CASE OF KRESTOVSKIY v. RUSSIA
Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1963 and is serving a prison sentence in Yagul, Udmurtiya Republic. 7. On an unspecified date D., M., Gil. and Gut. were arrested and charged, inter alia, with the murders of P. B. and S. When questioned, D. and Gil. testified that the applicant had hired them to kill B. 8. On 23 April 2001 the applicant was arrested on suspicion of aiding and abetting the murder of B. He remained in custody pending trial and was repeatedly questioned by the investigator. 9. On 9 October 2001 the Supreme Court of the Udmurtiya Republic set the trial for 23 October 2001. 10. On 19 October 2001 the head of the organised crime unit of the regional department of the interior informed the Supreme Court as follows: “Since December 2000, [the organised crime unit] has been investigating [S.'s murder] ... Defendants [D]., [M]. and [Gil.] ... pleaded guilty and gave truthful statements. On the basis of those statements and the evidence collected it was possible to establish that a leader of the Izhevsk organised criminal gang [V.] had been involved in S.'s murder, committed in April 1998. V. has been put on the federal wanted list. ... [The organised crime unit] received information that the organised crime leaders had decided to kill D. after he testified against V. ... Furthermore, the police believe that D. knows about other crimes committed by organised crime leaders in Udmurtiya. Having regard to the above..., we consider it possible that an attempt might be made to assassinate D. We hereby request that the trial be closed to the public and conducted at correctional colony no. 9 ... 11. On 22 October 2001 the Supreme Court of the Udmurtiya Republic decided to dispense with the public hearing of the criminal case against the applicant and D., M., Gil. and Gut. The defendants or their lawyers were not present. In particular, the court noted as follows: “The Supreme Court of the Udmurtiya Republic received a letter from the head of the [organised crime unit] concerning the possibility that D. would be assassinated during the trial. D. had earlier testified about V. being involved in the crimes under investigation. Having regard to the fact that [(1)] the defendants are charged with particularly serious offences, including involvement in organised crime and [(2)] the court is under obligation to ensure the safety of D. and all parties to the proceedings, the employees of the Supreme Court of the Udmurtiya Republic and other persons, [the court] decides to close the trial and to conduct [it] at remand prison no. 1. Another reason to justify the closure of the trial is the fact that D. is accused of murdering [S.] because the latter had raped [D.'s sister].” 12. On 23 October 2001 the Supreme Court opened the trial at remand prison No. 1. The applicant was represented by counsel of his own choice. The court granted his request to hear additional witnesses on his behalf. The applicant pleaded not guilty and testified in court. 13. On 13 December 2001 the Supreme Court of the Udmurtiya Republic found the applicant guilty of murder and sentenced him to thirteen years' imprisonment. The court based its findings on the confessions provided by the applicant's co-defendants D. and G., statements from eight witnesses, the crime scene investigation and forensic reports. 14. The applicant appealed against the conviction. He complained about the lack of a public hearing of the criminal case against him and assessment of evidence by the first-instance court. 15. On 2 October 2002 the Supreme Court of the Russian Federation upheld the judgment of 13 December 2001 on appeal. The hearing was public. After hearing the applicant and his counsel, the court endorsed the lower court's findings as to the points of fact and law. It appears from the text of the decision that the applicant's argument regarding the lack of public hearing at first instance remained unanswered by the court. 16. The Code of Criminal Procedure in force at the material time provided as follows: Article 18. Public hearing “All matters shall be heard in a public hearing unless it contravenes the interests of protection of state secrets. The [court] may decide ... to close a trial concerning persons under the age of sixteen, sex crimes and other cases in order to prevent the disclosure of information about the private lives of the parties to the proceedings. The proceedings in the event of a closed trial, shall comply with all rules of [criminal procedure]. The verdict shall be pronounced in public.”