AS TO THE ADMISSIBILITY OF
Application no. 6293/04
by Mikhail MIRILASHVILI
The European Court of Human Rights (First Section), sitting on 10 July 2007 as a Chamber composed of:
Mr L. Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 6 February 2004,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
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, Mr Mikhail Mikhaylovich Mirilashvili, is a Russian and Israeli national of Georgian origin who was born in 1960. He is currently serving a prison sentence in a correctional institution in the Orenburg Region. He was represented before the Court by Ms A. Gascon-Retoré, a lawyer practising in Strasbourg, and Mr A. Afanasyev, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
On the morning of 7 August 2000 the applicant’s father, an important businessman, was kidnapped from his car in St Petersburg. The abduction was organised by Mr Kervalishvili and Mr Berkadze, known within the Georgian criminal milieu, with a view to receiving a ransom for his life.
Mr Kogan, personal driver of the applicant’s father, managed to escape from the kidnappers. He contacted the police and the applicant’s relatives and told them what had happened. The police immediately started an investigation.
On the afternoon of 7 August 2000, having received the information about his father’s abduction, the applicant flew from Israel to Russia.
1. The events of 7 and 8 August 2000
(a) The applicant’s account
According to the applicant, once he arrived in St Petersburg he went to his office, where he met his brother and a group of his employees. In the presence of an unidentified police officer, the applicant’s brother assured the applicant that the best policemen had been deployed to find and release the applicant’s father.
On the same evening the applicant was contacted by Mr Berkadze (an accomplice to the kidnappers), who offered his services to locate the applicant’s father. On the following morning Mr Berkadze called Ms Margvelashvili from the applicant’s office and asked her to assist in finding the applicant’s father. In exchange, Mr Berkadze offered to facilitate the release of her friends, Mr Dvali, Mr Kakushadze and Mr Grigolashvili, who had been arrested by the police earlier that evening. The applicant spoke to Ms Margvelashvili by telephone as well. He asked for help in finding his father.
On the evening of 8 August the applicant’s father was released by his abductors.
(b) The prosecution authorities’ version of the events
According to the prosecution authorities’ account, on arrival in St Petersburg the applicant, acting through his bodyguards (namely Mr Kazimirchuk and several others), ordered several unidentified individuals to go to Ms Margvelashvili’s flat on the basis that she was allegedly involved in the abduction of the applicant’s father, and to kidnap members of her family, in order to exchange them for his father. The information that Ms Margvelashvili might have been implicated in the abduction of the applicant’s father had been received earlier that day from the police officers in charge of the official investigation into the event.
Early in the morning of 8 August 2000 the applicant’s men, posing as police officers, broke into Ms Margvelashvili’s flat, kidnapped Mr Dvali and Mr Kakushadze and took them to the applicant’s office. Ms Margvelashvili and her minor son remained in the flat under the surveillance of two “policemen”. Since Mr Dvali and Mr Kakushadze were unable to indicate the whereabouts of the applicant’s father, the applicant ordered the kidnapping of another person, Mr Grigolashvili, who allegedly knew where the applicant’s father was detained.
In the applicant’s office, Mr Dvali, Mr Kakushadze and Mr Grigolashvili were questioned and beaten by six of the applicant’s employees, including Mr Kazimirchuk, the chief of the applicant’s bodyguards. It appears that the applicant and his brother took part in their questioning and that the applicant hit Mr Grigolashvili in the face at least once. The applicant invited his father’s driver, Mr Kogan, to his office and showed him Mr Dvali, Mr Kakushadze, and Mr Grigolashvili. However, the driver stated that none of those people had taken part in the abduction of the applicant’s father.
In the afternoon of 8 August 2000 the applicant called Ms Margvelashvili and threatened her and her son with death if she did not tell him who had been behind the abduction of his father. Fearing for her life and the lives of those detained by the applicant, Ms Margvelashvili, via her friend Ms Avaliani, contacted Mr Kervalishvili, the abductor of the applicant’s father, and informed him of the developments. The latter called the applicant and they agreed to “exchange hostages”.
In the evening of 8 August 2000 Mr Kervalishvili released the applicant’s father, and the applicant ordered the release of Mr Grigolashvili, Ms Margvelashvili and her son.
As to Mr Dvali and Mr Kakushadze, they had been so badly beaten by the applicant’s men that he ordered that they be killed. Mr Dvali and Mr Kakushadze were suffocated and their bodies were dismembered and buried in an empty water cistern situated on the premises of a service station (garage) belonging to a certain Mr Sidler.
2. Pre-trial investigation
On 11 July 2000 (before the events described above), in connection with an unrelated inquiry carried out by the St Petersburg police, the President of the St Petersburg City Court ordered that the telephone lines at the flats of Mr Grigolashvili and Ms Margvelashvili be tapped. As a result, the police recorded all telephone calls to and from these flats on 7 and 8 August 2000. One of the voices recorded by the police belonged to an unknown man, calling in the morning of 8 August 2000 from the applicant’s office, who threatened Ms Margvelashvili with death in connection with the disappearance of the applicant’s father.
On 21 September 2000 Mr Tsartsidze, a cousin of the deceased Mr Kakushadze, informed the police of the latter’s disappearance. The prosecutor’s office opened an official investigation.
On 29 November 2000 the prosecutor’s office received thirteen audiotapes from the police containing recordings of telephone conversations made as part of a surveillance operation at the flats of Ms Margvelashvili and Mr Grigolashvili. However, these audiotapes contained no recording of the period between 5 p.m. on 7 August and 1.40 p.m. on 8 August 2000. In March 2001 the investigator requested that the police produce the entire recording, but the police informed him that this part of the recording had been lost “for technical reasons”.
Over the following months the investigator questioned several direct participants in those events, including Mr Grigolashvili, Ms Margvelashvili, Mr Kervalishvili and Ms Avaliani, as well as a number of hearsay witnesses.
In December 2000 Mr Tsartsidze transmitted to the investigative authorities two audiotapes, alleging that they contained a recording of a conversation between him and Mr Grigolashvili, made without the latter’s knowledge, on 19 September 2000. The conversation concerned the events of 7 and 8 August 2000. During the conversation Mr Grigolashvili confirmed, at least in substance, that those who had abducted Mr Dvali, Mr Kakushadze and himself had been acting on the applicant’s orders.
On 23 January 2001 the applicant was arrested and placed in custody. He denied his involvement in the abduction and murder of the persons concerned. The applicant requested a confrontation with the witnesses against him, in particular Ms Margvelashvili, Mr Kervalishvili and Mr Grigolashvili, but the investigative authorities rejected that request.
On 31 January 2001 the applicant was formally charged with ordering the abduction of Mr Dvali and Mr Kakushadze.
On 14 July 2001 the bodies of Mr Dvali and Mr Kakushadze were discovered in the territory of the service centre. On 16 July 2001 the investigation ordered the forensic examination of their bodies.
On 21 July 20011, in order to identify the voice of a man who had telephoned Ms Margvelashvili’s flat on 8 August 2000, the investigator commissioned a phonological analysis of the audiotapes made by the police as part of the surveillance operation. A team of three experts was employed for this purpose. The experts were provided with test audiotapes containing samples of the applicant’s voice.
The expert team submitted a report on 20 September 2001. Two Russian-speaking experts, Mr Koval and Mr Zubov, confirmed that the voice on the audiotapes belonged to the applicant. Ms Kikalishvili, a Georgian-speaking expert, came to the opposite conclusion (the conversation between the man and Ms Margvelashvili was conducted in Georgian, whereas on the “sample” audiotapes the applicant was speaking in Russian).
On 5 and 8 October 2001 the applicant was charged with ordering the murder of Mr Dvali and Mr Kakushadze, abducting a third person, Mr Grigolashvili, and threatening Ms Margvelashvili and her child with death. Several other people were also charged as part of the same criminal investigation, including Mr Kazimirchuk, the applicant’s bodyguard, and Mr Sidler, who, according to the prosecution authorities, had helped to hide the bodies of Mr Dvali and Mr Kakushadze.
On an unspecified date a Deputy City Prosecutor of St Petersburg requested that the Georgian authorities re-examine Mr Grigolashvili, in order to elucidate discrepancies in his earlier testimony to the Russian and Georgian investigative authorities.
On 2 April 2002 the prosecution reformulated the charges against the applicant and informed him about that decision.
According to the Government, on 3 June 2002 the preliminary investigation was completed. On 5 June 2002 the applicant and his lawyers obtained access to the case file.
On 25 June 2002 Mr Grigolashvili was questioned by the Georgian authorities. Mr Grigolashvili testified that he had falsely accused the applicant under threats from Mr Tsartsidze and a relative of the deceased Mr Kakushadze. His written submissions were transmitted by the Georgian authorities to the Russian prosecution authorities. On an unspecified date in the course of the trial the prosecutor deposited those submissions with the court, without informing the defence. According to the defence, they discovered that piece of evidence in the case file only after judgment had been delivered.
3. Bill of indictment
On 1 July 2002 the defence informed the prosecution that they had finished studying the material in the case file. On 19 July 2002 the City Prosecutor approved the bill of indictment; a copy of that bill was handed to the applicant.
According to the bill, the prosecution charged the applicant with having organised, through his bodyguards, the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili, the illegal detention of Ms Margvelashvili and her minor son, and the murder of Mr Dvali and Mr Kakushadze.
Mr Kazimirchuk and several other people who had previously worked for the applicant were also brought to trial as his accomplices. According to the prosecution, on 7 August 2000 the applicant had ordered Mr Kazimirchuk and five other co-accused (Mr Polunin, Mr Demenko, Mr Kuzmenko, Mr Petrov and Mr Mogutov) to find his father’s abductors and bring them to him. In turn, Mr Kazimirchuk and his colleagues had delegated that task to a group of men who remained unidentified by the investigation. Those men, acting as police officers, had kidnapped Mr Dvali, Mr Kakushadze and Mr Grigolashvili and brought them to the applicant’s office. Acting on the applicant’s orders, those unidentified men had also murdered Mr Dvali and Mr Kakushadze.
In support of the accusations against the applicant, the prosecution authorities referred to the written statements obtained from Ms Margvelashvili, Mr Grigolashvili, Mr Tsartsidze, Ms Avaliani and Mr Kervalishvili, and some other hearsay witnesses. The prosecution further referred to a verbatim record of the conversation between Mr Grigolashvili and Mr Tsartsidze on 19 September 2000, and a verbatim record of thirteen audiotapes made by the police as part of the surveillance operation. The prosecution also relied on the report by Mr Koval and Mr Zubov, who had identified the applicant’s voice on the audiotapes. A considerable amount of circumstantial evidence was also referred to in the bill.
In addition to the charges relating directly to the events of 7 and 8 August 2000, a number of auxiliary charges were also brought by the prosecution against the applicant’s co-accused. Thus, Mr Petrov, one of the applicant’s employees, was charged with illegal possession of ammunition for a firearm. Mr Demenko was charged with illegal possession of precious metals (osmium-187 isotope) which had been discovered in his office during the search carried out by the prosecution in connection with the criminal case against the applicant. Mr Sidler, who owned the service station where the bodies of Mr Dvali and Mr Kakushadze had been discovered, was charged with concealing a crime. In the opinion of the prosecution, Mr Sidler knew that the bodies had been buried on the premises of the service station, but had failed to inform the police.
As Mr Sidler, one of the co-defendants, was a serving military officer, the case was examined by a military court.
(a) Preparatory hearing
On 28 August 2002 the military court held a preparatory hearing. The applicant was present at the hearing; he was assisted by several lawyers (Mr Kheyfets, Mr Afanasyev, Mr Medvedev, Mr Novolodskiy and Mr Drozdov). Those lawyers represented him throughout the subsequent proceedings.
At the preparatory hearing the defence requested the court to refer the case back to the prosecution. They indicated that the bill of indictment did not describe the circumstances in which the impugned crimes had allegedly been committed. Further, the bill of indictment did not contain a list of the evidence supporting the charges. Instead, the prosecution referred to a number of irrelevant documents which, in the applicant’s view, did not prove his guilt, or did not even have any connection with the impugned acts (such as, for instance, personal characteristics of the applicant’s brother Gabriel Mirilashvili).
The applicant also indicated that Russian was not his mother tongue, and that the complexity of legal terms used in the bill of indictment prevented him from understanding it. He complained that the time allowed for reading the bill of indictment was clearly insufficient.
The applicant’s lawyers lodged several motions. For example, they requested the disclosure of information as to who had authorised wiretapping in Ms Margvelashvili’s flat and in what manner. However, in a decision of 4 January 2003 the court rejected that motion on the ground that material concerning “operational search activities” was classified.
(b) Evidence produced by the defence
The applicant and the other co-accused pleaded not guilty. According to the applicant, the abductions in question had been carried out by real policemen, together with Mr Berkadze, who had then decided to shift the blame onto the applicant and his men after Mr Dvali and Mr Kakushadze had disappeared.
On 25 November 2002 the applicant’s lawyers questioned Mr Grigolashvili and Ms Margvelashvili in Georgia, in the presence of their lawyers. On an unspecified date the defence also questioned Mr Kervalishvili. The defence also obtained written statements by Mr Kervalishvili, Ms Margvelashvili, Ms Dzhimshiashvili and Mr Grigolashvili. Their written testimonies and statements were submitted to the court by the defence. All of the above witnesses withdrew their previous testimony to the police, which had incriminated the applicant.
In particular, Ms Margvelashvili explained that, although she did not speak Russian, she had signed written depositions drafted in Russian by the prosecution authorities. She explained that the “policemen” who had abducted Mr Dvali and Mr Kakushadze from her flat had been led by Mr Berkadze, one of those who had kidnapped the applicant’s father. Ms Margvelashvili testified that the man who had called and threatened her in the morning of 8 August 2000 was not the applicant but Mr Berkadze.
In his written submissions Mr Grigolashvili indicated that the person who had questioned and beaten him in the applicant’s office had introduced himself as “a son of the kidnapped businessman”, but that it had not been the applicant, and that he had not seen the applicant at all on that day.
In his written deposition of 22 March 2002 Mr Kervalishvili declared that everything he had said to the prosecution authorities about the applicant was a lie.
The defence lawyers also questioned the applicant’s brother, who lives in Israel and who confirmed the applicant’s account of events. The transcript of that interview was also produced to the court.
The defence commissioned an expert analysis of the recording of the telephone conversations at Ms Margvelashvili’s flat. The phonological analysis submitted by the defence concluded that the recording of the telephone conversations on 7 and 8 August 2000 did not contain the applicant’s voice. This report was admitted by the court as evidence.
(c) Evidence examined by the trial court
The trial commenced on 5 November 2002. The court was composed of Mr Popovich, the professional judge, and two lay judges - Mr Aysin and Ms Tolstikova. Some witnesses, including Ms Margvelashvili and Mr Grigolashvili, did not appear at the hearing. It appears they had moved to Georgia by that point. The court asked the parties whether the proceedings should continue in the absence of the above witnesses. The applicant’s counsel, Mr Afanasyev, did not oppose the continuation of the proceedings, but asked the court that the witnesses be summoned through the channels of international judicial cooperation. The prosecutor supported the idea of the continuation of the proceedings in the absence of those witnesses.
Between 5 and 13 November 2002 the court held several hearings and heard a number of witnesses. On 13 November 2002 Mr Aysin, one of the two lay judges, informed the court that he could no longer take part in the proceedings on account of ill health. He was replaced by a substitute lay judge, Mr Karman, and the proceedings continued. The parties had no objections to the new judge.
On 25 December 2002 the court started the examination of the expert report prepared by Mr Koval and Mr Zubov. The applicant insisted that the conclusions of the above two experts were wrong, and that the man’s voice on the audiotapes did not belong to him. Further, he claimed that the translation from Georgian was inaccurate. He also requested the court to obtain from the prosecution the recordings made between 5 p.m. on 7 August 2000 and 1.40 p.m. on 8 August 2000. He stressed that during that period he had had a telephone conversation with Ms Margvelashvili. In his submission, the disclosure of the content of that conversation could have proved his innocence.
At the hearing of 5 February 2003 the court examined evidence relating to the charges against Mr Petrov concerning the ammunition found in his flat during the search. The applicant was absent from that hearing. At the following hearings the court returned to the examination of the audiotapes and the issues relating to the identification of the man’s voice on them. The applicant was present at those hearings. At the hearing of 17 February 2003 the court informed the applicant and his lawyers that the next hearing would take place on 21 February 2003.
At the hearing of 21 and 26 February 2003 the court examined evidence relating to the charges against Mr Demenko (illegal possession of precious metals). The applicant was not present at those hearings; however, he was present at the hearing on 25 February, when the court returned to the issue of voice identification.
At the hearings of 28 February and 11 March 2003 the Court examined evidence relating to the charges against Mr Sidler (concealing of a crime). On 11 March 2003 the Court returned to the examination of evidence relating to the charges against Mr Petrov (illegal possession of ammunition). On 12 March 2003 the court returned to the examination of evidence against Mr Sidler and Mr Demenko. The applicant was absent from all of the above hearings.
At the hearing of 19 March 2003 the prosecutor requested leave to read out written depositions by Ms Margvelashvili, Mr Grigolashvili, Mr Kervalishvili and Ms Dzhimshiashvili, made to the investigator at the pre-trial stage. The defence objected, referring, inter alia, to Article 6 § 3 (d) of the Convention. They submitted that the applicant had been deprived of his right to cross-examine witnesses against him. The defence stressed that they had asked the investigator to carry out face-to-face questioning of these witnesses but that the investigator had refused. In those circumstances, the written depositions by those witnesses should have been declared inadmissible. Despite this objection, the court decided to admit the written depositions and to examine them at the trial. The depositions are summarised below.
(i) Depositions by Ms Margvelashvili
Ms Margvelashvili testified that on the evening of 7 August 2000 a group of men who introduced themselves as police officers had broken into her house and abducted Mr Dvali and Mr Kakushadze. She was left in her house under the surveillance of two intruders. Some time later, on the following morning, the applicant had telephoned her and threatened her and her son with death if she did not say where his father was. The applicant allowed her to speak on the telephone to Mr Dvali and Mr Grigolashvili, who were being held in the applicant’s office. Mr Dvali and Mr Grigolashvili told her that the applicant had threatened them with death if his father was not found safe and unharmed.
On 8 August 2000 Ms Margvelashvili contacted Ms Avaliani, her friend, and informed her of the events of 7 August 2000. She asked her to find Mr Kervalishvili, who had organised the abduction of the applicant’s father, and to describe the situation to him.
On the evening of 8 August 2000 Mr Grigolashvili was released by the applicant. The applicant then called Ms Margvelashvili and offered an apology for the offensive language he had used the previous night. He also informed her that Mr Dvali and Mr Kakushadze had been released. However, they never returned home.
(ii) Depositions by Mr Grigolashvili
According to Mr Grigolashvili’s statement, on the morning of 8 August he was abducted by a group of men who claimed to be police officers. He was taken to a building which he later identified as the applicant’s office. There, he was questioned by several people, including, allegedly, the applicant (Mr Grigolashvili was not sure of that person’s identity, since he had never met the applicant and only identified him from a photo). They beat him up and threatened him with death if he did not indicate the whereabouts of the applicant’s father. One of the men forced him to call Ms Margvelashvili and tell her that she should contact the alleged abductors of the applicant’s father in order to save his life and that of Mr Dvali. On the evening of 8 August 2000, after the applicant’s father had been set free, Mr Grigolashvili was released. Before he left, one of the men from the applicant’s office gave him documents belonging to Mr Dvali and Mr Kakushadze.
(iii) Depositions by Mr Kervalishvili
Mr Kervalishvili confirmed that on 7 August 2000 his employees, one of whom had been disguised in police uniform, had kidnapped the applicant’s father for the purpose of obtaining a ransom. The applicant’s father was kept in a flat which had been rented for that purpose. On the following day Mr Kervalishvili was approached by Ms Avaliani, who informed him about the abduction of Mr Kakushadze, Mr Dvali and Mr Grigolashvili, and about the threats to Ms Margvelashvili and her son. Mr Kervalishvili then called the applicant and agreed to release his father if the applicant released his people. During that conversation Mr Berkadze, who had also been involved in abducting the applicant’s father and was at that point in the applicant’s office, confirmed to Mr Kervalishvili that all the hostages taken by the applicant were alive. The applicant also threatened to kill the hostages if his father was not returned safely.
(iv) Depositions by Ms Dzhimshiashvili
Ms Dzhimshiashvili, Mr Grigolashvili’s wife, testified that early on the morning of 8 August 2000 several “policemen” had taken her husband away. In the evening he had returned home; he was seriously injured and she had provided him with elementary medical assistance. He did not tell her what had happened to him; he simply explained that he had been beaten up by the police.
(v) Witnesses examined at the trial
In the course of the trial the court questioned several witnesses to these events, in particular Mr Tsartsidze, Ms Avaliani and Mr Kogan.
(α) Mr Tsartsidze
According to Mr Tsartsidze, on 8 August 2000 Ms Margvelashvili called him and informed him of the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili, which, in her opinion, was related to the kidnapping of the applicant’s father a day earlier.
On 11 August 2000 Mr Tsartsidze met Mr Grigolashvili, who gave him more details of what had happened to him and to others. Mr Grigolashvili handed over to Mr Tsartsidze documents belonging to Mr Dvali and Mr Kakushadze, explaining that he had received them in the applicant’s office on 8 August 2000. These documents were later seized by the police.
On 19 September 2000 Mr Tsartsidze met Mr Grigolashvili again and suggested that he file a complaint with the police about the events of 7 and 8 August 2000. Mr Grigolashvili refused, allegedly out of fear of reprisals by the applicant and his family. Knowing that Mr Grigolashvili might refuse to tell the police the true story of his abduction, Mr Tsartsidze recorded their conversation on two audiotapes using a dictaphone. In December 2000 Mr Tsartsidze gave those tapes to the police.
(β) Ms Avaliani
Ms Avaliani testified that on 8 August 2000 her friend Ms Margvelashvili had called her, explained the situation and asked her to find Mr Kervalishvili. Ms Avaliani met Mr Kervalishvili and relayed the information. During their conversation Mr Kervalishvili confirmed that he had masterminded the abduction of the applicant’s father. He then called the applicant and they agreed to exchange the applicant’s father for the hostages taken by the applicant, namely Mr Dvali, Mr Kakushadze, Mr Grigolashvili, Ms Margvelashvili and her son.
(γ) Mr Kogan
Mr Kogan, the applicant’s father’s driver, who had been present at the time of the latter’s abduction by Mr Kervalishvili’s and Mr Berkadze’s men, was also questioned by the police. He testified that the applicant’s father had been kidnapped from his car on the morning of 7 August 2000. In the evening the driver was invited to the applicant’s office, where he was shown three men and asked whether he recognised any of the men who had abducted the applicant’s father. He replied that he did not.
(Δ) Other witnesses
Relatives of Mr Kakushadze, one of the victims, testified that they had heard from other relatives that Mr Dvali and Mr Kakushadze had been abducted on the applicant’s orders.
The court heard evidence from a number of policemen who had visited the applicant’s office on 7 and 8 August 2000. The court was told that during the night of 7 August 2000 the applicant had spoken on the telephone with the deputy chief investigator of the Vyborgskiy District of St Petersburg. On the following morning that police officer, together with a colleague, arrived at the applicant’s office. However, the policemen denied that they had been involved in the abduction of Mr Dvali, Mr Kakushadze and others.
The court questioned six of the applicant’s employees, who, according to the prosecution, had assisted him in the abduction and murder and had found the men who had abducted Mr Dvali, Mr Kakushadze and Mr Grigolashvili. The applicant’s employees testified that on 7 August 2000 the police had provided them with certain information about the progress of the official investigation. The applicant’s employees also submitted that they had been in permanent contact with the police officers in charge of the investigation throughout 7 and 8 August. However, they all denied that they had been involved in the abduction, beating and murder of the victims. They submitted that they had never instructed anyone to abduct Mr Kakushadze, Mr Dvali and Mr Grigolashvili, or to detain Ms Margvelashvili and her son, or received any such instructions from the applicant. They also denied that they had seen the victims in the applicant’s office.
The court questioned several other indirect witnesses. However, their statements were not used against the applicant.
(vi) Audio recording of a conversation between Mr Tsartsidze and Mr Grigolashvili
The court heard the audio recording of a conversation between Mr Grigolashvili and Mr Tsartsidze, made by the latter. The court had ordered an expert examination of the recording in order to identify the voices on the audiotapes, but it later cancelled the examination.
(vii) Audio recording of telephone conversations of 7 and 8 August 2000
(α) Lawfulness of the wiretapping surveillance
The court questioned a number of policemen involved in the wiretapping of telephone conversations at Ms Margvelashvili’s flat. They submitted that the police had been keeping an eye on Mr Kervalishvili and people around him, including Ms Margvelashvili, since March 2000. Ms Margvelashvili’s flat had been under surveillance since July 2000, and when the applicant’s father was kidnapped the police knew that Ms Margvelashvili’s friends or relatives might be involved in some way. The witness explained that all telephone conversations within that period had been recorded. However, the recording covering the period between 5.30 p.m. on 7 August 2000 and 1.40 p.m. on 8 August 2000 had been lost “for technical reasons”.
The defence lawyers asked the court to disclose the materials authorising the telephone tapping of Ms Margvelashvili’s flat and, in particular, the court decision authorising that surveillance. Judge Popovich, after having examined briefly a file produced by the State prosecutor, dismissed the request “on the grounds of secrecy”. He explained that he was satisfied with the explanation provided by the prosecution as to the lawfulness of the telephone tapping. It appears that the lay judges did not see the materials submitted by the prosecutor to the presiding judge.
(β) Identification of voices on the audiotapes
The court examined two out of the thirteen audiotapes made by the police in the flats of Ms Margvelashvili and Mr Grigolashvili. The defence requested access to all thirteen audiotapes in order to be able to compare them with the verbatim record submitted to the court by the prosecution, but the court rejected that request.
The trial court further examined the reports identifying the voices on the audiotape. On 29 January 2003 the court questioned the experts who had prepared them, Mr Koval and Mr Zubov. They testified that at the request of the investigator they had analysed four audiotapes. They did not detect any traces of editing on those audiotapes. In their view, the voice on five recordings belonged to the applicant.
The presiding judge asked Mr Koval whether he had worked with the Georgian language before. Mr Koval replied that, for the purposes of a phonological analysis, knowledge of a particular language was not necessary. He also confirmed that, although the conversation recorded on the audiotapes was in Georgian, he and his colleague only had samples of the voice of the applicant speaking Russian. However, in his opinion that did not make much difference.
On 5 January 2003 the applicant asked the court to order an additional expert examination of the voices on the audiotapes. The defence submitted that the voice on the audiotape was not the applicant’s but that of another person, allegedly Mr Berkadze. In order to refute the findings of the expert report, relied on by the prosecution, the defence lawyer asked the court to call two phonologists, Ms Rossynskaya and Ms Galyashina. They were summoned to court and testified that the methods of phonological analysis employed by Mr Koval and Mr Zubov were questionable and that their conclusions were unreliable. In their submission, Mr Koval and Mr Zubov had not used State-approved methods of voice recognition but had relied on their own method, which was unreliable. The court added the written reports of Ms Rossynskaya and Ms Galyashina to the case file.
On 12 February 2002, in view of the contradictory nature of the conclusions reached by Mr Koval, Mr Zubov and Ms Kikalishvili, the court ordered a new analysis of the audiotapes. The defence lawyers asked the court to include Ms Galyashina in the expert team, but the court rejected that request on the ground that she had already given her opinion on the subject. The court assigned four experts, including Mr Koval, the same expert who had drafted the first report, proposed by the prosecution, and Mr Serdyukov, proposed by the defence. Two experts were appointed on the court’s initiative: Mr Yakushev and Ms Kikalishvili (the latter had also taken part in the first analysis).
The defence contested the appointment of Mr Koval and Mr Yakushev. The defence cast doubt on the impartiality of these experts, in that Mr Koval’s wife had previously worked for the applicant and had been fired by him, and Mr Yakushev was a serviceman from the Russian security service. On 15 April 2003 the court heard evidence from the experts Mr Koval, Mr Serdyukov and Ms Kikalishvili. The court also heard two witnesses, namely Mr Bazunov and Mr Korobetskiy. Mr Bazunov confirmed that he had known Mr Koval and his wife since 1999. She had worked at the reception desk at the casino. In September 1999 she had been fired on the direct orders of the applicant. Mr Bazunov had then called Mr Koval and explained that this had not been his decision, but that of the applicant. Mr Korobetskiy confirmed the statement by Mr Bazunov about Mr Koval’s wife and her dismissal from the casino.
The court refused to discharge Mr Koval and Mr Yakushev. As a result of the new analysis, Mr Koval and Mr Yakushev found that the voice on the audiotape belonged to the applicant. The two other experts came to the opposite conclusion.
On 21 June 2003 the court examined evidence relating to the charges against Mr Demenko (illegal possession of osmium-187), and questioned Mr Petrov, Mr Kuzmenko and Mr Polunin on account of their links to other co-defendants and their involvement in the events of 7 and 8 August 2000. The court also examined the question of the mental health of Mr Mogutov (one of the co-defendants).
The applicant was absent from the hearing of 21 June 2003. He informed the court that on that date he was unable to take part in the proceedings “on religious grounds”. The court, after having consulted the parties, decided to proceed without the applicant. Mr Afanasyev, one of the applicant’s lawyers, participated in the hearing of 21 June 2003, but he did not object to the continuation of the proceedings in the applicant’s absence.
On 24 June 2003, at the prosecutor’s request, the court ordered a third expert analysis of the audiotapes, with a view to eliminating discrepancies in the earlier findings. The analysis was entrusted to Mr Koval, Mr Yakushev and Mr Serdyukov, who had participated in the previous examination, and two new experts: Mr Kurdiani, a Georgian-speaking expert, proposed by the defence, and an anonymous expert, proposed by the prosecution, whose name was given only as “A.P. Ivanova”. The defence asked the court to disclose the identity of “A.P. Ivanova” or to dismiss her from the expert team, because in such circumstances it was unable to challenge her credentials.
The applicant was absent from the hearing of 24 June 2003. According to the report of the head convoy officer, submitted to the presiding judge, the applicant refused to join the group of detainees who were escorted to the court from the detention centre at 10 a.m. since he had learned from his lawyers that the hearing in his case would not start until 4 p.m. However, the transfer of detainees from the detention centre to the court building was organised only once a day, and there was no possibility of transporting the applicant to the courtroom individually. On that ground the court decided to continue the hearing without the applicant. The presiding judge also warned the applicant’s lawyers that their client should arrive at the court with the other detainees at 10 o’clock, irrespective of when the hearing in his case was due to start.
The next hearing was held on 25 June 2003. The court and the parties questioned several witnesses, namely the experts Mr Kurdiani, Mr Yakushev and “Ms Ivanova”. The latter was questioned through a system of audio teleconferencing. The applicant was present at that hearing and was able to put questions to the witnesses. At the end of the hearing the court declared that the next hearing would be held on 27 June 2003 at 4 p.m. The applicant complained that such a schedule was very inconvenient for him because he would have to wait in the court building for several hours before the start of the hearing. The presiding judge replied that the hearing room would be available only from 4 p.m. In the judge’s view, if, exceptionally, the prison authorities had the means to organise individual transport for the applicant to the court at 4 o’clock, this should be done. Otherwise the applicant should comply with the general transport schedule. The applicant replied that he would see whether or not he would come to the next hearing.
On 27 June 2003 the court decided to discontinue the phonological examination of the audiotapes. The applicant was not present at that hearing. The court noted that since Mr Kurdiani was a Georgian national he could not be held legally responsible for false testimony and could not therefore act as an expert in the proceedings. The court also observed that the defence lawyers could not ascertain the personal credentials and professional competence of “A.P. Ivanova”.
On 2 July 2003 the court declared that the examination of evidence was over and asked the parties how much time they needed to prepare their final submissions. The defence requested one day; the prosecution requested twelve days. The court decided to start hearing the final submissions on the morning of 15 July 2003.
On 15 July 2003 at 10 a.m. the prosecutor submitted an additional phonological analysis of the audiotapes prepared by the same anonymous expert, “A.P. Ivanova”. Despite the objections raised by the defence, the court admitted the report in evidence and included it in the case file. However, the court refused to reopen the examination of evidence. The report of “A.P. Ivanova” was added to the case file without examination by the parties. The court rejected a request by the applicant’s lawyers to disclose the contents of the report.
At 11.05 a.m. the court discontinued the examination of evidence and proceeded to hear the parties’ final submissions.
5. Court decisions in the applicant’s case
(a) Judgment of 1 August 2003
On 1 August 2003 the Military Court of the Leningrad Command found the applicant guilty of unlawful entry into a house, abduction and the illegal detention of Mr Grigolashvili, Mr Dvali and Mr Kakushadze, and sentenced him to twelve years’ imprisonment. The applicant was acquitted on other counts, including the charges of murder. The court fully acquitted the applicant’s co-defendants, including Mr Kazimirchuk and Mr Sidler. Mr Petrov was found guilty of illegal possession of firearms.
The judgment was based mainly on statements by Ms Margvelashvili, Mr Grigolashvili, Mr Tsartsidze, Ms Avaliani, Mr Kervalishvili and Ms Dzhimshiashvili, made to the police at the pre-trial stage and read out to the court (see above). As to the written statements by Ms Margvelashvili, Mr Grigolashvili and Mr Kervalishvili, submitted by the defence, the court declared that evidence inadmissible as having been obtained in breach of the domestic legislation. The court noted that those persons had already been questioned by the police as witnesses. In the court’s view, their subsequent examination by the defence lawyers could not therefore be recognised as “lawful collection of evidence” within the meaning of the domestic legislation. Consequently, the court declared these statements inadmissible. The court further noted that the statement by the applicant’s brother had been obtained by his defence lawyers in accordance with the law. However, the court noted that the veracity of the statement could not be confirmed in accordance with the Code of Criminal Procedure, namely at an oral hearing before the court. On that basis the court declared this evidence inadmissible.
In its judgment the court also referred to the phone calls recorded at Ms Margvelashvili’s flat on 7 and 8 August 2000, as well as to the conversation between Mr Grigolashvili and Mr Tsartsidze, recorded by the latter in September 2000. The court accepted the conclusions of the experts for the prosecution (Mr Koval, Mr Zubov and Mr Yakushev), who identified the voice on the audiotape as belonging to the applicant, and rejected the findings of the other experts. The judgment contained no reference to the findings of the anonymous expert “A.P. Ivanova”.
(b) Grounds of appeal
On 11 August 2003 the applicant’s lawyers lodged an appeal against the judgment of 1 August 2003. On 18 September and 21 October 2003 they filed additional written observations with the appeal court. Their grounds of appeal may be summarised as follows.
(i) Witnesses’ testimony
The defence lawyers indicated that the court had misinterpreted or even distorted the testimony of many witnesses, as well as the content of the telephone conversations recorded by the police. Nothing in Mr Grigolashvili’s and Ms Margvelashvili’s testimony indicated that the applicant had organised the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili. On the contrary, Ms Margvelashvili and Ms Avaliani had on many occasions in their testimony referred to “coppers” and “the nick”, which suggested that the police had been involved in the case. Both Ms Margvelashvili and Ms Avaliani mentioned that the “cops” had arrived at Ms Margvelashvili’s flat in the company of Mr Berkadze, and that it was Mr Berkadze who had called and threatened Ms Margvelashvili with death. The defence also pointed to certain logical discrepancies in the testimony of various witnesses and challenged their credibility.
The defence complained that the court had failed to summon Mr Kervalishvili, Mr Grigolashvili, Ms Dzhimshiashvili and Ms Margvelashvili. At the same time the court declared inadmissible written statements by those witnesses, obtained by the defence, in which they had retracted their previous statements to the investigative authorities. The defence also indicated that the court had refused to obtain from the prosecutor’s office the results of the questioning of Mr Grigolashvili, which had been carried out by the Georgian authorities at the request of the Russian prosecution authorities.
(ii) Wiretapping of the telephone line
As regards the evidence obtained as a result of wiretapping, the defence complained that they had had no opportunity to challenge its admissibility, because the court had refused to give them access to the materials authorising the wiretapping. The defence further indicated that the prosecution had produced only a selective record of the relevant telephone conversations. Firstly, the defence had had access to only two out of the thirteen audiotapes made by the police, whereas the prosecution had submitted the verbatim record of all thirteen tapes. Secondly, more than twenty hours of wiretapping (between 5 p.m. on 7 August 2000 and 1.40 p.m. on 8 August 2000) were missing, whereas the police had recorded all the conversations which had taken place within that period. In its decision, the court did not mention the testimony of the police officers involved in the wiretapping operation, which was of crucial importance for the case.
The defence also contested the court’s findings as to the identity of the man who had threatened Ms Margvelashvili and her son with death in the telephone conversation of 8 August 2000. The court concluded that the voice on the tape belonged to the applicant. That conclusion was based on the findings by the Russian experts Mr Koval, Mr Zubov and Mr Yakushev. The defence pointed out that those experts did not speak Georgian and had at their disposal only samples of the applicant’s voice when speaking in Russian; moreover, the impartiality of those experts was open to doubt for the reasons adduced by the defence before the court. The defence further complained that the court had disregarded the opinion of those experts proposed by the defence, had refused to entrust the analysis of the audiotapes to Ms Galyashina and had discharged Mr Kurdiani. In their opinion, the court’s assessment of the contradicting expert opinions was significantly affected by a report by an anonymous expert, “A.P. Ivanova”, to which the defence had had no access during the trial.
With regard to the audiotapes recorded by Mr Tsartsidze in September 2000, the defence lawyers indicated that the court had failed to establish whether the recorded voice actually belonged to Mr Grigolashvili. No analysis had ever been carried out to that effect. Moreover, Mr Tsartsidze could not explain to the court why he had handed over to the investigative authorities only copies of the audiotapes, and not the original records. In those circumstances the court ought to have disregarded the contents of those tapes.
(iii) Violations of Russian procedural and substantive law
The defence also complained about numerous breaches of Russian procedural law by the court and the investigative authorities. In particular, they pointed to the trial court’s substantial modification of the factual basis of the accusations against the applicant, as formulated by the prosecution in the bill of indictment. In the opinion of the defence, these violations invalidated the majority of the evidence referred to by the court. The defence further contested the legal classification of the acts impugned to the applicant.
The defence complained that, contrary to Russian procedural legislation, the composition of the court had been changed on 13 November 2002 without the proceedings being resumed. As a result, one of the judges had not heard the testimony given by some witnesses. The absence of the applicant from a number of hearings constituted a breach of his right to defend himself.
The defence mentioned that one of the applicant’s employees had been approached by a son of the St Petersburg Deputy City Prosecutor in the course of the preliminary investigation. The latter had proposed to facilitate the discontinuation of criminal proceedings against the applicant through his father’s offices. He had claimed 500,000 United States dollars (USD) for his services. On the same day the applicant’s employee had handed him USD 50,000. However, once the applicant had learned about these negotiations he had immediately ordered his lawyers to annul the “deal” and to inform the police about the attempted extortion. The police had begun an investigation into these events and established that the applicant’s employee had in fact met the prosecutor’s son and, on one occasion, had transferred a certain sum to him. However, on 5 February 2002 the case had been closed on account of the lack of evidence against the Deputy City Prosecutor and his son.
(c) Grounds of appeal submitted by Mr Grigolashvili and Ms Margvelashvili
In addition to the grounds of appeal submitted by the applicant’s lawyers, Mr Grigolashvili, as a victim, lodged a separate appeal against the judgment. Mr Grigolashvili submitted that he had never seen the applicant or spoken to him. According to Mr Grigolashvili, he had spent some time in the applicant’s office on 8 August 2000, but he had not seen Mr Dvali or Mr Kakushadze there. The man who had hit him in the applicant’s office was not the applicant. He submitted that the story he had told Mr Tsartsidze, as recorded on the audiotape, was untrue and that he had recounted it under serious pressure from Mr Tsartsidze, a cousin of the deceased Mr Kakushadze, and his relatives. He had been instructed what to say by Mr Tsartsidze and by the investigators.
Ms Margvelashvili, as a victim, lodged a similar appeal. She indicated that her initial statements, referred to by the trial court as evidence incriminating the applicant, had been given under duress. She explained that Mr Dvali and Mr Kakushadze had been arrested at her flat by police officers who were led by Mr Berkadze. Later that night a police officer in uniform had come to her flat and taken documents belonging to Mr Dvali and Mr Kakushadze. On the morning of 8 August 2000 she had spoken to Mr Berkadze by telephone, not the applicant. No one had ever mentioned the applicant’s name in connection with the abduction of Mr Dvali and Mr Kakushadze. She had given testimony against the applicant because she had been persuaded by the investigators that the applicant had ordered the killing of Mr Dvali and Mr Kakushadze, but she now understood that the applicant was innocent.
(d) Decision of 5 November 2003 by the appeal court
On 5 November 2003 the Supreme Court of the Russian Federation upheld the conviction in the main, excluding several episodes on formal grounds (in particular, the episode concerning the abduction of Mr Grigolashvili, and the illegal entry into Ms Margvelashvili’s house). As a result, the sentence was reduced to eight years’ imprisonment.
Ms Margvelashvili appeared before the appeal court. She repeated the arguments stated in her grounds of appeal. However, the appeal court upheld the findings of the first-instance court, referring again to the written depositions by Mr Grigolashvili, Ms Margvelashvili and Mr Kervalishvili given at the pre-trial stage, the recording of the telephone conversation of 8 August 2000 between Ms Margvelashvili and the applicant, the recording of the conversation between Mr Tsartsidze and Mr Grigolashvili, written and oral submissions by Ms Avaliani and Mr Tsartsidze and certain pieces of circumstantial evidence produced by the prosecution. As regards the depositions submitted by the defence, which were declared inadmissible by the trial court, the appeal court noted that “the trial court [had made] the correct legal assessment” and declared them inadmissible. Further, the appeal court dismissed the complaint regarding the trial court’s failure to summon Ms Galyashina and its discharge of Mr Kurdiani. The appeal court further noted that the first-instance court had not referred to the report prepared by the anonymous expert “A.P. Ivanova” and had not breached any procedural rules by accepting her report. It also noted that the report had been admitted to the case file before the end of the trial.
The complaints about the alleged partiality of the prosecutor and some of the witnesses were declared ill-founded. As to the change in the composition of the court on 13 November 2002, the appeal court noted that Mr Karman had taken part in the proceedings from the very beginning as a substitute lay judge, and that, in any case, the parties had not objected to the change. With regard to the absence of the applicant from certain hearings, the appeal court noted that either the applicant himself had waived this right or his presence had not been necessary because the court had been examining the charges against other co-defendants on those days.
6. Medical aid in prison
(a) The applicant’s state of health while in pre-trial detention
From 23 January 2001 the applicant was held in detention on remand. On 30 March 2001 he was examined by a general practitioner from the pre-trial detention centre. The doctor established that the applicant was suffering from arterial hypertension, paroxysmal tachycardia, coronary disease and stenocardia.
On 2 April 2001 he was examined by a neurologist and a general surgeon. The surgeon detected chronic haemorrhoids, without complications.
On 29 May 2001 the applicant underwent a routine medical examination. This time the doctors established that the applicant was suffering from second degree hypertension, complex arrhythmia, seizures due to paroxysmal tachycardia, aggravated by syncopal states. He was prescribed Prestarium2, Aspirin and Anaprilin (Propranolol).
On 20 July 2001 the applicant underwent an X-ray of the spine. The doctors established that the applicant was suffering from osteochondrosis, scoliosis and spondylosis.
On 3 August 2001 the applicant was subjected to an electrocardiography test. The doctors confirmed the previous diagnoses. The applicant was prescribed Metoprolol, Asparkam and the medicated suppository Proctosedil.
(b) Placement in hospital no. 12
On 15 November 2001 the applicant was examined by a neurosurgeon from hospital no. 12 of the Leningrad Region (a hospital belonging to the penitentiary system), who recommended his hospitalisation in that institution. The applicant was placed in an individual cubicle in hospital no. 12.
On 22 January 2002 the applicant had a stroke. In the following months he had several cerebrovascular accidents, with brain dysfunctions and focal lesions of the cerebral hemispheres, left-sided and central hemiparesis, hemihypesthesia, hemiamblyopia, hemiataxia as a result of hypertensive disease, cerebral atherosclerosis, cervical osteochodrosis and spondylarthrosis, abnormalities in the vertebrobasilar vessels, third-degree primary hypertension , stenocardia and ischaemic heart disease.
On 15 March 2002 the State Medical Board classified the applicant as “category two” disabled in connection with his cardiovascular diseases. That conclusion was confirmed by the second medical examination of the applicant on 29 March 2002. The medical board concluded that the applicant could not work, and that his ability to take care of himself was somewhat limited: he was able move around, but only slowly, he could not perform any complex physical tasks without external assistance, and he periodically fainted.
On 24 August 2002 the applicant had another stroke and was transferred to the intensive care unit. Two days later his defence counsel asked the authorities for information about his client’s state of health. On the same day the applicant underwent a medical examination by Prof. Skoromets, the chief neurologist of St Petersburg. Prof. Skoromets confirmed the previous diagnoses and recommended that treatment be continued with vasoactive anti-hypertensive, neuro-protecting and neuro-regulating drugs and vitamins. In order to control the clinical course of the applicant’s diseases, Prof. Skoromets suggested that tomography and Doppler analysis be applied. In his view, the applicant required intensive in-patient treatment in a neurovascular hospital.
On 26 August 2002 the applicant’s lawyer wrote a letter to the administration of hospital no. 12 in which he put several questions about the state of the applicant’s health and the medical aid he was receiving in the prison hospital. In a letter of 27 August 2002 the administration informed the applicant’s defence counsel of the results of the medical examinations. The letter stated that the medical facilities in hospital no. 12 where the applicant was detained were not equipped for the comprehensive examination and treatment of patients suffering from neurovascular diseases. The letter also specified that “in the event of inadequate examination and treatment [of the applicant], his disease might progress, resulting in further strokes, the extension of cerebral lesions, the onset of persistent neurological relapse, and the aggravation of cerebrovascular disease”, which could result in death.
From 4 November 2002 to 3 December 2003 the applicant was in the prison hospital. On 19 November 2002 the head of the prison hospital wrote a letter informing the applicant’s lawyer of the applicant’s state of health. According to the letter, the applicant’s health had worsened since December 2001. In particular, the prison doctor noted negative dynamics in the brain area.
In early December 2003 the applicant was transferred to the intensive care unit of hospital no. 12.
(c) The applicant’s health condition in correctional colony YaR-154/25
In late December 2003 the applicant was sent to serve his sentence in correctional colony YaR-154/25, located in the town of Frolovo in the Volgograd Region, 2,500 kilometres from St Petersburg and 136 km from Volgograd. On his arrival there on 28 December 2003 the applicant underwent a medical examination in the colony’s medical unit.
According to the Government, the medical unit was equipped with “consulting rooms, an in-patient room [a hospital] with 10 beds, a clinical laboratory where blood/urine tests and liver-function tests could be carried out, a dentist’s room and an X-ray laboratory”. Further, the Government asserted that the medical unit’s pharmacy had been equipped with medicines “in compliance with the relevant standards”. In the town of Frolovo, within four kilometres from the colony, there were two “civilian” hospitals where detainees could be transported at any time at the request of a doctor. Those two hospitals had “the necessary equipment for treating basic diseases”.
In 2004 the applicant underwent a number of routine medical examinations by a general practitioner and the chief doctor of the medical unit. In addition to the previous diagnoses, the doctors detected a gastric ulcer. Within that period the applicant also suffered from repetitive respiratory diseases. On 10 February 2004 the applicant was examined by a local medical board. He was classified as “category two” disabled.
It appears that in March 2004 the institution’s administration proposed that the applicant to undergo treatment in “special medical institution LIU-15 in Volgograd” (a hospital-type penitentiary institution). However, the applicant opposed his transfer to that institution, indicating that he did not see any difference between the medical facilities in the colony’s hospital and in the hospital of LIU-15. He claimed that his diseases could be adequately treated only in hospital no. 12 in St Petersburg.
In April 2004 the applicant’s defence counsel contacted Prof. Skoromets in St Petersburg. In a letter of 15 April 2004, based on material submitted by the defence, the latter concluded that the applicant’s state of health was life-threatening and required special care. In particular, he recommended the avoidance of physical exercise and mental stress, the use of systemic drugs, medical examinations by a therapist and a neurologist, and sanatorium treatment. Prof. Skoromets also indicated that the applicant should be subjected to special tests, such as monitoring of arterial pressure, electrocardiography and an electroencephalogram. He observed that, in the event of an emergency, a patient with such diseases should be transported with care and in a specially equipped car (“reanimobile”).
While in detention in the colony, the applicant was hospitalised in the medical unit to receive treatment for cardiovascular, cerebral, respiratory and spine diseases. He stayed in the colony hospital between 20 January and 27 February, 3 and 18 March, 22 March and 12 April, 27 July and 13 August, 16 and 28 August, 13 and 21 September, 12 October and 5 November, 1 and 6 December, and 9 and 12 December 2004. The main reasons for his placement in the hospital were respiratory diseases and the aggravation of his cardiac and neurovascular diseases.
According to an extract from his medical records, in 2004 the applicant was treated with the following substances: Nootropil, Gliatinin, Capoten, solution of Dibasol, Captopril, vitamins B1, B6 and B12, Lazix, solution of magnesium sulphate, Anaprilin (propranolol), Euphylline (aminophyllin), Nitroglycerine, Atenolol, Cardiket, Anaprilin, Nitrosorbite, Corvalol, Diclofenac, Enap, Finalgon, Bromhexine, Rifampicin and Aerinite.
In 2005 the applicant underwent a number of routine checks by the colony’s general practitioner and the head of the colony’s medical unit. In February 2005 the local medical board confirmed the applicant’s status as “category two” disabled. It was confirmed that the applicant could not work; however, the doctors characterised his health condition as “satisfactory, with positive dynamics”. He continued receiving various medicines: Clonidine, Piracetam, Cavinton, Corvalol, Enap, vitamins of the “B” group, Cinnarizine, Atenolol, Lazix, Dibasol and Papaverine. On several occasions the applicant was placed in the colony’s hospital in connection with his cardiac and neurovascular diseases, as well as recurrent acute respiratory diseases. He stayed there between 2 and 22 February, 13 and 28 April, 29 April and 27 May, and 2 June and 1 July 2005.
On 24 and 25 April 2006 the applicant underwent a medical examination by a medical team composed of doctors attached to the penitentiary system. According to the certificate issued by the governor of the colony on 22 May 2006, the applicant’s state of health at that time was described by the medical team as “grave”. The medical team recommended transferring the applicant to the specialist medical institution LIU-15 in Volgograd. On 28 April 2006 the applicant was hospitalised in that institution.
(d) The applicant’s transfer to correctional colony YuK-25/8
On 3 May 2006 the applicant was transferred to a correctional colony in the Orenburg Region. Before leaving Volgograd the applicant was examined by several specialist doctors, including a neurologist and a cardiologist. According to a certificate issued by the deputy head of the medical institution on 19 May 2005, the overall state of health of the applicant was “satisfactory, stable, with positive dynamics”. The doctors concluded that the applicant could be transported to another region.
During his transfer from Volgograd to the Orenburg Region the applicant was accompanied by a medical team composed of a doctor and a paramedic. The medical team had special utensils, namely “portable respiratory and monitoring equipment and drip therapy equipment”. The applicant was transported by rail, in a separate compartment. The Government provided a list of medicines available to the applicant during the journey.
On 6 May 2006 the applicant arrived in the Orenburg Region. On 10 May 2006 he was placed in correctional colony YuK-25/8. Upon his arrival in the colony the applicant was examined by a medical team composed of the head of the medical unit, a general practitioner and a paramedic. The medical team concluded that the applicant’s state of health was satisfactory. They did not detect any worsening of his chronic diseases. In the following weeks he was subjected to a medical examination twice a day, with regular checks of his blood pressure.
The applicant is currently serving his prison sentence in YuK-25/8.
B. Relevant domestic law
1. Complaints by detainees
Under Article 12 § 4 of the Penitentiary Code of 1997, detainees have the right to address suggestions, applications and complaints to the administration of the penitentiary institution, to the superior administrative authority within the penitentiary system, to the courts, to the prosecution authorities, to the State and municipal authorities, to non-governmental organisations and to international human-rights organisations.
Article 15 provides that convicted detainees have the right to submit suggestions, applications, motions and complaints orally or in writing. Complaints to the bodies listed in Article 12 § 4 are forwarded through the administration of the penitentiary institution. Complaints to the bodies overseeing the penitentiary institution are not subject to censorship and should be forwarded by the administration of the institution to the addressee within one day upon receipt.
2. Admissibility of evidence obtained by the defence
Article 86 of the Code of Criminal Procedure of 2001 (“CCrP”) reads as follows:
“1. In the course of the criminal proceedings evidence shall be collected by ... the investigator, the prosecutor and the court by means of investigative measures.
2. [An accused] ... and his representatives may collect and produce written documents ... to be added to the case file as evidence.
3. The defence lawyer may collect evidence by:
(1) obtaining objects, documents and other information;
(2) questioning persons with their consent; or
(3) requesting ... documents from the authorities ... and other organisations which are obliged to produce such documents or their copies.”
Article 75 of the CCrP provides that evidence obtained in breach of the provisions of the Code is inadmissible.
3. Scope of the appeal courts’ review in Russia
Under Article 360 of the CCrP, the court of appeal should review whether the lower court’s decision is lawful, well-founded and fair. The court of appeal reviews the lower court’s decisions only to the extent that they are challenged in the grounds of appeal.
Articles 379 and 380 of the CCrP establishes the grounds on which the court of appeal may quash or amend the lower court’s decision. In particular, the decision of the lower court may be quashed because of the inconsistency between the facts established in the lower court’s decision and the conclusions of that court. This could mean, for example, that the conclusions of the lower court are not supported by the evidence examined by it; the court ignored facts that might have influenced its decision; where there is conflicting evidence, the lower court did not indicate why it preferred one piece of evidence to another; or the conclusions of the lower court are seriously inconsistent.
C. Relevant international instruments
The European Prison Rules, adopted by the Committee of Ministers of the Council of Europe at its 404th meeting on 12 February 1987, provide, in so far as relevant:
“26. 1. At every [penal] institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general health administration of the community or nation. ...
2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be a staff of suitably trained officers.”
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“CPT”) of the Council of Europe, in its 3rd General Report (CPT/Inf (93) 12), stated as follows:
“a. Access to a doctor
35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...
37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.”
1. The applicant complained that he had not received appropriate medical assistance in the penitentiary institution where he was serving his sentence.
2. Under Article 6 of the Convention the applicant also complained that the proceedings in his criminal case were unfair. His complaints under Article 6 may be summarised as follows:
(a) the court’s composition was changed, as a result of which one of the judges missed the first hearings;
(b) the applicant was absent from a number of hearings, and was therefore unable to defend himself properly;
(c) in its judgment the court gave a different account of events from that formulated by the prosecution in the bill of indictment and argued by the prosecution in the course of the proceedings;
(d) the domestic court disregarded all evidence of his innocence and took account only of the incriminating evidence;
(e) the court did not treat the expert witnesses suggested by the prosecution on the same footing as expert witnesses suggested by the defence. For example, the court refused to call the experts Ms Galyashina and Mr Kurdiani, whereas it called the experts suggested by the prosecution, in particular Mr Koval and Mr Yakushev, who were biased;
(f) the trial court failed to hear the witnesses Ms Margvelashvili, Mr Grigolashvili, Mr Kervalishvili and Ms Dzhimshiashvili, who were not confronted by the applicant or his lawyers under the adversarial principle at any stage of the proceedings; the court also refused to admit in evidence their written statements, collected by the defence;
(g) the prosecution failed to hand over to the defence certain important pieces of evidence (written depositions obtained from Mr Grigolashvili by the Georgian authorities at the request of the Russian Prosecutor General’s Office, and the full recording of telephone conversations at Ms Margvelashvili’s flat on 7 and 8 August 2000);
(h) the court admitted pieces of evidence submitted by the prosecution which were not disclosed to the defence (the report prepared by an anonymous expert witness and documents relating to the authorisation for wiretapping surveillance).
A. Complaints under Article 3 of the Convention
The applicant complained that he had fallen seriously ill in detention but had not received appropriate medical treatment. This complaint falls to be examined under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The parties’ arguments
The Government argued that the applicant had not exhausted domestic remedies. Under Article 15 of the Penitentiary Code, detainees had the right to send complaints, suggestions or petitions to the administration of the penitentiary institution, but also to the prosecution authorities and the courts. However, the applicant had failed to do so.
Further, the Government argued that the applicant’s state of health had been permanently monitored and that he received all necessary medical aid. His medical condition had even improved while he was in detention. The hospital at the colony had the necessary medical equipment and was appropriately staffed. The Government indicated that the applicant’s prison was located near two civilian hospitals and close to the “special medical institution LIU-15”, where the applicant could have been taken in the event of medical necessity and examined by specialist doctors. Finally, there was a possibility for detainees to be examined and treated by specialist doctors from Volgograd Medical University, for a fee. As regards the applicant’s transfer from the Volgograd Region to the Orenburg Region, it had been carried out in the applicant’s best interests and with all the necessary medical precautions.
The applicant claimed that he had exhausted domestic remedies. He maintained that his state of health was incompatible with the long prison sentence imposed by the judgment of 1 August 2003, as upheld on appeal on 5 November 2003, which thus had been the final decision in his case.
As to the merits of his complaint, the applicant claimed that his health problems were life-threatening. He maintained that before his arrest he had been a healthy man. His diseases had appeared while he was in detention and had been aggravated because of the lack of adequate medical treatment. Since August 2002 he had not been subjected to the special monitoring prescribed by Prof. Skoromets and other doctors. Further, since his placement in colony YaR-154/25 he had not been treated by specialist doctors at all. Although he received medical aid and consultations from general practitioners, they were incapable of treating him adequately in the conditions in the colony’s medical unit. The applicant did not receive all the medicines prescribed, in particular anticoagulant agents. The colony’s medical unit was not equipped with resuscitators, needed in case of emergency, or any devices for obtaining a cardiogram. The effects of the treatment the applicant received in the colony were short-term; that treatment had not led to a steady improvement of his health. On the contrary, his state of health had deteriorated sharply on account of the lack of necessary equipment, medicines and staff in the prison hospital. On many occasions the applicant had been hospitalised because of the repeated aggravation of his medical condition. As to the specialised medical institution LIU-15, there was no fundamental difference between the levels of health care available there and in the colony’s medical unit. The applicant’s transfer from the colony in the Volgograd Region to the colony in the Orenburg Region had been unlawful and had presented serious risks to his health.
The applicant produced a report by two French doctors, Jacques Reverberi and Jean-Pierre Sollet, prepared in 2004. Based on the documents provided by the applicant’s representatives, the doctors listed possible complications of the applicant’s diseases, and recommended his placement in a specialist neurological and cardiovascular medical institution for a full-scale hospital examination and treatment. They further concluded: “Mr Mirilashvili’s clinical state is incompatible with continued imprisonment, even if the prison has a hospital. He should be hospitalised in a specialist cardiovascular and neurological unit, undergo tests and receive urgent, appropriate and specialised treatment. Without these urgent measures, there is a high risk of death or serious organ failure, especially as his clinical state is deteriorating steadily.”
2. The Court’s assessment
The Court notes that the Government pleaded non-exhaustion of domestic remedies, referring to Article 15 of the Penitentiary Code, which provides that detainees may address complaints to various State bodies if they consider that their rights have been breached. The Court notes, at the outset, that the prosecution authorities and the officials of the penitentiary system were kept well informed about the applicant’s health problems by the applicant himself, as well as by his representatives. As to the other State bodies listed in Articles 12 and 15 of the Code, the Government did not specify what particular legal avenue the applicant had been required to use in his situation. Further, the Government neither specified what type of claim would have been an effective remedy in their view, nor supplied any further information as to how such a claim could have prevented the alleged violation or its continuation or provided the applicant with adequate redress (see Popov v. Russia, no. 26853/04, § 205, 13 July 2006). In the circumstances, and in the absence of further clarification from the Government, the Court has strong doubts as to whether the applicant had any effective remedy at his disposal, other than those which he actually explored.
However, the Court does not need to give a definite answer to the question of exhaustion of domestic remedies in this case, since the applicant’s complaint under Article 3 is inadmissible in any event, for the reasons specified below.
(a) General principles
The Court reiterates at the outset that, in assessing evidence, it has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, pp. 25-26, § 34, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
The Court further reiterates that, in order to fall under Article 3, ill-treatment must be at least marginally severe. This margin is relative and depends, for example, on the duration of a particular treatment, on its physical and mental effects, and on the victim’s sex, age, and health (see Ireland v. the United Kingdom, cited above, p. 65, § 162).
On the other hand, the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, mutatis mutandis, Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, p. 15, § 30, and Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 39, § 100). Measures depriving a person of his liberty may often involve such an element.
The Court further reiterates that Article 3 cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment. However, in exceptional cases, where the state of a detainee’s health is absolutely incompatible with the detention, Article 3 may require the release of such person under certain conditions (see Papon v. France (no. 1) (dec.), no. 64666/01, CEDH 2001-VI; Priebke v. Italy (dec.), no. 48799/99, 5 April 2001; see also Mouisel v. France, no. 67263/01, §§ 40-42, ECHR 2002-IX, and Farbtuhs v. Latvia, no. 4672/02, § 55, 2 December 2004).
Finally, the Court notes that the lack of appropriate medical treatment in prison may by itself raise an issue under Article 3, even if the applicant’s state of health does not require his immediate release. The State must ensure that given the practical demands of imprisonment, the health and well-being of a detainee are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI; see also Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79).
(b) Application of these principles to the present case
The Court has examined all the documentary evidence submitted by the parties. From these it emerges that the applicant suffered and continues to suffer from several serious cardiovascular and neurological diseases, as well as some other chronic illnesses. Even if those illnesses were detected after the applicant’s arrest, nothing suggests that their appearance was due to his detention, and not to natural causes. What is clear is that the applicant’s health condition required medical supervision to ensure the timely diagnosis and treatment of his diseases. Further, the applicant’s health problems were recurrent: on many occasions the applicant had medical accidents and had to be hospitalised for prolonged periods of time. Although recent reports on the applicant’s state of health have been more optimistic, describing his overall condition as “stable” and “satisfactory”, there remain serious risks to his health and even life. Those facts are not disputed by the Government. At the same time the Government objected to the applicant’s allegations about the insufficiency of the health care he had received while in the colony.
(i) Whether the applicant should be released on health grounds
The applicant can be understood as complaining that his state of health was in principle incompatible with imprisonment. The Court will start by examining this argument.
The Court takes note of the report prepared by two French doctors, Mr Reverberi and Mr Sollet, who suggested that the applicant should be released. However, the Court notes that those doctors did not examine the applicant in person, but simply assessed his state of health on the basis of his medical records. In such circumstances, the report by those doctors cannot be regarded as conclusive (see in this connection Lebedev v. Russia (dec.), no. 4493/04, 18 May 2006).
As to the Russian doctors, the medical boards which assessed the level of the applicant’s disability did not recommend his release on health grounds. They also confirmed that the applicant could take care of himself, even if he was not fully independent. Even Prof. Skoromets, an external expert, did not suggest that the applicant’s medical condition per se was incompatible with his detention. What he recommended was that the applicant’s diseases should be monitored and treated by specialist doctors and with special equipment. His conclusions in that respect were very close to those of the French doctors, who also recommended hospitalisation in a “specialist cardiovascular and neurological unit”.
All the doctors were virtually unanimous in describing the future risks posed by the applicant’s diseases. However, those risks are not conditioned by the mere fact of the applicant’s detention, but rather by the lack of proper medical supervision, and, in the event of a sudden deterioration, a quick and appropriate reaction. The Court will deal with these matters below.
In sum, the Court concludes the applicant’s state of health, as such, does not require his immediate and unconditional release, but rather necessitate special monitoring and treatment. This finding, obviously, does not rule out the possibility that the applicant may be or may become eligible for early release on health grounds under domestic law.
(ii) Whether the applicant received appropriate medical treatment
Further, the applicant claimed that he had not received appropriate medicines, that the doctors at the institutions in which he had been detained were not qualified, and that they did not have special equipment to monitor and treat his diseases.
As to the medicines provided, the evidence produced by the Government shows that the applicant’s relatives were able to procure the necessary medicines for him, and that he was not restricted in taking them. Even if some medicines were not available in the colony’s pharmacy for free, that did not affect the applicant, as he did not depend on the pharmacy’s stock.
As to the qualifications of the colony’s medical personnel, the Court is prepared to accept that they may not have the same professional experience as specialist doctors working in the best civilian clinics. However, the colony’s doctors were capable of providing basic medical assistance to the applicant, sending him to civilian hospitals if need be. Thus, in 2003 the applicant underwent treatment in hospital no. 12, where he could have consulted specialist doctors. In April 2006, when his state of health worsened, the applicant was transferred to the LIU-15 medical institution. There existed a further possibility of consulting the doctors working at Volgograd Medical University, and there is nothing to suggest that the applicant was prevented from seeking their advice.
As to the monitoring of the applicant’s diseases with special equipment, it transpires from the materials of the case that the Frolovo colony’s medical unit had only basic medical equipment. Thus, although it had an X-ray room and a laboratory, it is unclear whether it was equipped with resuscitators and a cardiograph, and whether there was a possibility for the applicant to undergo the tomographic examination and Doppler analysis recommended by Prof. Skoromets.
At the same time, the absence of the necessary equipment may arguably raise an issue under Article 3 only if it had negative effects on the applicant’s state of health or caused suffering of a certain intensity. The Court notes that during his stay in the colony the applicant’s medical condition deteriorated on several occasions. However, having examined all the materials in its possession, the Court is unable to conclude that such aggravations were caused by the lack of proper monitoring, and not by the natural course of his diseases. It appears that in cases of medical necessity the applicant could have been transported to a better-equipped nearby hospital outside the colony for more thorough examination and treatment, and that this in fact happened at least once, in April 2006. As to the other occasions on which the applicant was hospitalised, there is nothing to suggest that they required him to be transferred to an outside medical institution.
Finally, the applicant pointed to the medical risks associated with his being transported in inappropriate conditions. The Court notes that, fortunately, those risks never materialised. Furthermore, having examined the Government’s description of the applicant’s transfer from the Volgograd Region to the Orenburg Region, the Court concludes that the authorities took the necessary precautions in order to minimise those risks.
In conclusion, having assessed the facts as a whole, the Court finds that the applicant’s situation did not attain such level of severity to fall within the scope of Article 3 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
B. Complaints under Article 6 of the Convention
The applicant further complained of the unfairness of the proceedings in his criminal case (see the “Complaints” part above). Article 6, relied on by the applicant, provides, in so far as relevant:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ....
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing ...;
(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; ...”
1. Submissions by the Government
The Government claimed that the proceedings in the applicant’s case had been fair. Their submissions may be summarised as follows.
Time for the preparation of the defence
The Government maintained that the applicant had had enough time to prepare his defence. The defence lawyers and the applicant had access to the case file during two periods before the start of the trial: from 5 June to 1 July 2002, and from 1 August to 6 September 2002.
Modification of the factual basis of the accusation
As to the difference between the bill of indictment and the conclusions of the first-instance court, the Government argued that it had not been so significant as to deprive the applicant of his rights guaranteed by Article 6 § 3 (b) of the Convention. Indeed, during the trial the prosecution had maintained that Mr Kazimirchuk had served as an intermediary between the applicant and some unidentified persons who had abducted the victims and beaten them to death. The court, however, had acquitted Mr Kazimirchuk, having established that the applicant had been giving orders through an unidentified person. The acquittal of Mr Kazimirchuk had simply confirmed that the court had been impartial and objective in establishing the facts of the case. The prosecution had always maintained that the abduction and subsequent killing had been committed by a group including certain “unidentified persons”. The court, having excluded Mr Kazimirchuk and other “known” persons from that group, had not altered the initial charges. Moreover, in the course of the trial the applicant had denied any involvement in the abduction and killing of the victims, irrespective of the role allegedly played by Mr Kazimirchuk in the events of 7 and 8 August 2000. Therefore, the modification of the factual basis of the accusation had not been prejudicial to the applicant’s defence.
Exclusion of the expert witness Ms Galyashina and appointment of the expert witness Mr Koval
The Government maintained that the exclusion of Ms Galyashina from the team of experts and the appointment of Mr Koval to the team had not affected the fairness of the proceedings. The court had duly examined the allegation by the defence that Mr Koval could not act as an expert since he harboured personal animosity towards the applicant. The court noted, in particular, that Mr Koval’s wife had indeed been dismissed from her job at the casino belonging to the applicant; however, her dismissal had been ordered not by the applicant himself but by another person. The court had concluded that there were no reasons to cast doubt on Mr Koval’s impartiality.
Testimonies of Ms Margvelashvili, Mr Grigolashvili, Mr Dzhimshiashvili and Mr Kervalishvili
The Government confirmed that the court had relied on written statements obtained by the prosecution from Ms Margvelashvili, Mr Grigolashvili, Mr Dzhimshiashvili and Mr Kervalishvili in the course of the pre-trial investigation. It was also true that none of those witnesses had been heard by the court in person. However, that had been practically impossible because at the time of the trial all of them had been in Georgia. The court had tried to secure their examination by the Georgian authorities. However, Ms Margvelashvili and Mr Grigolashvili had refused to appear before the Georgian courts “because of their difficult financial situation”. Ms Margvelashvili had also indicated that she had a small baby to look after. As regards Mr Kervalishvili, he had been in custody at that time and had therefore been unable to appear before the court. In those circumstances the prosecution had requested the court to allow the reading out of the records of their questioning during the pre-trial investigation.
As to the written statements obtained by the defence from Ms Margvelashvili, Mr Grigolashvili and Mr Kervalishvili, they had initially been added to the case file by the court. However, at a later stage the court had decided that the statements were inadmissible in evidence and had not relied on them in reaching its final conclusions. The law allowed the defence to obtain statements from persons who had no “procedural status” – in other words, who had not already been questioned by the investigative authorities as witnesses. Since the above persons had the procedural status of witnesses or victims, their questioning by the defence was precluded under Article 86 § 3 of the Code of Criminal Procedure. Therefore, the written statements obtained from those people by the defence had been inadmissible in evidence.
The Government also asserted that the record of the questioning of Mr Grigolashvili by the Georgian authorities on 25 June 2002 had been read out at the hearing of 15 April 2003. Therefore, this piece of evidence had been disclosed to the defence.
Use of evidence obtained as a result of wiretapping, and disclosure of the “missing” tapes
The Government submitted that the court had relied on recordings of telephone conversations obtained as a result of a wiretapping operation between 7 and 17 August 2000. In particular, the court admitted as evidence recordings nos. 14123, 12462/7, 12462/8, 12462/12, and 12462/28. The wiretapping operation had been authorised by a decision of the President of the St Petersburg City Court, and the records had therefore been obtained lawfully. The fact that the court had not disclosed other recordings was irrelevant, since they had never been used as evidence against the applicant.
Use of the report prepared by “Ms Ivanova”
The Government submitted that on 15 July 2003, one hour before the parties had started presenting their final submissions, the court had added to the case file an expert report prepared by an anonymous expert designated as “A.P. Ivanova”. However, the court had not relied on that report in its judgment.
2. Submissions by the applicant
Time for the preparation of the defence
The applicant submitted that the bill of indictment of 19 July 2002, contrary to the law, had contained no references to the evidence against him, but had simply indicated the sources where such evidence could be obtained. From the bill of indictment it had been unclear how any particular document or item in the case file related to the facts that the prosecution intended to prove. The defence had asked the court to refer the case back to the prosecution in order to supplement the bill of indictment, but the request had been refused. Therefore, the defence had not had enough time to prepare their arguments and challenge the evidence produced by the prosecution.
Modification of the factual basis of the accusation
The applicant claimed that the factual circumstances of the case, as described in the bill of indictment of 19 July 2002, had been different from the facts relied upon by the court in its judgment of 1 August 2003.
Thus, in the bill of indictment the applicant had been accused of having organised the abduction and killing through the intermediary of his bodyguards (Mr Kazimirchuk and others). According to the bill of indictment, the applicant had given Mr Kazimirchuk and his men a general order to find the abductors of his father. Mr Kazimirchuk’s group had subsequently planned the operation and delegated its implementation to unidentified men, who had first abducted the victims and then murdered two of them. Therefore, according to the prosecution, the principal offenders had not been in direct contact with the applicant. The allegations of the applicant’s involvement in the crime had been based exclusively on his supposed links with Mr Kazimirchuk and his men, and the links of those men with the principal offenders. However, Mr Kazimirchuk and his men had been acquitted. In such circumstances, the applicant wondered how it had been possible to convict him of having headed a criminal organisation, when all the other members of that “organisation” remained unidentified. Furthermore, the prosecution had been unable to show where and when the applicant had given orders to those unidentified men. In such circumstances the applicant should have been acquitted. However, the Military Court had preferred to invent new facts to justify the applicant’s conviction as sought by the prosecution.
Exclusion of the expert witness Ms Galyashina and appointment of the expert witness Mr Koval
The applicant submitted that the Government had failed to explain why Ms Galyashina had been removed from the team of experts. Ms Galyashina had impressive credentials: she had two PhDs (in law and letters), had produced 80 publications on phonological studies (including monographs and manuals), and was the deputy head of the Department of Phonological Analysis in the Ministry of the Interior. The applicant had asked Ms Galyashina to express her opinion on the report by two experts proposed by the prosecution, namely Mr Koval and Mr Zubov. On 29 January 2003 the court had heard her opinion about the methods used by Mr Koval and Mr Zubov. On the basis of her testimony, the court had decided to carry out an additional examination of the audiotapes. However, when the applicant had asked the court to include Ms Galyashina in the expert team, the court had refused, referring to the fact that she had already expressed her opinion as an “expert witness”. The applicant stressed, however, that the rules on criminal procedure did not prohibit an “expert witness” from participating in expert examinations commissioned by the court.
As to Mr Koval, his partiality should have been evident to any rational observer. His wife, Mrs Tatiana Koval, had been an employee in the casino owned and managed by the applicant. Two witnesses had confirmed that her husband, Mr Koval, knew that the decision to dismiss her from the casino had been taken by the applicant. This should have given the court reasonable doubts about Mr Koval’s impartiality.
Testimonies of Ms Margvelashvili, Mr Grigolashvili, Mr Dzhimshiashvili and Mr Kervalishvili
The applicant drew the Court’s attention to the fact that none of the above four witnesses had been questioned in person by the Military Court, whereas the written statements obtained from them by the prosecution had been read out at the hearing, despite his objections, and then used as key evidence against him. Therefore, the importance of those four witnesses was not contested.
As to the reasons referred to by the Russian Government to explain why it had been impossible to secure their personal attendance (such as the fact that Ms Margvelashvili had a child to take care of, or that Mr Kervalishvili was detained in connection with another criminal case), those reasons could not justify their absence.
The applicant further asserted that on 25 June 2002 Mr Grigolashvili had confirmed to the Georgian authorities that he had falsely accused the applicant. However, contrary to what the Government suggested, the court had not examined that piece of evidence by reading it out at the hearing on 15 April 2003.
Furthermore, Ms Margvelashvili, Mr Grigolashvili and Mr Dzhimshiashvili had been questioned by the Georgian authorities, namely by the President of the Kutaisi District Court, at the request of Judge Popovich, the presiding judge in the applicant’s case. However, their statements, all favourable to the applicant, had not been accepted by the court as evidence.
As to the written statements obtained from Ms Margvelashvili, Mr Grigolashvili and Mr Dzhimshiashvili by the defence lawyers and produced to the court, they likewise proved the applicant’s innocence. Those witnesses had retracted all the allegations they had made earlier under pressure from the investigative authorities. However, the court had refused to admit those written statements as evidence. It had considered that a person who had already been questioned by the investigative authorities as a witness could no longer be questioned by the defence. That reading of the CCrP was erroneous: Article 86 of the CCrP, relied on by the court, provided that the defence had the right to question any person irrespective of his or her “procedural status”, and to produce the results of such questioning to the court as evidence.
The applicant stressed that the questioning of those witnesses by the lawyers had been carried out in accordance with all the necessary procedural formalities. Thus, Mr Grigolashvili and Ms Margvelashvili had been given interpreters since they did not understand Russian very well. Furthermore, during the questioning they had been assisted by their lawyers. However, their written testimonies, favourable to the applicant, had been rejected by the court, whereas their earlier written statements, obtained by the prosecution authorities under duress, had been accepted and read out at the court hearing.
Use of evidence obtained as a result of wiretapping, and disclosure of the “missing” tapes
The applicant pointed out that the prosecution and subsequently the court had relied on the audio recordings of telephone conversations made by the police at Ms Margvelashvili’s flat as part of an undercover operation. However, the lawfulness of that operation had not been verified by the court. The presiding judge had simply satisfied himself that the wiretapping had been authorised by the President of the St Petersburg City Court. Two lay judges (Mr Karman and Mr Tolstikov) had not been shown that decision.
Furthermore, the applicant had been unable to check whether the authorisation given by the President of the City Court had concerned Ms Margvelashvili’s phone number, and whether that authorisation had still been valid when the recordings had been made. In such circumstances the applicant had been unable to challenge the admissibility of a very important piece of evidence.
The Government had maintained that the “missing” tapes had not been used by the court against the applicant; however, in the applicant’s view, that was not a good reason for not disclosing them to the defence. The applicant stressed that the “missing” tapes concerned the period between 5.30 p.m. on 7 August and 1.40 p.m. on 8 August 2000. That was the time when the men in police uniform had come to Ms Margvelashvili’s flat and abducted Mr Dvali and Mr Kakushadze. Further, during that period the applicant had talked to Ms Margvelashvili by telephone about the kidnapping of his father. It was clear that the recordings made during that period were of crucial importance, but the prosecution had preferred to conceal them.
Use of the report prepared by “Ms A.P. Ivanova”
The applicant maintained that the examination of the evidence had been discontinued on 2 July, and not on 15 July 2003, as the Government had wrongly suggested. Further, the applicant drew the Court’s attention to the fact that the report had been added to the case file without the defence having examined it or challenged its veracity.
The applicant further confirmed that the judgment had contained no reference to that report. However, the report could nevertheless have influenced the judges’ perception of the facts of the case, especially as regards the two lay judges, Mr Karman and Mr Tolstikov. If the domestic court had not wanted to take that document into consideration, it would have been more natural to refuse to add it to the case file.
3. The Court’s assessment
(a) Complaint no. 2 (a)
The applicant complained that on 13 November 2001 one of the two lay judges, Mr Aysin, had decided to withdraw from the case on health grounds and had been replaced by a substitute lay judge, Mr Karman.
However, the Court does not consider that this affected the fairness of the proceedings in the applicant’s criminal case. As follows from the decision of the court of appeal, Mr Karman took part in the proceedings from the very beginning as a substitute judge and, in that capacity, followed everything that happened in the courtroom. Furthermore, the defence did not in any event object to the replacement of Mr Aysin by Mr Karman. In such circumstances the Court concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) Complaint no. 2 (b)
The applicant complained that he had been absent from the hearings of 5, 21, 26 and 28 February, 11 and 12 March, and 21, 24, and 27 June 2003. In his view, that had prevented him from defending himself properly.
The Court reiterates that, although this is not expressly mentioned in Article 6 § 1, the object and purpose of the Article taken as a whole show that a person charged with a criminal offence is entitled to take part in the hearing (see Colozza v. Italy, judgment of 12 February 1985, Series A no. 89, p. 14, § 27, and Belziuk v. Poland, judgment of 25 March 1998, Reports of Judgments and Decisions 1998-II, p. 570, § 37). However, Article 6 of the Convention does not prevent a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000).
Further, in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case (see, mutatis mutandis, Granger v. the United Kingdom, judgment of 28 March 1990, Series A no. 174, p. 17, § 44; see also Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, pp. 13-14, § 38). For example, in the case of Imbrioscia the Court decided that that there had been no violation of Article 6 of the Convention, since the absence of a lawyer on the various occasions on which the applicant was questioned did not lead to a disadvantage which had been likely to affect the position of the defence at the trial and thus also the outcome of the proceedings.
Turning to the present case, the Court notes that throughout the trial the applicant was represented by a group of highly qualified lawyers. Everything suggests that the lawyers and the applicant were aware of the dates of the forthcoming hearings. However, the defence did not insist on the applicant’s personal presence at the hearings of 5, 21, 26 and 28 February and 11 and 12 March 2003. In the circumstances, such conduct on the part of the defence team may be said to have constituted a “tacit waiver”. In any event, it appears that the presence of the applicant on those dates was not necessary. At those hearings the court examined aspects concerning Mr Petrov, Mr Demenko and Mr Sidler, which did not relate directly to the subject matter of the accusations against the applicant. On the days when the subject matters of the proceedings touched upon the events of 7 and 8 August 2000, the applicant was present. Therefore, the applicant’s absence did not, in the Court’s view, lead to a disadvantage which was likely to affect the position of the defence.
As to the hearings of 21, 24 and 27 June 2003, the Court accepts that the issues discussed there were of some importance for the outcome of the applicant’s case. However, on 21 June 2003 the applicant’s lawyer did not object to the continuation of the proceedings in the applicant’s absence, although the court raised that issue. As to the applicant’s absence from the hearings on 24 and 27 June 2003, this cannot be attributed to the authorities. The Court notes that on 24 June 2003 the applicant refused to go to the court because he did not like the transport schedule in place at the time. The reason for his absence from the hearing of 27 June was evidently the same. The applicant wanted to be transported to the court individually in the afternoon, in order to avoid an unnecessary wait. However, in the Court’s opinion the transport schedule was not so inconvenient as to prevent the applicant from coming to the court with the morning escort. In the circumstances, the applicant’s refusal to go to the court may be regarded as a waiver of his right to be present.
In sum, the Court concludes that the applicant either waived his right to be present at the hearings at issue, or was not required to be present. Having examined the proceedings in their entirety, the Court considers that the applicant was able to defend himself properly, personally and through the representatives of his choice.
Therefore, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(c) Complaint no. 2 (c)
The applicant complained that in its judgment the court had given a different account of events from that formulated by the prosecution in the bill of indictment and argued by the prosecution in the course of the proceedings. The applicant also complained that the bill of indictment had contained no references to the evidence against him.
The Court observes that, indeed, the prosecution initally accused the applicant of having organised the abduction of three people through the intermediary of Mr Kazimirchuk and five other persons. However, the court found that those persons had never received or executed any orders from the applicant to that end. The applicant was nonetheless convicted of having organised the abduction through the intermediary of “unidentified persons”, who, in turn, had found other “unidentified persons” who had directly implemented the applicant’s plan. The question arises whether, by modifying the scope of the accusation to that extent, the court deprived the applicant of his right to prepare his defence properly, as he suggested.
The Court recalls in this connection that “as concerns the ... changes in the accusation ... the accused must be duly and fully informed thereof and must be provided with adequate time and facilities to react to them and organise his defence on the basis of any new information or allegation” (see Mattoccia v. Italy, no. 23969/94, § 41, ECHR 2000-IX). The accused have the right to know, inter alia, “material facts ... on which the accusation is based” (see Balette v. Belgium (dec.), no. 48193/99, 24 June 2004).
At the same time the Court reiterates that compliance with Article 6 must be determined in light of the proceedings as a whole, including the appeal proceedings. Thus, in the case of Dallos v. Hungary (no. 29082/95, §§ 47-53, ECHR 2001-II), which concerned the reclassification by an appeal court of a charge on which the applicant had been convicted, the Court attributed decisive importance to the subsequent proceedings before the Supreme Court, finding no violation of Article 6 in view of the fact that the Supreme Court had reviewed the case at an oral hearing from both a procedural and a substantive point of view.
In the instant case the applicant was entitled to contest his conviction in respect of all relevant legal and factual aspects before the Supreme Court of Russia, which heard the parties at an oral appeal hearing. It has not been alleged that the appeal court lacked the power to quash the applicant’s conviction and acquit him, or that at the appeal level the applicant was unable to defend himself in the light of the new interpretation of evidence given by the first-instance court (see Sipavičius v. Lithuania, no. 49093/99, § 31, 21 February 2002). Therefore, even if the modification of the factual basis of the accusation by the first-instance court had been somewhat unexpected, as the applicant suggested, the applicant and his lawyers had enough time to prepare their new arguments in view of that development and present them to the court of appeal.
In such circumstances the Court concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(d) Complaints nos. 2 (d) - (h)
The Court notes that the applicant submitted a number of other complaints under Article 6 §§ 1 and 3 of the Convention about the proceedings in his criminal case. In particular, he complained about the one-sided treatment of evidence by the court, the failure to secure the presence of certain witnesses at the trial, and the non-disclosure of certain important pieces of evidence to the defence or to the court (for more details see the “Complaints” part above).
The Court considers, in the light of the parties’ submissions, that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints under Article 6 of the Convention concerning the allegedly unfair taking and examination of evidence by the domestic courts (complaints nos. 2 (d)-(h));
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
MIRILASHVILI v. RUSSIA DECISION
MIRILASHVILI v. RUSSIA DECISION