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KONONENKO v. RUSSIA - 33780/04 [2011] ECHR 331 (17 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/331.html
Cite as:
[2011] ECHR 331
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FIRST
SECTION
CASE OF KONONENKO v. RUSSIA
(Application
no. 33780/04)
JUDGMENT
STRASBOURG
17
February 2011
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 Kononenko v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 27 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 33780/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Yuriy Leontyevich
Kononenko (“the applicant”), on 4 July 2004.
The
applicant, who had been granted legal aid, was represented by Mr P.
Finogenov, a lawyer with the International Protection Centre, a
Moscow-based human-rights NGO. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin, the
Representative of the Russian Federation at the European Court of
Human Rights.
The
applicant alleged, inter alia, a violation of his right to
cross-examine the key prosecution witness.
On
9 October 2008 the President of the First Section decided to
communicate the above complaint to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1). Subsequently, on 6 and 11 May
2010 requests for information under Rule 54 § 2 (a) of the Rules
of Court were sent to the Government in relation to the allegations
of hindrance of the applicant’s right to petition.
On 26 February 2010 the President of the Chamber
granted priority treatment to the application under Rule 41 of the
Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1970 and is currently serving a term of
imprisonment in correctional colony IK-3, Altay Region.
A. Criminal proceedings against the applicant
On
14 September 2003 the applicant was arrested on suspicion of murder
and taken to the police station.
On
15 September 2003 criminal proceedings were instituted against the
applicant under Article 105 of the Criminal Code (murder).
On
the same day a certain Sh. was questioned on the issue of the
applicant’s involvement in the crime. He submitted, in
particular, that
“... Yuriy [the applicant] grabbed Andrey [the
victim] by his foot, stood up sharply and threw him through the
broken window ...”
Sh.
was then questioned as a witness.
On
17 September 2003 the Oktyabrskiy District Court of Barnaul decided
to remand the applicant in custody pending investigation. The
decision was not appealed against and entered into force on 22
September 2003.
On
24 September 2003 charges of murder were brought against the
applicant. The applicant was placed in remand prison IZ-22/1,
Barnaul.
In
the meantime, on 6 October 2003 the investigator instructed the head
of the Oktyabrskiy District police station to establish the
whereabouts of witness Sh., who lived in Barnaul, in order to be able
to carry out the investigation with his participation.
On
5 November 2003 the Oktyabrskiy District police operative agent
produced a certificate to the effect that it had been impossible to
discover the whereabouts of Sh.: he did not live at the address in
Barnaul indicated by the investigator, and his partner had explained
that Sh. had left for an unknown destination.
On
13 November 2003 the Oktyabrskiy District Court extended the
applicant’s detention until 15 December 2003.
On
25 November 2003 the Oktyabrskiy District Court set a time-limit of
27 November 2003 for the applicant to study the material of the case
file.
On
27 November 2003 the Altay Regional Court upheld the decision of 13
November 2003 on appeal.
On
27 November 2003 the investigation was completed and the case
submitted to Oktyabrskiy District Court for trial.
Following
the applicant’s complaint, on 5 December 2003 the Barnaul City
Prosecutor’s Office acknowledged the unlawfulness of the
applicant’s detention at the police station from 10.05 p.m. on
14 September to 6.15 p.m. on 15 September 2003.
On
17 December 2003 Oktyabrskiy District Court held a preliminary
hearing and ordered that the custodial measure in respect of the
applicant should remain unchanged. On 8 January 2004 Altay Regional
Court upheld the above decision on appeal.
On
5 January 2004 Oktyabrskiy District Court adjourned the hearing until
8 January 2004 because of the failure of several witnesses, including
witness Sh., to appear. The court ordered them to be compelled to
attend.
On 8 January 2004 the bailiff in charge of bringing
Sh. to the court submitted that the attendance of Sh. could not be
secured since he could not be found at his address in Barnaul, and,
according to his partner, he had left to live permanently in
Slavgorod. On the same day the court adjourned the hearing until 20
January 2004 and again ordered Sh. to be compelled to attend.
According to the report of the investigator of the
Oktyabrskiy District Prosecutor’s Office of 20 January 2004,
Sh.’s sister confirmed that in the second half of September
2003 Sh. had been in Slavgorod. He had told her that he had witnessed
a crime in Barnaul and given a statement to the investigator. Fearing
revenge from the applicant, Sh. had left for the Tyumen Region. The
hearing was adjourned until 4 February 2004.
On 22 January 2004 the Tyumen Region Prosecutor’s
Office was commissioned to establish the whereabouts of Sh.
On
4 February 2004 the Oktyabrskiy District Court adjourned the hearing
until 19 February 2004.
On 17 February 2004 the investigator of the Slavgorod
Interdistrict Prosecutor’s Office reported that Sh. had not
been found on the territory of the Slavgorod District of the Altay
Region.
At the hearing of 19 February 2004 the prosecutor
requested the court, under Article 281 § 2 of the Code of
Criminal Procedure, to read out the statement made by Sh. at the
pre-trial investigation stage. The applicant and his counsel objected
to the reading out of Sh.’s previous statements and insisted
that further searches for him be conducted and that he be made to
attend the hearing.
Having
heard the participants of the trial, the court granted the
prosecutor’s request, declared Sh.’s failure to attend an
emergency case in accordance with Article 281 § 2 (4) of the
Code of Criminal Procedure, due to the impossibility of establishing
his whereabouts after all available measures had been taken, and
proceeded with the reading out of depositions made by Sh. on 15
September 2003.
On 19 February 2004 the Oktyabrskiy District Court of
Barnaul convicted the applicant of murder and sentenced him to nine
years’ imprisonment. In convicting the applicant the District
Court relied on the pre-trial statement by witness Sh. on 15
September 2003, which read as follows:
“On 14 September 2003 in flat no. 59 situated at
[the address] the [applicant], the [victim] and myself were in the
kitchen. The [applicant] had an argument with the [victim] because
his money was missing. They started fighting and moved towards the
window. During the fight one of them broke the window. Afterwards the
[applicant] grabbed a knife and started brandishing it in front of
the [victim]. The latter was pushing the [applicant] away and was
leaning against the broken window. Then I saw the [applicant] grab
the [victim] by his foot and throw him through the window.”
The
District Court found that the above statements of Sh. were
corroborated by the following evidence:
- The
testimony by witness P., who submitted as follows:
“On 13-14 September 2003 I was with G., the
[victim], Z., the [applicant] and Sh. in the above flat; we were
drinking alcohol. ... On 14 September 2003 around 6 p.m. G. and I
went to the bedroom to sleep. Sh., the victim and the [applicant]
remained in the kitchen. While I was in the bedroom I heard the sound
of breaking glass, but I did not do anything. I was woken a couple of
hours later by Sh. and [the applicant]. The [applicant] was holding a
knife and demanding that G. return his money. [The applicant] threw
himself at G. and cut his face; then G. knocked the knife out of his
hand. Afterwards I went to the kitchen, saw the blood, saw the money
under the chair and told the [applicant] about it. The [victim] was
not in the kitchen; the window was broken; I asked about the
[victim], and the [applicant] replied that the latter had his nose
broken. Scared, I left the flat. ...”
- The
testimony by witness Ye. G. similar to the above statement of P.;
- The
testimony by witness L. G., who submitted that she had learned from
Sh. that the applicant and the victim had had a quarrel over the lost
money and that Sh. had seen the applicant throw the victim through
the window.
- The
results of the forensic medical examination of the victim’s
body;
- The
record of the crime scene examination;
- The
record of the seizure of the applicant’s shoes, sweatshirt and
sports trousers; and
- The
results of biological expert examination of the blood samples
discovered on the floor of the kitchen, on a fragment of the broken
window, two knives and the applicant’s shoes and sports
trousers, the bloodstains on the applicant’s trousers possibly
linking the applicant to the victim.
The
applicant appealed against his conviction. In his appeal he
complained, inter alia, that at no stage of the proceedings
had he been given an opportunity to examine Sh., whose statements
were determinative for the court’s finding of guilt.
On
20 February 2004 the applicant went on hunger strike until 5 March
2004.
On 29 April 2004 the Altay Regional Court upheld the
conviction on appeal. As regards the applicant’s specific
grievances, it found as follows:
“[The applicant’s] guilt in the [crime] is
proved by statements by witness Sh., the eyewitness to the crime,
from which it follows that [the applicant] had an argument with [the
victim] because of the lost money. During the fight one of them broke
the window. [The applicant] grabbed a knife and started brandishing
it in front of the victim. The latter was pushing [the applicant]
away and leaning against the window. Next [the applicant] grabbed
[the victim] by the foot and pushed him out of the window. The victim
fell out of the window and on to the ground.
The [trial] court had with reason made this statement
the basis of the conviction. No grounds were established for a false
accusation of the applicant by witness Sh.. [The applicant] submitted
in the trial hearing that he and Sh. had been good acquaintances,
that he trusted the latter. The [trial] court established that there
had been no conflict between the witness and the victim. The
statements from witness Sh. had been received in accordance with the
requirements of the criminal procedural law and they are in
conformity with other evidence in the case.
...
The appeal court detects no violations of the criminal
procedural law leading to the quashing of the conviction. As regards
the [applicant’s] argument about the failure of the
investigator to carry out a confrontation between him and Sh., it
cannot be taken into consideration, since pursuant to Article 162 of
the Code of Criminal Procedure the investigator was entitled, but not
obliged, to carry out such an investigative measure. The statements
by witness Sh. had been read out during the trial at the request of
the prosecutor as it was impossible to locate him in person, after
the prosecution and the court had taken sufficient measures to compel
him to appear in court. In view of the above the [trial] court had
with reason declared [his] failure to attend an exceptional
circumstance. Furthermore, besides the statements by Sh., the
[applicant’s] guilt had been established by cumulative evidence
set out in the judgment.
...”
On
the same day the applicant renewed his hunger strike until 18 June
2004.
On
17 June 2004 the applicant was transferred to Rubtsovsk prison
UB-14/10 in the Altay Region to serve his sentence.
B. Proceedings for compensation for non-pecuniary
damage caused by the applicant’s unlawful detention
The
applicant brought proceedings against the Oktyabrskiy District
Department of the Interior and the Ministry of Finance for
compensation for non-pecuniary damage caused by his unlawful
detention from 10.05 p.m. on 14 September to 6.15 p.m. on 15
September 2003.
On
5 November 2008 the Altay Regional Court, as the court of final
instance, granted the applicant’s claim in part and awarded him
500 Russian roubles (RUB) in non-pecuniary damage.
C. Alleged hindrance of the applicant’s right to
individual petition
1. The applicant’s correspondence with the
representative and the Court
On 13 October 2008 the Court dispatched a letter to
the applicant informing him that his application was being
communicated to the respondent Government and setting a time-limit of
24 November 2008 for a representative to be assigned. According to
the stamp of the LIU-8 correctional facility, where the applicant had
been serving his sentence at the material time, the letter in
question reached that facility on 21 November 2008. However, it was
not handed to the applicant until forty-two days later, on 2 January
2009.
On
21 March 2009 the applicant’s representative dispatched a
letter to the applicant. The letter reached the LIU-8 facility on 1
April 2009 and was handed to the applicant three weeks later, on 24
April 2009.
On
1 June 2009 the applicant’s representative dispatched another
letter to the applicant. The letter reached the LIU-8 facility on 9
June 2009 and was handed to the applicant over a week later, on 18
June 2009.
On 18 June 2009 the applicant’s representative
dispatched a telegram to the applicant. The telegram reached the
LIU-8 facility the following day. On 24 June 2009 it still had not
been handed to the applicant.
On 18 June 2009 the applicant raised with the
Prosecutor’s Office the issue of undue delays in handing out of
correspondence by the administration of the LIU-8 facility. In its
reply of 31 July 2009 the Barnaul City Prosecutor’s Office
informed the applicant that the matters complained of had been
confirmed to have occurred and that a formal warning (представление)
had been issued to the head of the facility in question.
On
7 April 2010 the applicant’s representative sent a parcel to
the applicant enclosing a letter and human rights booklets. On 17
April 2010 it was returned to the representative, giving as the
reason that the applicant had left the facility, whereas in
accordance with the domestic law it should have been forwarded to the
applicant’s new address (Section 51 of the Internal Prison
Rules approved by the Ministry of Justice on 3 November 2005, Decree
no. 205).
On
3 July 2010 the applicant submitted to the administration of IK-3 of
the Altay Region a letter to be sent to his representative, which
included the Court’s request for information about the
allegations of hindrance of the applicant’s right to petition.
On 10 August 2010 the letter was dispatched with twenty-three pages
of enclosures missing, including written statements by the
applicant’s fellow prisoners.
2. The applicant’s telephone communication with
the representative
According to the applicant, on a number of occasions
he could not make telephone calls to his representative,
notwithstanding the approval of his written requests to this effect,
due to the large numbers of inmates wishing to make phone calls and
the limited time for telephone communication in the facility (from 3
p.m. to 5 p.m. and from 6 p.m. to 8 p.m.).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure of the Russian Federation
of 18 December 2001, in force since 1 July 2002 (“CCrP”)
Article 240 of the CCrP provides as follows:
“1. In a court hearing all evidence in
a criminal case should be examined directly ... The court shall hear
statements from the defendant, the victim, witnesses, the conclusions
from the expert, examine physical evidence, read out records and
other documents, carry out other court actions connected with
examination of the evidence.
2. The reading of depositions made at the
pre-trial investigation should be allowable only in the circumstances
set out in Articles 276 and 281 of the present Code.
3. The court’s sentence can be based
only on evidence which has been examined at a court hearing.”
Article 281 of the CCrP, in so far as relevant,
provides as follows:
“1. Testimony previously given by a
victim or witness during the preliminary investigation or at the
trial may be read out... if the victim or witness fails to attend,
subject to the parties’ consent, save in cases listed in the
second part of the present Article.
2. If a victim or witness fails to appear in
court, the court may, at a party’s request or on its own
initiative, read out statements previously given by them in the
following cases:
1) the death of the victim or witness;
2) serious illness precluding attendance at a
court hearing;
3) refusal by a victim or witness who is a
national of a foreign State to attend a hearing when summoned by the
court;
4) natural disaster or any other emergency
case precluding attendance at a court hearing.
3. ...”
Article 413 of the CCrP, in so far as relevant,
provides as follows:
“1. Court judgments and decisions which
became final should be quashed and proceedings in a criminal case
should be re-opened due to new or newly discovered circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms committed by a court of the Russian Federation
during examination of a criminal case and established by the European
Court of Human Rights, pertaining to:
(a) application of a federal law which runs
contrary to provisions of the European Convention for the Protection
of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the
Convention for the Protection of Human Rights and Fundamental
Freedoms;
(c) other new circumstances.”
B. Constitutional Court of Russia
In
its admissibility decision of 27 October 2000 (no. 233-O), the
Constitutional Court held that the reading out of pre-trial
depositions should be considered an exception to the court’s
own assessment of evidence, and should not upset the procedural
balance between the interests of the prosecution and those of the
defence. If a party insists on calling a witness whose testimony may
be important to the case, the court should take all available
measures to ensure this witness’s presence in court. When that
witness is available for questioning, the reading out of his or her
deposition should be considered inadmissible evidence and should not
be relied upon. However, when the witness is not available for
questioning, the defence should still be provided with appropriate
procedural safeguards such as a challenge to the deposition which has
been read out, a request for challenge by way of examining further
evidence, and pre-trial face-to-face confrontation between that
witness and the defendant, in which the latter is given the
opportunity to put questions to the former (see also the
admissibility decision of 7 December 2006 (no. 548-O)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 § 3 (d) of the Convention
that he had not had a fair trial. In particular, he complained that
at no stage of the criminal proceedings against him had he been
afforded an opportunity to examine Mr Sh., the key prosecution
witness. 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 applicants’ complaints
under those two provisions taken together (see, among many other
authorities, Samoshenkov and Strokov v. Russia, nos. 21731/03
and 1886/04, § 72, 22 July 2010). Article 6 in the relevant
part reads as follows:
“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. Admissibility
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. Submissions by the parties
(a) The Government
The
Government submitted that the domestic court had taken comprehensive
measures to secure the attendance of witness Sh. at the trial; on
several occasions the trial court dismissed prosecution requests for
the depositions by Sh. made at the stage of the pre-trial
investigation to be read out, due to objections voiced by the
applicant and his counsel. On four occasions the hearing was
adjourned because the court ordered the witness’s enforced
appearance.
Despite the fact that witness Sh. was the key
prosecution witness, the applicant’s guilt was corroborated by
other evidence set out in detail in the court’s judgment. All
versions advanced by the applicant in his defence were given due
consideration by the court and rejected as unsubstantiated, in
reasoned fashion. The depositions by witness Sh. made at the
pre-trial investigation stage were obtained in accordance with the
requirements of domestic law on criminal procedure. No grounds were
established for a contention that the applicant had been falsely
accused by witness Sh.
The
Government further submitted that the reading out of depositions by
witness Sh. in the absence of a party’s consent also complied
with the requirements of the domestic law on criminal procedure, the
absence of witness Sh. from the trial having been declared an
extraordinary and exceptional circumstance.
Relying on domestic law and practice (see paragraphs
43-45 above) the Government further argued that the applicant had not
been deprived of the opportunity to defend himself by all means
provided by domestic law. In particular, the applicant had an
opportunity to request the court to exclude the depositions by
witness Sh. from the evidence or to challenge the depositions in
question by way of submitting further evidence, however the applicant
had not availed himself of this opportunity.
Finally,
the Government submitted that in any event the procedural balance
between the interests of the prosecution and those of the defence had
not been upset, since the prosecutor had also not had the opportunity
to examine witness Sh.
In
sum, the Government maintained that there had been no breach of the
applicant’s right to a fair trial.
(b) The applicant
The
applicant pointed out at the outset that the Government did not deny
that he had not been given the opportunity to examine the prosecution
witness Sh. in the proceedings leading up to his conviction. He
submitted further that, regard being had to the fact that witness Sh.
had been the only eyewitness to the crime and the weight that the
domestic court had consequently attached to his depositions (see
paragraphs 28 and 31 above), the denial of the opportunity to examine
him breached the applicant’s right under Article 6 § 3 (d)
of the Convention.
The
domestic court did not give due consideration to the applicant’s
version of events, according to which the disappearance of witness
Sh. had been prompted by his own guilt, as he had committed the crime
and wanted to escape criminal liability.
Contrary
to the Government’s assertion (see paragraph 52 above), the
applicant had on several occasions lodged requests to the effect that
the depositions by witness Sh. be excluded from the evidence, both at
the pre-trial investigation and at the trial, but to no avail.
The
only opportunity for the applicant to rebut the depositions made by
the single eyewitness to the crime was by confronting the latter and
examining him during the trial. The difficulties encountered by the
domestic authorities when searching for witness Sh. cannot justify a
breach of the applicant’s rights under the Convention.
The
Government failed to provide any documentary evidence regarding the
measures taken by the domestic authorities to search for witness Sh.
in the Tyumen Region.
No
balance had been struck between the interests of the prosecution and
the defence, since while the statements by witness Sh. underlay both
the indictment and the conviction, the applicant did not have a
single opportunity to examine the witness in question.
2. The Court’s assessment
The
Court reiterates its constant case-law that the admissibility of
evidence is primarily a matter for regulation by national law and
that, 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 witness statements have been
properly admitted in evidence, but rather to ascertain whether the
proceedings as a whole, including the way in which evidence was
taken, were fair (see Doorson v. the Netherlands, 26 March
1996, § 67, Reports of Judgments and Decisions 1996 II,
and Van Mechelen and Others v. the Netherlands, 23 April 1997,
§ 50, Reports of Judgments and Decisions 1997 III).
All 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
investigation 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; Makeyev v. Russia, no.
13769/04, § 35, 5 February 2009; and Samoshenkov and Strokov,
cited above, § 75).
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;
Trofimov v. Russia, no. 1111/02, § 33, 4 December 2008;
and Makeyev, cited above, § 36).
Turning
to the facts of the present case, the Court has therefore to
determine whether the applicant had the opportunity to examine
witness Sh. at any stage of the proceedings, whether the statements
by witness Sh. were corroborated by other evidence, and whether a
reasonable effort was made by the authorities to secure the
appearance of witness Sh. in court.
The Court notes, first of all, and it has not been
disputed by the parties, that the applicant had no opportunity to
examine witness Sh. either during the investigation or at the trial.
The Court further notes that the Government has not disputed that the
applicant objected to the reading out of the pre-trial statement of
witness Sh., and finds no evidence to conclude that he waived his
right to confront that witness (see Trofimov, cited above,
§ 34, and, by contrast, Vozhigov v. Russia, no.
5953/02, § 57, 26 April 2007, and Ozerov v. Russia (dec.),
no. 64962/01, 3 November 2005).
The
Court observes subsequently that the statements made by witness Sh.
were the only direct evidence, as he was the only eyewitness to the
crime with which the applicant had been charged. This was
acknowledged by the Government, which had agreed that witness Sh. had
been the key prosecution witness (see paragraph 50 above). Other
witnesses who were heard by the court - witnesses P., Ye. G. and L.
G. - had not seen the acts the applicant was alleged to have
committed (see paragraph 28 above). The remaining evidence –
the results of the forensic medical examination of the victim’s
body, the records of the crime scene examination and of the seizure
of the applicant’s clothes, and the results of biological
expert examinations – had also been of a circumstantial nature.
Having regard to the foregoing, the Court considers that the domestic
courts based their finding of the applicant’s guilt to a
decisive extent on the statements by witness Sh., whom the applicant
should have had an opportunity to question in order to receive a fair
trial (compare and contrast Andandonskiy v. Russia, no.
24015/02, § 52, 28 September 2006, and Samoshenkov and
Strokov, cited above, § 76).
The
Court further considers that, in view of the importance to the
proceedings of witness Sh.’s testimony, the authorities should
have made a particular effort to obtain his attendance. The Court is
willing to accept that the domestic authorities made a certain effort
to secure the attendance of witness Sh. Indeed, the domestic court
ordered the police to compel witness Sh. to appear in court. Further,
between 5 January and 19 February 2004 the hearing was adjourned on
four occasions for failure to secure the attendance of that witness.
Comprehensive information has been provided by the Government as to
the failure of the domestic authorities to discover the whereabouts
of witness Sh. in Barnaul and Slavgorod District, Altay Region (see
paragraphs 21, 22 and 25 above). However, as was indicated by the
applicant and not disputed by the Government, no information was
provided to show the results of any reasonable effort to search for
witness Sh. in the Tyumen Region, where he had supposedly moved. The
Court notes with concern that the trial court proceeded with the
reading out of the testimony by witness Sh. less than a month after
the Tyumen Region Prosecutor’s Office had been commissioned to
establish the whereabouts of witness Sh. and without obtaining the
results of the search in the Tyumen Region. In such circumstances the
domestic authorities cannot be considered to have made every
“reasonable effort” to track down witness Sh. and to
ensure that the applicant had a proper and adequate opportunity to
question him.
Having
regard to the fact that the applicant had no opportunity to
cross-examine the witness whose statements were of decisive
importance for his conviction and the fact that the domestic
authorities had not made every reasonable effort to secure the
appearance of that witness in court, the Court concludes that the
applicant’s defence rights were restricted to an extent
incompatible with the guarantees provided by Article 6 §§ 1
and 3 (d) of the Convention. Accordingly, there has been a violation
of these provisions.
II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
The
applicant complained under Article 34 of the Convention that the
domestic authorities had impeded his correspondence with the
representative and the Court. He also contended that he had had only
restricted access to the telephone to make calls to his
representative. Article 34 of the Convention reads, in so far as
relevant, as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. Submissions by the parties
The
Government submitted that no delays in dispatching the applicant’s
correspondence had been occasioned by the management of the IK-10,
KTB-12, LIU-8 and IK-3 facilities where he had been detained between
June 2004 and the present, and that the applicant had not been in any
way impeded in the effective implementation of his right to
individual petition. The Government further denied having restricted
the applicant’s telephone communication with his
representative. Specifically, they submitted that while being held in
facility KTB-12 in 2009-2010 the applicant had had seven telephone
conversations, six of which were with his representative, and
fourteen telephone conversations while being held in facility LIU-8,
nine of which were with his representative.
The
applicant maintained his complaint. He submitted that the
correspondence from the Court and from his representative had been
handed out to him with regular and substantial delays. The applicant
did not dispute that he had telephoned his representative over a
dozen times and admitted that telephone communication had been the
most effective means of maintaining contact with the latter. At the
same time, he noted that such communication had not always been
available (see paragraph 42 above).
B. The Court’s assessment
The
Court reiterates at the outset that a complaint under Article 34 of
the Convention is of a procedural nature and therefore does not give
rise to any issue of admissibility under the Convention (see Ryabov
v. Russia, no. 3896/04, § 56, 31 January 2008, with
further references).
The
Court further reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
by Article 34 that applicants or potential applicants should be
able to communicate freely with the Court without being subjected to
any form of pressure from the authorities to withdraw or modify their
complaints (see Mamatkulov and Askarov v. Turkey [GC], nos.
46827/99 and 46951/99, § 102, ECHR 2005-I). In this
context, “pressure” includes not only direct coercion and
flagrant acts of intimidation but also other improper indirect acts
or contacts designed to dissuade or discourage applicants from
pursuing a Convention remedy. The fact that the individual actually
managed to pursue his application does not prevent an issue arising
under Article 34: should the Government’s action make it more
difficult for the individual to exercise his right of petition, this
amounts to “hindering” his rights under Article 34 (see
Akdivar and Others v. Turkey, 16 September 1996, §§
105 and 254, Reports 1996-IV). The intentions or reasons
underlying the acts or omissions in question are of little relevance
when assessing whether Article 34 of the Convention was
complied with; what matters is whether the situation created as a
result of the authorities’ act or omission complies with
Article 34 (see Paladi v. Moldova [GC], no. 39806/05, §
87, 10 March 2009).
Turning
to the circumstances of the present case, the Court observes that its
letter of 13 October 2008 informing the applicant about communication
of his application to the respondent Government was handed to him by
the LIU-8 facility authorities forty-two days after its receipt and
when the procedural time-limit set out by the Court for the applicant
to assign an advocate to represent him in the proceedings before it
had already expired. Regard being had to the nature of the above
correspondence and its importance for the subsequent procedure before
the Court, the significance of the delay in handing it to the
applicant and the findings of the domestic authorities in this
respect and in respect of other similar instances (see paragraphs 35-39
above), the Court considers that the actions of the domestic
authorities had affected the effective exercise by the applicant of
his right to individual petition, which is incompatible with the
respondent State’s obligations under Article 34 of the
Convention.
The
Court therefore concludes that the respondent State has failed to
comply with its obligations under Article 34 of the Convention by
holding back the applicant’s correspondence with the Court. It
therefore finds it unnecessary to examine separately the applicant’s
remaining allegations under this head.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Finally,
the applicant submitted a number of additional complaints under
Articles 3, 5 and 6 of the Convention relating to his arrest,
detention and trial.
However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence, the Court finds that
there is no 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 manifestly ill-founded, pursuant
to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 10,000,000 Russian roubles in respect of
non pecuniary damage.
The
Government considered that the applicant’s claim had been
unreasonable and unsubstantiated. In any event, the finding of a
violation would constitute sufficient just satisfaction.
The
Court accepts that the applicant suffered distress and frustration
resulting from the unfair criminal proceedings against him. The
non pecuniary damage sustained is not sufficiently compensated
for by the finding of a violation of the Convention. However, the
Court finds the amount claimed by the applicant excessive. Making its
assessment on an equitable basis, it awards the applicant 1,800 euros
(EUR) under this head, plus any tax that may be chargeable on that
amount.
The Court further reiterates that when an applicant
has been convicted despite a potential infringement of his rights as
guaranteed by Article 6 of the Convention, he should, as far as
possible, be put in the position in which he would have been had the
requirements of that provision not been disregarded, and that the
most appropriate form of redress would, in principle, be
trial de novo
or the reopening of the proceedings, if requested (see Öcalan
v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR
2005-IV; Vladimir Romanov v. Russia, no. 41461/02, § 118,
24 July 2008; and Popov v. Russia, no. 26853/04, § 264,
13 July 2006). The Court notes in this connection that Article 413 of
the Russian Code of Criminal Procedure provides that criminal
proceedings may be reopened if the Court finds a violation of the
Convention (see paragraph 45 above).
B. Costs and expenses
The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the lack of an
opportunity to examine the key prosecution witness admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
6 §§ 1 and 3 (d) of the Convention;
Holds that the State has failed to comply with its
obligation not to hinder the right of individual petition under
Article 34 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,800 (one thousand
eight hundred euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) Concurring
opinion of Judge Kovler;
(b) Concurring
opinion of Judges Spielmann and Malinverni.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE KOVLER
I
adhered, albeit with serious doubts, to the conclusions of the
Chamber concerning the Article 6 violation. The main issue of the
case is the absence of the only eyewitness, Mr Sh., at the trial
hearing leading to the applicant’s conviction. Added to this is
the fact that at no stage of the criminal proceedings against him –
even at the investigation stage – was the applicant afforded an
opportunity to examine this key prosecution witness.
It is
not the first time that the Court has dealt with this kind of
situation. In some similar cases it has not found a violation of
Article 6 § 3 (1) of the Convention (see Andandonskiy v.
Russia, no. 24015/02, 28 September 2006). But the particularity
of the present case is the gravity of the offence (suspicion of
murder) and of the penalty (nine years’ imprisonment) that
predetermines the need for particularly strict observance of the
procedural guaranties afforded to an accused person.
It is
a positive fact that the Tyumen Region Prosecutor’s Office had
been commissioned to establish the whereabouts of witness Sh. in a
region whose territory covers half of Europe, the objective
difficulty of the task explaining particularly why these efforts did
not permit successful search results in the region. For this reason
the national court was facing a serious dilemma: whether to continue
or to postpone the trial. I noted that on four occasions the hearing
was adjourned because the court ordered the witness’ enforced
appearance. But what is regrettable is the fact that the trial court
proceeded with the reading out of Sh.’s testimony less than a
month after the beginning of a search operation.
In
the light of this “haste”, the arguments of the appeal
court about “sufficient measures” and “exceptional
circumstances” do not seem convincing to me.
More
convincing are the arguments about “cumulative evidence”
from other testimony and the results of the forensic medical and
biological experts’ examinations. But these arguments are
eclipsed by the absence of the opportunity to cross-examine the key
witness at any stage of the criminal proceedings.
JOINT CONCURRING OPINION OF JUDGES SPIELMANN AND
MALINVERNI
For
reasons we have explained on many occasions,
we would very much have liked the principle enunciated in § 83
of the judgment, on account of its importance, to have been reflected
in the operative part of the judgment.
