In the case of Suldin v. Russia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Helena Jäderblom,
Aleš Pejchal,
Dmitry Dedov, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 23 September 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
20077/04) 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 Vladimir Anatolyevich Suldin (“the
applicant”), on 11 March 2004.
The applicant was represented by Ms S. Davydova,
a lawyer from the Centre of Assistance to International Protection sitting in
Moscow. The Russian Government (“the Government”) were represented by their
Agent, Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
The applicant alleged, in particular, that he had
been detained in inhuman and degrading conditions in Ufa IZ-3/1 pre-trial
detention facility. He further complained that the Russian authorities had failed
to secure the attendance of witnesses whom he had not had an opportunity to
examine at any stage of the proceedings.
On 16 February 2009 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1961. He is currently
serving his prison sentence in Pechora prison (Komi Republic).
A. The criminal proceedings against the applicant
On 20 December 2001 a judge at the Supreme Court
of Bashkortostan (Верховный
суд
Републики
Башкорстан) ordered
the interception of the applicant’s telephone calls.
On 19 January 2002 the applicant was arrested and
remanded in custody on suspicion of several counts of theft and aggravated murder.
The prosecution’s case was that the applicant, the chief security officer of
the joint stock company “Bashneft” (АНК «Башнефть»), together with other security officers, had repeatedly stolen
petroleum products from Tuymazy gas-processing plant (Туймазинский
газоперерабатывающий
завод) belonging to ”Bashneft”. The applicant
was also accused of having killed O., a presumed accomplice, in order to cover
up the criminal activity.
On 23 November 2002 a senior investigator of the Bashkortostan
Prosecution Office (Прокуратура
Републики
Башкорстан)
dismissed the applicant’s complaints concerning different investigation steps.
The applicant argued, inter alia, that:
“As it appears from a comparison of the audio records with the
printed records of telephone conversations, the records concerning the
telephone conversations of [the applicant] show traces of forgery, the audio
cassettes contain much less conversations than the printed records.
Consequently, it is impossible to establish the time of each conversation. The
annotation of the conversations shows that they were forged.
...
One of the groups which was looking for [O.] ... on 14 January
2002, was headed by ... the brother of co-defendant [Nu.]. It follows that
there are reasonable doubts as to the truthfulness of the testimony given by
this witness.”
. The
prosecutor stated in his decision in particular that:
“There is no need to examine the audio records on the audio cassettes
Nos. 613, 933 and 137, as there are no reasons to consider that the said audio
records are forged or that any other modifications were made. Apart from this,
many of the audio records ... do not concern the subject of the investigation ....
The most important audio records were submitted to [forensic experts] who
confirmed that the records did not show any signs of forgery or any other modifications
made in the course of the recording or afterwards.”
In the proceedings, the applicant and certain co-defendants
pleaded not guilty. The remaining co-defendants pleaded guilty in part. Some of
them, including co-defendant Nu. in respect of the theft on the night of
6 December 2001, also confessed to having falsely accused the applicant
during the pre-trial investigation under pressure from the police officers. The
records of telephone conversations between persons involved in the petroleum
thefts were also admitted in evidence. In this respect, the applicant submitted
at trial that the audio cassettes with
the records of these conversations showed traces of forgery and that the
evidence of the forensic expert had been carried out contrary to the law. He stated
that he had never had any conversation with anybody in respect of the stealing
of petroleum products from Tuymazy gas-processing plant.
On 16 June 2003 a judge at the Supreme Court of
Bashkortostan found the applicant guilty as charged and sentenced him to twenty
years’ imprisonment.
With respect to the theft of petroleum products
on the night of 6 December 2001, the court heard O.’s mother and V. with
whom O. lived in partnership. It also relied on statements by witness N. given during
the pre-trial investigation, in which he confirmed that a man named Vladimir
(the applicant’s first name) had approached him offering to find buyers for
petroleum products and that they had made a deal on 5 and 6 December 2001.
He also stated that on 6 December 2001 at about 4 or 5 a.m., he had given RUB
50,000 to Vladimir. According to him, he did not know that Vladimir had been
selling the petroleum products illegally. These facts were corroborated by
corresponding telephone records between N. and the subscriber of a mobile phone
which was used by the applicant. In this respect, the court noted:
“According to the records of the telephone conversations
between [N.] on mobile phone ‘8-901-475-5808’ and the subscriber of mobile
phone number’“8-293-38-266’ (this telephone was used by [the applicant]) [N.] began
talking with the subscriber on 19 November 2001, talked with the same
subscriber a few times on 4 December 2001, and from 3.45 pm on 5 December
2001 until 5.10 am on 6 December 2001 talked with him on 24 occasions.”
N. did not appear at the trial. According to the Government, during
their confrontation conducted by an investigator at the pre-trial investigation
stage on 19 June 2002 in the presence of the applicant’s lawyers, N. claimed
that he had never seen the applicant before and had made a deal with someone
else. At the defence request, a record of the confrontation was prepared.
The court did not specify the reasons why witness N. failed to
attend the trial merely stating that “the reasons for his non-attendance were
recognised by the court as excluding the possibility for him to take part in
the hearing”.
The court further took into account the
pre-trial submissions of witnesses S., Kha., Na. and G., none of whom appeared
at the trial. The witnesses described, inter alia, the events of 5 and 6
December 2001 but did not say anything about the applicant’s direct participation
in the theft. The court decided to read out their statements, on the grounds
that it had been impossible to ensure their attendance. It appears from the
documents in the case file that witnesses Kha. and Na. did not attend the trial
since they had been on mission, and that witness Si. (see paragraph 20 below)
and G. had apologised for not attending due to family reasons.
The court further referred to material from the
investigation in which witness Na. had shown the places where the cisterns had
entered the premises of the petroleum company.
The judgment also referred to the pre-trial
statements of co-defendants Mi., Mu. and Gu., which were inconsistent with
their evidence at trial, one of them indicating the applicant as a person who
had been on the premises of the petroleum company on the relevant night. The
court finally relied on certain material evidence relating to the time in
question.
As regards the theft of petroleum products on the
nights from 29 to 30 December 2001 and from 11 to 12 January 2002, the applicant,
together with certain co-defendants, pleaded not guilty at trial. Due to the
inconsistencies between the co-defendants’ pleadings at trial and their
pre-trial statements, the court relied on their original declarations from
which it appeared that the applicant had assured the free passage of fuel
trucks onto the premises of the territory of the petroleum company. The court
stated in this respect that their original statements were consistent with
other evidence contained in the case file and given at trial.
In respect of both thefts, the court further
relied on the pre-trial submissions of witnesses Si., Gi., A., T. and Sh., who had
failed to appear at the trial. They did not mention that the applicant had been
involved in the theft, merely describing the events of that night. The
applicant allegedly objected to the reading out of the statements which they
had made at the pre-trial stage, on the grounds that he wished to examine these
witnesses in person. According to him, his objections were rejected.
Moreover, the court heard witness Khu. whose pre-trial
testimony had also been read out because of certain contradictions with his statement
at trial. According to the court, his pre-trial statements were consistent with
the pre-trial statements of witnesses Si., Gi., A. and T.
In respect of the theft on the night from 11 to
12 January 2002, the applicant and three co-detainees pleaded not guilty and
three co-defendants pleaded partly guilty. It appears from the judgment that at
trial co-defendant Nu. stated that he had been forced to incriminate the
applicant and co-defendants B. and Sh., having been put under pressure by the
police officers at the pre-trial stage.
The court further relied on the recorded telephone
conversations stating, in particular, that:
“... the guilt of the defendants in respect of the theft of
petroleum products on the nights from 29 to 30 December 2001 and from 11 to 12
January 2002 is confirmed by the records of the inspection on the site and the examination
of the audio cassettes
containing the telephone conversations from the mobile number used by [the
applicant]. For example, on the nights of 29 December 2001, 30 December 2001,
11 and 12 January 2002 at night there were phone calls from the number
used by [the applicant] to the mobile phones of [O.], [co-defendant Sh.]; [the
audio cassettes also contained] the phone calls to the work phone of
[co-defendants Nu.]. The conversations concerned the journey of petrol tankers
which arrived in order to collect petroleum products, the fact that the
petroleum tanker had been detained on 12 January 2002 ...
At trial these audio cassettes ...
were examined and ... [O.’s mother] and [co-defendant Nu.] recognised the
voices of [O.], [of the applicant and defendants Sh. and his own voice].”
The court also heard three employees of the petroleum company
who described the relevant circumstances of the theft in question.
According to the Government, the statements of absent
witnesses S., Na., G., Si., Gi., A. and T. and Sh. did not incriminate the
applicant, as they only described the circumstances of the theft and did not
provide any information suggesting that the applicant had participated in the
offence.
The Government also state that the Russian authorities took all
possible measures to ensure the witnesses’ attendance. They note that by a court
order of 24 January 2003, the absent witnesses were summoned to appear at trial.
That order was to be enforced by the Bashkortostan and Tatarstan authorities
respectively, neither of which succeeded in bringing the witnesses before the
court. The case file includes telegrams and official reports containing information
as to why witnesses G., Si., Na. and Kha. were absent (see also paragraph 13
above).
With respect to the murder of O., the court
relied on statements of the victim’s parents and partner during the trial,
recordings of his telephone conversations with the applicant, and the results
of several expert examinations. The court noted, inter alia, that:
“In accordance with the records of the telephone conversations
of [O.], he regularly contacted [the applicant] who used the mobile phone
number ‘8-902-38-266’, registered in the name of his wife ...
...
[O.] made the last call from his mobile phone to the home
number of his mother (6-21-63) on 14 January 2002 at 6.48.52 pm., which is consistent
with the testimony of [his mother] given at trial in which she stated that this
was precisely the time at which her son had called home and said that [the
applicant] was killing him ...”
The court examined the reasons submitted by [the applicant] and
his representatives for claiming that the surveillance of the telephone
conversations had been carried out contrary to the criminal procedure laws and the
Constitution ... on the grounds that the permission for the surveillance
granted by the Supreme Court had been given in respect of the mobile phone of
[the applicant], while the police officers had in fact carried out surveillance
of the mobile phone of his wife ...
...
As it appears from the judgment of the Supreme Court of
Bashkortostan of 20 December 2001 ... the permission related to the
surveillance of the telephone conversations at the applicant’s home and ...
place of work, as well as the surveillance of the mobile phone of [the
applicant]. The court clearly established that [the applicant] had used the
mobile phone “8-293 (or 902)-38-266” which was registered in the name of his
wife ...”
In his grounds of appeal the applicant
complained, inter alia, that the trial court had not secured the
attendance of the key witnesses N. and other witnesses. He also stated that the
records of the telephone conversations were not officially certified and,
therefore, could be forged.
On 24 September 2003 the Supreme Court of the
Russian Federation upheld the judgment finding that the court of first instance
had correctly assessed the facts established during the court proceedings and
had reached the right legal conclusions. It stated, inter alia, that the
fact that on the night to 12 January 2002 an organised group involving the
employees of the plant and paramilitary protection unit, together with a member
of the road police (State Inspectorate for Road Safety - государственная инспекция по безопасности дорожного движения (ГИБДД)) committed the theft of the petroleum products to the value
of RUB 34,483.56 was established on the basis of the statements of three
co-defendants given at the trial.
It further stated that the applicant’s guilt in
this case, as well as his guilt of the thefts on the nights to 6 and 30
December 2001 respectively, was confirmed by the testimony of four
co-defendants, by the statement of witness N. as to the handover of RUB 50,000
to the applicant, by the content of the transcription of the applicant’s
telephone conversations with the above co-defendants according to which the
applicant had several times spoken about the different matters relating to the
theft, by the record of the inspection of the scene and of cistern KAMAZ and
its trailer, by the investigation experiments and by other evidence which had
been described in detail in the first instance judgment.
The Supreme Court added that, according to the records
of the confrontations between the applicant and other persons, including two of
co-defendants M. and Nu., who had denounced his involvement in the thefts, the
applicant had not denied their assertions but had left them “without comments”.
In respect of the applicant’s allegation that
the audio records were forged, the court noted that the expert forensic report
showed no traces of forgery or any other modifications.
B. Conditions of the applicant’s detention
The applicant was held in Ufa IZ-3/1 pre-trial
detention facility (ФБУ ИЗ-1/3
ГУФСИН г. Уфы) from
10 May to 20 December 2002 and from 7 February to 21 December 2003.
According to the Government, on 21 December 2003 the applicant was transported
to Mikunsky ULIU prison in the Komi Republic (Микуньское
УЛИУ ГРОВД
Республики Коми)
to serve the rest of his sentence. Moreover, from 20 December 2002 to
7 February 2003 he was detained in the temporary detention unit at Tuymazinsky
police station (ИВС ГРОВД
гор. Туймазы) to
be at the disposal of the Tuymazinsky City Court (Туймазинский
городской
суд).
In his letter of 22 December 2005, the applicant
stated that in Ufa IZ-3/1 pre-trial detention facility, he had mostly been
detained, together with three other co-detainees, in buildings nos. 2 and 3 in
cells measuring 3x4 metres equipped with two bunk beds. In his cell in building
no. 2, there was a pan for use as a lavatory and a
washstand just above it, the toilet was not separated from the living area, and
the stench from it was unbearable. The inmates had to use a sheet as a
partition to afford themselves a small degree of privacy, but even that was
later forbidden by the prison authorities. There was no table in the cell. Daily
walks lasted generally 30 minutes and exceptionally one hour.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
Article 278 of the Code of Criminal Procedure of
the Russian Federation of 18 December 2001 (as in force from July 2002)
provides that witnesses are to be examined directly by the trial court. A statement
made by a victim or witness during the pre-trial investigation or an earlier
hearing may be read out with the parties’ consent (i) if there are substantial discrepancies
between his earlier statement and his testimony before the court, or (ii) if
the victim or witness has not appeared before the court (Article 281 § 1).
Moreover, Article 413 of this Code provides for
a possibility to re-open criminal proceedings on the basis of a finding of a
violation of the Convention made by the European Court of Human Rights.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the conditions of
detention in Ufa IZ-3/1 pre-trial detention facility had been in breach of Article
3 of the Convention which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. The parties’ submissions
The Government noted at the outset that it was not possible to collect any
information concerning the cells in which the applicant had been detained as
all documents concerning their numbers and the number of detainees who had
shared the cells with him were destroyed on 26 and 29 January 2009
respectively, because the storage period set by domestic law had expired. However,
they strongly disagreed with the applicant’s allegations that the documents
concerning his case had been destroyed a matter of days before the
communication of his application, maintaining that it had been because the
statutory storage period had expired.
In order to describe general conditions of detention in Ufa IZ-3/1 pre-trial
detention facility, the Government submitted a number of the information
notices issued by the Governor of this institution on 14 April 2009.
Relying on these documents, they maintained that the cells had not been
overcrowded specifying in this respect that during the period from May 2002 and
December 2003 the capacity of the detention facility was 1260 detainees and
that at the relevant time, there were between 1178 and 1260 detainees. The
facility contained 270 cells and 13 cells of common detention where persons
arriving at the detention facility are temporarily placed until their
registration is finished. The Government further stated that during the
relevant period, the number of sleeping places in the cells had corresponded to
the number of detainees and that the applicant had been provided with an
individual sleeping place. The sanitary conditions had been sound and the
applicant could use the toilet in private as it had been separated from the
living area of the cells by a 1 metre-high door (the English version of the
Government’s observations indicates the height of 0.7 metre). The cells had
been equipped with a ventilation system and had been ventilated naturally
through the windows. Moreover, the applicant had been allowed at least one hour
outdoor exercise a day in one of 55 walking yards which were equipped by
benches, 13 walking yards were adapted for sports activities. The Government
joined to their written observations two pictures of the sanitary equipment in
a cell in building no. 2 and two pictures of the walking yards.
The applicant’s representative stated in her written observations that the cells in
Ufa IZ-3/1 pre-trial detention facility had been overcrowded. Referring to annex
no. 2 to the Government’s written observations, she noted that the applicant had
been kept in cell no. 42 in building no. 2, which had measured 4.44 metres
square and had been equipped with four sleeping places. Thus, when the cell was
fully occupied, each inmate had 1.11 metres square of living space at his
disposal.
The applicant’s representative disputed the Government’s argument that the
number of detainees had corresponded to the number of sleeping places and that the
applicant had been provided with an individual sleeping place. She submitted that the toilet had not been separated from
the living area and that the applicant and his co-detainees had temporarily
used a sheet as a partition until the authorities had prohibited them from
doing so. The opportunity to take outdoor exercise had been limited to between
twenty and thirty minutes a day, which had been confirmed by witness statements
written by seven other inmates who had also been detained in the same detention
facility. The applicant’s representative also questioned the photographs
submitted by the Government, pointing out that it was unclear when the pictures
had been taken and if they really depicted the cell in which the applicant had
been detained. She wondered why the documents concerning the applicant’s case
had been destroyed a matter of days before his application lodged with the
Court was communicated to the Government.
. In
his handwritten observations, the applicant maintained that he had originally been
put in a cell in building no. 5 and that, later on, he had been transferred to
building no. 2 and kept for six months in cell “no. 4:2” measuring 3x2 metres
where he had stayed together with three other co-detainees, N., M. and G. According
to him, the corridor between the beds (he does not specify their number) was so
narrow that two persons could not pass through at the same time. The rest of
the description of the cell mostly corresponded to his original sayings, but,
contrary to his original allegations, he submitted that the daily walks had
lasted one hour (see paragraph 28 above). The applicant added that in building
no. 3 the condition of his cell had been similar to that in building no. 2,
contrary to his cell in building no. 8 where the conditions of detention had
been better, but where he had stayed only for two weeks. He noted that as the
Government had not been able to submit relevant documents concerning his
detention and that he did not dispose of such documents, he had to describe his
conditions of detention on the basis of what he recollected from his memory. He
added that the pictures of the cell submitted by the Government showing the
sanitary equipment did not correspond to what had existed at the time when he had
been detained in Ufa IZ-3/1 pre-trial detention facility.
B. The Court’s assessment
1. Admissibility
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.
2. Merits
The Court notes that the parties agree that the
applicant was detained in Ufa IZ-3/1 pre-trial detention facility from 10 May
to 20 December 2002 and from 7 February to 21 December 2003. They disagree,
however, on many aspects of the conditions of the applicant’s detention in this
pre-trial detention institution.
The Court has held on many occasions that cases
concerning allegations of inadequate conditions of detention do not lend
themselves to a rigorous application of the principle affirmanti incumbit
probatio (he who alleges something must prove that allegation) because in
such instances the respondent Government alone have access to information
capable of corroborating or refuting these allegations. It follows that, after
the Court has given notice of the applicant’s complaint to the Government, the
burden is on the latter to collect and produce relevant documents. A failure on
their part to submit convincing evidence on the material conditions of
detention may give rise to the drawing of inferences as to the well-foundedness
of the applicant’s allegations (see Ananyev and Others v. Russia, nos.
42525/07 and 60800/08, § 123, 10 January 2012; Reshetnyak v. Russia,
no. 56027/10, § 92, 8 January 2013).
In the present case the Government failed to
provide any original documents to refute the applicant’s allegations, claiming
that they had been destroyed after the expiry of the statutory time-limit for
their storage. Their submissions are based on the information notices issued by
the Governor of the detention facility in April 2009 (see paragraphs 33 and 33
above). The Court notes, however, that these documents, issued more than five
years after the applicant’s detention in that facility had come to an end (see
paragraph 27 above), contain no clear references to the cells in which he was
detained, their size and sanitary equipment in the relevant periods in 2002-03.
Admittedly, the destruction of the relevant
documents due to expiry of the time-limit for their storage, albeit
regrettable, cannot in itself be regarded as an unsatisfactory explanation for
the failure to submit the relevant documents (see Shcherbakov v. Russia,
no. 23939/02, § 77, 17 June 2010; Ivakhnenko
v. Russia, no. 12622/04, § 32, 4 April 2013). However, on several
previous occasions when the Government had failed to submit original records, the
Court has held that documents prepared after a considerable period of time
cannot be viewed as sufficiently reliable, given the length of time that has
elapsed (see, e.g., Novinskiy v. Russia, no. 11982/02, § 105, 10
February 2009, and Shilbergs v. Russia, no. 20075/03, § 91, 7
December 2009). The Court is of the view that those considerations hold true in
the present case. Moreover, the Government did not submit any convincing
argument that the photographs submitted by them showing the sanitary equipment
of a cell and walking yards were those used by the applicant.
The Court observes that the applicant submitted
a rather detailed description of the condition of the cells in which he had
been held (see paragraphs 28 and 35-36 above). He constantly argued that he had
been detained together with three co-detainees in overcrowded conditions during
the major part of the period of his pre-trial detention in Ufa IZ-3/1 facility,
referring to the cells measuring 3x4, 3x2 metres and 4.44 metres square (idem).
The Court reiterates that in a number of cases
the lack of personal space afforded to detainees in Russian remand centres was
so extreme as to justify in itself a finding of a violation of Article 3 of the
Convention. In those cases, applicants were usually afforded less than 3.5 sq.
m of personal space (see, among others, Lind v. Russia, no. 25664/05, §
59, 6 December 2007). At the same time, the Court has always refused to
determine, once and for all, how many square metres should be allocated to a
detainee in terms of the Convention, having considered that a number of other
relevant factors, such as the duration of detention, the possibilities for
outdoor exercise, the physical and mental condition of the detainee and so
forth, play an important part in deciding whether the detention conditions
complied with the guarantees of Article 3 of the Convention (see Idalov
v. Russia [GC], no. 5826/03, §§ 94-95, ECHR 2012 with further
references).
Having regard to the Government’s failure to submit the original documents relating
to the two relevant periods of the applicant’s detention, which cannot be
compensated by the information notices issued by the Governor containing only the
general data as to the number of cells, their size and capacity and the
capacity of the whole pre-trial facility, and taking into account that the
applicant described his conditions of detention in a rather detailed way, despite
some inconsistencies as to whether he was provided with an individual sleeping
place during the whole period of his detention in Ufa IZ-3/1 facility, the
Court can establish beyond a reasonable doubt that at the material time the pre-trial
detention facility was overcrowded.
As to other conditions of detention such as the sanitary equipment,
ventilation of the cells and detainees’ outdoor walks, the Court notes that although
there is no indication in the present case that the national authorities
intended to humiliate or debase the applicant, it finds that the material
conditions of detention in which he described to live one year and eight months,
which were not reliably and credibly refuted by the Government, caused him
distress and hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention, and to arouse in him feelings of fear, anguish
and inferiority capable of humiliating and debasing him.
The Court finds, accordingly, that there has been a violation of Article 3 of
the Convention because the applicant was subjected to inhuman and degrading
treatment on account of the conditions of his detention in Ufa IZ-3/1 pre-trial
detention facility from 10 May to 20 December 2002 and from 7 February to 21
December 2003.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d)
OF THE CONVENTION
The applicant complained that in the course of
the criminal proceedings against him he had not received a fair trial, as
provided in Article 6 §§ 1 and 3 (d) of the Convention, which reads, so far as
relevant, as follows:
“1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing ...
...
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. The parties’ submissions
The Government submitted that the fact that the
applicant had not had an opportunity to question the witnesses directly did not
cause a violation of his defence rights, the conviction against him having been
based on testimony taken directly during the trial and other evidence.
Moreover, the applicant and/or his legal representative had had an opportunity
to question witness N. during the confrontation when he had claimed that he had
never seen the applicant before and had made a deal with someone else. However,
the telephone records and the statements of witness N. given in the course of
the preliminary investigation proved otherwise. The Government added that the
records of questioning had been read out and obtained in full accordance with
the criminal procedural law.
According to the Government, the domestic
authorities had taken all possible measures to ensure the witnesses’
attendance. The trial court had issued an order summoning the absent witnesses
to appear, but the relevant authorities had been unable to execute it.
The applicant complained that the authorities had
failed to secure the attendance of main prosecution witness N., who during the pre-trial
confrontation had denied knowing the applicant. They had also failed to provide
him with an opportunity to examine other witnesses at any stage of the
proceedings. In his opinion, the efforts made to secure the witnesses’ presence
before the court had been insufficient. The prosecution witnesses had not been
present, despite it having been binding on the prosecution to secure their attendance.
Nevertheless, the statements of the witnesses who had failed to appear at the
trial had all been read out, despite the applicant’s objections.
B. The Court’s assessment
1. Admissibility
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.
2. Merits
. The
Court first recalls that as the requirements of paragraph 3 of Article 6 are to
be seen as particular aspects of the right to a fair trial guaranteed by
paragraph 1, the Court will examine the complaint under both provisions taken
together (see, e.g. Krombach v. France, no. 29731/96, § 82, ECHR
2001-II). It further reiterates that Article 6
§ 3 (d) enshrines the principle that, before an accused can be convicted, all
evidence against him must normally be produced in his presence at a public
hearing with a view to adversarial argument. Exceptions to this principle are
possible, but must not infringe the rights of the defence, which, as a rule,
require that the accused should be given an adequate and proper
opportunity to challenge and question a witness against him, either when that witness
makes his statement or at a later stage of proceedings (see Lucà v. Italy,
no. 33354/96, 27 February 2001, § 39; Al-Khawaja and Tahery, [GC], nos.
26766/05 and 22228/06, § 118, ECHR 2011).
There are two requirements which follow from the
above general guarantees. First, there must be a good reason for the
non-attendance of a witness. Second, when 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 may be restricted to
an extent that is incompatible with the guarantees provided by Article 6 (see Al-Khawaja
and Tahery, cited above, § 119).
The requirement that there be a good reason for
admitting the evidence of an absent witness is a preliminary question which
must be examined before any consideration is given as to whether that evidence
was sole or decisive. Even where the evidence of an absent witness has not been
sole or decisive, the Court has still found a violation of Article 6 §§ 1
and 3 (d) when no good reason has been shown for the failure to have
the witness examined. This is because, as a general rule, witnesses should give
evidence during the trial and all reasonable efforts should be made to secure
their attendance. Thus, when witnesses do not attend to give live evidence,
there is a duty to enquire whether that absence is justified (ibid., § 120).
The Court notes that the present application
does not concern witnesses whose identities are concealed from the accused. In
the instant case the witnesses of the three events at issue did not attend and
testify at trial and could thus not be heard by the trial court; nor was the
defence able to examine them or observe their demeanour under questioning with
a view to forming their own impression of their probity and credibility. Their
witness statements made at the pre-trial stage were nevertheless read out at
trial and admitted as evidence by the Supreme Court of Bashkortostan.
The Court observes, however, that the statements
of absent witnesses S., Na., G., Si., Gi., A., T. and Sh. from the pre-trial
investigation, which were read out at trial, did not directly incriminate the
applicant and provided no information to suggest that he had directly participated
in the theft. They fell rather into the category of corroborative evidence, as
the guilty verdict on the theft charges was reached on the basis of testimony
taken during the trial and of other evidence (see paragraphs 13-20 above). The
Court therefore concludes that the evidence of these absent witnesses cannot be
considered relevant for the conviction of the applicant. It is accordingly not
required to establish whether there were good reasons for their non-attendance.
As to the testimonies given by witness N., the
Court observes that they were used as evidence before the Supreme Court of
Bashkortostan. In this context the Court has regard to the fact that the
statements given by N. during the investigation seem to be to some extent
inconsistent with each other. Thus, while N. stated that he had made a deal
with Vladimir, the applicant’s first name, on 5 and 6 December 2001, during
their confrontation conducted by the investigator, N. claimed that he had never
seen the applicant before and made a deal with someone else (see
paragraph 12 above). The Court therefore considers that N.’s testimony was
relevant for the outcome of the case.
The Court further observes that the Supreme
Court of Bashkortostan did not specify the reasons why witness N. failed to
attend the trial merely stating that “the reasons for his non-attendance were
recognised by the court as excluding the possibility for him to take part in
the hearing” (see paragraph 12 above). No further explanations
were given. In the Court’s view there were therefore no good reasons for the
absence of witness N. and for the ensuing restriction of the applicant’s right
to obtain the examination of the witness whose testimony had been used for his
conviction (see Rudnichenko v. Ukraine, no. 2775/07, 11 July 2013). In
these circumstances, the Court does not consider it necessary to proceed with
the second part of the test as to whether the applicant’s conviction was based
solely or to a decisive degree on N.’s depositions.
. Accordingly,
there has been a violation of Article 6 § 3 (d) taken together with Article 6 §
1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant further complained that the
conditions of his detention in the temporary detention unit at Tuymazinsky police
station between 19 January and 13 March 2002 had been inhuman and
degrading, in breach of Article 3 of the Convention. He also complained under
Article 5 §§ 1 (c) and 3 of the Convention that his pre-trial detention had
been lengthy and unlawful. Furthermore, under Article 6 §§ 1, 3 (a), (b) and
(c) of the Convention, he claimed that changes were made during the trial to
the scope of the charges against him, that the evidence was erroneously assessed
by the domestic courts and that during the investigation, he had been
interviewed as a witness in violation of his defence rights.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that these complaints of the application does
not disclose any appearance of a violation of the Convention. It follows that it
is inadmissible under Article 35 § 3 (a) of the Convention as manifestly
ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 25,000 euros (EUR) in
respect of non-pecuniary damage.
The Government submitted that the violation
would in itself constitute sufficient just satisfaction, relying on the Court’s
case-law in Silin v. Russia (no. 3947/09, 24 April 2008, § 69), and Ryakib
Biryukov v. Russia (no. 14810/02, 17 January 2008, § 50).
The Court considers that the suffering and
frustration caused to an individual who was detained in manifestly
inappropriate conditions cannot be compensated for by a mere finding of a
violation. The length of stay in such conditions is undeniably the single most
important factor that is relevant for the assessment of the extent of
non-pecuniary damage. It is also known that an initial period of adjustment to
poor conditions exacts a particularly heavy mental and physical toll on the
individual. Having regard to the fundamental nature of the right protected by
Article 3, and additional violation of Article 6 § 3 (d) of the Convention, the
Court finds it appropriate to award the applicant the amount of EUR 9,000 in
respect of non-pecuniary damage.
The Court further observes that it has found a
combination of violations in the present case. In particular, it has found a
violation of Article 6 § 1 of the Convention in conjunction with Article 6
§ 3 (d) thereof. It 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 Sakhnovskiy v.
Russia [GC], no. 21272/03, § 112, 2 November 2010; Pichugin v. Russia,
no. 38623/03, § 219, 23 October 2012). The Court notes, in this
connection, that Article 413 of the Code of Criminal Procedure provides that
criminal proceedings may be reopened if the Court finds a violation of the
Convention (see paragraph 30 above).
B. Costs and expenses
As the applicant did not claim costs and
expenses, the Court makes no award under this head.
C. Default interest
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 complaint under Article 3 about
the applicant’s conditions of detention in Ufa IZ-3/1 pre-trial detention
facility from 10 May to 20 December 2002 and from 7 February to 21
December 2003, and the complaint under Article 6 §§ 1 and 3 (d) of the
Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of
Article 6 §§ 1 and 3 (d) of the Convention;
4. 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 9,000 (nine
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the currency of the respondent State
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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 October 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
