FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1111/02 
by Gennadiy TROFIMOV 
against Russia

The European Court of Human Rights (First Section), sitting on 12 May 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 9 November 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Gennadiy Mikhaylovich Trofimov, is a Russian national who was born in 1960 and is now serving his sentence in the Murmansk Region. The respondent Government are represented by Mr P. Laptev, representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  First examination of the charge against the applicant

On 6 June 2000 the Apatity Town Court of the Murmansk Region convicted the applicant and his co-defendant, Ms Sk., of drug-dealing under Article 228 § 4 of the Criminal Code. The applicant was found guilty of procuring large quantities of drugs from an unidentified source for Sk. who packaged and resold them to individual customers. The applicant's conviction was based on the confession by Sk. which she maintained before the court and on the statements by Mr S., Sk.'s partner, who was not questioned at the trial and whose deposition given at the stage of pre-trial investigation was read out to the court. Sk. was relieved from serving her sentence by virtue of a general act of amnesty.

In their statements of appeal, the applicant and his representative contended that the conviction had been only based on circumstantial evidence and that the trial court had failed in its duty to summon Mr S. for examination. The applicant also alleged that a package of drugs had been planted in his flat by police officers.

On 1 November 2000 the Murmansk Regional Court quashed the judgment of 6 June 2000 and remitted the case for a new examination by a differently composed bench. It found that some of the trial court's conclusions had not been corroborated by evidence, that the court had not questioned the attesting witnesses (понятые) who had been present at the time of the seizure of the drugs from the applicant's flat, that there were substantial discrepancies between the facts established by the trial court and the conclusions of experts, and that the trial court had not taken appropriate measures to obtain the attendance and examination of S. whose statements had been important for the establishment of the facts.

2.  Second examination of the charge against the applicant

On 10-12 January 2001 the Apatity Town Court heard the case anew.

Ms Sk. pleaded guilty to the charges of possession and sale of drugs. She testified that in July 1999 she had accepted the applicant's offer to sell heroin and since that time she had repackaged the drugs brought by the applicant and sold them onwards to individual customers. The proceeds were then divided between her and the applicant.

The applicant pleaded guilty to unlawful possession of drugs without the intention to sell (Article 228 § 1 of the Criminal Code), but not to the charge of drug-dealing. He claimed that Sk. had slandered him under the influence of drugs and surrendered to the pressure of police officers.

The court examined the witness Ms K. who had stated at the pre-trial investigation that the applicant had supplied Sk. with drugs for sale. Before the court, however, K. refuted her earlier deposition, claiming that it had been given under duress.

On 22 January 2001 the Apatity Town Court delivered a new judgment. It found the applicant guilty of unlawful purchase and possession of an especially large quantity of drugs with the intention to sell, in conspiracy with another person, an offence under Article 228 § 4 of the Criminal Code. The court considered that the applicant's intention to sell had been sufficiently established on the basis of Sk.'s confession statement corroborated by the following evidence:

-  a deposition by the witness Ms Ya., made at the court hearing on 5-6 June 2000, who stated that in September 1999 the applicant had visited her at home and offered her to sell heroin;

-  testimony by the attesting witness (понятой) Mr Kh. who was present during the search in the applicant's flat and saw the discovery of drugs;

-  a deposition by Mr S. made during the pre-trial investigation who had lived with Sk. since July 1999 and who had seen, on many occasions, the applicant come to Sk.'s flat and bring heroin and then come back to collect money;

- the fact that the applicant was arrested upon leaving Sk.'s flat and money was found on him; according to Sk.'s confession, the money had originated from the sale of 1 g of heroin;

- the applicant's records containing two columns of unidentified figures and arithmetic operations on them (the applicant explained that these were his business accounting records).

The judgment did not indicate why S. could not have been examined at the trial. It was stated that “[his] deposition was read out pursuant to Article 286 of the Code of Criminal Procedure”.

The applicant's conviction of drug possession was also based on the expert conclusions in respect of the substances seized at his home. The experts were not present at the hearing.

The court gave the applicant a sentence of eleven years and three months' imprisonment and issued a confiscation order in respect of his property.

On 8 February and 22 March 2001 the applicant submitted his grounds of appeal to the Murmansk Regional Court. He complained, in particular, that the trial court had failed to question S., notwithstanding the fact that S.'s depositions to a significant extent contradicted the applicant's position and Sk.'s version of events, that the applicant and his lawyer twice requested the court to question S., that the court was clearly aware of the fact that S. was at a detention facility in the Murmansk Region and thus had a real opportunity to obtain his attendance and, finally, that the first conviction had been quashed precisely because S. had not been examined before the court. The applicant pointed out that the court did not refer to any circumstances which would justify the reading-out of the deposition of a witness in his absence, as Article 286 of the Code of Criminal Procedure required. The applicant also emphasised contradictions in the experts' conclusions which the trial court had not addressed in the judgment, despite the regional court's instruction to do so.

On 15 May 2001 the Murmansk Regional Court upheld the applicant's conviction. It held that Sk.'s statements had been coherent and consistent throughout the proceedings and that the applicant's conviction was based on Sk.'s testimony read together with the expert conclusions. The court did not specify which conclusions corroborated the trial court's findings. As to the failure to examine S. and eliminate discrepancies between the expert reports, the appeal court ruled as follows:

“In the light of these pieces of evidence the first instance court was justified in reaching a conclusion on [the applicant's] participation in the sale of heroin in especially large quantities. In these circumstances, the failure of the first instance court to implement – in the course of the second trial - the instruction of the [appeal court] to obtain the attendance of the expert in the proceedings cannot be considered a significant violation of the criminal procedure laws...

The fact that the witness S. was not directly examined in a court session is not a significant violation of the criminal procedure laws, either. At the time of the second examination of the case by the first-instance court, S. was already serving his sentence. Bringing him to the town of Apatity would have entailed an adjournment of the trial for a long time. Therefore, in the present case the [trial] court, in the [appeal court's] opinion, lawfully read out in a court session the depositions of the witness S. and subsequently assessed them together with other pieces of evidence...”

On 22 October 2001 the president of the Murmansk Regional Court refused the applicant's application for supervisory review of his conviction.

On 26 February 2004 a prosecutor of the Murmansk Region introduced a new application for supervisory review.

On 18 March 2004 the Presidium of the Murmansk Regional Court considered the application and refused to initiate supervisory-review proceedings.

B.  Relevant domestic law

Article 228 of the Criminal Code penalises drug-related offences. Paragraph 1 provides that unlawful purchase, or possession, of a large quantity of drugs without the intention to sell is punishable with up to three years' imprisonment. Paragraphs 2, 3 and 4 provide that unlawful purchase, or possession, of a large or especially large quantity of drugs with the intention to sell carries a sentence of up to fifteen years' imprisonment.

Article 240 of the Code of Criminal Procedure (of 27 October 1960, as amended on 15 December 2000, in force at the material time) provided that the trial court was to examine the evidence in the case directly: it had to question defendants, victims, witnesses, and experts, and examine material evidence, read out records and other documents. Article 286 provided that statements given by a witness during the inquiry or pre-trial investigation could be read out in two cases: (i) if there was a substantial discrepancy between those statements and the testimony given before the court; or (ii) if the witness was absent from the court session for reasons that made it absolutely impossible to secure his or her attendance.

COMPLAINTS

The applicant complains under Article 6 § 3 (d) of the Convention that the domestic courts did not provide him with an opportunity to examine Mr S., the key witness for the prosecution on whose statements the applicant's conviction was, to a decisive extent, based. The applicant indicates that, according to his information, at the time of the second examination of his case Mr S. was detained at a correctional facility of the Murmansk Region and therefore the courts had had a real opportunity to secure his attendance. Under the same head the applicant complains that the courts dismissed his requests to summon the expert, without giving any justification for the dismissal. Invoking Article 6 §§ 1 and 2, the applicant alleges that the proceedings were not fair because the domestic courts incorrectly assessed the evidence before them.

THE LAW

The applicant complained about the unfairness of the trial under Article 6 §§ 1, 2 and 3 (d) of the Convention. He alleged that the domestic courts had made an incorrect assessment of the evidence and failed to secure the attendance of Mr S. and of the expert who had carried out the examination on the seized substances. The relevant parts of Article 6 provide as follows:

“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal ...

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”

The Government's objection

The Government submitted that on 26 February 2004 a prosecutor of the Murmansk Region had lodged an application for supervisory review of the judgments of 22 January and 15 May 2001, with the Presidium of the Murmansk Regional Court. The prosecutor claimed that these judgments should be quashed, in particular, because the courts had failed to obtain the attendance and examination of the witness Mr S. and the witness Ms Ya. The Government considered that the applicant's complaints were not “subject to examination” by the Court because the application for supervisory review was being examined at the national level by the Murmansk Regional Court.

The applicant responded that he had many times requested the president of the Murmansk Regional Court and the Murmansk prosecutor's office to institute supervisory-review proceedings, but without success. They replied that the judgments in his case had been lawful and correct. He was not informed of the application for supervisory review lodged by the Murmansk prosecutor on 26 February 2002. In any event, on 18 March 2004 the Murmansk Regional Court examined the application and rejected it.

The Court notes that the Government omitted to specify which admissibility criterion or criteria the applicant's complaints failed to meet as a consequence of the lodging of an application for supervisory review. However, it is not called upon to determine this issue as the application in question was rejected by the Murmansk Regional Court and the judgments which the applicant complained of now stand. The Government's objection is therefore dismissed.

Admissibility of the complaints

The Government, referring to the information obtained from the Prosecutor General's office, conceded that the Apatity Town Court had failed to comply with the directions that the Murmansk Regional Court had given in the judgment of 1 November 2000. In particular, the trial court did not examine the expert and failed to take measures to obtain the attendance of Mr S., although it had precise information about his detention at facility no. IZ-51/2 of the town of Apatity. The trial court read out the deposition of Mr S. made during the pre-trial investigation, in breach of Articles 240 and 286 of the RSFSR Code of Criminal Procedure. Moreover, it did not secure the attendance of the witness Ms Ya. and read out her deposition in contravention of the same provisions. The Government concluded that these failures resulted in a restriction on the applicant's right to have examined the witnesses against him.

The applicant maintained his claims. In particular, he indicated that he had unsuccessfully requested the trial court to obtain the attendance of the expert on two occasions and that these requests had been entered into the trial record.

The Court reiterates that the requirements of Article 6 §§ 2 and 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, and it will therefore examine all complaints relating to the fairness of the trial together (see, among many other authorities, Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997-III, p. 711, § 49).

The Court considers, in the light of the parties' submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis 
 Registrar President

TROFIMOV v. RUSSIA DECISION


TROFIMOV v. RUSSIA DECISION