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CASE OF DAMIR SIBGATULLIN v. RUSSIA (2018 - 03 - 11 11 - 17 - 47 UTC)
CASE OF DAMIR SIBGATULLIN v. RUSSIA (2018 - 03 - 11 11 - 17 - 47 UTC)
JUDGMENT
STRASBOURG
24 April 2012
FINAL
24/09/2012
This judgment has become final under Article 44 § 2 (c) of the Convention.
It may be subject to editorial revision.
DAMIR SIBGATULLIN v. RUSSIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 1413/05) 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 Damir Darifovich Sibgatullin
(“the applicant”), on 6 December 2004.
2. The applicant, who had been granted legal aid, was represented by
Mr M. Rachkovskiy, a lawyer practising in Moscow. The Russian
Government (“the Government”) were represented by Mrs V. Milinchuk,
former Representative of the Russian Federation at the European Court of
Human Rights.
3. The applicant alleged, in particular, that he had been tried and
convicted by a jury certain members of which had been partial, and that he
had been unable to confront any witness for the prosecution.
4. On 3 September 2007 the application was communicated to the
Government. It was also decided to rule on the admissibility and merits of
the application at the same time (former Article 29 § 3 of the Convention).
When communicating the application to the Government, the Court asked
them to produce copies of the witnesses’ statements, for the purpose of
clarifying the evidentiary basis for his conviction.
5. On 22 November 2007 the Government submitted their observations
on the admissibility and merits of the application, enclosing a number of
items from the applicant’s criminal case file, but not including the
witnesses’ depositions. They informed the Court that the requested
documents would be submitted as soon as the Government had received
them “from the relevant bodies of the Russian Federation”.
2 DAMIR SIBGATULLIN v. RUSSIA JUDGMENT
THE FACTS
Having regard to the fact that pursuant to Article 240 of the Russian Code of
Criminal Procedure all items of evidence in a case, including statements by witnesses,
are to be examined in open court, [I] consider it necessary to take steps to ensure the
presence of that witness at a court hearing, in compliance with the requirements of
international law.
Paragraph 5 of Article 456 of the Russian Code of Criminal Procedure, which
defines how a person who is detained in a foreign State is to be called to a court
hearing, refers to paragraph 3 of Article 453 of the Russian Code of Criminal
Procedure, by virtue of which a request for legal assistance is to be submitted in
accordance with an international agreement between the Russian Federation [and the
foreign State]. The Convention on Legal Assistance and Legal Relations in Civil,
Family and Criminal Matters (Minsk, 22 January 1993...)... plays the role of that
international agreement in the present case.
Article 78.1 of the Convention provides for the possibility of conveying a person
who is serving a sentence (if he agrees) to be questioned as a witness, following a
decision by the Prosecutor General of the requesting State.
By virtue of Article 80 of the Convention the actions in question which require
authorisation by a prosecutor (a court) are to be carried out by prosecuting authorities
within the procedure defined by the Prosecutors General of the two States.”
On the same day the President of the Ivanovo Regional Court, relying on
the norms of the Convention on Legal Assistance and Legal Relations in
Civil, Family and Criminal Matters (“the Minsk Convention”), sent similar
letters to the offices of the Prosecutor General of the Russian Federation and
that of the Republic of Uzbekistan. The court president asked the
prosecuting authorities of the both countries to convey the applicant’s
associate, Mr A., to Russia for him to testify in open court in the criminal
case against the applicant.
20. In January 2004 the Ivanovo Regional Court received information
regarding attendance by two witnesses from the list. A judge from the
Dzhizak Town Court in Uzbekistan informed the Regional Court that the
whereabouts of one witness were unknown and that another witness could
not travel to Russia in view of his difficult financial situation. The judge
also noted that the second witness stood by the statements he had given to
the investigating authorities.
On 17 and 19 April 2004 the Regional Court received e-mails from
two other witnesses who, in similar wording and citing their difficult family
situation and poor health, informed the court that they were unable to attend
the trial. The witnesses also gave their full support to the statements made
during the pre-trial investigation. A telegram from another witness arrived
on 23 April 2003. This witness refused to travel to Russia, citing poor
health. The Regional Court did not receive any information pertaining to the
remaining witnesses.
21. On 22 April 2004 the Ivanovo Regional Court held a trial hearing.
22. The prosecution requested the Regional Court to read out statements
made by the prosecution witnesses and the applicant’s associate, Mr A., to
DAMIR SIBGATULLIN v. RUSSIA JUDGMENT 5
26. The parties’ closing arguments followed. The defence argued that
there was no material evidence, such as fingerprints, bloodstains and so on,
linking the applicant to the criminal offences, and that the applicant had
been denied an important right to cross-examine witnesses against him.
27. On 7 May 2004 the jury, by eight to four votes, found the applicant
guilty of aggravated murder and robbery.
28. On 12 May 2004 the Ivanovo Regional Court accepted the verdict
and sentenced the applicant to eighteen years’ imprisonment.
29. The applicant and his lawyer appealed, arguing that the jury had not
been fair and impartial because certain jurors had been victims of criminal
offences and the prosecution had tried to exert improper influence on at
least one of the jurors. They further alleged a violation of the applicant’s
rights, having regard to the fact that at no stage of the proceedings had
either he or his lawyer been offered the opportunity to question the
prosecution witnesses.
30. On 8 July 2004 the Supreme Court of the Russian Federation upheld
the conviction, finding that the investigating authorities and the Regional
Court had not committed any serious violations of the criminal procedural
law.
B. Witnesses
1. General provisions
39. Article 413 of the Russian Code of Criminal Procedure, setting out
the procedure for reopening of criminal cases, reads, in so far as relevant, as
follows:
“1. Court judgments and decisions which became final should be quashed and
proceedings in a criminal case should be re-opened due to new or newly discovered
circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision of the European Convention for the Protection of
Human Rights and Fundamental Freedoms committed by a court of the Russian
Federation during examination of a criminal case and established by the European
Court of Human Rights, pertaining to:
(a) application of a federal law which runs contrary to provisions of the European
Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the Convention for the Protection of Human
Rights and Fundamental Freedoms;
(c) other new circumstances.”
THE LAW
A. Admissibility
41. The Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and that they are
not inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
accepted a request from the prosecution for reading out of the pre-trial
statements, despite the applicant’s and his lawyer’s objections. Furthermore,
the Government insisted that, when summoned for the hearings in Russia
and questioned on the reasons for their inability to attend, the witnesses had
also been asked to corroborate or dispute their statements made during the
pre-trial investigation. The witnesses had fully supported their account of
the events, of which the Regional Court had been notified by electronic mail
messages. The Government concluded by noting that the Russian courts had
assessed the entire set of evidence and had taken the correct decision on the
applicant’s guilt. The Government reminded the Court that the assessment
of evidence was within the exclusive competence of the domestic courts.
43. Having denied responsibility for the absence of confrontation
interviews between him and the witnesses, the applicant submitted that,
even assuming that his leaving Uzbekistan had made it impossible for the
Uzbek authorities to set up such interviews, he could not bear responsibility
for the Russian authorities’ failure to comply with their obligation under
Article 6 § 3 (d) of the Convention. The applicant further argued that the
witnesses the Uzbek authorities had been able to find when requested to do
so by the Ivanovo Regional Court and who lived in different towns, had sent
similar e-mails at the same time. The e-mails had not been signed and it was
impossible to verify whether they were authentic and whether, in fact, the
witnesses had been able to recollect and confirm their statements made
during the pre-trial investigation. The applicant insisted that the only direct
evidence implicating him in the crimes he had been found guilty of was the
statements by the prosecution witnesses. Therefore, it was important for the
trial court to hear the witnesses in person and to provide the applicant with
an opportunity to cross-examine them.
48. The Court further observes that as a matter of principle the waiver of
the right must be a knowing, voluntary and intelligent act, done with
sufficient awareness of the relevant circumstances. Before an accused can
be said to have implicitly, through his conduct, waived an important right
under Article 6, it must be shown that he could reasonably have foreseen
what the consequences of his conduct would be (see Talat Tunç v. Turkey,
no. 32432/96, 27 March 2007, § 59, and Jones v. the United Kingdom
(dec.), no. 30900/02, 9 September 2003). It is not to be ruled out that, after
initially being advised of his rights, an accused may himself validly
renounce them and agree to proceed with the trial without, for instance,
being afforded an opportunity to examine witnesses against him. The Court,
however, considers that the right to confront witnesses, being a fundamental
right among those which constitute the notion of fair trial, is an example of
the rights which require the special protection of the knowing and intelligent
waiver standard. The Court is not satisfied that sufficient safeguards were in
place in the present case for it to be considered that the applicant had
decided to relinquish his right. There is no reason to conclude that the
applicant should have been fully aware that by leaving Uzbekistan he was
abandoning his right to confront witnesses, or, for that matter, that he
understood the nature of that right and could reasonably have foreseen what
the consequences of his conduct would be (see Bonev v. Bulgaria,
no. 60018/00, § 40, 8 June 2006, with further references, and Bocos-Cuesta
v. the Netherlands, no. 54789/00, § 66, 10 November 2005).
ii. Inability to confront witnesses and use of their pre-trial statements as the
basis for conviction
49. The Court must further establish whether the use of the statements
by the prosecution witnesses made during the pre-trial investigation,
coupled with the fact that the applicant was not able to confront them in
court, amounted to a violation of his right to a fair trial.
50. According to the Court’s case-law, the right to a fair trial requires
that the defendant be given an adequate and proper opportunity to challenge
and question a witness against him or her, either when the statements were
made or at a later stage of the proceedings (see Saïdi v. France,
20 September 1993, § 43, Series A no. 261-C, and A.M. v. Italy,
no. 37019/97, § 25, ECHR 1999-IX). The Court reiterates the principles laid
down in its judgment of Al-Khawaja and Tahery v. the United Kingdom
([GC], nos. 26766/05 and 22228/06, §§ 119 and 147, 15 December 2011),
according to which where a conviction is based solely or decisively on the
evidence of absent witnesses, the Court must subject the proceedings to the
most searching scrutiny. The question in each case is whether there are
sufficient counterbalancing factors in place, including measures that permit
a fair and proper assessment of the reliability of that evidence to take place.
DAMIR SIBGATULLIN v. RUSSIA JUDGMENT 13
and 23 above). It also appears that it never received a response from the
Uzbek authorities regarding Mr A.’s attendance. The Regional Court,
nevertheless, proceeded with the reading out of the depositions by those five
witnesses and Mr A., having noted that attempts to obtain their presence had
already taken six months (see paragraph 23 above). While the Court is not
unmindful of the domestic courts’ obligation to secure the proper conduct of
the trial and avoid undue delays in the criminal proceedings, it does not
consider that a stay in the proceedings for the purpose of obtaining
witnesses’ testimony or at least clarifying the issue of their appearance at
the trial, in which the applicant stood accused of a very serious offence and
was risking a lengthy prison term, would have constituted an insuperable
obstacle to the expediency of the proceedings at hand (see
Vladimir Romanov v. Russia, no. 41461/02, § 104, 24 July 2008, with
further references, and, most recently, Krivoshapkin v. Russia,
no. 42224/02, § 60, 27 January 2011). The authorities chose to eschew that
stay. As a result, those witnesses never appeared to testify before a court in
the presence of the applicant.
56. The Regional Court excused the remaining witnesses, considering
their absence to be justified either in view of their personal circumstances or
because Uzbek officials had been unsuccessful in their attempts to find
them. Regard being had to the circumstances of the case, the Court has
serious doubts that the decision to accept the explanations and to excuse the
witnesses could indeed be accepted as warranted. It considers that the
Regional Court’s review of the reasons for the witnesses’ absence was not
convincing. Whilst such reasons as inability to bear the costs of travel to
Russia, poor health or a difficult family situation are relevant, the trial court
did not go into the specific circumstances of the situation of each witness,
and failed to examine whether any alternative means of securing their
depositions in person would have been possible and sufficient. It also does
not escape the Court’s attention that under the relevant provisions of the
Russian law witnesses were afforded a right to claim reimbursement of
costs and expenses, including those of travel, incurred as a result of their
participation in criminal proceedings (see paragraphs 35 and 37 above). The
Court reiterates that paragraph 1 of Article 6 taken together with paragraph
3 requires the State to take positive steps, in particular to enable the accused
to examine or have examined witnesses against him. Such measures form
part of the diligence which the Contracting States must exercise in order to
ensure that the rights guaranteed by Article 6 are enjoyed in an effective
manner (see Sadak and Others v. Turkey, nos. 29900/96, 29901/96,
29902/96 and 29903/96, § 67, ECHR 2001-VIII). The Court is concerned
with the Regional Court’s failure to look beyond the ordinary means of
securing the right of the defence to cross-examine witnesses, for instance by
setting up a meeting between the applicant’s lawyer and witnesses in
Uzbekistan (see paragraph 34 above and, mutatis mutandis, Mirilashvili
DAMIR SIBGATULLIN v. RUSSIA JUDGMENT 15
A. Damage
74. The applicant did not make any claims for costs and expenses
incurred before the domestic courts and the Court.
75. Accordingly, the Court does not award anything under this head.
C. Default interest
76. 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.
2. Holds that there has been a violation of Article 6 § 1 taken together with
Article 6 § 3 (d) on account of the absence of a proper and adequate
opportunity to challenge the statements by the prosecution witnesses;
5. Holds
(a) that the respondent State is to pay the applicant, within three months
of the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable on the date of the settlement, plus any tax that may
be chargeable;
(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;