CASE OF DAMIR SIBGATULLIN 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 - Witnesses);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
10. The applicant was born in 1974 and is serving a sentence in a correctional colony in Kineshemskiy District, Ivanovo Region. 11. Criminal proceedings were instituted against the applicant in Uzbekistan. The prosecution suspected that in February 1998 he and a Mr A. had robbed and murdered an elderly woman in Tashkent. After the murder they had allegedly packed the victim’s body in a box and given the box to bus drivers at a local market to transport it to a supermarket in another town. The applicant and his accomplice had also allegedly sold the victim’s property, including furniture, carpets, clothes, and household utensils, to a number of individuals in the days following the murder. 12. According to the Government, after committing the criminal offences the applicant fled Uzbekistan and returned to Russia. On an unspecified date Russian prosecution officials opened a criminal case against the applicant for crimes allegedly committed in Uzbekistan. On 17 November 2003 the applicant was arrested and placed in a detention facility in Ivanovo. 13. In 2004 the applicant was committed for jury trial. 14. On 24 April 2004 the Ivanovo Regional Court initiated the jury selection process. Twenty-five people reported for jury duty on that day. 15. Three potential jurors were excused for personal reasons. The prosecution successfully challenged one potential juror for cause and made two successful peremptory challenges. The defence made two jury challenges for cause and two peremptory challenges, which were accepted. 16. A jury of twelve was selected and two alternates appointed. It appears from the record of the jurors’ responses to the questions asked by the presiding judge that close relatives of five jurors worked for the police and at the Service for Execution of Sentences. In particular, the husband of juror no. 2 and the son of juror no. 4 worked as traffic police officers. The son-in-law of juror no. 3 was employed by the Service for the Execution of Sentences. The husbands of jurors nos. 11 and 13 worked for the police as telecommunications and radio operators respectively. In addition, two jurors on the panel had been victims of criminal offences. In 2000 juror no. 1 had been attacked by a drunk person, but the matter was subsequently settled out of court. In 1994 the son of juror no. 6 died as a result of a house collapse. 17. After the jury had been empanelled and sworn in, defence counsel challenged the entire jury venire upon account of partiality. The defence alleged that the fact that certain jurors had been victims of criminal offences could influence their judgment. The challenge for the array was dismissed. 18. On 24 November 2003 the President of the Ivanovo Regional Court sent a letter to Uzbek law-enforcement officials asking for assistance. The letter, in so far as relevant, read as follows: “In compliance with the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, 22 January 1993), which came into force for Uzbekistan on 19 March 1994 and for Russia on 10 December 1994, the Ivanovo Regional Court asks competent officials of the Republic of Uzbekistan to provide legal assistance in a criminal case... According to the case-file materials all the witnesses the court wants to call to testify in the present case live in the Republic of Uzbekistan. In this respect, [I] ask you to provide legal assistance in ensuring the appearance of the witnesses in the criminal case before the Ivanovo Regional Court... at 10 a.m. on 20 January 2004, by serving the individuals listed below with the enclosed summons and by providing [the Ivanovo Regional] court with documents confirming that the summonses have been served: [The Ivanovo Regional Court enclosed a list of thirteen witnesses, including their dates of birth and home addresses. All but two of the witnesses, lived in Tashkent. The remaining two were registered in the town of Dzhizak].” A similar letter was sent on 26 November 2003 by the Russian Ministry of Justice to the Ministry of Justice of the Republic of Uzbekistan. 19. On 20 February 2004 the Ivanovo Regional Court issued a decision, which read as follows: “[The applicant] is accused of murdering, on 22 February 1998, together with Mr A., an elderly woman, Ms B., in Tashkent, with the intention of taking her property. [The prosecution] included Mr A. on the list of those to be heard in court as witnesses for the prosecution... Mr A. [who had already been found guilty of those offences by a court in Uzbekistan and sentenced to eighteen years’ imprisonment] is currently serving his sentence in [a correctional colony] in the town of Almalyk in the Tashkent Region of Uzbekistan. 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 the Uzbek authorities, arguing that it was impossible to obtain their attendance. Four witnesses failed to appear for various personal reasons and the remaining witnesses lived in Uzbekistan. The applicant and his counsel objected, relying on the defendant’s right to cross-examine witnesses testifying against him. The applicant noted that during the pre-trial investigation he had repeatedly asked the investigating authorities to hold confrontation interviews with the witnesses. However, his requests had been dismissed without any explanation. 23. The Regional Court agreed to read out statements by the four prosecution witnesses who had failed to appear for personal reasons, finding those reasons to be valid. As regards statements by the remaining witnesses and Mr A., the Regional Court held as follows: “During the last six months the court has taken all lawful steps to ensure the witnesses’ presence, and certain witnesses have sent in information which confirmed that they had been summoned properly. Due to the fact that other witnesses live in another State, and taking into account that they confirmed their statements in a court hearing in the Tashkent City Court [during the trial against Mr A.], [the court] considers that the present extraordinary circumstances preclude their attendance [and] decides to read out the statements of the ... witnesses who failed to appear.” The Regional Court read out statements by the remaining six prosecution witnesses and by Mr A. It also announced the results of photo-identification parades conducted by the Uzbek investigating authorities during which the witnesses had identified the applicant and Mr A. 24. A copy of the court hearing records presented to the Court by the parties show that in addition to the witnesses’ depositions the Regional Court studied the records of the crime scene examinations of 15 and 20 March 1998, an autopsy report, a document confirming the victim’s identity, a search report, a warrant for the applicant’s arrest and records of pre-trial confrontation interviews between Mr A. and the witnesses whose statements had been read out by the Regional Court. The Court further heard the applicant and his parents, who denied the applicant’s involvement in the robbery and murder and insisted that at the time of the crime he was staying with his family in Russia. 25. At the same hearing the applicant accused the prosecution of jury tampering and sought the discharge of the entire panel. He claimed that juror no. 1 had tapped the prosecutor on the hand and the prosecutor had responded with a nod of the head. Defence counsel supported the accusation claiming that he had witnessed the incident. The prosecutor denied the incident, stating that he was not acquainted with juror no. 1. Juror no. 1, in response to questions from the presiding judge, stated that he had not known the prosecutor before the trial and that he had never had a conversation with him. The presiding judge, without giving any reasons, dismissed the applicant’s challenge to the empanelled jury. 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. 31. The Russian Code of Criminal Procedure provides that an officer of a court or a judge’s assistant has to compile a list of jury candidates for the trial. The candidates are to be drawn at random from the district or regional list of jurors. The candidates’ names are entered in the list in the order in which their lots were drawn. The list of jury candidates is then served on the parties. The parties have the right to make an unlimited number of challenges for cause and two peremptory challenges to potential jurors. The presiding judge decides on the challenges. After deleting the names of the successfully challenged candidates, the court secretary or the judge’s assistant makes up the list of the remaining jury candidates, whose names are to appear in the same order as in the first list. The twelve candidates whose names appear first on the list form the jury, and the two candidates whose names appear next become substitutes. Before the jury is sworn in, the parties may challenge the entire panel if they argue that due to particular features of a criminal case the panel will be unable to render an objective verdict. The presiding judge is to decide on any such challenge to the empanelled jury (Articles 326–330). 32. Earlier statements made by a victim or witness may be read out if the parties give their consent to it and if (1) there are substantial discrepancies between the earlier statement and the later statement before the court or (2) the victim or the witness has not appeared before the court (Article 281 § 1). 33. The court may, without seeking the consent of the parties, read out earlier statements by the defaulted a victim or witness in case of (1) death, (2) serious illness, (3) the refusal to appear by a victim or the witness who is a citizen of another States or (4) natural disaster or other force majeure circumstances (Article 281 § 2). 34. Chapter 5 of the Code determines steps to be taken when asking foreign authorities for legal assistance. In particular, Article 453 provides that a prosecutor, an investigator or a court, when they need to carry out an interrogation, a search, seizure or any other procedural action in the territory of a foreign State, may ask assistance from investigating or judicial officials of that State to organise/perform that procedural action. Records of procedural actions performed by foreign officials on a request by Russian authorities will have the same evidentiary weight as evidence received by Russian officials in the territory of the Russian Federation (Article 455). Article 456 deals with the issue of summoning witnesses who live outside the Russian Federation to give statements regarding a criminal case pending before Russian authorities. 35. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Uzbekistan are parties, provides that a witness and a victim who are subjects of one Contracting Party can be summoned, for the purpose of their examination, by a “body of justice” of another Contracting Party. The witness and the victim are entitled to reimbursement of travel, and certain other, costs and expenses incurred in connection with their participation in the criminal proceedings (Section 9). 36. If a witness or a victim does not obey a summons to appear without a valid reason, they may be brought to a courtroom under escort (Article 113). 37. Witnesses and victims are entitled to reimbursement of costs and expenses incurred in connection with their participation in criminal proceedings (Article 131). 38. Witnesses and victims who live abroad may be summoned, with their consent, to criminal proceedings conducted in the Russian Federation (Article 456 § 1). 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.”