CASE OF YEVGENIY IVANOV 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;Obtain attendance of witnesses)
Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1979 and lives in Cheboksary. 6. On 20 September 2002 the applicant was charged with manslaughter, an offence under Article 111 § 4 of the Criminal Code. The charge was based, in particular, on the investigator’s interviews with Mr M., Mr O. and Mr I., eyewitnesses to the incident. 7. Mr M. and Mr O. stated that on 28 August 2002 they and their friend Mr S. had had a fight with three strangers. Mr S., drunk, had kicked a red VAZ car which was passing by. The driver and two passengers had emerged from the car and the driver had hit Mr S. twice in the face. Seven or eight people had then joined in with the strangers and started to hit them. Mr M., Mr O. and Mr. S. had all lost consciousness. On the next day, 29 August 2001, Mr S. had been found lying in the street by a passer-by and had been taken to hospital, where he had died from the wounds received during the fight. 8. During subsequent interviews with the investigator, Mr M. and Mr O. changed their testimony slightly, stating that Mr S. had fallen immediately after the driver had hit him in the face. They had not seen whether Mr S. had been hit by any of the other persons involved in the fight. 9. Mr I. stated to the investigator that on 28 August 2002 he had been sitting in a bar. He had seen a red VAZ car stop near the bar and three people get out of it. Two of them had entered the bar, while the driver had approached a group of three people outside. They had started to argue and then to fight. He had left immediately. 10. The trial started on 21 January 2003 before the Kalininskiy District Court of Cheboksary. The applicant pleaded not guilty. He admitted that on 30 August 2002 he had had a quarrel with three strangers. He had hit one of them twice in the chest and retreated to a nearby bar. He had seen the men leave the scene. He insisted that the incident had happened on 30 August 2002 rather than on 28 August 2002. He was sure of the date because he had taken his mother to the tax office on that day. He requested the court to hear the tax inspector, Ms Sh., who could confirm that his mother had paid her taxes on 30 August 2002. His request was rejected on the ground that a statement by Ms Sh. would not be relevant. 11. Several witnesses attended the trial. One of them stated to the court that he had seen the applicant in the bar during the evening of 28 August 2002. He had not, however, seen the fight. Another witness testified that during the evening of 28 August 2008 he had seen Mr M. with bruises on his face, and that on the next day Mr O. had told him that he, Mr M. and Mr S. had been beaten up by three strangers. Mr S.’s wife and brother testified that they had seen Mr S. for the last time on the morning of 28 August 2002. Another witness told the court that he had found Mr S. badly injured and unconscious in the street not far from the bar one morning at the end of August 2002. Another witness stated that during the evening of 28 August 2002 he had driven three men to a bar in his red VAZ car. Another red VAZ car had been parked near the bar and three persons had been standing nearby talking among themselves. He had overheard them saying that they had hit someone who had kicked the wheel of their car. Some time before that, he had seen a man carrying another man. 12. The trial court also examined an expert medical report submitted by the prosecutor. The finding of the medical experts was that Mr S. had died of a craniocerebral injury. They also recorded numerous bruises on his head and body and found that he had received no fewer than nine blows. 13. Finally, a police report stating that Mr S. had been discovered lying in the street on 29 August 2002 was also examined. 14. The witnesses Mr O., Mr M., and Mr I. did not attend the trial. On 21 January 2003 the Kalininskiy District Court ordered bailiffs to ensure their appearance in court on 22 January 2003. 15. It can be seen from the bailiff’s report of 22 January 2003 that between 7.45 and 9.35 a.m. on that day he visited the addresses for Mr O. and Mr I. provided during the preliminary investigation. It was confirmed by the new occupants of the flat that Mr O. no longer lived at that address. Mr I. was at work and the bailiffs left the summons to appear with his daughter. 16. On 22 January 2003 the witnesses did not attend. The applicant insisted that the court obtain their attendance. The Kalininskiy District Court adjourned the hearing until 3 February 2003 and again ordered the bailiffs to ensure the witnesses’ appearance in court. 17. It can be seen from the bailiffs’ reports dated 31 January and 3 February 2003 that Mr O. no longer lived at the address indicated in the case file, as confirmed by the owner of the flat. They visited Mr O.’s mother, who stated that her son lived in Cheboksary but that she did not know either his home address or the address of his employer. According to Mr M.’s mother, Mr M. lived on the university campus in Cheboksary. When the bailiffs visited the campus, Mr M. was not at home. They left the summons to appear with the campus guard. According to Mr I.’s daughter, Mr I. was at his country house. She agreed to pass the summons onto him. 18. The witnesses did not attend the hearing of 3 October 2003. The Kalininskiy District Court ordered the bailiffs to ensure the witnesses’ appearance in court on 7 February 2003. 19. The bailiffs’ report dated 7 February 2003 states that on that day the bailiffs visited the addresses for Mr I. and Mr O. provided during the preliminary investigation. According to his daughter, Mr I. was on a business trip outside the Chuvashiya Republic and she did not know when he was to return. Mr O. no longer lived at the address indicated in the case file. 20. On 7 February 2003 a new decision was issued by the Kalininskiy District Court, ordering bailiffs to ensure the witnesses’ attendance on 11 February 2003. 21. On 10 February 2003 the bailiffs went again to Mr I.’s address and discovered that he had not yet returned from his business trip. They then went to the address for Mr O. indicated in the case file and the new occupants of the flat told them for a fourth time that Mr O. had moved out. The bailiffs then visited Mr O.’s mother, who told them that she did not know her son’s address in Cheboksary. They also visited Mr M.’s mother, who stated that her son did not live with her. 22. On 11 February 2003 the witnesses did not attend. The prosecutor asked for the transcript of the statements given by Mr O., Mr M., and Mr I. to the investigator to be read out. The applicant and his counsel did not object. The transcript was read out. On the same day, the Kalininskiy District Court ordered the bailiffs to ensure the witnesses’ attendance on 12 February 2003. 23. On 12 February 2003 the bailiffs went to the addresses for Mr I. and Mr O. indicated in the case file. Neither of them was at home. The bailiffs noted in their report of the same date that in any event it had long been known that Mr O. did not live at that address and that Mr I. was on an extended business trip. 24. At the hearing of 12 February 2003, the applicant insisted that the court obtain the attendance of Mr O., Mr M., and Mr I., and objected to the termination of the trial as long as those witnesses had not been questioned. The Kalininskiy District Court nevertheless decided to terminate the trial on the ground that all attempts to obtain the attendance of the witnesses had been unsuccessful. 25. On 13 February 2003 the Kalininskiy District Court of Cheboksary convicted the applicant of manslaughter, finding that his guilt was sufficiently established by the statements made by Mr O., Mr M., and Mr I. during the pre-trial investigation, the statements of the other witnesses made during the trial, and the medical and police reports. The court rejected the applicant’s arguments that he had hit Mr S. on the chest rather than on the head and that Mr S. had left the scene uninjured, finding that they were refuted by the testimony of Mr O. and Mr M., who had witnessed the incident. The applicant was sentenced to eleven years and six months’ imprisonment. 26. In his grounds of appeal the applicant complained, in particular, that the District Court had not secured the attendance of Mr O., Mr M., and Mr I. at the trial. He submitted that he had been misled into agreeing to the reading out of the transcript of their statements to the investigator. The judge had not warned him that the reading out of the transcript would substitute for the questioning of the witnesses in court. Throughout the trial he had insisted that those witnesses should be questioned. He had also objected to the termination of the trial as long as the witnesses had not been questioned. 27. On 26 February 2003 the Kalininskiy District Court held that Mr O., Mr M., and Mr I. had not been questioned in court because, despite the efforts of the bailiffs, they could not be traced. In such circumstances it was permissible for the witnesses’ statements made at the pre-trial stage to be read out at the trial by virtue of Article 281 of the Code of Criminal Procedure. 28. On 27 March 2003 the Supreme Court of the Chuvashiya Republic upheld the judgment on appeal. The appeal court remained silent on the issue of the attendance of witnesses. 29. Manslaughter – that is, the premeditated infliction of serious injuries resulting in accidental death – carries a punishment of five to fifteen years’ imprisonment (Article 111 § 4 of the Criminal Code). 30. The Code of Criminal Procedure of the Russian Federation provides that witnesses are to be examined directly by the trial court (Article 278). Statements given by the victim or a witness during the pre-trial investigation can be read out with the consent of the parties in two cases: (i) if there is a substantial discrepancy between those statements and the testimony before the court; or (ii) if the victim or witness has failed to appear in court (Article 281). 31. If a witness fails to comply with a summons to appear without a good reason, the court may order the police or bailiffs to bring him to the courtroom by force (Article 113). 32. Article 413 of the Code of Criminal Procedure provides for a possibility to reopen criminal proceedings on the basis of a finding of a violation of the Convention by the European Court of Human Rights.