THIRD SECTION

CASE OF PICHUGIN v. RUSSIA

(Application no. 38958/07)

JUDGMENT

STRASBOURG

6 June 2017

This judgment is final but it may be subject to editorial revision.
In the case of Pichugin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 16 May 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 38958/07) 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 Aleksey Vladimirovich Pichugin (“the applicant”), on 21 August 2007.
2.  The applicant was represented by Mr P. Gardner and Mr J. McBride, lawyers practising in London, and Ms K. Kostromina, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation to the Court.
3.  On 19 March 2015 the complaints concerning an alleged breach of presumption of innocence and assessment of evidence by domestic courts were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
4.  The Government objected to the examination of the application by the Committee. Having examined the Government’s objection, the Court rejects it.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1962. He is serving a prison sentence in the Orenburg region.
Section 1.01	A.  Criminal case against the applicant
6.  The applicant was head of the security service of the Yukos oil company.
7.  On 14 April 2005 the applicant, who had been found guilty of several counts of attempted murder and murder on 24 March 2005, was charged with the murder of Kr. and Fd. and the attempted murder of R., I. and Fl. On 4 July 2005 the applicant was charged with the murder of P. and the attempted murder of Kk. The charge sheet stated, in particular, that the applicant had entered into a criminal conspiracy with N. and other unidentified managers of the Menatep bank to murder Kr., R. and P. with whom the Yukos oil company had been in conflict for various reasons. The applicant had asked G. to find and hire hitmen to commit those murders. G. had hired Sh., Ts., Re., Go. and O. who had killed Kr. and P. and had committed several unsuccessful attempts to kill R. Fd., I., Fl. and Kk. had been collateral victims of their actions.
8.  According to the applicant, the investigation was completed on 5 July 2005.
Section 1.02	B. Press coverage of the case
(a)	1.  First interview
9.  On 5 July 2005 a Deputy Prosecutor General K., gave an interview to two major Russian channels, the NTV and the First Channel. The interview was broadcasted in their news programmes of the same date. K. said, in particular:
“N., a member of the Committee of Directors of the Yukos oil company and the first deputy president of that oil company, [the applicant], the head of the 4th division of the internal and financial security service of that oil company, and other still unidentified persons among the employees of that oil company founded a criminal gang for committing criminal offences in their personal and other interests. In 1998 [the applicant], upon instructions from N. and other employees of the Yukos oil company ..., organised the murder of the head of the Nefteyugansk Town Council P[.] ... For that purposes [the applicant] involved G., Go., Sh., Re. and Ts. ...”
“[The applicant], upon instructions from N. and other unidentified persons from among the managers of the Menatep bank, organised the murder of the director of the Fenix company Kr[.] who had acted contrary to their interests ...”.
10.  The applicant lodged a complaint with the Tverskoy District Court of Moscow. He complained that the prosecutor’s statements had encouraged the public to believe him guilty and prejudged the assessment of the facts by the competent court. They therefore had breached his presumption of innocence. The applicant also stated that he had wished to ask for a trial by jury but had had to renounce his wish for fear that the jurors might be influenced by the prosecutor’s statements to the press.
11.  On 10 July 2007 the District Court rejected the applicant’s complaint, finding that the applicant had been charged with many counts of murder and attempted murder. In his statements to the press K. had related the facts as established by the investigation and confirmed by the materials in the criminal case file. He had acted lawfully and had not breached the applicant’s rights.
12.  On 16 October 2007 the Moscow City Court upheld the judgment of 10 July 2007 on appeal.
(b)	2.  Second interview
13.  On 11 September 2005 the TVC Channel broadcasted an interview with B., a lead investigator of the Prosecutor General’s office in charge of the applicant’s case. B. said, in particular:
“B.: At present we have already completed the investigation into several more episodes of the criminal activities of the Yukos oil company. [The applicant], the former head of the internal financial security service, has been charged with six [counts of murder]... The crimes were organised by, among others, N. ... In fact, N. organised and financed all these crimes.
The presenter: Does it mean that P. was killed by the same gang that had committed other murders?
B.: This gang was founded by [the applicant] on the instructions from N.. Yes, this was proved. It was financed by N.”
14.  The applicant lodged a complaint with the Basmannyy District Court of Moscow. He complained that B.’s statements had breached his presumption of innocence.
15.  On 11 January 2006 the District Court rejected the applicant’s complaint. It found that B. had orally expressed his personal opinion about the applicant’s guilt in his interview to the press. His statements were not contained in an official document issued in the framework of the criminal proceedings. There was no reason to believe that B.’s opinion had breached the applicant’s constitutional rights or had undermined the fairness of his forthcoming trial.
16.  On 6 March 2006 the City Court upheld the judgment on appeal.
Section 1.03	C.  First trial
17.  On 20 March 2006 the City Court held a preliminary hearing of the applicant’s case.
18.  On 17 August 2006 the City Court convicted the applicant and his co-defendants Sh., Ts., Re. and O. of the murder of Kr., P. and Fd. and the attempted murder of R., I. and Fl. It acquitted the applicant of the attempted murder of Kk. The applicant was sentenced to twenty-one years’ imprisonment.
19.  On 21 February 2007 the Supreme Court of the Russian Federation upheld the conviction in respect of the applicant’s co-defendants. It quashed the applicant’s conviction and remitted the case for a retrial before another judge of the City Court.
Section 1.04	D.  Second trial
20.  The second trial started on 17 April 2007. During the hearing the court examined a handwritten note containing R.’s address in Vienna. That note had been found among the personal belongings of the late G. who, according to witness statements, had been an intermediary between the applicant, on the one hand, and, on the other hand, Ts. and Re. who had committed the two attempts on R.’s life.
21.  The Court also examined the expert reports of 24 December 2003 and 7 October 2004, ordered by the investigator. In the report of 24 December 2003 the experts found that it could not be excluded that the note had been written by the applicant. It was however not possible to make any firm conclusions about the author of the note for the lack of comparative material. In the report of 7 October 2004 the experts found, after having examined additional samples of the applicant’s handwriting, that the note in question had been written by him. When questioned in court, the experts confirmed their findings.
22.  The applicant submitted to the court a “specialist” opinion of 4 July 2004 by V. According to V., the samples of the applicant’s handwriting submitted for comparative analysis were insufficient to make any firm conclusions as to whether he was the author of the note. V. confirmed her findings when questioned in court.
23.  Referring to the “specialist” opinion of 4 July 2004, the applicant asked for a new handwriting expert opinion and submitted a list of questions to be put to the experts. The court refused the request, finding that the case file already contained two expert opinions and a “specialist” opinion and that there was no need for an additional expert examination of the note. The court refused to admit the “specialist” opinion as evidence noting that it contained only “a value judgment” in respect of the experts’ findings.
24.  On 6 August 2007 the City Court found the applicant guilty of the murder of Kr., P. and Fd. and the attempted murder of R., I. and Fl. and sentenced him to life imprisonment.
25.  As regards the attempted murder of R., the court relied, inter alia, on the expert opinion of 7 October 2004, finding that the applicant had been the author of the handwritten note containing R.’s address. It declared the specialist opinion of 4 July 2004 inadmissible as evidence because V. had not been appointed as a forensic expert and did not therefore have any procedural status.
26.  On 31 January 2008 the Supreme Court upheld the applicant’s conviction on appeal.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
27.  The applicant complained under Article 6 §§ 1, 2 and 3 of the Convention that the criminal proceedings against him had been unfair and that he had been found guilty of the crimes he had not committed. He complained, inter alia, that the domestic courts had refused (1) to admit as evidence V.’s “specialist” opinion submitted by the defence and (2) to commission an additional forensic expert examination with a possibility for the applicant to put questions to the experts. He also alleged a breach of his presumption of innocence in that the prosecution authorities had made statements in TV interviews encouraging the public to believe that he had been guilty. The relevant parts of Article 6 read as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal...
2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
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...”
28.  The Government considered that the national courts had complied with the requirements of the Convention provisions. Reiterating the findings of the domestic courts, the Government argued that the applicant had been provided with an opportunity to submit the “specialist” opinion prepared by V. The trial court had duly examined and assessed it. According to the Government, it had been for the national courts to decide whether it had been necessary to call an expert or commission an additional expert examination of the evidence and in the applicant’s case the assessment of evidence conducted by the national courts had not disclosed any unfairness or arbitrariness. As regards the statements made by the prosecution authorities, the Government argued that their purpose had been to inform the public of the prosecution’s position in the applicant’s case. In any event, the applicant’s case had been considered by a panel of professional judges who could not have been influenced by the public statements made by the prosecution or defence.
29.  The applicant maintained his complaints.
Section 2.01	A.  Admissibility
30.  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.
Section 2.02	B.  Merits
(a)	1.  Evidence rejected as inadmissible
31.  The Court reiterates in the first place that the admissibility of evidence is primarily a matter for regulation by national law. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V). In particular, “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 ... Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses” (see Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33).
32.  It further reiterates that the rules on admissibility of evidence may sometimes run counter to the principles of equality of arms and adversarial proceedings, or affect the fairness of the proceedings otherwise (see, for example, Tamminen v. Finland, no. 40847/98, §§ 40-41, 15 June 2004). Although “Article 6 does not go as far as requiring that the defence be given the same rights as the prosecution in taking evidence” (see Mirilashvili v.Russia, no. 6293/04, § 225, 11 December 2008), the accused should be entitled to seek and produce evidence “under the same conditions” as the prosecution (see, Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 728, 25 July 2013). Clearly, those “conditions” cannot be exactly the same in all respects; thus, for example, the defence cannot have the same search and seizure powers as the prosecution. However, as follows from the text of Article 6 § 3 (d) the defence must have an opportunity to conduct an active defence – for example, by calling witnesses on its behalf or adducing other evidence (ibid.).
33.  The Court has already examined a situation in which the applicants tried to challenge the expert evidence introduced by prosecution relying on the “specialist” opinion (ibid., §§ 724-35). The Court considered that the domestic courts’ refusals to admit reports prepared by “specialists” as evidence breached an equality of arms principle.
34.  Turning to the circumstances of the present case, the Court sees no reason to hold otherwise. In this connection, it notes, firstly, and the Government do not argue to the contrary, that expert reports submitted by the prosecution in order to prove a particular point before the court were obtained without any participation of the defence. The defence was unable to formulate questions to the experts, challenge the experts or propose their own experts for inclusion in the team, etc. (see paragraph 21 above).
35.  The Court concedes that it was open to the defence to challenge the expert reports produced by the prosecution and ask the court to commission a fresh expert examination. The court questioned the experts in the presence of the applicant and his lawyers who were able to put questions to the experts and to cast doubt on their credibility. Nevertheless, the Court stresses that it may be hard to challenge a report by an expert without the assistance of another expert in the relevant field. Thus, the mere right of the defence to ask the court to commission another expert examination does not suffice. To realise that right effectively the defence must have the same opportunity to introduce their own “expert evidence”.
36.  The Court reiterates that the said right is not absolute and the forms in which the defence may seek the assistance of experts may vary (ibid., § 732). In the present case the defence tried to introduce their own “expert evidence” by proposing to the court a “specialist” opinion prepared by V. That opinion was relevant, but the court refused to admit it as evidence referring to it as “a value judgment” expressed by V. who was not an expert appointed by the court. The appeal court merely upheld the trial court’s conclusions.
37.  The Government did not explain what other options were available for the defence to introduce their “expert evidence”.
38.  Regard being had to the above, the Court concludes that the way the domestic courts assessed and admitted the evidence in the applicant’s case created a disbalance between the defence and the prosecution, thus breaching the equality of arms between the parties. There has therefore been a violation of Article 6 §§ 1 and 3 (d) on that account.
(b)	2.  Presumption of innocence
39.  The principles adhered to by the Court when addressing the issue of presumption of innocence are well-established in its case-law (see, for example, Khuzhin and Others v. Russia, no. 13470/02, §§ 103-05, 23 October 2008).
40.  Turning to the facts of the present case, the Court observes that, following the completion of the investigation in the applicant’s case, several Russian television channels broadcast interviews with the Deputy Prosecutor General and the lead investigator who discussed the applicant’s case.
41.  The Court takes note of the Government’s assertion that the purpose of the impugned statements was to inform the public about the developments in the applicant’s case. However, the Court considers that the statements, assessed as a whole, were not made with necessary discretion and circumspection. Both the prosecutor and the investigator unequivocally implicated the applicant in several assassinations. Their statements represented as an established fact, without any qualification or reservation, his involvement in the commission of the offences. The Court considers that those statements by the public officials amounted to a declaration of the applicant’s guilt and prejudged the assessment of the facts by the competent judicial authority. Having regard to the contents of their statements as outlined above, the Court finds that they could not but have encouraged the public to believe the applicant guilty before he had been proved guilty according to law. Accordingly, the Court finds that there was a breach of the applicant’s presumption of innocence.
42.  There has therefore been a violation of Article 6 § 2 of the Convention.
(c)	3.  Remainder of the applicant’s grievances under Article 6 of the Convention
43.  Regard being had to the Court’s findings in paragraphs 31-42 above, the Court considers it unnecessary to examine the remainder of the applicant’s grievances about alleged unfairness of the criminal proceedings against him.
Article III.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
44.  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.”
Section 3.01	A.  Damage
45.  The applicant considered that the most appropriate form of redress in his case would be a new trial. He further claimed 100 euros (EUR) per each day of his detention following his conviction on 6 August 2007 until his release pending a new trial in respect of pecuniary damage and EUR 13,000 in respect of non-pecuniary damage.
46.  The Government submitted that no compensation should be awarded to the applicant. In their view, an adequate redress, in the applicant’s case, would be a trial de novo or the reopening of the proceedings, if requested.
47.  The Court firstly notes that in the present case it has found a violation of Article 6 §§ 1, 2 and 3 (d) of the Convention. The Court 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, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010). The Court reiterates, in this connection, that the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention.
48.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 7,800 in respect of non‑pecuniary damage.
Section 3.02	B.  Costs and expenses
49.  The applicant also claimed 1,458,000 Russian roubles (RUB) for the costs and expenses incurred before the domestic courts and before the Court.
50.  The Government did not comment.
51.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in the Court’s possession and the above criteria, the Court considers it reasonable to award the sum of EUR 7,470 covering costs under all heads.
Section 3.03	C.  Default interest
52.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the complaints under Article 6 of the Convention admissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of unfair taking and examination of evidence by domestic courts;

3.  Holds that there is no need to examine the remainder of the applicant’s grievances under Article 6 §§ 1 and 3 of the Convention;

4.  Holds that there has been a violation of Article 6 § 2 of the Convention;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 7,470 (seven thousand four hundred and seventy euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President