AS TO THE ADMISSIBILITY OF
Application no. 24015/02
by Vladimir Lvovich ANDANDONSKIY
The European Court of Human Rights (Third Section), sitting on 8 December 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr L. Caflisch,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson,
Ms I. Ziemele, judges,
and Mr M. Villiger, Deputy Section Registrar,
Having regard to the above application lodged on 4 June 2002,
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 applicant, Vladimir Lvovich Andandonskiy, is a Russian national who was born in 1937 and lives in St Petersburg. He was represented by Ms T.S. Moyshina, a lawyer practising in Rostov-na-Donu. The respondent Government were represented by Mr P.A. 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.
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. In a decision of 25 October 2000 the prosecutor’s office ordered the applicant’s detention on remand. On 27 October 2000 the applicant’s daughter lodged an application challenging the detention order. On 30 October 2000 the Moskovskiy District Court of St Petersburg refused to examine the application as it had been lodged in an improper manner. The court stated that the application should have been submitted by the applicant, his counsel or his legal representative. No such application had been lodged. The applicant was released from custody on 15 November 2000.
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.
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.
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.
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., K. and a medical expert and the conclusions of the forensic medical examination.
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.
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.
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.
Witness E., who was summoned to the hearing, 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. The court read out at the hearing the statements made by witness E. on 6 July 2000 during the preliminary investigation. She stated at the time 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.
The court heard 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.
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”.
The court considered that the applicant had denied beating the victim’s head against the pavement in an attempt to mitigate his responsibility.
The court heard evidence from an expert who, as can be seen from the judgment, concluded that the possibility that N. had 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.].”
The court also examined statements by three other 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.
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.”
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.
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, the expert’s statements at the hearing and the fact that the victim N. had injuries to his face which, as the expert 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.
Subsequent applications lodged by the applicant for supervisory review proceedings to be initiated were unsuccessful.
B. Relevant domestic law
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.
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.
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.
1. The applicant complained under Article 6 § 3 (d) of the Convention that the prosecution witness E. had not been examined at the trial.
2. He complained that the victim in the case and his wife had insulted him in breach of Article 8 of the Convention, that the judgment had been unlawful and that the court had refused, in breach of Article 5 § 3 of the Convention, to examine the application challenging his detention on remand.
1. The applicant complained under Article 6 § 3 (d) of the Convention that the Moskovskiy District Court of St Petersburg had failed to examine at the trial witness E., on whose statements his conviction was mainly based.
As the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of Article 6, the Court will examine the complaint under those provisions taken together. Their relevant parts provide:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...
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 submitted that the judgment of the Moskovskiy District Court had been based on statements by witnesses, including witness E., and on an expert report refuting the applicant’s assertion that the victim’s head injuries had been caused as a result of his falling onto the pavement. In failing to call witness E. and, instead, reading out her statements made during the preliminary investigation, the Moskovskiy District Court had not breached the domestic legislation on criminal procedure. On 29 January 2002 it had received a request from witness E. in which she informed the court that, in view of her state of health and her age, she could not appear at the hearing on 31 January 2002 and asked the court to read out the statements she had given during the preliminary investigation. The court had taken into account the age of the witness, who was born in 1920, and considered that there were good reasons for her not to appear before the court. In doing so the court had acted strictly in accordance with Article 286 of the Code of Criminal Procedure. Furthermore, the statements by witness E. tallied with those by the victim’s wife, although they had not known each other before the events in question. Therefore, the Government argued, the applicant’s complaint should be rejected as manifestly ill-founded.
The applicant noted that the Plenary Session of the Supreme Court of the Russian Federation, in its decisions of 21 April 1987, 31 October 1995 and 29 April 1996, had requested courts to proceed in administering justice from the fact that, under Article 15 § 4 of the Constitution of the Russian Federation, principles and norms of international law contained in international covenants, conventions and other documents including international agreements of the Russian Federation formed part of its legal system and, in the event of any conflict, took precedence over domestic law. It had further held that, under Articles 240 and 301 of the Code of Criminal Procedure, judgments should be based exclusively on evidence which had been the subject of thorough and objective examination at the court hearing. The Moskovskiy District Court had convicted the applicant in breach of domestic law and of Article 6 of the Convention. It had based its judgment on statements by the victim N., his wife B., who had a vested interest in the outcome of the case, witness K., who was not an eyewitness, and witness E., who had given her testimony during the preliminary investigation. The last witness had not been questioned at the court hearing. Her testimony had been based on her assumptions and contradicted the expert opinion and statements by seven other witnesses who had been questioned at the court hearing and had refuted the allegations that the applicant was guilty. All evidence had to be produced at a public hearing in the presence of the accused with a view to ensuring adversarial argument. There were exceptions to that principle, but they could not be allowed to infringe the rights of the defence. As a general rule, Article 6 of the Convention required that the accused be given an opportunity to cross-examine witnesses against him or her and challenge their statements. In the applicant’s case the Moskovskiy District Court of St Petersburg had done nothing to secure the attendance of witness E. at the hearing. It had considered her age to be a good reason for her non-appearance in court. That could not justify depriving the applicant of his right to ask that witness questions and challenge the reliability of her statements in a face-to-face dialogue. Therefore, the disadvantages for the defence had not been balanced out by the examination of the witness at the preliminary investigation stage.
The Court considers, in the light of the parties’ submissions, that the complaint 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 this complaint 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.
2. The Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint concerning the failure of the Moskovskiy District Court to examine witness E. at the trial;
Declares the remainder of the application inadmissible.
Mark Villiger Boštjan
Deputy Registrar President
ANDANDONSKIY v. RUSSIA DECISION
ANDANDONSKIY v. RUSSIA DECISION