CASE OF MURTAZALIYEVA v. RUSSIA
(Application no. 36658/05)
9 May 2017
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 Murtazaliyeva v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis López Guerra,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 28 March 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 36658/05) 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, Ms Zara Khasanovna Murtazaliyeva. She was represented before the Court by Mr K. Koroteyev, a lawyer practising in Moscow.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3. The applicant alleged, in particular, that she had not been able to examine effectively the surveillance videotapes which had been used as evidence against her in the domestic proceedings and that she had not been able to question a witness testifying on her behalf and two attesting witnesses.
4. On 10 November 2010 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1983 and lives in Paris.
6. The facts of the case may be summarised as follows.
A. The secret surveillance operation
7. The applicant is an ethnic Chechen. In September 2003 she arrived in Moscow from Chechnya and started working at an insurance company. In October 2003 she went to a mosque where she made the acquaintance of V. and Ku. two young Russian women who had converted to Islam.
8. In December 2003 the applicant was stopped on the street by two policemen, allegedly for an identity check. She was then taken to the police station to have her identity verified. In the meantime she was dismissed from work on the grounds of her unauthorised absence. According to the applicant, she was released from the custody of police several days later upon the intervention of certain A., who was also an ethnic Chechen and a police officer in the organised crime division of the Moscow police department.
9. In February 2004 A. helped the applicant to be reinstated at work. He also found a flat for her, where he visited her on several occasions. The applicant shared that flat with V. and Ku. The flat was located in a dormitory block which belonged to the police department. It was equipped with secret videotaping and audiotaping device. The police put the applicant under surveillance because she was suspected of affiliation with a terrorist group related to the Chechen insurgency movement. The Moscow City Court authorised the use of a secret surveillance device in the flat from 5 February until 4 March 2004.
B. The applicant’s arrest, personal search and the pre-trial investigation
10. On the evening of 4 March 2004 the applicant was stopped by a police patrol for an identity check as her physical appearance allegedly matched the profile of a suspect in a wanted persons notice. The applicant immediately telephoned A., who briefly spoke to the police officers who had stopped her. The applicant was then taken to the police station because the official registration of her stay in Moscow had expired, which constituted an administrative offence under Russian law.
11. At the police station, the applicant was informed that she had been apprehended (задержана). Her bag was searched by a female police officer I. in the presence of two attesting witnesses, B. and K., and her fingerprints were taken. The record of the personal search showed that the search of the applicant lasted from 8.35 p.m. until 9.03 p.m. Following the personal search, I. discovered two square packages of an unknown substance wrapped in aluminium foil inside the applicant’s bag. The substance, together with the inner lining of the applicant’s bag and the pockets of her jacket, was taken for forensic examination. The forensic examination report stated that the applicant’s fingerprints were taken at 9.30 p.m. The police did not test the applicant’s hands for residue from the substance; neither did they search for her fingerprints on the packages found in her bag. Later on the same day the applicant was arrested on charges of terrorism and questioned by the police. A criminal investigation was opened.
12. On 12 March 2004 an expert examination of the substance found in the applicant’s bag was carried out. The examination report showed that the substance contained 196 grams of Plastit-4, an industrial explosive prepared on the basis of hexogen. In the course of the examination the explosives were destroyed. The examination of the applicant’s bag and the lining of the pockets of her jacket revealed the presence of hexogen.
13. The police searched the flat where the applicant lived with V. and Ku. and seized a note handwritten by the applicant. The note criticised Russian policy in Chechnya, glorified suicide bombers, preached the way of jihad, and spoke harshly of Russians. The police also found several photographs of an escalator in the Okhotnyi Ryad shopping centre in the centre of Moscow.
14. A transcript of the conversations on the video tapes recorded at the flat showed that the applicant had been proselytising Islam to V. and Ku. discussing her hatred for Russians and the necessity of “holy war” against them, and telling them about the camps of the Chechen insurgents in the Caucasus.
15. A. was questioned by the investigator at the request of the applicant during the pre-trial stage. A. testified that at the end of December of 2003, at the order of his superiors, he had established a relationship of trust with the applicant, who had also introduced him to V. and Ku. A. further stated that with the support of the police department he had helped the applicant to find housing. She had moved into the flat in the dormitory block together with V. and Ku. On 4 March 2004 the applicant had called him because she had been stopped by the police patrol. He had advised her to obey the orders of the police officers and to follow them to the police station.
16. On 2 December 2004 the applicant received a copy of the case file for review. The applicant was charged with preparing an act of terrorism (an explosion) in the Okhotniy Ryad shopping centre and inciting V. and Ku. to commit an act of terrorism.
C. The trial
17. On 22 December 2004 the Moscow City Court commenced the trial of the applicant. The applicant was represented by two lawyers, U. and S.
1. The applicant’s testimony during the trial
18. At the trial the applicant pleaded not guilty to the charges against her. She testified that on 4 March 2004 after the police patrol had driven her to the police station, she had first been taken to a room where a police officer, S., had been filling in some papers. He had told her that she had been apprehended and that her fingerprints would be taken. She had left her jacket and her bag in that room. Another police officer, B., had then taken her to another room, where a further police officer, L., had taken her fingerprints using ink, after which she had gone to a bathroom to wash the ink off her hands. When she had returned to the first room, she had been informed that she would be searched in the presence of two attesting witnesses B. and K. The police officer had searched the applicant’s bag and discovered two packages wrapped in aluminium foil which had not belonged to her. The applicant stated that her fingerprints had been taken before and after the search, and that only the second episode had been recorded.
19. The applicant further stated that the police had questioned her in the absence of a lawyer, and had then decided to detain her. Furthermore, the applicant testified that she had been told to sign a record of her questioning, on pain of ill-treatment. In the following days she had been beaten by the policemen who had questioned her. However, she had continued to deny her involvement in any terrorist activity.
20. The applicant stated that the packages found in her bag had not belonged to her, that the police had planted them in her bag and that she had never incited V. and Ku. to commit a terrorist attack. When the prosecutor asked her whether she had noticed that her rather small bag had become heavier than it had been before the personal search, the applicant stated that she had not noticed anything conspicuous about her bag before her search.
21. She further stated that six photos of the escalator that had been seized from her flat had been taken by her. However, she had been taking photos of random people in the shopping centre in question and not of the escalator and she had done so for recreation.
22. The applicant admitted writing the note that had been seized from the flat but stated that she had copied its text from the Internet because she had liked it and had simply wanted to have a copy of it. The applicant’s lawyer argued that her words had been misinterpreted and that there had been nothing in them that demonstrated her link to any terrorist activity. She stated that the applicant’s bitter perception of the situation in Chechnya was absolutely natural for someone who had been living in a war zone since childhood and that her words should have been analysed more carefully.
2. Witness statements regarding circumstances of the applicant’s case
(a) Statements by the applicant’s acquaintances V. and Ku.
(i) Statements by V.
23. V. testified at the trial that she and Ku. had first met the applicant at a mosque in October 2003. They had become friends and had started frequenting Islamist chats and surfing pro-insurgency web-sites together. After a while, they had decided to form a religious community (dzhamaat) to study Islam and live together. In their conversations the applicant had glorified terrorism and had approved of suicide bombings and the methods and targets of the Chechen insurgents. The applicant had told them about a camp in Azerbaidzhan near Baku where Muslims received training to become suicide bombers, and that she knew someone from there. She had mentioned that she herself had participated in the Chechen war on the side of the insurgents. Together they had often visited an Internet café in the Okhotniy Ryad shopping centre. The applicant had also taken photos of an escalator from different positions there.
24. On 3 March 2004 the applicant had told V. and Ku. that if something were to happen to her, they would have to remove all Islamic literature and her diary from the flat, and to call her mother in Chechnya. She had also told them that she had just received a call from a friend who had arrived in Moscow to “blow himself up”, and that she (that is to say the applicant) “was in danger” and “under suspicion” [of the authorities]. The applicant had not threatened them and had not incited them to commit a terrorist act but she had asked them if they were capable of doing it. She had constantly preached “the way of jihad” to them and had given them Islamist books and audiocassettes. Some of those books had been given to her by her acquaintance, A..
25. V. denied having seen any explosives in the flat where they had lived.
26. At the request of the prosecutor, the trial judge allowed V.’s pre-trial testimony to be read out, as it contradicted in part statements she had made at the trial. In particular, during her pre-trial questioning, V. had testified that the applicant herself had undergone terrorist training in a camp near Baku and that she had been indoctrinating V. and Ku. in order to prepare them to become suicide bombers. When the prosecutor asked V. about her contradictory statements, V. stated that she was not sure whether the applicant had really participated in a terrorist training camp. However, she stated that the applicant had been preparing her and Ku. to become suicide bombers.
(ii) Statements by Ku.
27. Ku. confirmed that she, V. and the applicant had taken photos in the Okhotniy Ryad shopping centre, at the initiative of the applicant, and that the applicant had “taken snapshots randomly”. In particular, the applicant had taken photographs of the escalator and the people on it. Ku. submitted that the applicant had disapproved of the policy of the Russian federal forces in the Caucasus. However, she had not incited Ku. to become a suicide bomber. According to Ku. they had simply wanted to live together to pray, read and live free from the control of their parents.
28. Ku. further stated that the applicant’s acquaintance, A., was a policeman and that he had paid for the flat where the three of them had lived and that he had also given them money occasionally. Once the applicant had told her that she liked A.
29. Ku. further stated that during the pre-trial questioning the investigator had misinterpreted her words concerning a suicide attack and that she had never planned to commit any such attack. She denied having given her pre-trial statements under pressure.
(b) Statements by police officers P., S., B., I. and Ke.
30. The court questioned several police officers who had participated in her arrest and personal search (P., S., B., I. and Ke.). They stated that the applicant’s apprehension had occurred during a regular patrolling operation, and that they had not been aware that her bag had contained explosives.
(i) Statements by police officers P., S. and B.
31. P. testified that on the day of the applicant’s arrest he had decided to check the applicant’s documents because “she had been aimlessly walking to the Prospekt Vernadskogo metro station”. She had showed them her passport and the registration stamp confirming her right to stay in Moscow, which had expired. The policemen took her to a police station. At the moment of the arrest she had been nervous and aggressive. They had decided to search her bag because such an action “was compatible with the law”. P. further explained that he had stopped the applicant “because it had been unclear where she had been going to”, because she had “resembled a girl from a wanted persons’ notice”, and because she was “a person of Caucasian ethnicity [that is to say from the North Caucasus region]”. P. also stated that the expiry of her registration had been sufficient reason to apprehend the applicant. He further testified that they had been routinely searching all people with expired registration.
32. S. gave similar testimony. He added that the applicant had been walking fast and that she had started to threaten the police officers with disciplinary sanctions when they had stopped her.
33. B. testified that they had decided to stop the applicant because she had been wearing black and was of “Caucasian ethnic origin”. He added that the applicant’s appearance had matched the description of someone on their wanted persons notice. He also testified that the applicant had had her bag with her up until the moment of her undergoing a personal search at the police station.
(ii) Statements by police officers I. and Ke.
34. The court also questioned the police officers who had been on duty at the Prospekt Vernadskogo police station on the day of the applicant’s arrest.
35. I. testified that she had searched the applicant in the presence of two attesting witnesses and had found two square yellow objects wrapped in the aluminum foil in her bag, which had been later confirmed to be explosives. The applicant’s fingerprints had been taken only once - after the objects had been discovered in her bag.
36. Ke. testified that before the search the applicant had had all her personal belongings with her and that it had taken approximately twenty minutes before the start of the search to find attesting witnesses who had been invited to observe the personal search.
3. Requests made by the applicant and her lawyers during the trial
(a) Request regarding videotapes
37. The applicant stated that the transcripts of the video tapes recorded in the flat by the police and read out in court had not been accurate and that she had requested the tapes to be played during the hearing. The court granted her request. It does not transpire from the trial transcript that the applicant submitted any requests or complaints concerning the quality of the tapes or the manner in which the tapes had been shown.
(b) Requests regarding missing witnesses
(i) Police officer A.
38. The applicant’s lawyers requested the court to summon police officer A. for questioning. They did not submit any reasons for their request. However, the court refused their request because at that time A. had left Moscow for a work mission.
39. According to the applicant, the court had not tried to verify whether or not A. was indeed on a mission and whether or not it would be possible to question him upon his return.
40. As can be seen from the transcript of the hearing, the applicant and her lawyers did not object to the record of the questioning of A. at the pre-trial stage being read in the hearing.
(ii) Attesting witnesses B. and K.
41. The applicant further requested the court to question two attesting witnesses, B. and K., who had been present while she had been searched at the police station.
42. However, the court refused to call them. As can be seen from the documents in the case file, the court decided that the attesting witnesses would in any case be unable to confirm the applicant’s allegations because the applicant herself had claimed that the explosives had been planted before the arrival of the attesting witnesses.
43. After four days of trial hearings the judge asked the parties whether they wished to close the examination of evidence and proceed to the pleadings, in the absence of those witnesses who had not appeared. The parties agreed to proceed to the pleadings.
4. The applicant’s conviction
(a) the statements made during the trial by the applicant’s acquaintances, V. and Ku.;
(b) the statements made during the trial by police officers P., S., B., I. and Ke.
(c) a forensic explosives examination report;
(d) the personal search record;
(e) six photographs - seized at the flat where the applicant lived - depicting the escalator in the Okhotniy Ryad shopping centre;
(f) a note handwritten by the applicant seized in the flat where she lived;
(g) the transcripts of the video tapes recorded in the apartment where the applicant had lived;
(h) the pre-trial statement of A.
45. The court examined and dismissed the applicant’s claim that the explosives had been planted on her. The court referred to the testimony of the patrol officers and the officers of the police station, who had denied those allegations, and to the fact that according to the official report the personal search of the applicant had preceded the taking of her fingerprints, and there had been no evidence that the fingerprints had been taken twice, as the applicant suggested.
46. The court further found that the applicant must have drafted the text of the handwritten note herself and that she had not copied it from Islamist websites on the Internet, as she had claimed, since the note had contained modifications and corrections.
47. On 17 January 2005 the court convicted the applicant of preparing an act of terrorism (an explosion), inciting others to commit an act of terrorism, and carrying explosives, and sentenced her to nine years’ imprisonment.
5. Appeal proceedings
48. The applicant and her lawyers appealed against her conviction. In the statement of appeal they complained, inter alia, that only one out of sixteen surveillance videotapes had been shown in the hearing and that for “technical reasons” the applicant had not been able to point out inaccuracies between the transcripts and the recordings of conversations on the videotapes. They further complained that the court had unreasonably refused their request to be allowed to question police officer A. and that there had been no documents in the case file showing that A. had been away on a work-related mission at the time of the hearing. Moreover, the court should have called the attesting witnesses, B. and K., because they could have testified about the circumstances preceding the personal search of the applicant in the police station.
49. On 17 March 2005 the Supreme Court of Russia upheld the judgment, reducing the applicant’s sentence to eight years and six months.
50. The Supreme Court held that the videotape had been shown at the request of the defence and that no objections or complaints had been lodged with the court after the videotape had been played, including that not all of the videotapes had been shown.
51. The Supreme Court further considered that the questioning of A. had not been possible due to his absence on a work-related mission and that his pre-trial statement had been read out with the consent of the defence. As for two attesting witnesses B. and K., their personal appearance had not been necessary since the applicant claimed that the explosives had been planted in her bag before their arrival. In any event, the defence agreed to proceed to the closing arguments and had not had any objections or additional requests about the examination of the applicant’s case.
II. RELEVANT DOMESTIC LAW
A. Russian Criminal Code (CCR)
52. Article 30 (Preparation for crime and a criminal attempt) provided:
“1. Preparation for crime is considered [to comprise] the gathering, making or implementing by a person of the means or weapons [with which] to commit a crime, soliciting co-offenders, and conspiring to commit crime or [facilitate the commission of] a crime, [even] if the crime was not completed due to circumstances outside that person’s control ...”
53. Article 205 (Terrorism), as in force at the material time, provided:
“1. Terrorism, that is to say the commission of an explosion, arson or other action, creating a danger for people’s lives, or causing considerable pecuniary damage or other socially dangerous consequences, if such actions were committed with the aim of undermining public safety, threatening the population or influencing decision-making by the authorities, or the threat of committing such actions with the same aims, shall be punishable by deprivation of liberty for a term of eight to twelve years ...”
54. Article 205.1 (Inciting or otherwise abetting the commission of a terrorist criminal act), as in force at the material time, provided:
“1. Inciting a person to commit a crime stipulated by Articles 205, 206, 208, 211, 277 and 360 of the present Code, or seeking to engage a person in the activities of a terrorist organisation, supplying weapons or instructing a person with a view to committing specified crimes, as well as financing terrorism or a terrorist organisation, shall be punishable by deprivation of liberty for a term of four to eight years ...”
55. Article 222 (Illegal acquisition, transfer, sale, storage, transportation and carrying of firearms, its main components, ammunition, explosives and explosive devices), as in force at the material time provided:
“1. The illegal acquisition, transfer, sale, storage, transportation and carrying of firearms [or the] main components [thereof], ammunition, explosives and explosive devices shall be punishable by the limitation of liberty for a term of up to three years, or detention for a term of up to six months, or deprivation of liberty for a term of up to four years and/or by a fine of up to 80,000 roubles or three months’ salary (or other income) of the convicted person.”
B. Russian Code of Criminal Procedure (“CCrP”)
“1. A witness is a person who may have knowledge of facts relevant to the investigation and resolution of a criminal case and who is subpoenaed to testify.
7. If a witness fails to appear for no valid reason, his or her appearance may be enforced.”
“An attesting witness is a person disinterested in the outcome of the criminal case who is invited by an investigator to attest to an investigative measure having been carried out and also to its substance, progress and results. Minors who are involved in a criminal case and their close relatives and relatives, and also investigators, cannot act as attesting witnesses.”
“1. A suspect, accused, victim, private prosecutor, civil plaintiff, civil defendant and their representatives can lodge a petition for procedural acts to be carried out and for procedural decisions to be taken in order to establish circumstances relevant to the criminal case and to secure the rights and legitimate interests of the petitioner.”
“1. A procedural petition may be lodged at any moment during criminal proceedings. A written petition is placed in the case file, an oral petition is reflected in the transcript of an investigative act or of a trial hearing.”
“1. Parties to a criminal case may request a court to exclude any evidence presented in court.
4. Where a defendant seeks to exclude evidence obtained in violation of the provisions of the CCP, the prosecution will have to furnish evidence to the contrary. In other cases, the burden of proof will be on the party which submitted a motion to exclude evidence.”
“1. The presiding judge enquires whether the parties have requested that new witnesses, experts or specialists be summoned, evidence or documents be presented or evidence excluded that has been obtained in a manner that was in breach of the provisions of the CCP. A person who has submitted [such a] a request must substantiate it.
3. A person whose request has been denied has a right to submit it again in the course of the proceedings.”
“2. Where a victim or witness has not appeared at a hearing, the court [in question] may decide, at the request of a party to the proceedings or on its own initiative, to read out the testimony previously given by the victim or witness during the preliminary investigation if [the victim or witness]:
(a) ... has died; or
(b) could not appear at the hearing because of serious illness; or
(c) is a foreign national and refused to appear before the court;
(d) [has been prevented by] natural disaster or ... other exceptional circumstances ... from appearing ...”
“1. At the end of the judicial examination of evidence presented by the parties the presiding judge enquires whether the parties wish to make any additional submissions to the proceedings. If such request is submitted, the court examines it and issues a respective ruling.”
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION (FAIR TRIAL)
64. The applicant complained under Article 6 §§ 1 and 3 (b) and (d) of the Convention that the overall fairness of the criminal proceedings against her had been undermined because she had not been able to see the video screen in the courtroom on to which the videotapes obtained in the course of the surveillance operation had been projected and because she had not been able to question witness testifying on her behalf or two attesting witnesses.
A. Examination of videotapes
65. The applicant complained that the trial in her case had not been fair because she had not been able to see and effectively examine surveillance videotapes shown in the hearing. She relied on Article 6 §§ 1 and 3 (b) of the Convention, which reads as follows in the relevant part:
“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:
(b) to have adequate time and facilities for the preparation of his defence; ...”
66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) The parties’ submissions
(i) The Government
67. The Government submitted that it appeared impossible to specify the exact location of the video screen in the courtroom and the applicant’s position in relation to it or to submit a plan of the courtroom due to the significant lapse of time since the events in question. They further submitted that after the videotape had been shown, the applicant had commented that she “did not see anything illegal in it”. In the Government’s opinion, the statement made by the applicant had been unequivocal and had showed that the applicant had understood the contents of the tape. In any event, the audio part of the recording had been more important than the video part of the recording for the purposes of the applicant’s request.
(ii) The applicant
68. The applicant disputed these submissions. In particular, she requested the Court to draw the appropriate inferences from the Government’s failure to comply with the Court’s request for it to submit a plan of the courtroom. She also stated that she had objected to the technical courtroom arrangements in question and that the trial transcript inaccurately reflected her objections. However, she had not been able to challenge it since the court had not allowed her lawyers to make an audio recording of the hearing.
(b) The Court’s assessment
69. The Court notes at the outset that the requirements of Article 6 § 3 of the Convention are to be seen as specific aspects of the right to a fair trial, as guaranteed by Article 6 § 1, and that therefore the applicant’s complaints under Article 6 §§ 1 and 3 (b) should be examined together (see Vacher v. France, 17 December 1996, § 22, Reports of Judgments and Decisions 1996-VI).
70. Furthermore, the Court reiterates that Article 6, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial, which includes, inter alia, not only his or her right to be present, but also to hear and follow the proceedings (see Stanford v. the United Kingdom, 23 February 1994, § 26, Series A no. 282-A). The Court further reiterates that the principle of equality of arms is one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Moreover, Article 6 § 3 (b) guarantees “adequate time and facilities for the preparation of [...] defence” and therefore implies that the substantive defence activity on the accused’s behalf may comprise everything which is “necessary” to prepare the trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings. The provision is violated only if this is made impossible (see OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, § 538, 20 September 2011, with further references).
71. Turning to the facts of the present case, the Court observes at the outset that the parties disagreed about whether the applicant had been able to see the video screen in the courtroom (contrast Stanford, cited above, § 25, where the parties did not dispute that the applicant had indeed had difficulties in hearing some of the evidence being given during the trial). It is also not clear in the present case, unlike for example in the case of Stanford, whether or not the applicant brought the difficulties in observing the video recording to the attention of the trial court (see, Stanford, cited above, § 27). In particular, it does not transpire from the trial transcript that the applicant submitted any requests or complaints concerning the quality of the tapes or the manner in which the tape had been shown (see paragraphs 37 and 50 above). However, the applicant submitted to the Court that her objections in this regard had not been reflected in the trial transcript and that she had not been able to challenge the transcript since the trial court had not allowed her lawyers to make an audio recording of the hearing (see paragraph 68 above). The Court also notes that the applicant did not complain in the statement of appeal that either she or her lawyers had not been able to see the videotape. However, they did refer, albeit rather ambiguously, to unspecified “technical reasons” which allegedly prevented them from comparing the transcripts with the recordings (see paragraph 48 above).
72. In these circumstances, the Court is not in a position to rule on the issue in dispute and to establish whether or not the applicant brought it to the attention of the domestic courts with sufficient clarity. However, the Court no longer needs to do so as, in any case, it considers that even if the applicant was not able to see the video screen, she was able to follow the proceedings and her right under Article 6 §§ 1 and 3 (b) of the Convention was thus not compromised.
73. In particular, the Court notes first that the applicant did not dispute at any stage of the proceedings, including before the Court, that the videotaping had been undertaken lawfully, that it had been authentic, that she, V. and Ku. had been depicted in the videotape and that the videotape had been recorded in the flat which she had shared with V. and Ku. during the time in question. Therefore, it appears that the applicant did not have any complaints concerning the admissibility of the videotapes. However, the applicant did consider that the transcripts of her conversations with V. and Ku. recorded in the course of the surveillance operation had been inaccurate. In this regard, it appears from the case material that the applicant requested the court to have the video tape played precisely because she wished to compare the transcripts with the audio and not with the video recordings of these conversations (see paragraphs 37 and 48 above). In the Court’s view, watching the videotapes was not strictly necessary in order to confirm the authenticity of the transcript as, to achieve that, it would have been sufficient for the applicant and her lawyers to listen to the audio recordings and simultaneously to compare them with the text of the transcripts, unless they were obstructed from listening to them in any way or unless the audio recordings were of inadequate quality. In this regard, the Court observes that the applicant did not complain before the domestic courts or before the Court that the quality of the audio recordings had been poor, that she or her lawyers had not been able to hear them or that they had not been authentic. Therefore, it follows that even if the applicant was not able to see the video screen in the courtroom, she could have challenged the contents of the transcripts, if necessary, since she was not prevented from listening to the audio recordings of her conversations with V. and Ku.
74. Having regard to the above considerations, the Court finds that the applicant was not placed at a serious disadvantage vis-à-vis the prosecution in respect of the viewing and examination of the surveillance videotapes. There has accordingly been no violation of Article 6 §§ 1 and 3 (b) of the Convention on this account.
B. Absence of witnesses
75. The applicant further complained that the fairness of the criminal proceedings against her had been undermined because she had not been able to question a witness, A., who was testifying on her behalf, and two attesting witnesses, B. and K., who had been present during her personal search. She relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows in the relevant part:
“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 ...”
1. Absence of witness A.
76. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(i) The parties’ submissions
77. The Government claimed that the proceedings against the applicant had been fair. In particular, they submitted that witness A. had not participated in the hearing of the applicant’s case because he had gone on a work mission at the time of the hearing and that in any event the applicant had agreed to have his pre-trial testimony read out in court. She had not submitted any comments after A.’s testimony had been read out.
78. The applicant acknowledged that she had given her consent to A.’s testimony being read out. However, she stated that in doing so she had not waived her right to question him. She further stated that A. had not been a prosecution witness, that the prosecutor had not intended to summon A., and that A. had been questioned during the preliminary investigation at her request. She further submitted that the trial court had not adjourned the hearing pending A.’s return from his business trip, had not secured A.’s attendance and that no written proof had been provided as to A.’s whereabouts. The applicant also argued that she had not been able to question A. during the pre-trial witness confrontation procedure and that his presence in court had been necessary because “the whole case [had been] a result of his actions” and she had needed to question him about his possible involvement as an agent provocateur in the criminal case against her.
(ii) The Court’s assessment
(α) General principles
79. The Court notes at the outset that the requirements of Article 6 § 3 of the Convention are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention. The applicant’s complaints under Article 6 §§ 1 and 3 (d) of the Convention should therefore be examined together.
80. The Court reiterates that the admissibility of evidence is primarily governed by the rules of domestic law. As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce (see Popov v. Russia, no. 26853/04, § 176, 13 July 2006, with further references).
81. In this regard, the Court has required that an applicant who complained that “he has not been allowed to question certain witnesses ... must ... support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth ...” (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V).
82. Furthermore, in respect of witnesses for the defence specifically, the Court held as follows:
“... the right to call witnesses for the defence is not absolute and can be limited in the interests of the proper administration of justice. ... Article 6 § 3 (d) leaves it primarily to [the national courts] to assess whether it is appropriate to call witnesses; it does not require the attendance and examination of every witness on the accused’s behalf: its essential aim, as it is indicated by the words “under the same conditions”, is full equality of arms in the matter ... only exceptional circumstances could lead the Court to conclude that a refusal to hear [witnesses on behalf of the accused] violated Article 6 of the Convention.” (See Dorokhov v. Russia, no. 66802/01, § 65, 14 February 2008).
83. The Court reiterates that the principle of equality of arms implies than the applicant must be “afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent”. The concept of “equality of arms” does not, however, exhaust the content of paragraph 3 (d) of Article 6, nor that of paragraph 1, of which this phrase represents one application among many others. The task of the Court is to ascertain whether the proceedings at issue, considered as a whole, were fair (see Popov, cited above, §§ 177-78).
84. Therefore, in order to decide whether the applicant in the instant case was afforded the opportunity to present her case without being placed at a disadvantage vis-à-vis the prosecution, and whether the proceedings were conducted fairly, the Court will determine:
(a) whether the applicant’s request was sufficiently reasoned and relevant to the subject matter of the accusation and could arguably have strengthened the defence position or even led to the applicant’s acquittal (see Dorokhov, cited above, § 72; Perna, cited above, §§ 29 and 32, and Polyakov v. Russia, no. 77018/01, § 34, 29 January 2009); and
(b) whether the trial court, by not securing the attendance of a certain witness to testify on behalf of the applicant, breached her right under Article 6 § 3 (d) (see Popov, cited above, § 180, and Dorokhov, cited above, § 71).
(β) Application of these principles to the present case
85. Turning to the facts of the present case, the Court observes that A. was at first questioned by the police at the request of the applicant during the preliminary investigation. He testified that in the course of the police operation he had helped the applicant to find housing and that she had telephoned him on the day of her arrest (see paragraph 15 above). The Court observes that A.’s testimony concerned the facts of the case, which the applicant largely did not dispute.
86. The applicant nevertheless wished to question A. in court because in her opinion, his actions could have been considered as constituting incitement by the police (see paragraph 78 above). The Court notes that the applicant’s request concerned the circumstances leading to her arrest and the undue influence which A. had allegedly exerted over her. Accordingly, A.’s behaviour towards the applicant before her arrest appears to have had at least some relevance to the charges against the applicant. However, at the same time, the Court does not consider that the applicant’s request was justified.
87. In particular, the Court notes that according to the trial transcript - and the applicant does not dispute its contents in the relevant part - at no moment during the trial or in her statement of appeal did the applicant claim that A. had incited her to commit the crime in question. The applicant began asserting that A. had allegedly incited her to participate in the crime only in her observations before the Court. When the applicant’s lawyers requested the court to summon A., they did not explain, even briefly, why his attendance was important for their line of defence, whether his actions had amounted to entrapment or whether he had exerted any pressure on the applicant and, finally, whether his testimony would have served to exonerate the applicant or at a minimum, to strengthen her position in any way. In fact, they did not explain at all why they had wished to have A. summoned (see paragraph 38 above). Therefore, the Court cannot conclude from the case material that the applicant showed sufficient reasons to the trial court for her request concerning A. to be granted.
88. Furthermore, the Court also notes that the applicant’s conviction for preparing an act of terrorism and inciting others to commit it was based on abundant evidence against her, including forensic examination reports, transcripts of police surveillance videotapes recorded (in line with a court order), and the statements that V. and Ku. gave in open court (see paragraphs 12, 14, 23-27 and 44 above). In the Court’s view, there was a substantive body of incriminating evidence and A.s’ testimony (concerning the facts of the case, which had already been established and were not disputed by the applicant - see paragraph 85 above) was not likely to have outweighed it or strengthened the applicant’s position.
89. Finally, the Court observes that despite the absence of A. from the trial, the applicant’s right of defence has been respected. In particular, the applicant was able to comment on the pre-trial statement of A. and the transcripts of her conversations with V. and Ku., and to question V. and Ku. about the early events in which A. had been involved and which eventually had led to the applicant’s arrest. Therefore, the Court finds that the trial court did not breach the applicant’s right under Article 6 §§ 1 and 3 (d) of the Convention and the applicant was not put in a disadvantageous position vis-à-vis the prosecution in respect of her inability to question A.
90. Accordingly, in the light of the above-mentioned considerations, the Court holds that the refusal of the domestic court to call witness for the defence in the present case did not affect the overall fairness of the trial. Therefore, there has been no violation of Article 6 § 3 (d) of the Convention taken in conjunction with Article 6 § 1.
2. Absence of attesting witnesses B. and K.
91. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(i) The parties’ submissions
92. The Government submitted that the attendance of attesting witnesses B. and K., who had been present during the personal search of the applicant at the police station, had not been necessary since the applicant had not disputed that the explosives had been seized from her bag and in any event she had stated that the explosives had been planted in her bag before the personal search. Moreover, the applicant had not insisted on B. and K. being summoned to the trial.
93. The applicant acknowledged that she had had doubts as to whether B. and K. could have confirmed that the explosives had been planted because that had happened before B. and K. had arrived. However, she had nevertheless agreed with her lawyer that they should have been questioned “to clarify the events that took place immediately after [her] arrest ... [and] ... to develop arguments concerning the alleged planting of weapons on the applicant.”
(ii) The Court’s assessment
94. The Court reiterates that under Russian law, attesting witnesses are invited by the investigator to act as neutral observers of an investigative measure; unlike material witnesses, they are not expected to have any knowledge of the case and they do not testify concerning the circumstances of the case or the defendants’ guilt or innocence (see Shumeyev and Others v. Russia, 29474/07, 8669/09 and 55413/10, § 31, 22 September 2015, and paragraphs 56-57 above).
95. Furthermore, the Court has held that the absence of attesting witnesses in court does not infringe the guarantees of Article 6 §§ 1 and 3 (d) of the Convention if it is not shown, inter alia, that their statements were relied upon by the domestic court in a substantial manner or that their testimony in court could otherwise influence the outcome of the criminal proceedings against the applicant (see Shumeyev, cited above, § 37).
96. Turning to the facts of the present case, the Court notes at the outset that the court did not rely on any statements that B. and K. made during the proceedings either in favour of the applicant or against her (see paragraph 44 above).
97. The Court also does not consider that their testimony could have influenced the outcome of the applicant’s trial. The applicant stated that had B. and K. testified, they could have possibly confirmed that the explosives had been planted in her bag. However, the Court observes that the applicant claimed that the explosives had been planted in her bag after she had left it unattended in one of the rooms in the police station, that is to say before the attesting witnesses had been invited by the police to observe the personal search of the applicant (see paragraphs 18 and 93 above). Moreover, police officer Ke. testified that it had taken approximately twenty minutes to find attesting witnesses before the search (see paragraph 36 above). In these circumstances, the Court considers that the attesting witnesses would likely not be able to confirm or refute the applicant’s claim as they had been invited to observe the personal search shortly before it had taken place and they could have only testified about the manner in which the search had been carried out and its results - issues which the applicant did not dispute.
98. The Court also considers that even though the applicant was unable to question B. and K., this did not prejudice the overall fairness of the proceedings against her because in the Court’s opinion, the applicant was able effectively to present her case and the arguments in her defence. For example, she was able to request the court to exclude the record of her personal search and other procedural documents, to put detailed questions to V. and Ku. and the police officers who participated in her arrest and personal search, to lodge objections, where necessary, and to challenge the court order authorising surveillance of the flat (see paragraphs 43, 58-61 and 63 above).
99. Accordingly, the Court finds that there was no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the absence of attesting witnesses B. and K. from the applicant’s trial.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
100. Lastly, the applicant raised certain additional complaints with reference to other Articles of the Convention. However, having regard to all the material in its possession, and in so far as it has jurisdiction to examine these allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols regarding that part of her application. It follows that it must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT
1. Declares, unanimously, the complaints concerning the ineffective examination of videotape and the absence of witness A. and attesting witnesses B. and K. from the applicant’s trial admissible and the remainder of the application inadmissible;
2. Holds, unanimously, that there has been no violation of Article 6 §§ 1 and 3 (b) of the Convention;
3. Holds, by four votes to three, that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention as regards the complaint concerning the absence of witness A.;
4. Holds, by five votes to two, that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention as regards the complaint concerning the absence of attesting witnesses B. and K.
Done in English, and notified in writing on 9 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Deputy 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) partly concurring opinion of Judge Serghides;
(b) joint partly dissenting opinion of Judges López Guerra, Keller and Serghides;
(c) joint dissenting opinion of Judges López Guerra and Serghides.
PARTLY CONCURRING OPINION OF JUDGE SERGHIDES
1. Though I agree with the majority that there has been no violation of Article 6 §§ 1 and 3 (b) of the Convention regarding the applicant’s complaint concerning the ineffective examination of videotapes, I nevertheless, with due respect, do not share their reasoning in reaching such a conclusion.
2. More specifically, I have felt unable to agree with my eminent colleagues in this case that it was not strictly necessary for the applicant’s defence to watch the videotapes, for the following reasons:
(a) The transcripts of the videotapes recorded in the flat where the applicant had lived was evidence admitted during the proceedings before the Moscow City Court (see paragraph 44 (g) of the judgment) on which, among other evidence, the conviction of the applicant for preparing an act of terrorism, inciting others to commit an act of terrorism and carrying explosives, and her sentence to nine years’ imprisonment, were based.
(b) The videotapes were, in my view, recorded in very suspicious circumstances, as can be seen from the facts explained in the judgment and the two dissenting opinions.
3. In view of the above, I propose that the applicant had a procedural right under Article 6 §§ 1 and 3 (b) of the Convention to watch and examine all the videotapes that concerned her.
4. However, as is stated in paragraph 50 of the judgment, the Supreme Court of Russia, examining the applicant’s case on appeal, held that:
(a) “the videotape had been shown at the request of the defence”; “and”
(b) “no objections or complaints had been lodged with the court after the videotape had been played, including [the complaint] that not all of the videotapes had been shown.”
5. In addition, it is worth noting that the applicant has neither in her application form nor in her observations before this Court complained about the accuracy or correctness of the above ruling of the Supreme Court of Russia.
6. Finally, taking into consideration what has been said in the last two paragraphs, and since the ruling of the Supreme Court of Russia put an end to the relevant question of fact and question of law (due to the lack of objections or complaints on the part of the applicant, as stated above), any other discussion on the issue would be superfluous, and, therefore, I conclude that there has been no violation of Article 6 §§ 1 and 3 (b) of the Convention in this regard.
JOINT PARTLY DISSENTING OPINION OF JUDGES LÓPEZ GUERRA, KELLER AND SERGHIDES
1. To our regret, we are unable to follow the opinion of the majority concerning the denial of the applicant’s request to call police officer A. as a witness. In our view, it was obvious why police officer A. would have been an important witness in the criminal proceedings against the applicant. In such circumstances, there is no obligation to give additional reasons why a certain witness should be summoned for examination. Therefore, we argue that there has been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (d). Besides the different conclusion that we reach for the concrete outcome of the case, we consider that it raises a serious question of interpretation of the Convention concerning the overall fairness of criminal proceedings.
A. Domestic Law
2. First, we are of the opinion that police officer A.’s work mission cannot be subsumed under any of the categories mentioned in Article 281 § 2 of the Russian Code of Criminal Procedure, which provides as follows (see § 62 of the judgment):
“Where a victim or witness has not appeared at a hearing, the court [in question] may decide, at the request of a party to the proceedings or on its own initiative, to read out the testimony previously given by the victim or witness during the preliminary investigation if [the victim or witness]: (a) ... has died; or (b) could not appear at the hearing because of serious illness; or (c) is a foreign national and refused to appear before the court; or (d) [has been prevented by] natural disaster or ... other exceptional circumstances ... from appearing.”
3. The only possible ground under which A.’s work mission could fall seems to be “other exceptional circumstances”, which is classified in the same category as natural disasters. Thus it seems to correspond to force majeure. The work mission of A. can hardly be seen as a force majeure event. Therefore, we believe that there are no sufficient grounds in Russian law to justify the fact that A. was not called to testify during the trial phase. We are fully aware that it is not the Court’s task to interpret national law (Roche v. the United Kingdom [GC], no. 32555/96, § 120, ECHR 2005-X). However, the concrete application of this provision in the present case seems to us if not arbitrary, then certainly manifestly unreasonable, given the clear and unambiguous wording of Article 281 § 2.
B. Reasons for calling police officer A. to appear as a witness
4. The judgment clearly sets out the relevant case-law in our jurisprudence in paragraphs 80 and 84. Paragraph 48 of the judgment reads:
“They [i.e. the applicant and her lawyer] further complained that the court had unreasonably refused their request to be allowed to question police officer A. and that there had been no documents in the case file showing that A. had been away on a work-related mission at the time of the hearing.”
First, it is an open question how the Russian court knew about A.’s work mission while not having any documents that would prove its veracity.
5. Second, we acknowledge that it would have been in the applicant’s best interests to give further reasons as to why A.’s testimony would have been important for the trial (see Perna v. Italy [GC], no. 48898/99, ECHR 2003-V). However, the case of Perna v. Italy should not be directly compared with the case at hand. The former was about an Italian journalist, Mr Perna, who wrote a defamatory article against Mr Caselli, at the time Public Prosecutor in Palermo. Mr Perna requested that Mr Caselli be called as a witness. The difference (from the present case) lay in the issue of whether Mr Caselli’s alleged lack of impartiality, independence, and objectivity had not been part of Mr Perna’s defence. On the contrary, his defence was that there was no need to prove the veracity of these critical allegations (ibid., § 31). In the case at hand the situation is different, in that police officer A. played a central part in the applicant’s defence.
6. During the domestic proceedings, the applicant called the refusal of her request for the examination of police officer A. “unreasonable”. In the present case, it seems obvious why A.’s testimony would have been important for the outcome of the criminal proceedings. After all, it was upon A.’s intervention that she was released from the custody of the police in December 2003. Subsequently, A. helped the applicant to be reinstated at work. He found her a flat that was equipped with videotaping and audiotaping devices and visited her several times. As the applicant had started to trust A., she immediately telephoned him when she was stopped on the evening of 4 March 2004 by a police patrol. It is fair to ask for elaborated reasons as to why a witness whose relevance in a particular instance does not become clear at first sight should be called to a trial. However, with regard to police officer A., it is clear how he could have played a crucial role. A.’s dubious role must have been evident to everyone during the trial, and the applicant would thus have stated the obvious when arguing in detail why A. had to be treated as a key witness. After all, if the applicant were right in her defence about the explosives having been planted in her bag (which we are not, of course, implying here), then A. would be a central figure. In other words, the applicant implicitly argued that the events had been staged. The applicant’s defence thus implicated A., given that, if the explosives had indeed been planted, A. would have laid the groundwork for a later conviction based on the alleged evidence collected in her videotaped and audiotaped flat. In this case, therefore, the importance of A.’s testimony seems quite obvious, and is so clearly part of the applicant’s defence that the applicant’s scant reasons (“unreasonable”) should be accepted as sufficient.
7. Moreover, as has been stated above regarding the issues arising out of Article 281 § 2 of the Russian Code of Criminal Procedure, the failure to call police officer A. can hardly be understood as falling within any of the categories enumerated in that provision. Given that the application of this Article seems problematic, the refusal of the request to call A. as a witness can indeed be regarded as “unreasonable”. This finding is further strengthened by the fact that the Government have failed to prove that A. was, at the material time, really on a work mission.
8. In addition, in Dorokhov v. Russia (no. 66802/01, § 65, 14 February 2008) it was held that “... the right to call witnesses for the defence is not absolute and can be limited in the interests of the proper administration of justice”. In the case at hand, however, calling witness A. to testify would not have interfered with the “proper administration of justice”: it would not have led to unreasonably high costs, or to an unreasonable delay. This point is strengthened by the fact that the proceedings dealt with the important issue of alleged terrorism. Instead, it would have been justified to keep the applicant in pre-trial detention for another few days and wait for A.’s return. There was, at any rate, no particular urgency to proceed with the examination of the case.
9. In the case of Destrehem v. France (no. 56651/00, 18 May 2004), the Court found a violation of Article 6 § 1 in conjunction with Article 6 § 3 (d). While witnesses for the defence were allowed to testify in the court of first instance, their testimonies were used only by the appeal court without additional examination. In the view of the Court, this had reduced Mr Destrehem’s defence rights to such an extent that the whole process was deemed unfair (ibid., §§ 43-47). This threshold for finding a violation of Article 6 § 1 in conjunction with Article 6 § 3 (d) was lower than in the current case. Witness A. was questioned only during the pre-trial phase, and then only by the investigator, but not by the applicant, whereas the witnesses in Destrehem v. France had been questioned during the proceedings in the court of first instance. Nevertheless, a violation of Article 6 § 1 in conjunction with Article 6 § 3 (d) was found in Destrehem, but not in the instant case. We are thus of the opinion that if the circumstances in Destrehem constituted a violation of Article 6 § 1 in conjunction with Article 6 § 3 (d), a fortiori there has been a violation in the instant case.
10. Under the above-mentioned circumstances, we are of the opinion that the denial of the applicant’s request to call police officer A. as a witness at the trial was not justified, and that the overall fairness of the trial was not established. Therefore, we consider that there has been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (d).
11. In our view, the Court’s jurisprudence has to be developed vis-à-vis the reasons that would qualify as sufficient for requesting the presence of a witness who, for obvious reasons, could play a crucial role for the defence.
The standard test as defined by the Court in Perna v. Italy (cited above) does not fit the situation of the present case. Applied rigorously, such a test would jeopardise the overall fairness of criminal procedure. Finally, under the Convention there is no duty for the defence to justify the obvious in criminal proceedings.
JOINT DISSENTING OPINION OF JUDGES LÓPEZ GUERRA AND SERGHIDES
As expressed in our joint dissenting opinion with Judge Keller, we consider that refusing the applicant’s request to call Police Officer A. as a witness at the trial constitutes a violation of Convention Article 6 § 1 in conjunction with Article 6 § 3 (d). We consider, additionally, that a similar violation of these Convention guarantees results from the Russian court’s refusal to call B. and K. as witnesses at the trial.
In our view, this additional violation derives from the nature of the case itself and the applicant’s allegations concerning the existence of police entrapment that led to her arrest and subsequent sentencing on terrorism charges. According to these allegations, both the activities of Police Officer A. as agent provocateur (paragraph 78 of the judgment) and the explosives planted in her bag during her detention (paragraph 93 of the judgment) were tantamount to entrapment. Following this line of defence, the applicant affirms that Police Officer A.’s testimony would have clarified this first aspect, and that testimony from witnesses B. and K. would have resolved the second. All of her requests were therefore closely related and were intended to provide evidence of police entrapment.
As a result of the denial of the applicant’s request to summon attesting witnesses B. and K., she had been deprived of the chance or opportunity to elicit directly or indirectly through the questioning of these witnesses, the only evidence which might possibly be able to support her allegation that the explosives had been planted in her bag, while she had left it unattended in one of the rooms of the police station.
Her allegation was that her fingerprints had been taken both before and after the search and that only the second episode had been recorded, while the crucial moment for her allegation was the time of the first episode when her bag was left unattended.
Since the applicant could not have known the exact time when the two attesting witnesses had arrived at the police station, it was her right to question them in order to throw light on the issue and to possibly challenge the relevant evidence given by police officers I. and Ke., who testified that her fingerprints had been taken only once and that at the time of the search the applicant had all her personal belongings with her.
It is clear from the judgment (paragraph 44 (b) of the judgment) that the applicant’s conviction was based, inter alia, on the statements made during the trial by police officers I. and Ke. Ke. testified that it had taken approximately twenty minutes before the start of the search to find the attesting witnesses B. and K. (see paragraphs 36 and 97 of the judgment).
We suggest that in the circumstances of the case the applicant had a right to cross-examine these two attesting witnesses on the issue, i.e. on the time of their arrival at the police station and on the circumstances preceding her personal search. What the national court did in the present case was, with due respect, to arbitrarily consider the evidence of police officer Ke. as unimpeachable.
In spite of the evident relevance of the testimonies that the applicant’s defence requested concerning that alleged entrapment, the Russian courts denied all of those requests, alleging motives that in our view are not even minimally convincing. As pointed out in our joint opinion with Judge Keller, they did not adequately justify the refusal to call witness A. to the trial. Furthermore, neither did they adequately justify their refusal to call witnesses B. or K., consequently prohibiting consideration at the trial of relevant evidence concerning the alleged entrapment. As in the case of A., no reasons of urgency or celerity of proceedings justified the refusal to allow those witnesses to testify. Moreover, concerning the substantive reasons given for rejecting the applicant’s request, the Russian courts prejudged the requested witnesses’ testimony, adducing ex ante that they “would in any case be unable to confirm the applicant’s allegations” (paragraph 42 of the judgment). However, given the nature of the applicant’s claims concerning the alleged entrapment, that conclusion was definitely premature, as was the Chamber’s opinion (paragraph 98 of the judgment) that “the attesting witnesses would likely not be able to confirm or refute the applicant’s claim”. On the contrary, the testimony of the defence’s requested witnesses concerning circumstances on which they were questioned in the initial police investigation would have significantly aided in confirming or refuting the allegation of entrapment.
In conclusion, refusal to allow witnesses B. and K. to testify, together with a similar refusal to call Police Officer A. to the trial, deprived the applicant of the possibility of effectively pursuing her line of defence, which, given the factual circumstances, was not so patently unreasonable or unfounded as to justify refusing her requests. More specifically, the said refusal, (a) did not afford a reasonable opportunity to the applicant to effectively present her case, (b) violated the principle of equality of arms, and (c) prejudiced the overall fairness of the national proceedings.