CASE OF RATKIN v. RUSSIA
Violation of Article 6+6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Article 6-3-d - Examination of witnesses)
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
4. The applicant was born in 1966 and lived, prior to his conviction, in the Tver Region. 5. On 21 November 2000 a country house which belonged to a district prosecutor was set on fire. 6. On 8 February 2002 F. confessed that the applicant had conspired with him to set fire to the prosecutor’s summer house. On the same date the applicant was arrested. He was released on 11 February 2002 on an undertaking not to leave his place of residence. 7. On 10 December 2003 I. and A. stabbed F. to death. 8. On an unspecified date the applicant was arrested on suspicion of having organised F.’s murder. He remained in custody pending investigation and trial. 9. On 6 February 2004 the Kashin Town Court found the applicant guilty of arson. On 25 May 2004 the applicant’s conviction became final. 10. On 23 June 2004 a local newspaper, Veche Tveri, published an article under the headline ‘Vengeance’. According to the article, the applicant had stood for local elections. However, he had been disqualified by a court at the request of the district prosecutor. The applicant had plotted revenge. He had paid F. to set fire to the prosecutor’s country house. The house had completely burned down. When questioned by the investigator, F. had confessed to arson and had testified against the applicant. Shortly thereafter F. had been found stabbed to death. The article then quoted from the official information note issued by the regional prosecutor’s office: “The investigation has established’, states the information note, ‘that in 2003 [the applicant] and F[.] had an argument ... [;] [the applicant] started to fear that he could no longer control F[.] and that the latter would not only interfere with his plan to protract the trial but would give truthful testimony incriminating him in the arson of [the prosecutor’s] country house ... . [The applicant] organised F.’s murder to silence him. The murder was carried out by two residents of the town of Kalyazin, who were charged with F.’s murder.” 11. According to the applicant, several more articles reporting on the arson and murder cases were published in the local press at around the same time. On 15 July 2004 a TV programme “Police unit on duty” (Дежурная часть) broadcast daily on the federal RTR channel, covered the applicant’s case. 12. The jury trial started on 16 August 2004. At the beginning of the trial the presiding judge asked the jurors whether they had read about the case in newspapers or heard about it from other sources. All the jurors answered in the negative. They also stated that they had not yet formed any opinion about the defendants’ guilt or innocence. 13. At the hearing of 24 August 2004 the court examined the prosecution witness Sh. At the request of the prosecutor, the written statements he had made during the investigation were read out to the jury. Sh. then explained that his statements to the investigator had been more detailed and precise, as at the time of the investigation he had remembered the events better. The applicant was then allowed to put questions to Sh. The relevant excerpt from the record reads as follows: “[The applicant asks]: ‘How many times were you questioned? Were your statements to the investigator voluntary?’ The presiding judge rules [the applicant’s] question out of order and warns him that he should not [raise issues] of admissibility of evidence in the presence of the jury as it may be considered an attempt to influence the jury. [The applicant asks]: ‘What state were you in when giving those statements?’ The presiding judge rules [the applicant’s] question out of order and warns him that if he continues to put questions concerning admissibility of evidence he may be excluded from the hearing room. [The applicant says]: ‘The witness was drunk, the police officers had given him alcohol, he was made [temporarily] insane.” The presiding judge interrupts [the applicant] and directs the jury to disregard [his] remarkds about the circumstances in which Sh. was questioned, as this issue is not within the competence of the jury. [The applicant continues]: ‘All the evidence has been forged and the case does not hold water.’ Taking into account [the applicant’s] repeated attempts to influence the jurors, the presiding judge decides to exclude him from the courtroom. The presiding judge directs the jurors that they should disregard [the applicant’s statements] ... and should proceed from the understanding that all evidence presented to them ... was collected in accordance with the procedure established by law and was not [declared inadmissible].” 14. The trial court continued the hearing in the applicant’s absence. Further hearings were held on 25 and 26 August 2004. The applicant was not brought to the courtroom. All hearings were attended by his counsel. During those hearings several witnesses and the applicant’s co-defendants testified. One of the co-defendants pleaded not guilty, while the other confessed to the murder and stated that he had committed it on the applicant’s instructions and had received remuneration from him. 15. The applicant was brought to the courtroom at the end of the hearing of 26 August 2004 and was allowed to make a closing statement. The applicant pleaded not guilty. The jury delivered a guilty verdict. They found it established that applicant had hired I. and A. to murder F. 16. The presiding judge indicated in the verdict that (1) the applicant’s actions, as established by the jury, should be characterised as incitement to murder, and (2) the jury had not established that the applicant had been the organiser of the murder or had directed its execution. 17. On 2 September 2004 the Tver Regional Court found the applicant guilty of incitement to murder and sentenced him to seventeen years’ imprisonment. 18. The applicant appealed. In particular, he complained that his presumption of innocence had been violated by publications in the press, that he had been removed from the courtroom and that the presiding judge had recharacterised his offence after the jury had delivered the verdict. He also complained that the evidence had been assessed inaccurately and that he had been found guilty of the crime he had not committed. 19. On 9 February 2005 the Supreme Court of the Russian Federation upheld the judgment on appeal. The court noted, in particular, as follows: “... as regards the [applicant’s] removal from the courtroom, [the appeal court] finds that the presiding judge’s decision was in full compliance with [the applicable rules of criminal procedure]. [The applicant] repeatedly breached the order in the courtroom and attempted to influence the jurors. The presiding judge repeatedly reprimanded [the applicant], warned him and explained to him the consequences of [his] conduct. However, [the applicant] chose to ignore [the warnings]. Accordingly the decision to remove [the applicant] from the courtroom was justified. In those circumstances, the counsel’s argument that [the applicant’s] right to participate directly in the examination of the evidence and to defend himself in person was violated is unfounded. [The applicant] waived his rights. ... [The applicant’s] argument that the publications in the media ... negatively influenced the jurors should be rejected as unfounded. Before the commencement of the trial all jurors replied in the negative to the question whether they had heard about the case from the media ... . The defendants’ actions established in the verdict received the correct legal characterisation. It was permissible to change the legal characterisation of [the applicant’s] actions from organisation of murder to incitement to murder, as the new legal characterisation was based on the same evidence as established in the verdict. [The applicant’s] defence rights were not violated.”