THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64962/01 
by Sergey Sergeyevich OZEROV 
against Russia

The European Court of Human Rights (Third Section), sitting on 3 November 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr L. Caflisch
 Mr A. Kovler
 Mr V. Zagrebelsky
 Mrs A. Gyulumyan
 Mrs R. Jaeger, 
 Ms I. Ziemele, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 12 July 2000,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Sergey Sergeyevich Ozerov, is a Russian national, who was born in 1969 and lives in Anapskaya, a village in the Krasnodar Region. He is represented before the Court by Mr M.N. Stepanov, a lawyer practising in Moscow. The respondent Government are represented by Mr P.A. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

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

In 1999 criminal proceedings were brought against the applicant on two charges - a traffic offence in June 1999, which entailed infliction of bodily harm, and a burglary in August 1999.

On 12 October 1999 a judge of the Savelovskiy District Court of Moscow ordered that the applicant’s case be examined in a public hearing with a participation of a public prosecutor and a defence counsel.

On 25 and 26 November 1999 the Savelovskiy District Court of Moscow composed of one professional and two lay judges held hearings in the presence of the applicant, his counsel and the victims. The prosecution was not present. Witness L failed to appear. According to a note by a court secretary, dated 25 November 1999, witness L’s family members telephoned the court and informed that he was on sick leave on that day. At the beginning of the hearing on 25 November 1999 the District Court asked the applicant if he considered it possible to begin the trial in the existing attendance. The applicant and his counsel stated that they had no objections. The District Court took a decision that the trial should commence and that the reason for witness L’s failure to appear made his attendance impossible and, therefore, his written statements should be examined.

The District Court read out an indictment. It heard the applicant, who denied his guilt on the charge of burglary, his counsel and witnesses and examined other evidence. The court read out statements by witness L which were given in the course of the preliminary investigation. Witness L, a security guard and an eyewitness to the burglary, stated to have seen, inter alia, the burglars with a forcer get out of the applicant’s car. Witness L also stated that he had heard sounds of forcing a lock. He then called the police.

The District Court called and examined, of its own motion, witness Y, a police officer who apprehended the applicant at the site of the crime on suspicion of having committed the burglary.

By the judgment of 26 November 1999 it convicted the applicant of violation of traffic rules which caused infliction of bodily harm under Article 264 § 1 and of burglary under Article 158 § 2 of the Criminal Code, and sentenced him to three-and-a-half years’ imprisonment and a fine.

The applicant’s conviction on the charge of burglary was based on the statements of witnesses L and Y and the victim, a report on examination of stolen property which was found by the police at the site of the crime and identified by the victim and a report on examination of the forcer which was also found at the site of the crime. The court found that the applicant took the other accomplices to the site of the crime in his car, made his car available for the transportation of the stolen property and kept watch while the others were forcing a window grate.

The applicant appealed against the judgment. In particular, he pointed out that the case file did not contain information about the prosecutor’s notification of the hearing and reasons for his non-attendance. The first-instance court held the trial in the absence of the prosecution, thus assuming its functions. In doing so, it violated the principles of impartiality of court, equality of arms and adversarial proceedings. The applicant also complained that the case file did not contain information about the summoning of witness L and that the court’s decision to examine his written statements because his attendance was impossible had been unfounded.

On 27 January 2000 the Moscow City Court held a hearing. It heard submissions by the applicant’s lawyer and by the prosecutor, who considered that the judgment should be upheld. It dismissed the appeal and upheld the judgment.

The City Court stated in its decision that it could not agree with the applicant’s allegation that he had not participated in the burglary because it was rebutted by the materials of the case. Thus, the court continued, it followed from the statements of witness L that the applicant had participated in the burglary.

The City Court held that there had not been any substantial violations of the law on criminal procedure which would warrant the quashing of the judgment. In particular, the examination of witness L’s written statements complied with Article 286 of the Code of Criminal Procedure.

Later the applicant unsuccessfully pursued the supervisory review procedure. On 13 June 2000 the Deputy President of the Moscow City Court refused to lodge an application for supervisory review of the case.

B.  Relevant domestic law

Under Article 228 of the Code of Criminal Procedure of 1960, in force at the material time, the question on whether a public prosecutor should participate in the trial was to be determined by a judge at the time of listing the case for hearing. Where the decision was taken that such participation was necessary it was binding for the prosecutor. If the latter failed to appear the court had to decide whether the trial could proceed in his or her absence or it should be adjourned. If the court considered the prosecutor’s participation necessary it adjourned the trial (Article 251 of the Code).

The court could decide, irrespective of whether it was requested by trial participants, to call new witnesses, order an expert opinion, request documents or other evidence (Article 276 of the Code). If someone of trial participants or, equally, a witness failed to appear, the court, after consulting present participants, adopted a decision on whether to proceed with the trial or to adjourn it (Article 277 of the Code). Such decisions (adopted by virtue of Articles 276 and 277 of the Code) were not subject to an appeal to a higher court (Article 331 of the Code).

Reading out at trial of witness statements which were given in the course of preliminary investigation was allowed only where there was significant inconsistency between those statements and statements given at trial and where the witness was absent for reasons which made his or her attendance at trial impossible (Article 286 of the Code).

Under Article 246 of the Code of Criminal Procedure of 2001, which entered into force on 1 July 2002, participation of a public prosecutor in trials in criminal cases involving charges under Articles 158 § 2 and 264 § 1 of the Criminal Code is compulsory.

COMPLAINTS

1.  The applicant complained under Article 6 § 1 of the Convention that the Savelovskiy District Court of Moscow was not impartial as it held the trial in the absence of a public prosecutor, thus, assuming its functions.

2.  He also complained that the District Court failed to obtain the attendance of prosecution witness L at the trial in breach of Article 6 § 3 (d) of the Convention.

THE LAW

1.  The applicant complained that the first-instance court in his criminal case was not impartial in that it held the trial in the absence of a public prosecutor. He relied on Article 6 § 1 of the Convention which, in so far as relevant, reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Government submitted that the Code of Criminal Procedure of 1960, in particular its Article 251, did not make the participation of the public prosecutor in criminal trials compulsory. The Government pointed out, with a reference to an extract from the trial record of 25 November 1999, that at the beginning of the trial the applicant and his counsel did not object to the examination of the case in the absence of the prosecutor. The Government concluded that the applicant’s rights under the Convention had not been violated and that his complaint should be rejected as manifestly ill-founded.

The applicant argued that under Articles 228 and 251 of the Code of Criminal Procedure the trial court, which had previously ordered the prosecutor’s participation in the trial, had to adjourn the hearing as the prosecutor had failed to appear. The materials of the case file indicate that the prosecutor considered it necessary to participate in the trial. The question of the possibility to conduct the trial given the existing appearance at the hearing, which the court discussed at the beginning, concerned the absence of witness L and not the prosecutor’s absence. The applicant also submitted that by virtue of Article 331 of the Code of Criminal Procedure it was impossible to appeal against a trial court’s decision concerning the holding of a trial in the absence of some of its participants.

The Court considers that the Government’s objection that the defence did not object to holding the trial in the absence of the public prosecutor is closely linked to the substance of the applicant’s complaint under Article 6 § 1 of the Convention, and should be joined to the merits. It further considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicant further complained under Article 6 § 3 (d) of the Convention that the trial court did not secure the attendance of prosecution witness Mr L. Article 6 § 3 (d) reads:

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

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

The Government submitted that the decision to read out at trial witness L’s statements was justified by the latter’s illness. The applicant did not object to that decision at the trial. Therefore, his rights guaranteed under Article 6 § 1 were not violated.

The applicant admitted that the question of the possibility to conduct the trial in the absence of witness L had been discussed at the beginning of the trial. He argued that it did not follow from the information before the court that witness L’s illness made his attendance at trial impossible. He also submitted that by virtue of Article 331 of the Code of Criminal Procedure it was impossible to appeal against the trial court’s decision to hold the trial in the absence of witness L.

As the guarantees of paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of this Article, cited above, the Court will consider the complaint concerning the failure to examine witness L at the hearing under the two provisions taken together (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 25).

The Court reiterates that the admissibility of evidence is primarily governed by the rules of domestic law, and that, as a rule, it is for the national courts to assess the evidence before them. The task of the Court is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see Asch cited above, p. 10, § 26).

All evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him or her either when that witness is making a statement or at a later stage of the proceedings (see Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 21, § 49). In particular, the rights of the defence are restricted to an extent that is incompatible with the requirements of Article 6 if the conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial (A. M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX, and Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, pp. 56-57, §§ 43-44).

As to the notion of witness, given its autonomous interpretation, the Court considers that, although Mr L did not testify at a court hearing, he should, for the purposes of Article 6 § 3 (d), be regarded as a witness because his statements, as taken down by the investigative authorities, were used in evidence by the domestic courts (see Asch cited above, p. 10, § 25).

Turning to the facts of the present case, the Court notes that the applicant’s conviction of burglary was based, inter alia, on statements of Mr L which were given at the preliminary investigation and read out at trial. There is no indication that the applicant confronted that witness at the preliminary investigation. In such circumstances it would clearly have been preferable for Mr L to have been heard in person at trial in which case the applicant would have had an opportunity to challenge his statements and question him.

However, the Court notes further that on the day of the trial the Savelovskiy District Court of Moscow received a telephone communication by the witness L’s family that he was on sick leave on that day. According to the trial record, the applicant and his lawyer were asked by the court if they considered it possible to begin the trial in the absence of that witness. They explicitly stated that they had no objections. Having heard the trial participants, the District Court ordered that the trial should commence in the absence of witness L and that his statements be examined. The Court reiterates that waiver of the exercise of a right guaranteed by the Convention, insofar as such waiver is permitted in domestic law, must be established in an unequivocal manner (see Colozza v. Italy, judgment of 12 February 1985, Series A no. 89, pp. 14-15, § 28). The Court considers that the applicant, who was represented by legal counsel throughout the trial, could have been expected to request the examination of witness L at that trial if he attached importance thereto. The applicant did not do so, however, and the Court therefore finds that he can reasonably be considered to have waived his right to confront the prosecution witness in the proceedings in question.

Having regard to the above, the Court concludes that in the circumstances of the case the failure to examine Mr L at the hearing did not involve a breach of Article 6 §§ 1 and 3 (d).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join to the merits the Government’s objection concerning the applicant’s failure to object to holding the trial in the absence of the public prosecutor;

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the impartiality of the trial court;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

OZEROV v. RUSSIA DECISION


OZEROV v. RUSSIA DECISION