Article 276: Espionage
“Communication of State secrets, as well as their collection, theft or storage with a view to communicating them to a foreign State, a foreign organisation or their representatives, and also communication or collection of other items of information at the request of a foreign intelligence service, for the purpose of using them to harm the external security of the Russian Federation, committed by a foreign national or a stateless person, shall be punishable by ten to twenty years' imprisonment.”
Article 283 § 1: Disclosure of State secrets
“Disclosure of State secrets not amounting to high treason, by a person who has been granted access to State secrets or to whom such secrets have become known in the course of his service or work ..., shall be punishable by four to six months' arrest or by up to four years' imprisonment with or without a prohibition on occupying certain positions ...”
2. The Code of Criminal Procedure
The Russian Code of Criminal Procedure defines evidence as any information on the basis of which a court establishes the existence or absence of circumstances that have to be proved in a criminal case (Article 74 § 1). Admissible evidence includes (i) statements by the accused or defendant; (ii) statements by the victim or witness; (iii) conclusions and statements of an expert; (iv) material evidence; (v) records of investigative or judicial steps; and (vi) other documents (Article 74 § 2).
Circumstances established by a final judgment may be accepted by the court without further inquiry if they do not raise doubts in the judge's mind. However, such judgment cannot prejudge the guilt of individuals who have not participated in the proceedings leading to that judgment (Article 90).
Witnesses are to be examined directly by the trial court (Article 278). Statements given by the victim or a witness during the pre-trial investigation may be read out with the consent of the parties in two cases: (i) if there is a substantial discrepancy between those statements and the testimony before the court; or (ii) if the victim or witness has failed to appear in court (Article 281).
The judgment may only be founded on the evidence that has been examined at the trial (Article 240 §§ 1-3).
The applicant complained under Article 6 §§ 1 and 3 that the criminal proceedings against him had been unfair. In particular, he complained that the trial court had relied on written submissions by two prosecution witnesses, Mr P. and Mr I., although he had not at any stage of the proceedings had an opportunity to question them or to have them questioned.
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... 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 Government argued that the testimony by Mr P. and Mr I. had not been decisive evidence against the applicant. The trial court had relied on statements by numerous witnesses, documentary evidence and experts' reports.
The Government further submitted that Mr P. and Mr I. had been unable to attend the trial. Mr P. had been expelled from Russia and had been prohibited from re-entering the country. The applicant had not objected to admitting his depositions in evidence and they had been read out during the hearing. As to Mr I., he had been prevented from attending the hearing by a serious illness. Referring to Article 90 of the Code of Criminal Procedure, the Government argued that the trial court had been entitled to rely on Mr I.'s depositions as they had been cited in the final judgment against Mr P. Mr I.'s depositions had been read out during Mr P.'s trial, as Mr P. had not objected to that. A copy of the record of Mr P.'s trial had been attached to the applicant's case file.
The applicant submitted that Mr P. had made his depositions during the trial against him. As the defendant, he had not been criminally liable for perjury even if he made untrue statements. It had therefore been essential to question him as a witness liable for perjury in the proceedings against the applicant. The applicant had been unable to cross-examine Mr P. and had been thereby deprived of an opportunity to establish whether his testimony against the applicant had been a defence strategy and whether he would confirm it under oath.
The applicant further maintained that he had made an objection against admitting Mr I.'s pre-trial depositions in evidence. By reading out those depositions without his consent, the trial court had breached Article 281 of the Code of Criminal Procedure, which provided that pre-trial depositions by a witness who had not appeared at the trial could be read out with the consent of the parties only. As a result of that omission, the applicant had not had an opportunity to question the prosecution witness Mr I., who had made contradictory statements during the investigation and the trial of Mr P.
As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the applicant's complaints under those two provisions taken together (see, among many other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 49, Reports of Judgments and Decisions 1997 III).
The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Doorson v. the Netherlands, 26 March 1996, § 67, Reports 1996 II, and Van Mechelen and Others, cited above, § 50). The evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. 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 statement or at a later stage (see Lüdi v. Switzerland, 15 June 1992, § 49, Series A no. 238).
As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during the investigative stage. If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3 (d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Lucà v. Italy, no. 33354/96, § 40, ECHR 2001 II, with further references).
The Court further reiterates that the authorities should make “every reasonable effort” to secure the appearance of a witness for direct examination before the trial court. With respect to statements of witnesses who have proved to be unavailable for questioning in the presence of the defendant or his counsel, the Court would emphasise that “paragraph 1 of Article 6 taken together with paragraph 3 requires the Contracting States 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).
In the present case the applicant was convicted of high treason for, firstly, having transmitted five reports containing classified information on Russian-made missiles to Mr P. and, secondly, having collected engineering drawings from Mr I. with the intention of transmitting them to Mr P. He was never confronted with Mr P. or Mr I., who had given testimony against him. The Court will examine whether the use of their statements in court amounted to a violation of the applicant's right to a fair trial. In doing so it will ascertain whether their statements read out at the trial were corroborated by other evidence and whether a reasonable effort was made by the authorities to secure their appearance in court.
The Court observes that Mr P. testified that the applicant had transmitted reports containing classified technical information on Russian-made missiles to him and had received remuneration for his services. His testimony was corroborated in every detail by the oral statements before the court by the applicant's colleagues, who confirmed the applicant's personal involvement in transmitting the reports to Mr P. in exchange for remuneration, and by the audio and video recordings of the applicant's meetings with Mr P., during which Mr P. had instructed the applicant to prepare reports describing technical characteristics of the missiles and promised recompense. The Court is therefore satisfied that the applicant's conviction did not rest solely or decisively on Mr P.'s depositions. Further, Mr P. was unavailable for questioning at the trial as he was a foreign national living abroad and was prohibited from entering Russia for national-security reasons. The Court observes that it would have been preferable if the authorities had arranged a confrontation between the applicant and Mr P. before expelling the latter from Russia. However, given that the statements by Mr P. were corroborated by other evidence, that omission did not deprive the applicant of a fair trial. Moreover, the applicant did not object to the reading out of Mr P.'s statements although he knew that he would be unable to cross-examine him. It was therefore open to the domestic courts to rely on depositions given by Mr P. during the pre-trial investigation.
As regards Mr I., he testified that the applicant had obtained classified engineering drawings from him. That testimony was corroborated by the applicant's statements and the results of the search in his flat, where the drawings were found. However, Mr I. was the only witness to testify that the applicant had intended to transmit the drawings to Mr P., such intention being denied by the applicant. The Court will examine whether that testimony was decisive for the applicant's conviction, in particular whether it had a bearing on the legal characterisation of his action or the penalty imposed on him. It notes in this connection that the offence of high treason in the form of espionage comprised both communication of State secrets and their collection or storage with a view to communicating them. Whether one or both types of acts were found to have been committed in an individual case had no impact on the characterisation attributed to those acts in law. Given that the legal characterisation was identical in both situations, the Court does not discern any legal basis to assume that in either case a heavier penalty would be imposed. The trial court established on the basis of ample evidence that the applicant had transmitted five reports containing classified information to Mr P. That finding was sufficient for his conviction of high treason. In these circumstances, Mr I.'s testimony that the applicant had also collected engineering drawings with the intention of transmitting them to Mr P. had no bearing on the legal characterisation of the applicant's acts or on the penalty imposed on him. The Court therefore concludes that the statements by Mr I. were not decisive evidence on which the court's findings of guilt were based. It further observes that Mr I. was summoned by the domestic authorities to testify at the trial. However, he refused to appear, referring to his serious and protracted illness. The Court does not overlook the fact that in such circumstances it would have been possible to arrange a confrontation in the hospital, thereby giving the applicant or his counsel an opportunity to cross-examine Mr I. in the presence of the judge. However, taking into account the fact that Mr I. was seriously ill and was advised by the doctors against making his appearance in court and, in particular, that his testimony was not decisive for the applicant's conviction, the domestic court's decision to eschew a cross-examination does not appear arbitrary or unreasonable and did not restrict the applicant's defence rights to an extent that is incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention.
Lastly, the Court will examine the applicant's argument that it was unlawful in domestic terms to admit Mr P.'s and Mr I.'s depositions in evidence. It reiterates in this connection that it is not its task to deal with errors of fact or of law allegedly committed by a national court or to determine whether unlawfully obtained evidence may be admissible (see Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000 V), unless it had been obtained “unfairly” within the meaning of Article 6 of the Convention (see Teixeira de Castro v. Portugal, 9 June 1998, §§ 35 et seq., Reports 1998 IV; see also Harutyunyan v. Armenia, no. 36549/03, § 64, ECHR 2007 ...). The applicant did not suggest that the evidence in question had been obtained unfairly. Therefore, as such this fact does not raise any issue under the Convention.
The Court concludes from the above that the inability to question the witnesses Mr P. and Mr I. did not deprive the applicant of a fair trial, as the way in which evidence was dealt with, taken as a whole, was fair. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to declare the application inadmissible.