THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 60333/00
by Vladimir Yuryevich SLYUSAREV
against Russia
The European Court of Human Rights (Third Section), sitting on 9 November 2006 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrA. Kovler,
MrV. Zagrebelsky,
MrsA. Gyulumyan,
MrE. Myjer,
MrsI. Ziemele, judges,
and Mr V. Berger , Section Registrar,
Having regard to the above application lodged on 25 April 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Vladimir Yuryevich Slyusarev, is a Russian national, who was born in 1970 and lives in Moscow. He is represented before the Court by Mrs K. Kostromina, a lawyer practising in Moscow. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation in the European Court of Human Rights.
i. the circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
A. Incidents of fraud
In April 1998 a Moscow-based pharmaceutical firm fell victim to a fraudulent scheme: a man, under the guise of a sales-manager of another firm, offered to sell them a consignment of pharmaceuticals at a low price. However, after having received the advance payment, the “sales-manager” disappeared. Soon thereafter the same person contacted another firm with a similar commercial offer.
In May 1998 the applicant was apprehended by the police in the office of a third pharmaceutical firm. The applicant had with him a blank copy of a contract of sale of pharmaceuticals, a fake operating licence of a pharmaceutical firm, an invoice and certain other financial documents, including several pawn tickets in the name of “S. Y. Ivanin”. Police inspector Mr Koldayev, suspecting the applicant of attempting a fraud, questioned him. The applicant explained that he was just a delivery boy and did not know anything about the scheme. The police inspector seized the documents, pawn tickets and the applicant’s notes and released him.
B. Incident of armed robbery
Late in the night of 2 July 1998 Ms Perevesentseva was assaulted at the entrance of her house. Two of her neighbours, Mr Anisimov and Mr Faykushin, apprehended the applicant on suspicion of his having committed this crime and handed him to the police. The applicant was conveyed to the Moscow Pechatniki District Police Department (ОВД «Печатники») for questioning. It appears that at a certain moment the applicant’s glasses were broken and the police took them away.
At the police station the applicant confessed that he had tried to rob Ms Perevesentseva using a gas handgun, and that there was a short fight between him and one of the persons who had apprehended him. He also stated that he had not been subjected to any pressure by the policemen and that he did not need a lawyer. Mr Anisimov and Mr Faykushin confirmed that testimony. On the contrary, the policemen who had brought the applicant to the police station testified that they did not see any bruises on the applicant’s face or body.
On 3 July 1998 the police instituted criminal proceedings against the applicant on suspicion of armed robbery of Ms Perevesentseva and illegal possession of firearms. On the same date the applicant confessed to having committed the impugned crimes.
C. Inquiry into the alleged ill-treatment
On 4 July 1998 the applicant was brought by the policemen to a doctor. It appears that the applicant did not complain to the doctor about any injury. After a medical examination he was transferred to a pre-trial detention centre.
On 6 July 1998 the applicant was questioned again in connection with the robbery, now in presence of his lawyer. This time the applicant retracted his initial confession statement.
On 14 July 1998 the applicant filed with the Preobrazhenskiy District Court an application for release, where he proposed his version of the events of 2 July 1998. He contended that some time before the events he had fallen a prey to street crooks, who had stolen his money. He recognised Ms Perevesentseva as one of them, and decided to follow her in order to retrieve his money or hand her to the police. He took a gas handgun for self-defence and did not intend to rob her. The applicant did not mention that he had been beaten or otherwise ill-treated by the policemen. However, he claimed that he signed his initial confession because the policemen had “used threats” and “put pressure” on him. The applicant also referred to his stable status of a businessman and a steady-going family man. On these grounds he requested his release on bail.
On 14 September 1998 the applicant’s wife filed a complaint to the district prosecutor, claiming that the applicant had been beaten up by the police after his arrest. The applicant’s wife indicated that on 3 July 1998 she had observed bruises on her husband’s face. She also requested the prosecution to return the glasses to her husband.
The prosecutor opened a preliminary inquiry (прокурорская проверка) into these allegations. On 16 October 1998 the prosecutor informed the applicant’s wife that he decided not to pursue with the case.
On 25 November 1998 the applicant underwent a medical examination at an eye hospital. The doctors detected a reduction of his left eye’s mobility as a result of a “contusion”. A significant impairment of the applicant’s eyesight was also established. However, the doctors concluded that the applicant could attend to himself, orient and move around indoors.
In December 1998 the prosecutor re-opened an inquiry into the applicant’s allegations of ill-treatment and on 18 December 1998 assigned this case to the deputy prosecutor Ms Ivanyutina.
On 7 October 1998 Ms Ivanyutina questioned two private persons who had apprehended the applicant on 3 July 1996 before the police had arrived. They denied any ill-treatment by the police. On the contrary, one of them testified that he had punched the applicant twice in order to break down his resistance.
On 2 December 1998 the glasses were returned to the applicant by the investigator in charge of his case.
On 24 February 1999 Ms Ivanyutina requested the State bureau of forensic expertise to establish whether the impairment of the applicant’s health could have been provoked by the alleged beatings. On 5 April 1999 the expert drew up a report, stating that no evidence of beatings was established and that the impairment of the applicant’s eyesight could have been explained by his chronic myopia.
On 15 April 1999 the deputy prosecutor Ms Ivanyutina closed the inquiry for lack of evidence of crime. The applicant’s wife challenged this decision. On 31 July 2000 she was informed that following an additional inquiry the prosecutor decided not to pursue the investigation.
The applicant raised the issue of ill-treatment within the court proceedings against him (see below). He challenged the admissibility of his initial confessions as having been extracted by force. The applicant’s defence counsel requested a new medical expert report in order to determine whether the injuries sustained by the applicant could have been caused by beatings. The Moscow Lyublinskiy District Court dismissed this motion on the ground that such an examination had been already carried out. In its judgment of 15 June 1999 the court denied any ill-treatment by the police, stating that the injuries sustained by the applicant stemmed from his struggle with the private persons upon his arrest.
On 22 June 1999 the applicant’s lawyer lodged an appeal on behalf of his client. In that appeal he claimed that the applicant had been beaten by the police, and, therefore, his confession could not be admitted as evidence.
The District Court’s judgment was upheld by the Moscow City Court on 3 November 1999.
D. Criminal proceedings against the applicant
On 3 July 2003 the applicant was charged with illegal possession of firearms and robbery. On an unspecified date the applicant was also charged with three counts of fraud. He was suspected of having received money from private companies under the guise of a sales manager of another firm (see above).
On 3 December 1998 the pre-trial investigation was completed and the case was assigned to the deputy prosecutor Ms Ivanyutina who filed the bill of indictment with the case-file to the Moscow Lyublinskiy District Court.
On 25 December 1998 the District Court remitted the case-file to the prosecutor, stating that the applicant had not had enough time to read the case-file because his glasses had been taken away and returned only on 2 December 1998. The prosecution authorities were ordered to put the case-file at the applicant’s disposal anew.
On an unspecified date in January 1999 the investigator in charge of the case provided the applicant with new glasses instead of his old ones. Some time afterwards the case-file with the bill of indictment was re-submitted to the court by the prosecution.
1. Fraud charge and supporting evidence
The prosecution forwarded two groups of charges against the applicant. First, the applicant was accused of three counts of fraud, committed in concert with an unidentified person. Thus, according to the prosecution, on 29 April 1998 the applicant’s accomplice contacted Ms Petina, a manager in “Loken” Ltd, a pharmaceutical firm in Moscow. He introduced himself as “Sergey Yevgenyevich Ivanin”, director of “Notes” Ltd., another pharmaceutical firm. He proposed that Ms Petina buy from him certain pharmaceuticals at an advantageous price but requested payment in advance. Some time later the applicant arrived at the office of “Loken” with a copy of the operating license of “Notes” and a blank copy of a sales contract with the official stamp of “Notes” on it. Tempted by the price Ms Petina signed the agreement and ordered the transfer of the advance payment to the bank account of “Notes”. Apparently the applicant had an arrangement with the director of “Notes”, Mr Korolev: as soon as the money had been received, Mr Korolev, in exchange for a small commission, gave the applicant the equivalent in cash.
Further, in April 1998 the applicant and his accomplice attempted to realize the same scheme with another pharmaceutical firm, “Fortuna” Ltd. However, Mr Nikishin, director of “Fortuna”, became suspicious and revoked the payment order at the last moment.
In May 1998 a person who introduced himself as “Sergey Yevgenyevich” called Ms Lebedeva, director of “Tais-Extra” Ltd, another Moscow-based pharmaceutical firm, and made her a similar offer. Ms Lebedeva made as if she accepted the deal and invited that person to her office. However, suspicious about that proposal, she also informed the police about it. On 19 May 1998 the applicant arrived at the premises of “Tais-Extra” under the guise of a sales-manager. He was arrested and questioned by the policemen but later released, since he claimed that he had been only a delivery person.
In support of the accusation the prosecution referred a number of documents, seized from the applicant at the moment of his first apprehension in May 1998 and later in the course of the investigation, such as sale contracts, copies of the operating license of “Notes”, commercial correspondence, bank transfer orders etc. Thus, the applicant had with him a copy of a contract between “Loken” and “Notes” dated 28 April 1998. An expert examination of the handwritten parts of that document showed that they had been made by the applicant’s hand. The applicant’s handwritten notes also contained certain entries which, in the opinion of the prosecution, concerned his transactions with the above firms, namely “Fortuna”. The prosecution also referred to a handwritten cash receipt confirming that in April 1998 certain “S. Y. Ivanin” had received money from Mr Korolev. An expert examination of the receipt showed that it had probably been written by the applicant. Finally, the pawn tickets, seized from the applicant at the moment of his first apprehension in May 1998, were drawn at the name of “S. Y. Ivanin”.
The prosecution further referred to the results of several identification parades. In particular, Ms Petina and Mr Korolev were shown a number of photos, including a photo of the applicant. Both witnesses identified the applicant as the person behind the fraudulent deals.
The prosecution submitted records of the questioning of several witnesses, some of which had been obtained in the presence of the applicant and his lawyer. Thus, the applicant had a “face-to-face confrontation” (очная ставка) with Ms Petina. The applicant denied having known her. Ms Petina, quite the contrary, testified that she knew the applicant as the sales-man from “Notes”. Both the applicant and his lawyer put several questions to Ms Petina; in particular, one of the questions concerned whether or not she had been shown the applicant’s photo before having identified him at the identification parade. She confirmed that the police had shown her “informally” some photos of the applicant before.
The applicant participated in a face-to-face confrontation with Mr Korolev, director of “Notes”. The applicant denied that he had ever seen Mr Korolev or received any money from him. Mr Korolev testified that he had known the applicant as Mr Ivanin. He had an arrangement with him concerning the use of the bank account of “Notes”. As soon as the money from “Loken” had been received, he gave it to the applicant in cash in exchange for a small commission. The applicant put to Mr Korolev the same question as he had put to Ms Petina, namely whether Mr Korolev had ever been shown the applicant’s photo before the identification parade. Mr Korolev replied in the affirmative.
Mr Nikishin was also questioned in presence of the applicant[1].
The applicant claimed that he had just worked as a delivery boy for a person he had known as “Sergey”. It appears that prosecution was unable to establish the real identity and whereabouts of the applicant’s accomplice.
2. Robbery charge and supporting evidence
Second, the applicant was accused of illegal possession of firearms and armed robbery. Thus, according to the prosecution, on 14 June 1998 the applicant bought a gas handgun, which he then kept without proper permission. Further, in the night of 2 July 1998 the applicant assaulted Ms Perevesentseva with that gun. He had been apprehended by Ms Perevesentseva two neighbors – Messes Anisimov and Faykushin and handed to the police officers Messes Gavrilov and Sumnikov. In support of that charge the prosecution referred to the testimonies of Ms Perevesentseva, Messes Anisimov, Faykushin, Gavrilov and Sumnikov. The prosecution also produced a gas handgun that the applicant had allegedly had with him on 2 July 1998.
E. The trial
The court held a series of preparatory hearings. The applicant maintained that at this stage he had requested the court to allow his mother to participate in the proceedings as his representative. The court refused that motion on the ground that his mother had participated in the pre-trial investigation in a different capacity. In particular, the court referred to the fact that during the search at the applicant’s flat she voluntarily had handed to the police “the objects acquired by criminal means”.
In the proceedings before the District Court the applicant testified that he had been beaten by the police and confirmed that his confession statement had been given under duress. The applicant also denied having committed the fraud.
By an interim decision of 18 February 1999 the court summoned ten witnesses to the hearing, as requested by the prosecution, including the alleged victim of robbery (Ms Perevesentseva), three victims of fraud (Ms Petina, Mr Nikishin, Ms Lebedeva) and six other witnesses (Mssrs Korolev, Koldayev, Anisimov, Faykushin, Gavrilov and Sumnikov). The police dispatched the summons.
On 10 July 1999 the court opened the hearings. Six witnesses out of ten did not appear. The applicant insisted on personal presence of those witnesses, but the court, relying on Article 286 of the Code of Criminal Procedure, decided to proceed in their absence on the basis that Ms Petina and Mr Nikishin lived outside Moscow, Mr Koldayev was busy at work, Mr Faykushin had left Moscow for a while, and Mr Sumnikov was ill. It appears that Mr Korolev was also absent; however, it is unclear why he did not show up. The court ordered their written testimonies given at the investigation stage to be read out.
The court also questioned Ms Lebedeva and examined written evidence, produced by the prosecution, namely the financial and other documents concerning fraudulent transactions. Ms Lebedeva confirmed the account of the prosecution as to the third episode of fraud concerning “Tais-Extra”. The applicant denied his implication in the fraud. He claimed that he had been just a delivery boy and did not know anything about the transactions at issue.
Further, the court heard Ms Perevesentseva, Mr Anisimov and Mr Gavrilov about the circumstances of the alleged robbery. Mr Anisimov confirmed that he had had a fight with the applicant. Ms Perevesentseva and Mr Gavrilov confirmed their statements made at the pre-trial investigation stage. In particular, Mr Gavrilov denied any ill-treatment of the applicant after his arrest.
The applicant insisted that he had been beaten. He pleaded guilty in the illegal possession of a firearm, but not guilty as regards the charge of robbery. He claimed that he had assaulted Ms Perevesentseva in order to return his money and that he had had no intent to rob her.
F. The judgment
On 15 June 1999 the Lyublinskiy District Court of Moscow found the applicant guilty of one count of armed robbery, one count of illegal possession of firearms and several counts of fraud and sentenced him to 9 years’ imprisonment.
As to the fraud, the District Court referred, inter alia, to written testimonies of Mrs Petina, Mr Korolev, Mr Nikishin, and Mr Koldayev, obtained in course of “face-to-face confrontations” with the applicant during the pre-trial investigation, testimonies of Ms Lebedeva at the trial, and a large number of documents, obtained during the investigation,. The District Court noted inter alia that Ms Petina had identified the applicant as the “sale-man” from “Notes” on a photo, and, later, she confirmed it in the course of the face-to-face confrontation. Mr Korolev confirmed that he knew the applicant as Mr Ivanin and identified him during the identification parade. According to the judgment, Mr Nikishin identified the applicant as the “sales manager” from “Notes” who had visited him in the office.
The District Court also referred to the documents, seized from the applicant at the moment of his arrest in May 1998, in particular to the sale contract between “Notes” and “Loken”, fake operating licence of “Notes”, invoices addressed to “Tais-Extra” and “Fortuna”, payment orders, a handwritten cash receipt signed “Mr S. Y. Ivanin”, made by the applicant’s hand, the applicant’s handwritten notes concerning transactions with “Fortuna”, pawn tickets in the name of “S. Y. Ivanin” which had been with him at the moment of his arrest, and some other financial documents.
Finally, the District Court examined the applicant’s version of events, namely that he was just a delivery boy. However, the Court noted that his statements made to the police and the prosecution in the course of the pre-trial investigation were extremely inconsistent. Thus, the applicant first claimed that he was a delivery boy at Mr Ivanin’s firm. Then he claimed that he had worked for Mr Ivanin as a manager. Some times later he again changed his mind and explained that he had never known Mr Ivanin. It concluded that the applicant’s role in the crime had been much more important than he claimed.
As to the robbery, the court based its conclusions on the testimonies of Mr Anisimov, Ms Perevesentseva and Mr Gavrilov, given at the trial, and the testimonies of Mr Faykushin and Mr Sumnikov, given at the pre-trial investigation stage. The court also referred to the applicant’s own confession of 3 July 1998. The court examined his allegation that the confession was extorted by force. The court notes that the applicant had been injured at the moment of his apprehension, and that later he had tried to use his injuries as a proof of ill-treatment. However, his complaints were duly examined and rejected by the prosecution authorities as unfounded.
The applicant appealed against the conviction, indicating, inter alia, that the validity of testimonies of Ms Petina and Mr Nikishin had been crucial regarding two counts of the impugned fraud, and that the applicant’s inability to examine these witnesses in person had been in breach of Article 6 § 3 (d) of the European Convention and the domestic law. He also maintained that the court had failed to properly summon these witnesses. The applicant further submitted that certain evidence had been obtained illegally and therefore should have not been admitted by the court. The applicant complained that the Lyublinskiy District Court was not impartial.
On 3 November 1999 the Moscow City Court dismissed the appeal and upheld the lower court decision of 15 June 1999. The City Court confirmed the conclusions of the first instance court and held that no evidence of ill-treatment had been discovered.
ii. relevant domestic law
Article 117 § 2 (f) of the Criminal Code of the Russian Federation penalizes an act of torture with a sentence of up to seven years’ imprisonment.
A. Criminal investigation by the prosecution authorities
According to Articles 108 and 125 of the Code of Criminal Procedure of 1960 (in force until 2002) and Article 27 of the Law “On Prosecution” of 1992, a criminal investigation might have been initiated by the prosecutor upon the request of a private person or on the investigative authorities’ own motion, when there were reasons to believe that a crime had been committed. In order to decide whether or not there was a case to investigate, the prosecutor might have carried out a “preliminary inquiry”, a less formal inquest into the events. As a result, the prosecutor might have decided:
(i) to initiate a criminal investigation;
(ii) to refuse to initiate a criminal investigation, or
(iii) to transmit the application or the information to a competent authority.
According to Articles 210 and 211 of the Code, a prosecutor was responsible for general supervision of the criminal investigation. In particular, the prosecutor might have ordered a specific investigative action, the transferral of the case from one investigator to another, the re-opening of the investigation.
Article 53 of the Code stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party if there is an on-going criminal investigation. During the investigation the victim could submit evidence and lodge applications, and once the investigation was complete the victim had full access to the case-file. However, the alleged victim had no access to the materials of the “preliminary inquiry”.
B. The role of the courts in investigating crimes
Article 113 § 4 of the Code provided that an appeal against the refusal to initiate a criminal investigation could have been lodged with a higher prosecutor or an appellate court. On 29 April 1998 the Constitutional Court of the Russian Federation interpreted Article 46 of the Constitution as providing everyone with a right of appeal to a court against decisions and actions of authorities and officials. The Constitutional Court referred to its earlier case-law conferring access to court in matters affecting individual rights, and held that any person whose interests are affected by a refusal to open criminal proceedings should have an opportunity to challenge it before a court.
On 14 January 2000 the Constitutional Court declared the institution of criminal proceedings by a court to be incompatible with its independent role in adversarial proceedings. A court’s function, as defined by the Constitutional Court, was “to examine the materials placed in its possession, as submitted by the investigating authority, and to assess whether the decision not to investigate was lawful and well-founded”. The Constitutional Court held as follows:
“If a court examining a criminal case establishes facts which themselves disclose an appearance of a crime [committed by a third person], it must refrain from stating that there are sufficient grounds to suspect a particular person and from formulating charges, and must refer the relevant materials to the prosecution authorities competent to carry out further checks and to take a decision as to whether there are sufficient grounds to institute criminal proceedings. The latter are obliged to take immediate measures pursuant to the facts and circumstances established by the court.”
Article 210 of the Code provided that the case could have been reopened by the prosecutor “if there are grounds” to do so. Only if the time-limit for prosecuting that particular type of crimes had expired could the investigation not be started or reopened.
C. Witnesses at the pre-trial stage and in court
At the pre-trial stage the investigator may order a “face-to-face confrontation” between the defendant and the witnesses (Article 163 of the Code). This confrontation takes place before the investigator, who puts questions to the participants and may allow them to put questions to each other.
In the course of the pre-trial investigation the defendant has access to those materials in the case file that have been obtained with his participation. However, as soon as the investigation is formally completed, the defendant and his lawyer should be given access to all the materials in the case-file (Article 46 of the Code).
Article 240 of the Code of Criminal Procedure provided that the first instance court had to carry out a direct examination of evidence in the case: it had to question defendants, victims, witnesses, and experts, and examine material evidence, read out records and other documents. Article 286 provided that statements given by a witness during the inquiry or pre-trial investigation could be read out in two cases: (i) if there was a substantial discrepancy between those statements and the testimony given before the court; or (ii) if the witness was absent from the court session for reasons that made it absolutely impossible to secure his attendance.
COMPLAINTS
1. Under Article 3 of the Convention the applicant complained that he had been beaten by the police after his arrest, and that his allegations of ill-treatment had not been duly investigated by an independent authority.
2. Under the same Convention provision the applicant also submitted that although he had been very short-sighted, needing lenses of 3.5 dioptres, his glasses had been taken away from him and returned only five months later. It debased his human dignity and resulted in serious impairment of his eyesight.
3. Under Article 5 of the Convention the applicant complained about his arrest on 3 July 1998 and the subsequent detention until his conviction on 15 June 1999. He alleged that the detention had been arbitrary and unlawful and that the court had failed to review his application for release.
4. Under Article 6 § 1 of the Convention the applicant complained that the first instance court had not been impartial because during the preparatory hearings the judge had qualified certain objects as “obtained by criminal means”. He also complained that the deputy prosecutor Ivanyutina had supported the charges against him and, at the same time, investigated the alleged ill-treatment of the applicant by the police.
5. Under Article 6 § 1 combined with Article 6 § (c) the applicant complained that he had been convicted on the basis of self-incriminating statements, which had been received under duress and without a lawyer.
6. Under Article 6 § 1 the applicant complained that the court should not have relied on his identification by Ms Petina and Mr Korolev. In his words, Ms Petina had been shown the applicant’s photo in advance, so her testimony was unreliable. As to the identification by Mr Korolev, the applicant claimed that the minutes of the identification had been falsified: his photo was put on the identification protocol after Mr Korolev had signed it.
7. Under Article 6 § 1 taken in conjunction with Article 6 § 3 (d) the applicant complained that the first instance court had failed to obtain the attendance of several key witnesses, and, therefore, the applicant had been unable to cross-examine them in person during the trial.
8. Under Article 6 § 3 (b) the applicant complained that due to the fact that his glasses had been taken away, he had been unable to prepare his defence at the stage of the pre-trial investigation.
THE LAW
1. The applicant complained of police brutality shortly after his arrest and of the inadequacy of the investigation in this respect. The applicant referred to 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
1. The Government
The Government submitted that the applicant had been injured by private persons at the moment of his apprehension. They referred to the record of his first questioning which confirmed that there had been a struggle between the applicant and those persons and that no pressure had been exerted on the applicant by the police. Furthermore, at the trial Mr Anisimov testified that he had had to break the applicant’s resistance by using physical force.
The Government also contended that the applicant had failed to challenge before the court the prosecutor’s decision not to open an investigation into the allegations of ill-treatment.
2. The applicant
The applicant argued that it had been not until 6 July 1998 when Mr Anisimov and Mr Faykushin started to claim that they had applied physical force to the applicant during his apprehension. At the initial questioning both of them contended that they had just been holding the applicant down until the arrival of the police. In their initial submissions the police officers Mssrs Gavrilov and Sumnikov denied that they had seen any bruises on the applicant’s face or any other traces of violence on his body at the moment when they had seen him.
Finally, the applicant claimed that on 14 July 1998 he had complained about the ill-treatment to the Preobrazhenskiy District Court through the administration of the detention facility. However, that complaint was not forwarded to the District Court until two months and nine days later. It was received by the Preobrazhenskiy Court on 30 September 1998, but left unexamined. The applicant produced the record of a telephone message (телефонограмма) received by the Preobrazhenskiy District Court from the Lyublinskiy Prosecutor’s Office, whereby the Prosecutor’s Office informed the District Court that the applicant’s case had been transferred for the examination on the merits to the Lyublinskiy District Court. The applicant claimed that, since the case has been within the jurisdiction of another court, the Preobrazhenskiy District Court had decided not to examine the applicant’s complaint about the ill-treatment.
Finally, the applicant complained that the investigation into his allegations of ill-treatment was inadequate. Thus, he had no access to the materials of the prosecutor’s inquiry into his allegations of ill-treatment.
B. The Court’s assessment
First, the Court will examine the Government’s objection that the applicant has failed to exhaust domestic remedies.
1. General principles
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, and Akdıvar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67). It is also established that a mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent authority (see Whiteside v. the United Kingdom, decision of 7 March 1994, application no. 20357/92, DR 76, p. 80).
The Court further emphasises that the application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means in particular that the Court must take realistic account, not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust domestic remedies (see Akdivar and Others cited above, § 69, and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998‑VI, p. 2432, § 77).
Finally, in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case (see Akdivar and Others cited above, § 68).
2. Application to the present case
The Government claimed that there was a possibility to appeal to a court against the refusal of the prosecution to open criminal proceedings.
The Court notes that the Code of Criminal Procedure and the Constitutional Court’s rulings (see the “Relevant Domestic Law” part above) expressly required the courts to examine such claims. The rulings leave no doubt as to whether this remedy has been formally available, at least since 1998.
The Court further notes that although a court itself had no competence to institute criminal proceedings, its power to annul a refusal to institute criminal proceedings and indicate the defects to be addressed appears to be a substantial safeguard against the arbitrary exercise of powers by the investigating authority (see Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003; see also Medvedev v. Russia (dec.), no. 26428/03, 1 June 2006). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution decided not to investigate the claims.
In the present case the prosecutor carried out three inquiries into the events of 2-3 July 1998. Each time the prosecutor decided not to start formal investigation on the ground that there had been no prima facie evidence of ill-treatment. As follows from the materials of the case-file, the applicant was informed about those decisions. Such decisions were subject to an appeal to a district court. However, as the Government rightly suggested, the applicant did not avail himself of that avenue.
The applicant claimed that he had raised the issue of ill-treatment in his first application for release of 14 July 1998. The Court notes that that application indeed mentioned “threats” and “pressure” allegedly employed by the policemen. However, it did not contain any specific allegation, namely of beatings. The terms employed by the applicant in his application for release were so vague that without further amplification they could not be regarded as a sound complaint of ill-treatment.
On the other hand, the Court observes that the applicant complained of the beatings to the Lyublinskiy District Court within the proceedings in which the criminal charges against him were determined. That allegation was examined by the District Court and dismissed as unfounded. It remains to be determined whether that fact dispensed the applicant from pursuing the avenue, suggested by the Government.
In this respect the Court observes, first of all, that the applicant complained about the alleged police brutality only in the context of admissibility of evidence against him (cf. Ksenzov v. Russia (dec.), no. 75386/01, 27 January 2005). Namely, he claimed that his initial confession in robbery had been extracted by force. Moreover, he has never raised the issue of inadequacy of investigation before the District Court, although this matter clearly makes part of his grievances under Article 3 of the Convention.
Furthermore, the Court notes that the proceedings before the Lyublinskiy District Court were not aimed at the investigation into the alleged ill-treatment: their purpose was to establish whether or not the applicant was guilty of robbery and fraud. The District Court could not attribute responsibility for the alleged beatings, punish those responsible or award a monetary redress (see Toteva v. Bulgaria, no. 42027/98, decision of 3 April 2003). Therefore, the remedy employed by the applicant could not, as a general rule, be regarded as a part of the normal process of exhaustion in respect of the complaints he made under Article 3.
In principle, the Court recognises vulnerability of the detained people and difficulty for them to pursue complex legal proceedings. These considerations may make the Court’s approach in the matters of exhaustion more flexible. Thus, the Court has already found that in certain circumstances, in particular where the victim sustained serious injuries in suspicious circumstances and the attention of the authorities was sufficiently drawn to that situation, the authorities were under the duty to investigate the alleged ill-treatment ex officio, even without an appropriate formal complaint from the victim (see, for example, Aksoy cited above, § 56; see also İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000‑VII).
However, the present case clearly does not belong to that category. The Court notes that, despite the facts that the applicant’s wife had visited him only few hours after the alleged beatings, and that several days later he had been given a lawyer, it was not until two months later that the issue of the alleged beatings was brought to the attention of the authorities. What is more important, the applicant did not complain about the beatings to the doctor who examined him right after his arrest. The inquiry carried out by the prosecution attributed the applicants’ injuries to the struggle between him and Mr Anisimov that had taken place during his arrest and that version was confirmed by two witnesses before the trial court.
Further, the Court pays special attention to the fact that throughout the proceedings the applicant had been assisted by a lawyer, who could have advised him to challenge the prosecutor’s decision to a court that would specifically deal with the matter of the alleged ill-treatment. The applicant did not explain why, after having received three negative answers from the prosecutor, he did not do so, and the materials of the case contain no indication that it was impossible or even impractical.
The Court also reiterates that before the Lyublinskiy District Court the applicant himself put the issue of ill-treatment in the context of admissibility of evidence. The applicant did not indicate what evidence he produced that would persuade the District Court to order a more through investigation into his allegations. In such circumstances it was quite natural that the Court confined itself to the examination of admissibility of evidence, without going any further.
One may argue that after the District Court had pronounced on the matter of ill-treatment the applicant had a slim chance to succeed with his complaint in another court, and that absolved him from further exhaustion. It is true that the robbery charge and the applicant’s allegations of ill-treatment were somehow interrelated and that in the judgment of the District Court there was a finding of fact in relation to the allegation of ill-treatment. However, the Court notes that the issue of ill-treatment, again, concerned not the final findings of the District Court as to the merits of the case, but the question of admissibility of a particular piece of evidence – the applicant’s confession statement, which was not even key evidence against him. There is no indication that the District Court’s findings as to the applicant’s guilt would be prejudicial for the court examining the issue whether his submission raised a reasonable suspicion of ill-treatment. Therefore, it was still possible for the applicant to obtain a judicial decision ordering further investigation into his allegations.
In sum, the Court concludes that the complaint under Article 3, insofar as it concerned the alleged ill-treatment of the applicant, should be rejected for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention.
2. The applicant also complained that although he had been very short-sighted, his glasses had been taken away from him and returned only five months later. It debased his human dignity and resulted in serious impairment of his eyesight. The applicant referred to Article 3 of the Convention, cited above.
A. The parties’ submissions
The Government accepted that the applicant had been deprived of his glasses without a legal basis and that for a certain period of time his ability to participate in the proceedings had been limited. However, as to the impairment of the applicant’s eyesight, the doctors concluded that it was due to natural causes. Even without the glasses the applicant was able to move around indoors and attend to himself. Therefore, the treatment complained of could not be considered as inhuman or degrading. Furthermore, the violation of the rights of the defense was acknowledged at the domestic level, the glasses were returned to the applicant and he was given additional time to study the case-file. Therefore, his rights were fully restored.
The applicant maintained his complaints stressing that the authorities had acknowledged the breach of his rights, and that he had been so seriously short-sighted that without glasses he had been unable to read or write. Although the court ordered the return to him of his glasses and gave him an additional two days to read the case-file, it was clearly insufficient.
B. The Court’s assessment
At the outset the Court notes that the situation complained of may also be examined through the prism of Article 6 §§ 1 and 3 of the Convention. Therefore, Court will turn to that situation again in the parts concerning the alleged unfairness of the criminal proceedings against the applicant (see below).
Insofar as the applicant refers to Article 3, the Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
3. The applicant presented a number of complaints about his arrest and subsequent detention until his conviction on 15 June 1999. Article 5 of the Convention, referred to by the applicant, insofar as relevant, reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Court recalls that the applicant was convicted by the first instance court on 15 June 1999. Thereafter for the purposes of the Convention he was a person convicted by a competent court, pursuant to Article 5 § 1 (a) of the Convention and, consequently, ceased to have been detained pending investigation and trial under Article 5 § 1 (c) (see, mutatis mutandis, Daktaras v. Lithuania, no. 42095/98, 11 January 2000, ECHR 2000-X; see also, as a classic authority, Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, p. 23, § 9). The application was lodged with the Court on 25 April 2000, that was more than six months after the applicant’s detention pending trial had ended.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
4. The applicant further complained that the first instance court had not been impartial. He referred to Article 6 § 1 of the Convention, which reads, insofar as relevant, as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
First, the Court notes that the brief of appeal lodged by the defence contained allegations of partiality of the first instance court. However, those allegations were very vague and were not put in context. Therefore, it can hardly be said that the applicant exhausted domestic remedies with respect to this complaint, as required by Article 35 § 1 of the Convention.
Even assuming the opposite, the Court considers that this complaint is in any event manifestly ill-founded for the reasons set out below.
As regards the fact that Ms Ivanyutina supervised the investigation into the applicant’s allegations of ill-treatment and, at the same time, supported the accusation against the applicant at the trial, the Court recalls that, as a general rule, public prosecutors are not regarded as a part of the judiciary, at least for the purposes of Articles 5 and 6 of the Convention (see the general definition of what is a “tribunal” under Article 6, outlined in Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 99, ECHR 2000‑VII; see also, mutatis mutandis, Shishkov v. Bulgaria, no. 38822/97, §§ 52-54, ECHR 2003-...). Therefore, the alleged bias of the public prosecutor participating in the trial in the capacity of one of the parties is outside the scope of Article 6 § 1.
As regards the alleged partiality of the trial judge, the Court recalls that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Fey v. Austria, judgment of 24 February 1993, Series A no. 255‑A, p. 12, § 28).
The applicant in the present case suggested that the judge’s bias was sufficiently proven by his statement made at the preliminary hearing that certain objects had been “acquired by criminal means”. The Convention organs have been already confronted with similar complaints, but rather in the context of Article 6 § 2 which establishes the presumption of innocence. (see, mutatis mutandis, Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, p. 16, § 35). In Daktaras v. Lithuania (no. 42095/98, § 41, ECHR 2000‑X) the Court emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence. This logic is fully applicable to Article 6 § 1 which requires inter alia that the judge refrains from any statements that may cast doubt on his impartiality (see Buscemi v. Italy, no. 29569/95, § 67, ECHR 1999‑VI). In this respect even appearances may be of a certain importance, particularly as far as criminal proceedings are concerned.
Nevertheless, whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see, inter alia, Adolf v. Austria, judgment of 26 March 1982, Series A no. 49, pp. 17-19, §§ 36-41). The same can be said about the applicant’s fears as to the impartiality of the judge: the context in which the statement is made should be taken into account.
In the present case the judge qualified certain objects seized during the search in the applicant’s house as “obtained by criminal means”. The judge further indicated that the applicant’s mother handed those objects to the police voluntarily, and, thus, could not participate in the proceedings in the capacity of the applicant’s representative. Perhaps, it would have been more appropriate for the judge to say that those objects were “allegedly obtained by criminal means”. However, it is important that that regrettable statement was made in the context of a dispute over the status of a particular participant of the proceedings and did not relate directly to the charges against the applicant. Moreover, the fact that certain objects, handed by the applicant’s mother to the police, might have been obtained “by criminal means” does not necessarily imply that the defendant is guilty of a particular crime. The Court considers that, given the context in which it has been made, that statement by itself could not objectively justify the applicant’s fears as to the lack of impartiality of the judge.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. The applicant further complained that he had been convicted of robbery on the basis of self-incriminating statements, which had been obtained under duress and in absence of his lawyer. He referred to Article 6 § 1 and 6 § 3 (d), which, insofar as relevant, read 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:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
First, the Court recalls that in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the proceedings conducted in the case (see, among many other authorities, Dikme v. Turkey, no. 20869/92, § 109, ECHR 2000-VIII). In a number of cases the Court found a violation of Article 6 § 3 (c) where the absence of a lawyer during the initial police interrogation irretrievably prejudiced the rights of the defence (see, for example, John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996‑I, § 66). However, nothing suggests that in the present case the alleged procedural flaw was not remedied at the later stage. The Court notes in this respect that the applicant was assisted by a lawyer throughout most of the investigation and at the trial. Furthermore, the judgment of the Lyublinskiy District Court did not rely heavily on the applicant’s statements after his arrest. The applicant’s confession statement was corroborated at the trial by the testimonies of at least two independent witnesses – Ms Perevesentseva and Mr Anisimov. Moreover, the applicant himself did not deny that he had assaulted Ms Perevesentseva with a gun. He just claimed that his intention had been not to rob her but to retrieve the money stolen from him. In sum, the applicant has not shown that the alleged inability to consult with his lawyer had had any impact on the overall fairness of the proceedings.
On the other hand, the applicant claimed that he confessed and waived his right to a lawyer under duress. The Court recalls that an issue may arise under Article 6 § 1 in respect of evidence obtained in violation of Article 3 of the Convention, even if the admission of such evidence was not decisive in securing the conviction (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003; and Koç v. Turkey (dec.), no. 32580/96, 23 September 2003). However, there is no evidence that the applicant in the present case had been subjected to ill-treatment. The Court recalls that the applicant has failed to exhaust domestic remedies in respect of his allegation of ill-treatment (see the Court’s analysis of the applicant’s first complaint above). In the context of the present case the failure to exhaust has a double meaning. First, pursuant to Article 35 of the Convention it excludes any further consideration of the applicant’s complaint under Article 3. Second, it weakens the applicant’s position under Article 6. The Court recalls that, being only a subsidiary mechanism, it rarely gives an independent assessment of facts: as a general rule, it relies on the findings of competent domestic authorities. In the present case the trial judge held that there was no case to answer, attributing the injuries reported to the blows received by the applicants in the course of a struggle with private persons. The applicant failed to obtain a full-scale investigation into his allegations that would help the Court to make any other conclusion in this respect. As to the primary evidence, relied on by the applicant, the Court does not discover anything that would persuade it “beyond reasonable doubt” that the applicant had been ill-treated as he described. Therefore, the admission of the applicant’s confession statement should be assessed through the prism of the proceedings taken as a whole. From this standpoint, the fact that the applicant made the initial confession statement without a lawyer did not affect the overall fairness of the proceedings and did not, therefore, infringe his right to legal assistance, guaranteed by Article 6 § 3 (c).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
6. The applicant further complained that the Lyublinskiy District Court had relied on evidence which had been unreliable and probably falsified. He referred to Article 6 § 1 of the Convention, cited above.
The Court recalls in this respect that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. It is in principle for the national courts to assess the evidence before them, including its veracity. The Court’s task is to ascertain whether the proceedings as a whole were fair.
The Court notes that the minutes of the identification parade were produced in the presence of the accused and his lawyer at a public hearing with a view to adversarial argument. The applicant was afforded ample opportunities, personally and through his defence counsel, to contest the veracity of that piece of evidence before the courts at two levels of jurisdiction (see Jakumas v. Lithuania, no. 6924/02, §§ 54-55, 18 July 2006). Ms Petina (the witnesses who had identified the applicant by photo) later confirmed her statements during a face-to-face confrontation with the applicant (see the “Facts” part above) and, in principle, that statement alone could have warranted the applicant’s conviction. In any event, in reaching its conclusions the Lyublinskiy District Court did not rely heavily on the results of the identification parade. In sum, the Court considers that the admission of that evidence did not affected the overall fairness of the trial.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
7. The applicant further complained that the first instance court had failed to obtain the attendance of six key witnesses, and, therefore, the applicant had been unable to cross-examine them in person. He refers to Article 6 § 1, cited above, and Article 6 § 3 (d), which reads as follows:
“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 claimed that all the witnesses who had not appeared before the Lyublinskiy District Court had valid reasons for not showing up. Therefore, from the standpoint of the domestic legislation the District Court could have proceeded with the examination of the case in their absence.
The applicant maintained his complaint. First, he indicated that his conviction, to the extent that it concerned the first episode of the alleged fraud, was based on the testimonies of Ms Petina and Mr Korolev. However, the Government did not explain why Mr Korolev did not show up at the hearing. He further claimed that although he had participated in the face-to-face confrontation with those witnesses, he was not aware of all the incriminating evidence in the case-file. The applicant needed to question those witnesses in order to disprove the veracity of the identification parade carried out by the prosecution earlier. Further, he wanted to prove that those witnesses had pointed at him under pressure from the investigative authorities. They themselves risked a criminal prosecution, since Ms Petina had ordered a bank transfer to the account of “Notes” Ltd, whereas Mr Korolev had withdrew the cash from that account. Therefore, the applicant was not that person who acted as a “sales-manager”.
As regards the second episode of fraud, the applicant claimed that during the face-to-face confrontation Mr Nikishin had been uncertain about the identity of the “sales-manager” from “Notes”. Therefore, the absence of Mr Nikishin at the trial made it impossible for the applicant to prove that he was not that person.
Second, as regards the charge of robbery, he needed to put questions to Mr Faykushin and Mr Sumnikov. Those people had been present at the moment of his arrest and could have confirmed his allegations of police brutality. Further, they could have explained whether or not the applicant had stolen any property from Ms Perevesentseva.
B. The Court’s assessment
1. General principles
The Court first notes that the guarantees in Article 6 § 3 (d) of the Convention are specific aspects of the right to a fair trial set forth in the first paragraph of this Article. Consequently, the complaint will be examined under the two provisions taken together (see, among other authorities, Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 25).
The Court further recalls that the use in evidence of statements obtained at the stage of the police inquiry is not in itself inconsistent with paragraphs 1 and 3 (d) of Article 6, provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings (see Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43, and A.M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX). The Court further draws attention to the fact that Article 6 does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (see, among other authorities, Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, p. 31, § 89; see also X. v. Austria, no. 4428/70, Commission decision of 1 July 1972, Collection 40, pp. 1 - 10). However, the rights of the defence are restricted to an extent that is incompatible with the requirements of Article 6 if the conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial (see A. M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX, and Saïdi cited above, §§ 43-44).
2. Application to the present case
(a) As regards the charge of fraud
The Court observes that Ms Petina, Mr Korolev, Mr Nikishin and Mr Koldayev were supposed to give evidence about the fraud alleged against the applicant (see the “Facts” part above). It is true that those witnesses never appeared before the Lyublinskiy District Court, although the defence insisted on their questioning. The parties disagreed as to whether there had been a plausible reason for their absence at the trial; however, before turning to this matter the Court will assess how the absence of those two witnesses before the Lyublinskiy District Court affected the overall fairness of the proceedings.
First of all, the Court notes that Ms Petina, Mr Korolev and Mr Nikishin had been questioned by the investigator in presence of the applicant and his lawyer. The applicant and his lawyer put questions to those witnesses and their answers were recorded. The question arises whether it was enough to satisfy the conditions of Article 6 § 3 (d).
The applicant claimed that it was not. Thus, he indicated that during the confrontations he had not had his glasses. Consequently, he was unable to read procedural documents and make notes (see the applicant’s observations regarding his second complaint under Article 3 above). In the Court’s view, in other circumstances that could give rise to an issue under Article 6. However, the Court recalls that during the confrontations the applicant was assisted by a lawyer. Moreover, he could have easily procured new glasses for himself, which he for some reasons did not do (see above, the findings under Article 3). Therefore, this argument of the applicant fails.
Further, the applicant indicated that at the time of the confrontations with Ms Petina and Mr Korolev he had had no access to certain materials in the case-file, namely to the records of the identification parades. Consequently, he was unable to put relevant questions to those witnesses. The Court yet observes that in the course of the confrontations the applicant did put questions concerning the identification parade to both of them (see the “Facts” part above, sub-section “Robbery charge”).
The applicant finally argued that at the court Mr Nikishin could have confirmed his previous statement that he had not remembered the applicant coming to his office. However, Mr Nikishin, contrary to what the applicant suggested, clearly identified him as the “sales-manager” from “Notes” during the confrontation (see the “Facts” part above, sub-section “The judgment”). Therefore, this argument of the applicant also fails.
As to Mr Koldayev, the police inspector who had apprehended the applicant in May 1998, the applicant did not have an opportunity to question him either at the pre-trial investigation or at the trial. However, the applicant did not explain what kind of information could have been obtained from that witness other than that of an incriminating character.
Finally, the Court notes that the applicant did not explain in what other respect the confrontations had been procedurally deficient and why further questioning of the above witnesses before the trial court had been necessary. In sum, there is no evidence that the defence was somehow placed in a disadvantageous position vis-à-vis the prosecution during the “face-to-face confrontations”. Therefore, although the above witnesses were absent at the trial, it appears that the applicant’s right under Article 6 § 3 (d) had been properly secured at the pre-trial investigation stage.
In any event, even assuming the opposite, the Court notes that the applicant’s conviction insofar as it concerned the first two episodes of fraud was not based solely on the testimonies of Ms Petina, Mr Nikishin, Mr Korolev or Mr Koldayev. Thus, the judgment of 15 June 1999 also referred to the documents, seized from the applicant at the moment of his first apprehension in May 1998, such as the cash receipt written in the applicant’s hand, his handwritten notes mentioning “Fortuna”, pawn tickets in the name of “S. Y. Ivanin”, sales contract between “Notes” and “Loken” filled in by the applicant’s hand, etc. Further, the court strongly relied on the testimonies of Ms Lebedeva, which, though indirectly, confirmed that the applicant was somehow implicated in fraudulent transactions of the kind. As transpires from the judgment, the District Court also circumstantial evidence, and, finally, examined the applicant’s own version of events. The findings of the District Court do not seem unreasonable or arbitrary. It appears that the conviction could have been secured even without incriminating statements of Ms Petina and Mssrs Korolev, Nikishin and Koldayev. Therefore, even if their absence at the trial might have been reprehensible from the standpoint of the domestic law, it did not affect the overall fairness of the proceedings under Article 6.
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) As regards the charge of armed robbery
In respect of the second charge, the Court notes that the applicant’s conviction was based inter alia on statements obtained from Mr Faykushin and Mr Sumnikov during the preliminary investigation and read out at the trial. However, in its findings the District Court also relied on the testimonies of Ms Perevesentseva, Mr Anisimov and Mr Gavrilov given during the trial in the presence of the applicant and his lawyer. It is material that Ms Perevesentseva and Mr Anisimov saw the incident of 2 July 2003, and Mr Gavrilov arrived on the spot shortly thereafter and conveyed the applicant to the police station. Therefore, they were able to provide the trial court with the information about the incident and, in particular, about the origin of the applicant’s injuries. In these circumstances the domestic court’s decision to proceed with the case without calling in other witnesses, namely Mr Faykushin and Mr Sumnikov, does not seem unreasonable. In view of the above, the Court concludes that in the circumstances of the case the failure to examine Mr Faykushin and Mr Sumnikov at the trial did not amount to a violation of Article 6 §§ 1 and 3 (d).
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
8. Under Article 6 § 3 (b) of the Convention the applicant complained that due to the fact that his glasses had been taken away he had been unable to prepare his defence at the stage of the pre-trial investigation. That provision reads as follows:
“3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence;”
The Court refers to its above finding that even if the authorities were wrong in taking away the applicant’s glasses, they cannot be held responsible for the whole period when the applicant did not have glasses and for the suffering ensuing therefrom. The same logic can be applied in the context of Article 6. Moreover, the applicant had been assisted by a lawyer throughout the proceedings. Finally, the domestic court gave the applicant additional time to examine the materials of the case-file after the glasses had been returned to the applicant.
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares admissible, without prejudging the merits of the case, the complaint under Article 3 of the Convention that the applicant was deprived of his glasses;
Declares inadmissible the remainder of the application.
Vincent BergerBoštjan M. Zupančič
RegistrarPresident
[1] The parties failed to produce a record of the face-to-face confrontation with Mr Nikishin, although other documents in the case-file referred to it.
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