CASE OF KLIMENTYEV v. RUSSIA
No violation of Art. 6
Peer Lorenzen
7. The applicant was born in 1954 and lives in the city of Nizhniy Novgorod. 8. On 7 March 1995 criminal proceedings were brought against the applicant on suspicion of his involvement in a number of economic crimes. 9. From 30 July to 28 October, on 15 November 1996 and on 15 and 16 January 1997 the applicant and his defence team studied the case-file. 10. On 21 April 1997 the Nizhniy Novgorod Regional Court (“the Regional Court”, Судебная коллегия по уголовным делам Нижегородского областного суда) convicted the applicant of some charges and acquitted him of the rest, sentencing him to one and a half year of imprisonment and the forfeiture of part of his property. 11. The judgment of 21 April 1997 was quashed on appeal by the Supreme Court of the Russian Federation (“the Supreme Court”, Верховный Суд Российской Федерации) on 17 July 1997. The case was remitted for fresh examination at first instance. 12. Between 30 September and 20 November 1997 the applicant and his counsel were again given an opportunity to study the case-file. 13. On 24 November 1997 the hearings recommenced at first instance. 14. The applicant's civil defender Mr Chumak and his counsel Mr Kozlov failed to attend the hearing of 6 May 1998. 15. Mr Chumak excused himself by reference to his previous engagements in a different set of proceedings. It appears that Mr Kozlov was undergoing medical treatment in a hospital. 16. In view of their absence, the court adjourned the hearing until 8 May 1998. On 8 May 1998 Mr Chumak and Mr Kozlov were again absent and, despite the applicant's proposal to continue the examination of the case in their absence, the court again adjourned the hearing, this time until 19 May 1998. 17. On 19 May 1998 both the civil defender and counsel Kozlov attended the hearing. 18. According to the transcript, at the hearing the applicant requested the court to admit Mrs Moskalenko as a “specialist in international law”. The court considered the request unfounded and irrelevant as there was no need for advice on international law at that stage of proceedings. 19. According to the applicant, he requested to admit Mrs Moskalenko as a replacement counsel for Mr Kozlov who was present and unfit effectively to participate in the hearing due to his medical condition. 20. From the hearing transcript it does not transpire that either the applicant or his defence counsel objected to the decision rejecting the applicant's request with reference to Mr Kozlov's alleged inability to participate in the further examination of the case on medical grounds. 21. During the trial the Regional Court heard more than thirty five witnesses in total, both for the prosecution and the defence. 22. The court refused the applicant's requests to call certain witnesses, including the former Regional Governor, the Regional Prosecutor and other officials, and admitted and considered five witness statements taken at the pre-trial stage of proceedings and during the first round of proceedings at first instance without hearing the respective witnesses in person. 23. Two of these witnesses were the Norwegian nationals R. and B. who had both been questioned by the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (“the Norwegian authority”, ØKOKRIM) and the Russian investigators in Norway on 20 February 1996. 24. The trial court attempted to secure the presence of these witnesses in person by making an official request to that effect to the Norwegian authorities. 25. By letters of 26 and 27 January 1998 R. and B. refused to appear and give evidence to the court, and on an unspecified date the Norwegian authorities refused to secure their presence at the trial by force. 26. Consequently, the witnesses R. and B. did not attend the trial and the applicant could not cross-examine them. 27. The third witness was a German national P. who gave evidence at the pre-trial stage of proceedings and during the first round of proceedings in 1997. The applicant and his counsel were able to cross-examine him during the first round of proceedings. 28. The trial court unsuccessfully tried to secure his presence but P. was in Germany and could not be found. 29. The fourth and fifth witnesses, the Russian nationals M. and A., were also questioned during the pre-trial investigation and during the trial in 1997. The applicant and the defence team were able to cross-examine them during the proceedings in 1997. 30. From the case-file and the documents presented by the Government it transpires that during the hearings the court summoned these two witnesses and the authorities repeatedly undertook various measures, including questioning the close relatives and the witnesses' connections, with a view to securing their presence at the trial. Apparently these measures proved futile as the witnesses' whereabouts could not be established. 31. It appears that the prosecution case contained several documents in English and Norwegian. 32. All documents admitted by the court as evidence were translated either by certified translators or by the staff of the Norwegian embassy. Most of the translations were attached to the case-file prior to the beginning of the first instance hearings, whilst some of them on 24 April 1998 (numbering 28 pages) and 19 May 1998 (16 pages), were submitted already after the beginning of the trial. 33. According to the Government, on one occasion the defence requested translation of a document which had not been used by the prosecution or the court. The request was granted and the necessary translation was made. 34. The court also admitted a number of expert reports (technical, medical, graphologist and others) which had been ordered by the prosecution during the pre-trial stage of proceedings. 35. It follows from the case-file that the applicant was officially notified of most of the prosecution decisions to carry out expert examinations (counting more than twelve) within a month from the date on which such decisions had been taken. 36. The decisions of 22 December 1995, 18 and 22 January 1996 to carry out expert examinations were served on the applicant on 12 April 1996. The decision to carry out expert examination dated 28 March 1996 was served on him on 16 May 1996. 37. At the time when these decisions were served, both the applicant and his counsel were officially informed about the procedural rights of the accused, including the right to challenge an expert, seek an appointment of a particular person as an expert, adduce further questions, be present during the expert examination in person and make any comments and be informed of expert conclusions. The accused also had an opportunity to make related requests and motions in writing. 38. In respect of the decisions of 28 March and 30 April 1996 to carry out technical examinations, the applicant requested to provide him with copies of some documents. The copies were provided to him on 21 June 1996. As regards the decision of 22 January 1996 to carry out technical examinations, the applicant stated that it “might have been more objective” to carry out that examinations in Moscow or St Petersburg. 39. The copies of the notification reports state that the applicant and his counsel did not make any additional requests and motions. 40. On 27 May 1998 the Regional Court found the applicant guilty on charges of misappropriation, embezzlement, bribery and the attempt not to return money from abroad. 41. According to the judgment, the applicant and a co-accused Mr K., the director of a shipyard “Oka”, had tampered with documents with a view to embezzling the shipyard's property. The director, acting on behalf of the shipyard, was found to have arranged large-scale money transfers under fraudulent contracts with the companies owned by the applicant, whereas the applicant was found to have bribed the director by opening bank accounts in the name of Mr K. in Norway and transferring the stolen money there. Among other things, the applicant was also convicted of having extorted money from a marketplace owned and run by the companies “Zhanto” and “NL TOP”, and from a casino owned and run by a company “Slot”. 42. In total, the court sentenced the applicant to six years' imprisonment and the confiscation of part of his property. The court also upheld civil claims for damages by the shipyard “Oka” and three other companies, “Zhanto”, “NL TOP” and “Slot”. 43. The applicant's conviction was based on various pieces of evidence, i.e. numerous documentary items, including accounting, financial and contractual papers reflecting the operation of sham companies owned and run by the applicant and Mr K. as well as oral and written evidence given by more than thirty-five witnesses and various expert examinations. 44. A copy of the judgment of 27 May 1998 was served on the applicant on 3 June 1998. 45. Later it was discovered that the copy contained errors and misprints. 46. On 8 June 1998 the Regional Court corrected a number of clerical and technical mistakes in the judgment and ordered that the applicant be furnished with the amended version. 47. The applicant claims that he did not receive the amended version. 48. The records in the case-file indicate that the amended copy of the judgment was served on the applicant against his signature on 11 June 1998. 49. The Government submit that the whole trial was taken down in shorthand and taped and that the respective records were all available to the interested parties, including the applicant and his counsel. 50. On 28 May 1998 the applicant requested to study records, audiotape recordings and shorthand records. 51. The applicant was provided with this opportunity on 10, 11, 15 and 16 June 1998. 52. On the last date a specialist of the Regional Court certified that the applicant had been given access to the trial record, though he had refused to study audio records and shorthand records. 53. On 17 June 1998 a judge of the Regional Court decided that the defence counsel should be given access to the records between 17 June and 23 June 1998. 54. The deadline for filing objections was set on 25 June 1998 accordingly. 55. It does not appear from the case-file that the applicant ever challenged the accuracy of the trial records. 56. On 27 May 1998 the Regional Court made a number of separate rulings (частные определения) in the case. 57. In one of these rulings the court noted that there had been breaches of the relevant rules of criminal procedure during the investigation and that these breaches had been remedied during the trial. 58. In particular, the court established that the defendants had been informed about the commissioning of expert reports in the case only after the respective examinations were over. 59. The court considered that this failure did not invalidate the conclusions of the experts' reports and that the applicant had failed to contest the results of the reports during the investigation or during the trial or request additional or repeated examinations to be carried out. 60. The court also noted that a number of documents in the case-file were in foreign languages, but considered that this did not violate the applicant's defence rights because the documents were similar to or copies of other documents in Russian and that in any event all relevant documents had been translated into Russian during the trial. 61. The court further noted that certain statements of witnesses had been admitted as evidence, even though they gave no indication as to the time or place of questioning. To verify the relevant points, these witnesses as well as other witnesses had been questioned in the courtroom on the circumstances of the questioning. 62. The defence appealed against the judgment of 27 May 1998 to the Supreme Court. 63. In their appeal, inter alia, the applicant's counsel contested the admissibility of certain evidence admitted by the court such as expert reports, documents in foreign languages, certain procedural documents, statements of witnesses made during the pre-trial investigation and at the first round of proceedings at first instance, statements of witnesses taken by the Norwegian police, and other evidence obtained in Norway, claiming that were allegedly in breach of the domestic procedural rules. 64. Furthermore, it was stated that the applicant's defence had not had due access to the trial records and the quality of the defence had been impaired by the Regional Court's refusal to admit Mrs Moskalenko as a replacement for a lawyer who was sick. 65. On 16 June 1998 Mrs Moskalenko joined the defence team. In July and on 10 August 1998 she referred to various difficulties in organising the defence and made several requests to the Supreme Court to adjourn the hearing. 66. She also complained that the applicant had been served neither with the final copy of the judgment, nor with the rulings of 27 May 1998 and that the defence had had no access to the verbatim record and certain volumes of the case-file. 67. On 29 June 1998 the Supreme Court granted one of her requests to adjourn the hearing. The hearing initially scheduled for 29 June 1998 was postponed. 68. Thereafter Mrs Moskalenko failed to appear at the hearing on 30 July 1998. 69. On 10 August 1998 Mrs Moskalenko requested to postpone a further hearing claiming that the defence had not been properly notified of the judgment and separate rulings. 70. In response to her request for adjournment, the Supreme Court ruled that both the defence in general and Mrs Moskalenko in particular had had sufficient time to examine the trial records, study the first instance judgment and prepare for the case at least between 16 June and 30 July 1998 and turned down the request as unfounded. 71. The appeal hearing took place on 10 August 1998. 72. On 10 August 1998, in the presence of the applicant's defenders, Mrs Moskalenko and Mr Chumak, and the prosecution, the Supreme Court examined the appeals and, with minor alterations, confirmed the judgment of 27 May 1998. 73. The court concluded that there had been no significant breaches of national procedural law or international standards during the trial. 74. As to the complaints about the handling and assessment of the evidence, the court found that the lower court had properly admitted and considered the evidence in the case and that the conclusions of the lower court had been reasonable and substantiated. It also noted that the defence had been furnished with Russian translations of foreign documents during the hearing. 75. The court further considered that the applicant had been adequately represented throughout the pre-trial investigation and the trial, and that at no time during the proceedings had he been deprived of professional legal advice. 76. In respect of the events of 19 May 1998, the court noted that the applicant's lawyer had never applied for an adjournment of the hearing for health reasons and the Regional Court's refusal to admit Mrs Moskalenko as a further lawyer did not constitute a violation of the applicant's right to defence. 77. According to Sections 78 and 80 of the Code of Criminal Procedure of the RSFSR (the Russian Soviet Federal Social Republic) of 1960, as in force at the relevant time, in cases requiring special knowledge of science, technology, art or particular skill, an investigative authority or a court may appoint an expert to carry out an expert examination. The conclusions of an expert are not binding on an investigating authority or a court but any disagreement with them must be motivated. By Sections 81 and 290 of the Code incomplete, unclear, unjustified or dubious expert conclusions may trigger a decision by a court or an investigator ordering additional or repeated expert examinations. In such cases the court takes the decision having heard the opinions of the participants of the proceedings (Section 276 of the Code). 78. Section 185 of the Code states that an accused and his counsel have the right to challenge an expert, seek an appointment of a particular person as an expert, adduce further questions, be present during the expert examination in person and make any comments and be informed of expert conclusions. In case the respective request was granted, an investigation alters its decision to carry out the examination accordingly. 79. By Section 193 of the Code, expert conclusions should be presented to the applicant who has the right to respond or object to these conclusions as well as the right to request the authority to put additional questions to the expert or carry out an additional or a repeated expert examination. 80. Having decided that the collected evidence is sufficient to prepare the bill of indictment, an investigator informs the accused that the investigation is terminated and that the accused has the right to study the entirety of the case personally and with the assistance of his defence counsel and to request the investigator to carry out an additional investigation (Sections 201, 202 and 203 of the Code). The investigator should draw up a report reflecting the progress of the defence in studying the case. The investigator cannot limit the time for study, except in cases where the accused and his counsel manifestly protract the process. 81. According to Section 17 of the Code, criminal proceedings are conducted in Russian. The contents of documents relating to court proceedings and investigation are made available to the accused in a language that he understands. 82. A translator appointed by a court or an investigator is under an obligation to make correct translations and may be held criminally liable for incorrect translations under Section 57 of the Code and Section 307 of the Criminal Code of Russia. 83. By Section 276 of the Code of Criminal Procedure, participants in the proceedings, including the accused and his defendants, have the right to make requests to summon new witnesses, experts and specialists or retrieve items of evidence and documents etc. A court, having heard other participants in the proceedings, should examine each such request and either grant it or give a motivated decision refusing it. 84. Section 292 of the Code provides that documents adduced to the case or presented by a party during a hearing and containing description of relevant facts should be read out. 85. By Section 320 of the Code, a copy of the first instance judgment should be served on an accused or an acquitted within three days from its delivery. 86. By Section 249 of the Code, a defender takes part in examination of the body of evidence, gives his opinion on various issues arising during the court proceedings, including the substance of accusations, any mitigating circumstances as well as the penalty and civil liability for the commission of a crime. 87. By Section 47 of the Code, advocates (counsel) and representatives of professional or other social unions may act as defenders. According to Section 250 of the Code, representatives of social organisations and staff may act as “civil defenders” (общественные защитники). As such they have the right to present evidence, take part in examination of evidence, make motions and challenges, participate in arguments as well as give their opinion on any mitigating or acquitting circumstances and the penalty. 88. Section 73 of the Code imposes an obligation on a witness to attend and to give truthful evidence to the best of his knowledge as well as to respond to questions. In case of failure to respect this obligation the witness may be brought before the authority by force and punished by a fine of up to a third of a monthly minimum wage and/or be held liable of a criminal offence. 89. According to Sections 240 and 245 of the Code, a trial court must carry out a first-hand examination of all evidence in the case, including, among other things, hearing of witnesses, the participants in criminal proceedings (a prosecutor, an accused, a defender, a victim, a civil claimant and a civil respondent and their representatives) having equal procedural rights concerning submission and examination of evidence as well as making of various requests. 90. Sections 277 and 286 of the Code state that in case of a witness's objective inability to attend a court, having heard the participants of the proceedings, may decide to read out the statements given by the witness at earlier stages of the proceedings.