Reading pre-trial testimony from absent witnesses. Non-infringement of fair trial. Conditions for accepting depositions.
Lobarev and others v. Russia 28.01.2020 (no. 10355/09, 14358/11, 12934/12, 76458/12, 25684/13 and 49429/14)
Fair trial and reading of testimony of absent witnesses.
The applicants are Russian nationals. During the criminal trial in which they were indicted, pre-trial testimonies of absent witnesses were read and their conviction was heard. They complained about the correctness of the criminal proceedings, arguing that the Court had other evidence and had not shown due diligence in finding the witnesses.
The Court recalls the principles to be applied in cases where a prosecution witness is absent and the forensic evidence is read and taken into account as evidence. In accordance with the ECtHR:
(i) there must be a good reason for the absence of the witness and, consequently, for the admission of his testimony as evidence;
(ii) the pre-trial testimony of the absent witness has significant weight; and
(iii) that there were sufficient countervailing factors to make the whole procedure fair.
In the present case, the ECtHR found that there was a serious reason for the absence of witnesses, that the way in which the national courts interpreted the testimonies of the absent witnesses did not preclude and formulate their judgment, and finally as a countervailing factor. had every opportunity to challenge the evidence presented at the trial, including the testimonies of the absent witnesses. All three of the conditions set by the Court for a fair trial were therefore fulfilled. There has accordingly been no violation of Article 6 §§ 1 and 3 (d) of the Convention
6 § 1
6 § 3 (d)
The applicants, Pavel Lobarev, Dmitriy Dumler, Stanislav Shkarin, Roman Kazakovskiy, Valeriy Kosov,
and Vadim Novgorodov, are six Russian nationals who were born in 1979, 1965, 1980, 1985, 1979,
and 1970 respectively and live in various regions of Russia.
The case concerned the applicants’ complaint that they had not been able to examine at their trials
prosecution witnesses who had been evading justice.
They were convicted between 2008 and 2014 on the basis, among other things, of pre-trial
statements of the prosecution witnesses who did not appear at court because they were either in
hiding and/or on wanted lists.
They appealed, arguing that the domestic courts did not make sufficient efforts to ensure the
presence of the witnesses at trial and read out their pre-trial statements. The trial court judgments
were, however, upheld.
Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial and right to obtain attendance and examination
of witnesses) of the European Convention, the applicants complained that the criminal proceedings
against them had been unfair because the domestic courts had read out the prosecution witnesses’
pre-trial statements without good reason, thus restricting their right to have those witnesses
examined at trial.
THE DECISION OF THE COURT…
The Court reiterates that the guarantees in paragraph 3(d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings
The principles to be applied in cases where a prosecution witness did not attend the trial and pre-trial statements were admitted as evidence have been summarised and refined in the Grand Chamber judgments Al-Khawaja and Tahery (cited above, § 152), and Schatschaschwili (cited above, § 118). According to these principles it is necessary to examine in three steps the compatibility of proceedings, which led to a conviction, with Article 6 §§ 1 and 3 (d) of the Convention. It must be examined whether:
(i) there was good reason for the non‑attendance of the witness and, consequently, for the admission of the absent witness’s untested statements as evidence;
(ii) the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction or carried significant weight and its admission might have handicapped the defence; and
(iii) there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair.
However, in cases where a witness has gone into hiding and has been evading justice the domestic courts face a situation where in practical terms they have no means to locate a witness and it would be excessive and formalistic to compel the domestic courts to take steps in addition to the efforts already taken by the respective authorities within a special legal framework for the search of persons evading justice.
In such cases the trial court prior to concluding that there is good reason for the non-attendance of a witness must satisfy itself, first, that the witness is evading justice, and, second, that the defendant is informed thereof in a way affording a possibility to comment on the measures taken.
- Application of these principles to the present cases
The Court observes that the Russian courts relied on the information received from competent authorities such as a prosecutor, an investigator, a police officer, a regional department of the Federal Security Service or a district court that the witnesses had gone into hiding and satisfied themselves that the witnesses had been evading justice.
The applicants were each informed about the witnesses’ absence and the reasons for it during the trial and nothing indicates that they were deprived of a possibility to comment on the reasons given and the measures taken. Indeed, the available material demonstrates that the relevant comments were made by the applicants, when they chose to do so.
Nevertheless, it is evident from the available material that the Russian courts, having exercised the requisite careful scrutiny, concluded that there was good reason for the non-attendance of witnesses The Court has no grounds to disagree with their findings.
Turning to the second step of the Al-Khawaja test the Court notes that the pre-trial statements of the absent witnesses were neither sole, nor decisive evidence, but nevertheless carried significant weight. The applicants’ convictions were based on a multiplicity of evidence, including, besides the absent witnesses’ testimony, statements from the applicants themselves and from prosecution and defence witnesses, physical and documentary evidence, records of the investigative actions, forensic examination reports, and video recordings. The manner in which the domestic courts construed the statements of the absent witnesses did not predetermine and shape the narrative of what happened in the respective cases and the applicants’ conviction .
In respect of the third step of the Al-Khawaja test that requires the Court to examine whether there were sufficient counterbalancing factors to compensate for the handicap under which the defence laboured, the Court, having regard to the available material concludes that the defence was able to effectively present their case to the domestic courts, to challenge the evidence presented at trial, including pre-trial statements of the absent witnesses, to question other witnesses for prosecution, to advance their versions of events and to point at the inconsistencies or incoherence of other evidence.
The Russian courts examined the versions of events presented by the defence, verified and dismissed them on reasonable grounds. The defence in the applicants’ trials was able to call witnesses on behalf of the accused (spouses, relatives, and friends) and to effectively question them. When the domestic courts refused the motions to call certain other defence witnesses they duly reasoned their decisions, which were not arbitrary.
Having regard to the above considerations, the Court concludes that the criminal proceedings against the applicants had been fair. Accordingly, there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention in the applicants’ cases.