CASE OF KASHLEV v. ESTONIA
Remainder inadmissible;No 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)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani
5. The applicant was born in 1987 and lives in Tallinn. 6. He was charged with causing serious health damage. According to the charges, at 4.30 a.m. on 22 April 2006, he, together with I.J., had repeatedly hit L. on the head outside a nightclub on Harju Street. L. had fallen to the ground and had then been kicked several times. He had sustained serious head injuries which had been life-threatening and caused him permanent health damage. 7. Criminal proceedings in respect of I.J. were discontinued after his death in a car accident on 25 February 2007. 8. The Harju County Court (“the County Court”) heard evidence from the applicant and nine witnesses and examined certain other evidence such as a written forensic expert opinion on L.’s injuries, a telephone activity report concerning the time and location of the applicant’s communications, identification reports based on photographs and a video-recording from a closed circuit television camera near the scene. It also examined I.J.’s statements given during the preliminary investigation. 9. The County Court found that the witness statements were incoherent and that some were contradictory. The witnesses had given different accounts of the events, regarding the number of persons who had been at the scene and attacked L., as well as the attackers’ actions during the scuffle and after L. had fallen to the ground. The court noted that according to I.J.’s statements given during the preliminary investigation, he had hit L. twice, L. had fallen to the ground, and the applicant had arrived afterwards. The court had no reason to doubt what I.J. had said. It also noted that it could not give less credit to the statements of S.G. – according to whom the fight had been between L. and I.J. – merely because he was a friend of the applicant. 10. The court rejected witness statements from K.A., K.S. and K.M. as evidence, as well as identification reports drawn up during the pre-trial investigation identifying the applicant as one of the (probable) attackers of the victim, as their statements in the identification reports did not match their statements before the court. It also pointed to the lack of credibility of some of the witness statements, such as K.M.’s statement, which said that she had recognised the applicant’s eye colour and the look in his eyes, but that she had not seen the colour of his jacket. 11. The County Court considered that there was only indirect evidence against the applicant and concluded that it could not be established beyond doubt that he had committed the offence he was charged with. By a judgment of 30 April 2007 the County Court acquitted him. 12. The prosecutor appealed to the Tallinn Court of Appeal (“the Court of Appeal”). He mainly challenged the County Court’s assessment of the evidence. He did not request a re-examination of the witnesses. He requested that the Court of Appeal quash the County Court judgment and adopt a new judgment convicting the applicant. A copy of the prosecutor’s appeal was sent to the applicant and his lawyer. 13. The Court of Appeal summoned the applicant, his counsel and the prosecutor to a hearing. However, the applicant informed the court in writing that he did not wish to take part and asked for the case to be examined in his absence. 14. At the Court of Appeal hearing, which took place on 4 September 2007, the applicant’s counsel confirmed that he was aware that the applicant did not wish to take part. The prosecutor did not object to examination of the case in the applicant’s absence. The Court of Appeal disclosed the records of the County Court hearings at the prosecutor’s request, to which the applicant’s counsel did not object. Subsequently, the court heard the parties’ arguments. No requests to summon witnesses were made and no witnesses were examined. 15. The Court of Appeal assessed the evidence differently, based on the material in the case file, and found that the applicant’s guilt was established. It considered that it was incorrect to describe the witness statements as contradictory; rather, the witnesses’ attention had been focused on different details and the scope and precision of the information contained in their statements varied. The court provided a comprehensive analysis of the evidence in its judgment, delivered on 18 September 2007, and explained in detail why, and to what extent, it assessed the statements given in the County Court differently from the lower court. 16. Notably, the Court of Appeal considered that the County Court had not been justified in rejecting K.A.’s, K.S.’s and K.M’s statements and identification reports as evidence. In respect of K.S., it noted that at the identification procedure she had recognised the applicant by his eyes and eyebrows. The fact that she could not describe his clothing did not discredit her evidence. The court found that it could not be required of a witness to note everything necessary for criminal proceedings. A person could only focus on a single detail rather than on the full picture. Nor was her evidence discredited by her failure to recognise the applicant at the court hearing, as at court hearings witnesses were in a particularly stressful situation. Similar considerations were applied to K.M., who, moreover, had recognised the applicant at the County Court hearing. The fact that K.M. and T.S. (another witness) – who had been together at the time of the events – had taken note of different aspects of the events did not render those statements unreliable; rather, it reflected the fact that the perception and memory of different people differed. Nor did the different expressions used by K.M. at the identification procedure and in court render her statements unreliable. Furthermore, the Court of Appeal found no radical differences between K.A.’s statements in the identification report and in court, and therefore considered that the rejection of his statements as evidence had been not justified either. In conclusion, the Court of Appeal considered that K.A.’s, K.S.’s and K.M.’s statements, as well as their identification reports, had to be taken into account and assessed together with the other evidence. 17. The Court of Appeal also disagreed with the County Court’s position concerning the reliability of S.G.’s statements. It pointed to the fact that his statements, according to which the applicant had arrived at the scene after L. had already fallen to the ground, did not match any of the other witness statements. It also noted that the applicant, S.G. and I.J. had been friends, whereas the other witnesses had had no connection with them. Considering a number of statements by independent witnesses, the court found that I.J. had not been credible in assuming full responsibility and noted that there was no way of finding out why he had done so. It also noted that the applicant’s statements had been inconsistent. He had said during the preliminary investigation that he had seen I.J. hitting L., whereas in court he had said that he had been further away from the scene and denied having seen anything. The court also referred in that connection to the words heard by witnesses from a person whose appearance corresponded to that of the applicant: “Why then did he come to start a quarrel?” If the applicant had arrived at the scene after L. had been knocked down, he would have known nothing about the reasons and initial stages of the conflict and would have had no reason to express himself in such a way. 18. The Court of Appeal noted that since the applicant had acted jointly with another person, it was legally irrelevant which of them had struck L., causing him to fall, although it also referred to K.S.’s statements according to which the last blow had been given by the applicant. The court further analysed at length the subjective element of the offence and concluded that the applicant had acted with the indirect intent of causing serious health damage. Both the intellectual and volitional aspects of intent required under the pertinent case-law had been present in the applicant’s behaviour. 19. The Court of Appeal convicted the applicant as charged and sentenced him to five years’ imprisonment, of which he immediately had to serve two months, the remainder of the sentence being suspended. In sentencing, the court had regard to the fact that the applicant had no previous convictions and that he was a young person in his formative years. A short immediate prison sentence gave him a serious warning for the future. 20. The applicant appealed to the Supreme Court. He challenged the Court of Appeal’s assessment of the evidence and argued that it had not convincingly substantiated its different conclusion from that of the County Court. He pointed out that the Court of Appeal had not directly verified the evidence; he referred in that respect to the conduct of the witnesses, which was of paramount importance in assessing their credibility but which was not reflected in the record of the court hearing. In particular, he referred to K.M.’s hesitant behaviour at the hearing. He considered that the Court of Appeal had assessed the evidence in a selective and arbitrary manner and had given the benefit of the doubt to the prosecution. 21. On 14 November 2007 the Supreme Court decided not to examine the applicant’s appeal.