Failure to call witnesses to court is not always a violation of the Convention

On 22 July 2010, the European Court of Human Rights announced its Judgment in the case of 'Samoshenkov and Strokov v. Russia' (applications Nos. 21731/03 and 1886/04).
The European Court recognised that a violation of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (right to liberty and security of person) had been committed in relation to Igor Strokov in connection with his detention without a court decision for 28 days. This is the exact amount of time that passed from the moment the period for which the preventive measure in the form of detention chosen for the applicant had been extended expired, until the date of the court ruling that extended it once again. Despite the fact that the city court attempted, in particular, to cover the past 28 days with its ruling, the Strasbourg Court recognised that the applicant's deprivation of liberty was not 'lawful' within the meaning of Article 5 of the Convention, as Russian legislation does not provide for the possibility of authorising detention 'retroactively'.
The applicant was awarded 9,000 euros in compensation for non-pecuniary damage caused by the violation.
In the same Judgment, the European Court recognised that two violations of the right to a fair trial had been committed in relation to the second applicant – Andrei Samoshenkov. The violations recognised were:
Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms in connection with the excessive length of the criminal proceedings brought against the applicant (7 years, 11 months, and 13 days, of which about 4 years and 8 months fall within the period the Convention has been in force in relation to Russia), and
Article 6 § 1 and § 3(c) of the Convention on the grounds that the applicant, accused of committing murder and thus facing a severe punishment, was not represented by a defence counsel in the court of second instance.
The applicant was awarded just satisfaction in the amount of 2,400 euros.
Regarding the proceedings that took place in the European Court, it is interesting to note the statement of the representatives of the Russian authorities that, in their opinion, filing a supervisory complaint regarding a violation of the right to legal assistance during the proceedings in the court of cassation was an effective remedy not exhausted by the applicant. The Russian authorities proposed arriving at such a conclusion on the grounds that the judges of the supervisory instance had begun to initiate supervisory proceedings on complaints about a violation of the right to legal assistance in the court of cassation in relation to persons to whom it is guaranteed by Article 51 of the Code of Criminal Procedure of the Russian Federation. Such practice, according to them, followed the adoption of the Ruling of the Constitutional Court of the Russian Federation of 18 December 2003, No. 497-O, by which 'the applicability of the right to legal assistance to proceedings in the court of cassation was confirmed' (as stated in the text of the European Court's Judgment). We recall that the literally relevant part of the named Ruling of the Constitutional Court of the Russian Federation reads as follows: 'Part one of Article 51 of the Constitution of the Russian Federation, establishing cases of mandatory participation of a defence counsel in a criminal case, does not contain any indications that its provisions are not applicable at the stage of cassation proceedings, in connection with which the right of the convicted person to the assistance of a lawyer (defence counsel) may be limited'.
However, the Strasbourg Court did not agree with the conclusion proposed by the authorities of the respondent state. In the first place, it referred to its previous practice of recognising appeals to supervisory courts as an ineffective remedy in criminal cases (see, for example, the Decision on the admissibility of the complaint 'Berdzenishvili v. Russia' (application No. 31697/03) of 29 January 2004). However, the European Court did not limit itself to this. It pointed out that the applicant had appealed to the Chairman of the Supreme Court of the Russian Federation with a corresponding complaint in 2007, but it was not satisfied. Furthermore, the authorities of the Russian Federation did not provide evidence of automatic review of court decisions in the event of a violation of the defendant's right to legal assistance at the cassation stage. Accordingly, their objections regarding the non-exhaustion of all domestic remedies were rejected.
The European Court's decision on the merits of Igor Strokov's complaint regarding the violation of the right to defence is not new in terms of its argumentation. The Strasbourg Court has repeatedly reached such a conclusion (see, for example, the European Court’s Judgments in the cases of 'Shilbergs v. Russia' (application No. 20075/03) of 17 December 2009 (§ 122); 'Potapov v. Russia' (application No. 14934/03) of 16 July 2009 (§ 24) and 'Shulepov v. Russia' (application No. 15435/03) of 26 June 2008 (§§ 34-39) given the simultaneous presence of the following factors:
1) the possibility of review of the sentence by a second-instance court both because of the recognition of incorrect application of substantive and procedural law, and in connection with disagreement with how the first-instance court established the factual circumstances of the case, especially in a case where national law allows for the presentation in the court of second instance of even those arguments that were not made during the consideration of the case on its merits; all this, of course, fully corresponds to the Russian criminal process;
2) the seriousness of the charge and the severity of the punishment that can be imposed on the defendant; in this case, the applicant was charged with committing murder, which, both in itself and in terms of sanctions, fully meets this criterion (in this part of the European Court's Judgment, an obvious error is observed, as it states that the maximum sanction facing the applicant was 15 years of imprisonment or the death penalty, but no such corpus delicti exists in the Criminal Code of the Russian Federation; considering that the crime is referred to in the Judgment several times as 'murder with aggravating circumstances', it can be assumed that this refers to Part 2 of Article 105 of the Criminal Code of the Russian Federation, which at the time of the described events provided for a sanction in the form of imprisonment for a term of up to 20 years, the death penalty, or life imprisonment).
The argument of the Russian Federation's representatives that the applicant's lawyer did not declare her wish to participate in the consideration of the case by the cassation court was rejected by the European Court with reference to Article 51 of the Code of Criminal Procedure, which provides for the mandatory participation of a defence counsel in the second-instance court in the event that a person is charged with such a gravity.
The Strasbourg Court also recalled that the right to defence with the help of a lawyer becomes even more important when the defendant is not personally present in the court of second instance, and the proceedings take place via videoconferencing (see the European Court's Decision in the case of 'Golubev v. Russia' (application No. 26260/02) of 09 November 2006 and the aforementioned Judgment in the case of 'Shulepov v. Russia' (§ 35)). The European Court pointed out that in this case, the cassation court should all the more ascertain the reasons for the defendant's lack of defence counsel.
However, not all of the applicants' complaints were satisfied by the Strasbourg Court. It did not recognise a violation of their right to a fair trial in the court of first instance, where the charge brought against them both for committing robbery was considered (this was a separate process, unrelated to the above-described proceedings in the murder case). In the opinion of the applicants, the court did not ensure the appearance and questioning of a number of witnesses in violation of Article 6 § 3(d) of the Convention for the Protection of Human Rights and Fundamental Freedoms.
In deciding on the absence of the specified violation, the European Court of Human Rights reiterated that in a number of cases, the testimony of witnesses and other persons obtained at the pre-trial stages of the process can be read out in court and used as evidence if the defendant is provided with an adequate opportunity to refute them. One can only speak of a violation of the right to a fair trial guaranteed by Article 6 of the Convention if the prosecution is built entirely or to a decisive extent on testimony given by persons whom the defence did not have the opportunity to question either during the preliminary investigation or during the trial (see, for example, the European Court's Judgment in the case of 'Makeyev v. Russia' (application No. 13769/04) of 05 February 2009 (§§ 34-35)).
Furthermore, the European Court analysed the essence of the charge brought against the applicants and the evidence in the case.
Thus, the applicants claimed that their right to a fair trial was violated in connection with the fact that witnesses E., B., U., garage workers, investigators K. and P., as well as expert K., were not questioned in court.
The Strasbourg Court noted that the applicants were accused of attacking O., from whom they allegedly demanded the transfer of the victim's vehicle. According to the charge brought against them, the attack on O. was committed during a business meeting, at which many people were present. Most of them left the room at the demand of Andrei Samoshenkov and did not see what happened afterwards. However, witness S. testified in court that both applicants were shouting at O., and Andrei Samoshenkov was waving a chair leg. Witness E., whose presence at the court session was not ensured, testified during the preliminary investigation that she saw through a window how Andrei Samoshenkov was striking O. with something like a wooden stick. Later, when O. left the room, several witnesses questioned in court testified that they saw traces of blood on his head and clothing. The European Court directly noted that in a situation where O. entered the office in good health, then remained there with the applicants who were shouting at him and waving some objects, after which, being covered in blood, he left the premises in front of several witnesses questioned in court, E.'s testimony is not critical for establishing the fact that the injuries were caused to O. precisely by the applicants. The testimony of B., which was also read out in court due to his non-appearance, in the opinion of the Strasbourg Court, corresponded to the testimony of other persons and did not contain any specific information. Thus, it was also not critical in terms of finding the applicants guilty.
The European Court also pointed out that, contrary to the applicants' claims, witness U. — a former traffic police officer — was questioned in court. However, he did not remember the exact circumstances of the registration of the transfer of ownership of the car belonging to O., and therefore could not confirm or refute the applicants' claims that the latter had entered into the transaction voluntarily.
Investigator P. was also questioned in the court session, and, in the opinion of the Strasbourg Court judges, the applicants did not indicate the reason why his repeated questioning became necessary. The court of first instance, as well as the representatives of the respondent state during the proceedings in the European Court, pointed out that the testimony of investigator K. played, in essence, no role in the proof (K. conducted a preliminary check before the initiation of the criminal case), and the conclusion of expert K. contained only a description of the injuries received by O. and did not concern the circumstances of their occurrence (more precisely, it indicated them only from the words of O. himself). As for the garage workers, the applicants never named specific persons they wanted to question in court — neither by name nor in any other way allowing for their identification.
As a result of this reasoning, the European Court of Human Rights came to the conclusion that the alleged impossibility of questioning witnesses did not deprive the applicants of their right to a fair trial, which, when considered as a whole, was fair.
Undoubtedly, the most interesting aspect here is not so much the final conclusion of the European Court as the very detailed analysis of each piece of evidence in the general context of the charge brought against the applicants and the available evidence base. Moreover, in the Judgment under consideration, the Strasbourg Court did not once indicate, either directly or indirectly, that it does not deal with issues of evidence assessment, which was invariably noted in its decisions in such cases. The analysis of evidence provided here differs little from their assessment (in terms of relevance of some and sufficiency of the aggregate of others), which is within the competence of national courts.