Information Note on the Court’s case-law No. 114
December 2008
Mirilashvili v. Russia - 6293/04
Judgment 11.12.2008 [Section I]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Equality of arms
Trial court's refusal to disclose to the defence materials relating to surveillance operation or to admit statements obtained from key witnesses by the defence: violation
Facts: In 2003 the applicant was convicted on suspicion of organising the abduction of a group of people. The trial court relied on the recordings of telephone conversations made by the police in one of the victims' flat. Citing the Operational and Search Activities Act, the court refused to disclose to the defence the materials relevant to the authorisation of the wiretapping. The court also relied heavily on the written testimonies of three important witnesses, which had been obtained by an investigator at the pre-trial stage and read out at the trial. As these witnesses lived in Georgia, the court requested the Georgian authorities to secure their attendance at the trial, but without success. Two of the witnesses never appeared before the Russian courts, and one attended only the appeal hearing. Nor was the applicant able to question them during the pre-trial investigation. However, the three witnesses were questioned in Georgia by the defence lawyers after the start of the trial and sent written statements to the court retracting their earlier testimony. They all stated that they had falsely accused the applicant, and that their previous statements to the prosecution had been given under pressure. The defence applied to the trial judge for the admission of these statements. However, the court declared them inadmissible since the law prohibited defence lawyers from questioning witnesses after they had been questioned by the prosecution and in a manner that was not in accordance with the “proper” procedure for collecting of evidence prescribed by law. The applicant's conviction was in the main upheld on appeal.
Law: Materials withheld from the defence: The Court could not rule out the possibility that the materials in question might have been helpful to the defence, which would, therefore, have had a legitimate interest in seeking their disclosure. However, it was prepared to accept, having regard to the context of the case, that the documents sought by the applicant might have contained certain items of sensitive information relevant to national security. In such circumstances the national judge enjoyed a wide margin of appreciation in deciding on the disclosure request lodged by the defence. The question arose whether the non-disclosure had been counterbalanced by adequate procedural guarantees. The materials relating to the authorisation of the wiretapping had been examined by the presiding judge ex parte. Therefore, the decision to withhold certain documents had been taken not by the prosecution unilaterally, but by a member of the judiciary. However, the court had not analysed whether the materials would have been of any assistance to the defence or whether their disclosure would, at least arguably, have harmed an identifiable public interest. The court's decision had been based on the type of material at issue, not on an analysis of its content. Having regard to the Operational and Search Activities Act, which prohibited in absolute terms the disclosure of documents relating to operational and search activities, the court's role in examining the disclosure request lodged by the defence had been very limited. The decision-making process had therefore been seriously flawed. The impugned decision was vague and did not specify what kind of sensitive information the materials relating to the surveillance operation could contain. The court had accepted the blanket exclusion of all the materials from adversarial examination. Furthermore, the surveillance operation had not targeted the applicant or his co-accused. In sum, the decision to withhold materials relating to the surveillance operation had not been accompanied by adequate procedural guarantees, and had not been sufficiently justified.
Admissibility of witness statements:The defence had been in a disadvantageous position vis-à-vis the prosecution: whereas the prosecution had been able to examine the key witnesses directly, the defence had been deprived of that opportunity. However, the applicant's inability to examine these witnesses in person could be attributed to certain objective circumstances which were outside the control of the Russian authorities. Nevertheless, that fact alone did not suffice to conclude that the evidence had been taken and examined in a fair manner. The defence had not been allowed to produce new written depositions obtained from the witnesses. The evidence submitted by the defence was relevant and important. The three witnesses at issue were key witnesses for the prosecution. By obtaining new statements from them the defence had sought not only to produce exculpatory evidence, but also to challenge the evidence against the applicant. When refusing to examine the new statements, the court had relied on a domestic law provision which did not appear to pursue any identifiable legitimate interest. In the particular circumstances of the case, namely where the applicant had been unable to examine several key witnesses in court or at least at the pre-trial stage, the refusal to admit the statements obtained by the defence had not been justified. The Court, however, emphasised that it was not taking a stand on the assessment of that evidence, which was the prerogative of the domestic courts.
Overall fairness of the proceedings: The defence had been placed at a serious disadvantage vis-à-vis the prosecution in respect of the examination of a very important part of the case file. In view of the importance of appearances in matters of criminal justice, the proceedings in question, taken as a whole, had not satisfied the requirements of a “fair hearing”.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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