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FIRST
SECTION
CASE OF MAKEYEV v. RUSSIA
(Application
no. 13769/04)
JUDGMENT
STRASBOURG
5 February 2009
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 Makeyev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 15 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13769/04) 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 Anatoliy Viktorovich
Makeyev (“the applicant”), on 10 February 2004.
- The
applicant, who had been granted legal aid, was represented by Ms O.
Preobrazhenskaya and Ms M. Arutyunyan, lawyers with the International
Protection Centre in Moscow. The Russian Government (“the
Government”) were represented by Mr P. Laptev, former
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged that the criminal proceedings against him had been
unfair because he had been unable to examine witnesses against him.
- On
14 April 2006 the President of the First Section decided to
communicate the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in the Moscow Region.
- On
6 March 2003 the applicant and Mr S. were arrested and charged with
the armed robbery of Ms M., an offence under Article 161 § 2 (g)
of the Russian Criminal Code, and the robbery of Ms G., an offence
under Article 162 § 2 (g) of the Criminal Code.
- The
first charge was based on the investigator's interviews with Ms M.,
the victim, and Ms K., an eyewitness to the robbery. Ms M. stated
that on 30 January 2003 she had been working as a pedlar. The
applicant and Mr S. had come up to her and told her to give them
merchandise and money. The applicant had threatened her with a knife.
She panicked. The men stuffed the merchandise in bags, took her money
and left. Ms K. testified that on 30 January 2003 she had seen
two men approach Ms M. and heard them ask for money. They had
verbally threatened her. Then they had got hold of the merchandise
and left. The applicant's flat was searched and the objects taken
from Ms M. were found there. An identification parade was held
and Ms M. identified the applicant and Mr S. as the persons who had
robbed her.
- The
second charge was based on the statements that Ms G. and her brother
Mr G. gave to the investigator. Ms G. explained that at some time in
February 2003 the applicant and Mr S. had come to her brother Mr G.
They had locked themselves in her brother's room. She had heard the
visitors say that her brother owed them money and that they would
take the TV set and video player for the debt. They had threatened to
kill her. She had seen them carrying the TV set and video player out
of the flat. Mr G.'s testimony was identical to that of his sister,
except that he claimed that he owed nothing to the applicant or Mr S.
- On
29 April 2003 the applicant and Mr S. were committed for trial on
both charges. The Lobnya Town Court of the Moscow Region scheduled
the hearing for 27 May 2003 and summoned Ms M., Ms K., Ms G. and
Mr G. to appear as prosecution witnesses.
- On
27 May 2003 Ms M., Ms K. and Mr G. did not appear. The applicant
asked the court to obtain their attendance. The court adjourned the
hearing until 17 June 2003 and ordered that the police ensure
the witnesses' appearance in court.
- On
17 June 2003 the witnesses did not appear. Ms K. sent a note saying
that she could not come as she had to look after her new-born baby.
As to Ms M., the police report stated that in the morning of 17 June
2003 she had not been at home and that a neighbour had said that “Ms
M. had not lived at that address for some time”. Mr G. was in
custody and could not be brought to the courtroom on 17 June 2003 as
on that day “the prosecutor was going to extend the authorised
period of investigation in the criminal case against Mr G.”.
- The
applicant insisted that the court should make further efforts to
obtain the attendance of the witnesses and asked the court to adjourn
the hearing. However, the court decided to proceed with the hearing
in the absence of the witnesses.
- The
court heard the testimony by the applicant and his co-defendant Mr S.
On the first count the applicant admitted that on 30 January 2003 he
had seen Ms M. in the street. She had been talking to a certain
Misha. Misha had given him a bag, which he had brought home. He
denied that he had threatened Ms M. with a knife. On the second count
he pleaded not guilty. He acknowledged that on 14 February 2003
he had come to see Mr G. to recover a debt but denied having taken
anything from him or from his sister. Mr S. pleaded not guilty on
both counts.
- The
court then examined Ms G., who confirmed the testimony she had given
to the investigator.
- The
prosecutor requested the court's permission to read out the
statements made by Ms M., Ms K. and Mr G. during the pre-trial
investigation. The applicant did not object. His co-defendant Mr S.
made an objection. The court allowed the prosecutor's request and the
statements by Ms M., Ms K. and Mr G. were read out.
- On
19 June 2003 the Lobnya Town Court delivered its judgment. On the
first count it considered that the applicant's guilt was sufficiently
established in relation to the armed robbery of Ms M. on the basis of
the following evidence: written depositions made by Ms M. and Ms K.
during the pre-trial investigation; Ms M.'s complaint to the police;
the report on the search in the applicant's flat, where the stolen
merchandise had been found; and the report on an identification
parade during which Ms M. had identified the applicant as one of the
robbers.
- On
the second count the court found the applicant guilty of the robbery
of Ms G. on the strength of the following evidence: statements by Ms
G. before the court; a deposition made by Mr G. during the pre-trial
investigation; Ms G.'s complaint to the police; and the users' manual
for the TV set submitted by Ms G.
- The
court convicted the applicant of the armed robbery of Ms M., an
offence under Article 162 § 2 of the Russian Criminal Code, and
the robbery of Ms G., an offence under Article 161 § 2 of the
Criminal Code. It sentenced him to five years and six months'
imprisonment.
- In
his grounds of appeal the applicant complained, in particular, that
the trial court had not secured the attendance of Ms M., Ms K. and Mr
G. He also complained that the legal characterisation of his actions
was erroneous as regards the count of robbery of Ms M. He insisted
that he had not had a knife and asked the court to amend the charge
of armed robbery to that of robbery.
- On
27 August 2003 the Moscow Regional Court upheld the judgment on
appeal. It did not address the applicant's complaint about the
failure to obtain the attendance of witnesses.
II. RELEVANT DOMESTIC LAW
- Robbery – that is, obtaining property by
violence or threat of violence – carries a punishment of three
to seven years' imprisonment (Article 161 § 2 (g) of
the Russian Criminal Code). Armed robbery carries a punishment of
seven to twelve years' imprisonment (Article 162 § 2 (g) of the
Criminal Code).
- Forcible assertion of one's rights in disregard of
established procedure, causing considerable damage to a person or
organisation and accompanied by violence or threat of violence, is
punishable by up to three years' restriction of liberty of movement,
or up to six months' arrest, or up to five years' imprisonment
(Article 330 § 2 of the Criminal Code).
- The
Code of Criminal Procedure of the Russian Federation of 18 December
2001 provides that witnesses are to be examined directly by the trial
court (Article 278). Statements given by the victim or a witness
during the pre-trial investigation can be read out with the consent
of the parties in two cases: (i) if there is a substantial
discrepancy between those statements and the testimony before the
court; or (ii) if the victim or witness has failed to appear in court
(Article 281).
- If a witness does not obey a summons to appear without
a good reason, the court may order that the police or the bailiffs
should bring him to the courtroom by force (Article 113).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d)
OF THE CONVENTION
- The
applicant complained that the trial court's reliance on statements by
witnesses whom he had had no opportunity to question constituted a
violation of Article 6 §§ 1 and 3 (d) of the Convention,
which provides as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ...by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him ...”
A. Admissibility
- The Court notes that the application 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
- The
Government submitted that the authorities had made a reasonable
effort to secure the attendance of Ms M., Ms K. and Mr G.
However, they had been unable to attend the trial. According to her
neighbours, Ms M. had moved out of her flat, where she had lived on a
temporary basis. She was a Ukrainian national permanently living in
Ukraine. Ms K. had refused to attend as she was looking after her
child. Mr G. had been taking part in the investigation in a
criminal case against him and it had been impossible to bring him to
the courtroom on the day of the hearing. Moreover, the applicant had
not objected to the reading out of their statements.
- The
applicant submitted that Ms M., Ms K. and Mr G. were the key
witnesses against him. On the first charge, although the applicant
had confessed to having robbed Ms M., he had denied threatening her
with a knife. The court's conclusion that he had committed the
offence of armed robbery, rather than the offence of robbery to which
he had confessed, had rested solely on the depositions by Ms M. that
he had been armed with a knife. It had been also crucial for the
applicant to question Ms K., an eyewitness, to clarify whether or not
she had seen him brandishing a knife at Ms M. On the second charge,
Mr G. had been the only eyewitness to the robbery. Although the court
had also relied on the testimony given by his sister Ms G. in
court, she had been only a hearsay witness. The conviction had been
primarily based on Mr G.'s statements to the investigator. In
particular, the court's conclusion that the applicant had robbed Mr
G. rather than taken his belongings for the debt had rested solely on
Mr G.'s assertion that he had owed nothing to the applicant or Mr S.,
which had not been corroborated by any other evidence.
- The
applicant further argued that the authorities' effort to obtain the
attendance of the witnesses had been insufficient. In particular,
they had not delivered the summonses to Ms K. until the day of the
hearing. Had this been done in advance, she could have made
arrangements for babysitting. Similarly, the police had visited Ms M.
only on the day of the hearing. As she had been absent from her flat,
they had assumed that she had left Russia. However, they had never
verified whether she had indeed moved away. Nor had they attempted to
discover her whereabouts. As for Mr G., he had been in custody under
the control of the authorities. The summonses had been issued by the
court on 27 May 2003, so the authorities had known well in advance
that on 17 June 2003 Mr G. had to be present in court. They could
therefore have examined the issue of extending the investigation in
respect of him on any other day. Moreover, the extension of the
authorised period of investigation was a purely formal decision taken
in the absence of the accused and without hearing his opinion.
- Finally,
the applicant conceded that he had not objected to the reading out of
the witnesses' statements. He argued, however, that such an objection
would have been ineffective. Indeed, an objection raised by his
co-defendant Mr S. had been dismissed by the court and the witnesses'
statement had been read out. Moreover, his failure to object to the
reading out of the statements in question had not amounted to a
waiver of his right to question the witnesses against him. He had
twice asked the court to adjourn the hearing and secure their
attendance. He had therefore clearly shown that he had considered it
important to have the witnesses questioned.
2. The Court's assessment
- As
the requirements of Article 6 § 3 are to be seen as particular
aspects of the right to a fair trial guaranteed by Article 6 §
1, the Court will examine the applicant's complaints under those two
provisions taken together (see, among many other authorities, Van
Mechelen and Others v. the Netherlands, 23 April 1997, § 49,
Reports of Judgments and Decisions 1997 III).
- The
Court reiterates that the admissibility of evidence is primarily a
matter for regulation by national law and as a general rule it is for
the national courts to assess the evidence before them. The Court's
task under the Convention is not to give a ruling as to whether
statements of witnesses were properly admitted as evidence, but
rather to ascertain whether the proceedings as a whole, including the
way in which evidence was taken, were fair (see, among other
authorities, Doorson v. the Netherlands, 26 March 1996,
§ 67, Reports 1996 II, and Van Mechelen and
Others, cited above, § 50).
- The
evidence must normally be produced at a public hearing, in the
presence of the accused, with a view to adversarial argument. There
are exceptions to this principle, but they must not infringe the
rights of the defence. As a general rule, paragraphs 1 and 3 (d) of
Article 6 require that the defendant be given an adequate and proper
opportunity to challenge and question a witness against him, either
when he makes his statement or at a later stage (see Lüdi v.
Switzerland, 15 June 1992, § 49, Series A
no. 238).
- As
the Court has stated on a number of occasions, it may prove necessary
in certain circumstances to refer to depositions made during the
investigative stage. If the defendant has been given an adequate and
proper opportunity to challenge the depositions, either when made or
at a later stage, their admission in evidence will not in itself
contravene Article 6 §§ 1 and 3 (d). The corollary of that,
however, is that where a conviction is based solely or to a decisive
degree on depositions that have been made by a person whom the
accused has had no opportunity to examine or to have examined,
whether during the investigation or at the trial, the rights of the
defence are restricted to an extent that is incompatible with the
guarantees provided by Article 6 (see Lucà v. Italy,
no. 33354/96, § 40, ECHR 2001 II, with further
references).
- The
Court further reiterates that the authorities should make “every
reasonable effort” to secure the appearance of a witness for
direct examination before the trial court. With respect to statements
of witnesses who have proved to be unavailable for questioning in the
presence of the defendant or his counsel, the Court would emphasise
that “paragraph 1 of Article 6 taken together with
paragraph 3 requires the Contracting States to take positive
steps, in particular to enable the accused to examine or have
examined witnesses against him. Such measures form part of the
diligence which the Contracting States must exercise in order to
ensure that the rights guaranteed by Article 6 are enjoyed in an
effective manner” (see Sadak and Others v. Turkey,
nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67,
ECHR 2001 VIII).
- The
first question to be decided in the present case is whether by
failing to object to the reading out of the witnesses' statements the
applicant waived his right to have the witnesses examined. In this
regard the Court reiterates that the waiver of a right guaranteed by
the Convention, in so far as permissible, must be established in an
unequivocal manner (see Bocos-Cuesta v. the Netherlands, no.
54789/00, § 65, 10 November 2005). In the present case the
applicant twice asked the court to adjourn the hearing and obtain the
attendance of the witnesses. It is true that he did not object to the
reading out of the statements they had made at the pre-trial stage.
However, in view of his repeated requests to secure the witnesses'
presence in court, the Court cannot find that he may be regarded as
having unequivocally waived his right to have them questioned.
- The
Court will further examine whether the use in court of the statements
by the absent witnesses amounted to a violation of the applicant's
right to a fair trial. In doing so, it will ascertain whether their
statements read out at the trial were corroborated by other evidence
and whether a reasonable effort was made by the authorities to secure
their appearance in court.
(a) The reading out of depositions by Ms
M. and Ms K.
- The
Court observes that Ms M. and Ms K. were respectively the victim and
the only eyewitness to the armed robbery, the first charge levelled
at the applicant. They both testified that the applicant had
approached Ms M. in the street and got hold of her money and
merchandise. That testimony was corroborated by the applicant's
confession and the results of the search of his flat, where the
stolen merchandise had been found.
- However,
Ms M. was the only one to testify that the applicant had threatened
her with a knife. As the applicant denied this and Ms K. did not
mention a knife in her depositions to the investigator, the domestic
courts' conclusion that the applicant had brandished a weapon rested
solely on Ms M.'s statement. The Court notes in this connection
that the question of whether the applicant had been armed was crucial
for the legal characterisation of the applicant's actions as robbery
or armed robbery, the latter carrying a more severe penalty (see
paragraph 22 above). Given that Ms M.'s statements were of
decisive importance for the applicant's conviction, in order to
receive a fair trial he should have had an opportunity to question
her. The Court also accepts the applicant's argument that he should
have been afforded an opportunity to question Ms K., the eyewitness
to the robbery, who could have confirmed or disputed Ms M.'s
testimony.
- The
Court takes note of the Government's argument that Ms M. and Ms K.
had been unavailable for questioning during the trial as Ms M. had
left Russia and Ms K. had been looking after her child. It observes,
however, that, in view of the importance of the witnesses' testimony
to the proceedings, the authorities should have made a particular
effort to obtain their attendance. The Court accepts that the
domestic courts made a certain effort to secure the attendance of Ms
M. and Ms K. They sent them summonses to attend the hearing of 27 May
2003, adjourned that hearing when confronted with the witnesses'
failure to appear, and ordered that the police bring them to the
courtroom on 17 June 2003. However, as was indicated by the applicant
and not disputed by the Government, the police remained passive until
the very date of the hearing, when for the first time they visited
Ms M.'s flat and contacted Ms K. As for Ms M., the police
concluded that she had left Russia merely on the basis of her absence
from the address provided during the preliminary investigation and a
neighbour's unverified supposition that she had moved out. No effort
was made to establish her whereabouts. While the Court is not
unmindful of the difficulties encountered by the authorities in terms
of resources, it does not consider that tracking down Ms M. for the
purpose of calling her to attend the trial, in which the applicant
stood accused of a very serious offence and risked up to twelve
years' imprisonment (see paragraph 22 above), would have constituted
an insuperable obstacle (see Bonev v. Bulgaria, no. 60018/00,
§ 44, 8 June 2006). As for Ms K., her belated notification
of the date of the hearing resulted in her unavailability. If she had
been apprised of her duty to testify in advance, she could have made
arrangements for the care of her child. The responsibility for her
failure to appear therefore rests with the domestic authorities.
- The
Court concludes that the authorities failed to make every reasonable
effort to secure the attendance of Ms M. and Ms K. As a result, they
never appeared to testify before a court in the presence of the
applicant. It does not appear from the materials in the case file –
nor has it been argued by the Government – that the applicant
had the opportunity to cross-examine them at another time. The
applicant was not provided with an opportunity to scrutinise the
manner in which Ms M. and Ms K. were questioned by the investigator,
nor was he then or later provided with an opportunity to have
questions put to them. Furthermore, as Ms M.'s and Ms K.'s
statements to the investigator were not recorded on video, neither
the applicant nor the judges were able to observe their demeanour
under questioning and thus form their own impression of their
reliability (see, by contrast, Accardi and Others v. Italy (dec.),
no. 30598/02, ECHR 2005-II). The Court does not doubt that the
domestic courts undertook a careful examination of Ms M.'s and Ms
K.'s statements and gave the applicant an opportunity to contest them
at the trial, but this can scarcely be regarded as a proper
substitute for personal observation of the leading witnesses giving
oral evidence (see Bocos-Cuesta, cited above, § 71).
- Having
regard to the fact that the applicant was not afforded an opportunity
to question Ms M. and Ms K., whose testimony was of decisive
importance for the legal characterisation of the offence he was
convicted of, and that the authorities failed to make a reasonable
effort to secure their presence in court, the Court finds 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.
(b) The reading out of depositions by Mr
G.
- The
Court observes that Mr G. was the eyewitness to the robbery of his
sister Ms G., the second charge against the applicant. His
depositions were identical in many respects to those of Ms G., who
testified in court and was questioned by the applicant. Mr G. and Ms
G. both stated that the applicant and his accomplice had come to
their flat, threatened them and taken their belongings away. The only
added value of Mr G.'s testimony was his assertion that he owed
nothing to the applicant, while the applicant had claimed that Mr G.
was indebted to him and Ms G. had asserted that the belongings had
been taken by the applicant for the debt that Mr G. had refused to
pay. The Court notes that the existence of a debt was an essential
element for the characterisation of the applicant's actions either as
robbery of Mr G. and Ms G. or as a forcible assertion of his
right to recover the debt. Therefore Mr G.'s depositions had a
bearing on the legal characterisation of the applicant's actions
under Article 161 § 2 (robbery) or Article 330 § 2
(forcible assertion of one's right) of the Criminal Code and,
consequently, on the penalty imposed on him (see paragraphs 22 and 23
above). The Court considers that Mr G.'s statements, although not the
sole evidence against the applicant, were nevertheless of decisive
importance for his conviction.
- The
Court will next examine whether the authorities made a reasonable
effort to obtain Mr G.'s attendance. It notes that Mr G. was in
custody at the disposal of the domestic authorities. The Government
did not explain why Mr G. had not been brought to the courtroom on
27 May 2003. Their explanation for the failure to bring him to
the courtroom on 17 June 2003 appears unconvincing. The investigator
in charge of the criminal case against Mr G. had been informed in
advance that on that day Mr G. had to be present in court. He could
have organised the investigation schedule to allow Mr G. to testify,
but apparently did not make any effort to do so.
- In
view of the above, the Court finds that the domestic authorities did
not make a reasonable effort to ensure that the applicant had a
proper and adequate opportunity to question Mr G., a key witness
against him. In these circumstances, the applicant cannot be said to
have received a fair trial.
(c) Conclusion
-
Having regard to the fact that the applicant had no opportunity to
cross-examine three witnesses whose statements were of decisive
importance for his conviction, the Court concludes that his 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. 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 30,000 euros (EUR) in respect of non-pecuniary
damage incurred through the unfair criminal proceedings and his
allegedly unlawful detention after conviction.
- The
Government submitted that the applicant's claim for compensation for
unlawful detention had been irrelevant to the subject matter of his
application.
- 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 EUR 1,500
under this head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- Relying
on the lawyers' timesheets, the applicant claimed EUR 2,800 for
his representation.
- The Government submitted that the applicant's lawyers
had acted pro bono. The applicant had not
produced any documents showing that the expenses had been actually
and necessarily incurred by him.
- 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 were
reasonable as to quantum. The Court considers excessive the number of
hours of work for which the applicant claimed reimbursement. Having
regard to the criteria described above and to the amount received by
the applicant in legal aid, the Court dismisses the claim for costs
and expenses.
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 application admissible;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (d) of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five 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 at 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 5 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
