CASE OF ANDANDONSKIY v. RUSSIA
No violation of Art. 6
David Thór Björgvinsson
7. The applicant was born in 1937 and currently lives in the village of Veshenskaya, Sholokhovskiy District, Rostov Region. 8. On 13 June 2000 the Moskovskiy district prosecutor's office of St Petersburg brought criminal proceedings against the applicant on suspicion of the attempted murder of N. on 7 April 2000. 9. On 31 January 2002 the Moskovskiy District Court of St Petersburg examined the case in an open hearing in the presence of the applicant, his counsel and a public prosecutor. It convicted the applicant of intentionally inflicting grievous bodily harm on N. and sentenced him to two years' imprisonment. Under an amnesty law enacted on 26 May 2000, the court ordered that the applicant be discharged. It further ordered that he should pay pecuniary and non-pecuniary damages to the victim. 10. The court established the facts as follows. On 7 April 2000 at about 8 p.m., in the course of a quarrel with N., the applicant attacked N., knocked him off his feet, sat on him, grabbed his head and hit it several times against the asphalt pavement. As a result of the applicant's actions N. sustained head injuries including fractures to both parietal bones and a haematoma and a graze in the right parietooccipital region (fractures to the calvarium), a brain contusion, a haematoma in the region of the left eye and grazes to the face. The fractures to both parietal bones and the haematoma and the graze in the right parietooccipital region were assessed as severe injuries and the remaining injuries as moderately severe. 11. The applicant's version of events was as follows. He had been out walking with his one-year-old grandson when a man (N.) and a woman (B., N.'s wife), previously unknown to him, had approached them and rebuked him for not looking after the child properly. In the course of the quarrel which broke out between them N., who was in a state of inebriation, had insulted him and attempted to kick him. The applicant had managed to grab N.'s leg. N. had fallen and the applicant had fallen on top of him, resulting in N.'s head injuries. He had not hit N.'s head against the pavement. 12. It is clear from the judgment that the court based its findings on statements by the victim N. and his wife B., the record of a confrontation between the applicant and B. during the preliminary investigation, statements by witnesses E. and K., and the conclusions of the forensic medical examination. 13. Thus, N. stated before the court that when out walking with his wife he had seen a child and had called out, saying that the child could hurt himself. The applicant had then attacked him from behind. He did not remember what had happened next. 14. B. asserted at the hearing that she and her husband N. had seen the child and tried to attract someone's attention to the situation. They had then been approached by the applicant who was in a drunken state. He had insulted them using abusive language and had tried to hit her husband. They had carried on walking. The applicant had then attacked her husband, knocked him off his feet, sat on him, grabbed his head and hit it about five times against the pavement. He had then jumped to his feet and run away. An ambulance had been called and her husband had been taken quickly to hospital. 15. On 2 October 2000 during the preliminary investigation the applicant confronted B. In the course of the confrontation B. insisted that it was the applicant who had brought about the conflict and that he had knocked her husband off his feet, sat on him, grabbed his head and hit it about five times against the pavement. 16. Witness E., who was summoned to the court, failed to appear. On 23 January 2001 she wrote to the court as follows: “I am writing to inform you that I cannot appear in court in the case [of Andandonskiy] because of my state of health and my age. My statements in the case and my passport details are with a district police officer from police station no. 68 who recorded statements made by me. I confirm those statements again.” Her letter was received by the court on 29 January 2001. 17. According to the record of the hearing before the Moskovskiy District Court on 10 October 2001, submitted by the Government, the applicant and his lawyer did not object to the court's examination of the case (судебное следствие) being started in the absence of witness E., who had not yet been examined at the trial. When, at the end of that hearing, they were asked by the judge about the possibility of concluding the examination of the case in the absence of E., who was not able to attend for health reasons, and N., who had failed to appear due to his illness and authorised his wife to represent him at the trial, they replied: “[We leave this decision] to the discretion of the court.” Having then heard evidence from the victim B. and the prosecutor, the court ordered that the case be adjourned and that the victim N. should submit for the next hearing a written request for examination of the case in his absence. 18. According to the record of the hearing before the Moskovskiy District Court on 19 November 2001, submitted by the Government, the applicant and his lawyer did not object to the court's examination of the case being started in the absence of witness E. The record also shows that at that hearing the court read out, in accordance with Article 286 of the Code of Criminal Procedure, the statements which E. had given on 6 July 2000 during the preliminary investigation, as she was unable to attend the hearing for health reasons. No questions or additions followed from the applicant or his lawyer. In reply to a question by the judge, the applicant and his lawyer then expressly stated that they did not object to the examination of the case being concluded in E.'s absence. Having heard evidence from the victim B. and the prosecutor, the court ordered that the examination of evidence be concluded. The applicant and his lawyer made no comments in response. The court then proceeded to the pleadings. 19. In her statements made on 6 July 2000 during the preliminary investigation, which the court read out at the hearing on 19 November 2001, E. stated that she had seen the applicant knock the victim N. off his feet, hit his head at least five times against the pavement and run away. Being a doctor, she had examined the victim. She had seen that he was becoming unconscious and had explained what had happened to some people who were at a meeting of the residents of an adjacent block of flats. An ambulance had then been called. 20. The court heard evidence from witness K., who stated that she had been at a meeting of the residents of a block of flats when E. had run in and said that the applicant had killed a man. Everyone had run out into the street and seen a man (N.) sitting on a bench. There was blood on his head. She had not noticed whether he was in a state of inebriation. He had been taken quickly to hospital in an ambulance. She had learned from E. that the applicant had hit the victim's head against the pavement. 21. According to the report drawn up following the forensic medical examination which established the victim's head injuries, the blunt injury to the head (the fractures to the calvarium) “could have been caused by blows from the hand and/or by being hit against the pavement”. 22. The court considered that the applicant had denied beating the victim's head against the pavement in an attempt to mitigate his responsibility. 23. The court examined the medical expert's conclusion to the effect that the possibility of N.'s having sustained the injury in the parietooccipital region as a result of falling down onto the pavement could not be ruled out. In assessing that conclusion the court stated as follows: “...the court takes into account that this conclusion was made on the basis of the statements by the defendant Andandonskiy, the assessment of which the court has already made above. Furthermore, the victim also had other head injuries which could not have been caused solely by falling from a standing position (see case file, pp. ...). Therefore, the aforesaid expert conclusion (see case file, p. ...) did not refute the statements by the victims [N.] and [B.] and the witness [E.].” 24. The court also examined statements by three witnesses, who testified that the fight between the applicant and the victim and his wife had been brought about by the latter who, being drunk, had behaved offensively, and that the applicant had not beaten the victim's head against the pavement. Two further witnesses stated that the victim and his wife had been in an inebriated state. The court considered that the above statements were aimed at helping the applicant to avoid responsibility for what he had done. Another witness, a member of the ambulance team who had examined the victim at the scene of the accident and taken him to hospital, testified that the victim N. had appeared to be in a state of inebriation. The court found that those statements were unreliable as there was no other corroborating evidence, for example blood-test results. 25. The Moskovskiy District Court of St Petersburg held: “...in view of the nature of the defendant's actions – intentional beating of the victim's head against the pavement – and in view of the gravity of the injuries received by N., the court considers it necessary to classify the defendant Andandonskiy's actions as intentional infliction of grievous bodily harm, causing danger to human life, under Article 111 § 1 of the Criminal Code of the Russian Federation.” 26. The applicant appealed against the judgment on the ground, inter alia, that it had been based on statements by witness E., who had not been examined at the trial. He claimed that he had acted in self-defence and in defence of the child. 27. On 19 March 2002 the St Petersburg City Court upheld the judgment on appeal. It heard submissions from the applicant and his counsel, the victim's wife B. and the prosecutor. It stated, in particular, that the statements by witness E., who was born in 1920, had been read out at the trial in accordance with Article 286 of the Code of Criminal Procedure, since the trial court had lawfully found, on the basis of witness E.'s letter in which she referred to her age and poor health, that her appearance at the trial had been impossible. The trial court had taken account of the fact that B. and E., previously unknown to each other, had consistently asserted that the defendant had beaten the victim's head against the pavement more than once. Their statements had been corroborated by the conclusions of the forensic medical examination, and the fact that the victim N. had injuries to his face which, as the expert report confirmed, could not have been caused solely by falling and could have occurred before the fracture of the parietal bones. The City Court held that in those circumstances the judgment had been correctly based on the statements by B. and E., which were corroborated by the expert's conclusions. 28. Subsequent applications lodged by the applicant for supervisory review proceedings to be initiated were unsuccessful. 29. Pursuant to Article 240 of the 1960 Code of Criminal Procedure, in force at the material time, a first-instance court, in considering a case, must directly examine the evidence. In particular, it must question defendants, victims, witnesses and experts. 30. Under Article 286 of the Code, reading out at trial statements made by a witness at the preliminary investigation stage is allowed if the witness is absent from the hearing for reasons which make his or her appearance in court impossible. 31. Pursuant to Article 301 of the Code, the court must base its judgment only on the evidence which has been examined at the court hearing. 32. Article 264 of the Code regulates the keeping of a trial record in the first instance court. It does not require a verbatim record of the trial to be kept, but “a detailed record of the submissions”. In practice, if a verbatim record exists, it is not attached to the official trial record. A party to the proceedings may challenge the accuracy of the official record within three days after having received a copy of it.