CASE OF ALEKSANDR VALERYEVICH KAZAKOV v. RUSSIA
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1960 and lives in Petropavlovsk-Kamchatskiy. 6. On an unspecified date the prosecutor’s office opened a criminal investigation into the activities of a criminal gang allegedly organised by V., a high-ranking police officer at the time. The members of the gang were suspected of numerous thefts of goods and foodstuffs from various storage facilities. One of the episodes under investigation was a fraudulent attempt by the members of the gang to sell scrap metal, which belonged to a private company, to a scrap metal processing plant. According to the official version, the attempt to sell the scrap metal was carried out by V., the applicant, who was also a high-ranking police officer at the time, and G., another member of the gang. On an unspecified date in November 2000 V., the applicant and G. met with M., a director of the scrap processing plant, and fraudulently represented to him that the scrap metal belonged to K. and that they were acting on her behalf. M. agreed to purchase the scrap metal and on 23 November 2000 he sent a group of workers to the company’s site in order to have the scrap metal removed. G.’s boyfriend Yer., another member of the gang, was also present at the site at the time. The removal of the scrap metal was interrupted by B., one of the private company’s directors. Yer. phoned G., who told him to go to the police station to notify V. of the incident. Then both Yer. and G. returned to the site to settle the issue with B., who had complained to the police about the attempted theft of the scrap metal. B. also informed Vosh., the company’s managing director, of the incident. Acting in his official capacity, V. assigned the investigation into the attempted theft of scrap metal to Yem., who decided to question M. However, V. interviewed M. himself and brought Yem. M.’s statement. Yem. questioned K., who submitted that she had nothing to do with the removal of the scrap metal from the company’s premises. 7. On 8 May 2002 the applicant was arrested and remanded in custody. On 3 December 2002 he was released on bail. 8. On 9 December 2002 the applicant was formally charged with more than ten counts of financial fraud, theft and embezzlement committed in collusion with eight members of the gang. 9. The trial opened in January 2003. At the end of the trial the prosecutor dropped all the charges against the applicant except the attempted theft of scrap metal. 10. The applicant maintained his innocence. The testimony he gave at the trial was summed up as follows in the judgment: “... he has known V. since 1996 due to his service in the Ministry of the Interior[.] They have been friends. Since the late nineties he has known G. too, whom he met from time to time at different places and visited her at her home for work purposes. In the summer of 2000, V. asked ... to take him to the site [where the scrap metal was] in order to meet G. G. asked him and V. to help the buyer of the scrap metal to ensure its safety. He and V. promised to ask one of the police patrol teams to secure the scrap metal. They informed accordingly the buyer who arrived later to inspect the scrap metal. He did not talk to anyone about stealing and selling the scrap metal. He did not conspire with such intent and he did not take part in any negotiations about that. He did not receive any proceeds from the sale of the scrap metal or any advance payment. Nor did he take any measures to conceal the crimes committed by G. She falsely accused him of the involvement in the attempted theft of the scrap metal.” 11. The trial court questioned B., Vosh., and Yem. It further admitted into evidence the statements made by M., Yersh., and K. when questioned by the investigator. As regards witness M., the court noted that he had been away on a business trip and could not attend the court hearing. It considered that this absence amounted to an extraordinary circumstance that would permit the reading-out of his earlier statement. Despite the applicant’s objection, the court dispensed with summoning M. again for questioning and proceeded with the reading-out of his statement. According to the Government, the information concerning M.’s absence was communicated to the court by M.’s wife by telephone. 12. According to the written statement, used by the court, M. stated as follows: “... he has been the General Director of the Steel Company LLC since 1995. It specializes in buying scrap metal from individuals and legal entities in the region. One of the long-term suppliers for his company was [G.]. In the spring of 2000 [G.] proposed being a middle person between the Steel Company LLC and her acquaintances who intended to sell a large quantity of scrap metal. She suggested that [he] meet with those persons to discuss the terms and conditions of the transaction. As was suggested by [G.], at the end of May 2000 he met with those persons at the site where the scrap metal was located ... . He met two men whose names were Aleksandr and Vladimir. They claimed that the scrap metal belonged to them and offered him to buy it. Subsequently, [G.] told him that those men were high ranking police officers ... . During the meeting Aleksandr asked him to make an advance payment for the scrap metal in the amount of RUB 150,000. [He also said] that it was for the Steel Company LLC to saw and dismantle the metal structure. When he asked them to show the documents confirming their title to the scrap metal, Aleksandr and Vladimir “stepped back” and explained that they were also middle men and that the scrap metal belonged to another person. [G.] did not take part in the discussion. He suggested that they could get back to discuss the transaction once they had the necessary documents. Then he left. In mid-November 2000 [G.] contacted him again as regards that scrap metal. She explained that police officers Aleksandr and Vladimir would present all the documents for the scrap metal and that she would draft the purchase contract. Several days later [G.] brought [a draft contract] which indicated that the scrap metal belonged to K. ... . According to [G.], the owner of the scrap metal was at the seaside and would contact him later ... . [G.] convinced him that the transaction was legal as the middle men and “underwriters” were high ranking police officers. He has known [G.] for her good reputation. He trusted her assurances as to the guarantees provided by the police officers and signed the contract. He asked his employees to start sawing the metal structure. Then a criminal investigation was opened. [G.] came to see him and explained that the police officers Aleksandr and Vladimir had set her up and that she had paid each of them RUB 10,000 from the amount his company had paid her for the metal. A day later, Vladimir came to see him. He asked him to make a written statement and said that he would resolve all the problems and that the criminal case would be closed. He responded that he had no problems because all his actions had been in compliance with law.” 13. According to the applicant, the trial court refused to summon K., O. and P., witnesses for the defence. 14. On 14 June 2005 the Petropavlovsk-Kamchatskiy Town Court found the applicant guilty of an attempted theft of scrap metal. The applicant was sentenced to six years’ imprisonment. 15. The Town Court’s findings as regards the applicant’s guilt were based on the testimonies of B., Vosh. and Yem., who were questioned during the trial. The court also referred to the statements given by K. and Yer. during the pre-trial investigation. Lastly, it relied on the statement made by M. during the pre-trial investigation. 16. The text of the judgment remained silent as to G.’s testimony regarding the attempted theft of the scrap metal. It was indicated that she had pleaded guilty to that charge. 17. Lastly, the trial court examined and admitted as evidence the following documents: (1) B.’s complaint to the police about the attempted theft of the scrap metal; (2) his company’s financial statements; (3) a contract for removal of the scrap metal signed by G. and M.; (4) G.’s telephone records; (5) M.’s statements recorded by V. and (6) the police order appointing V. to the post of the head of the police station. 18. On an unspecified date the applicant lodged an appeal against the judgment of 14 June 2005. He complained, inter alia, about M.’s nonattendance. 19. On 27 September 2005 the Kamchatka Regional Court upheld, in substance, the applicant’s conviction but reduced his sentence to four years’ imprisonment.