Strasbourg Criteria regarding the request of an accused to examine witness

GRAND CHAMBER JUDGMENT 

Murtazaliyeva v. Russia 18.12.2018  (no.  36658/05)

see here

SUMMARY 

The case concerned the applicant’s being found guilty of terrorism charges and her complaint that the trial had not been fair because she had not been able properly to view a police video surveillance tape in court and that the courts had refused to call three witnesses in her defence.

The  European Court of Human Rights held unanimously, that there had been no violation of Article 6 §§ 1 and 3 (b) (right to a fair trial / preparation of defence) of the European Convention on Human Rights, as regards the applicant
allegedly being unable to view a videotape during her trial.

The Court found that it was not clear in what way it had not been possible for the applicant to see
the video, but that in any event that had not hindered a fair trial: her goal had been to check the
accuracy of the transcripts of the tape, which had been possible by listening to the audio recording.
It also held, by a majority of 15 votes to 2, that there had been no violation of Article 6 §§ 1 and 3
(d) (right to a fair trial / examination of witnesses) of the European Convention as regards the
domestic courts’ refusal to call two attesting witnesses to testify during the trial.

After revising its case-law principles on the calling and examining of defence witnesses, the Court
found in particular that the defence had not made it clear why those two witnesses’ testimony
would strengthen her case, the domestic courts had given sufficient reasons for their decisions, and
the lack of their statements in court had not undermined the overall fairness of the proceedings.

Lastly, the Court, by a majority, declared a complaint under Article 6 §§ 1 and 3 (d) about the courts’
failure to call another witness, a police officer, to testify at the trial inadmissible as being illfounded. The Court found that the applicant had effectively waived her right to examine him.

PROVISIONS 

Article 6§1

Article 6§3

PRINCIPAL FACTS 

The applicant, Zara Khasanovna Murtazaliyeva, is a Russian national who was born in 1983 and lives
in Paris (France).

In February 2004 Ms Murtazaliyeva moved into a flat with the help of A., an acquaintance who was a
police officer and also an ethnic Chechen. The flat, which she shared with two other women, was in
a dormitory block which belonged to the police and was equipped with concealed video and audio
devices. She was placed under police surveillance on the basis of a court order because she was
suspected of having connections with the Chechen insurgency movement.

In March of the same year the police stopped her in the street for an identity check and took her to a
police station. Her bag was searched and two packages were found which were identified as
containing explosives. Two attesting witnesses, B. and K., were present at the search. She was
arrested and a criminal investigation opened. She denied the charges.

Her flat was searched and evidence was seized which allegedly showed that she had been planning a
terrorist attack on a shopping centre. A transcript of videotapes recorded at the flat showed her
proselytising to her two flat mates about Islam and discussing her hatred of Russians.

In January 2005 she was convicted of preparing an explosion, inciting others – her two flat mates –
to commit terrorism, and of carrying explosives. She was sentenced to nine years’ imprisonment.
The conviction was based on the statements of prosecution witnesses, including her flat mates, in
open court, material (a note with extremist content and photographs) seized from the applicant,
forensic examination reports, and transcripts of police surveillance videotapes recorded at her flat.
She appealed against the conviction. She argued, among other things, that owing to technical
reasons she had not been able to point out inaccuracies between the transcripts and the recordings
of conversations on the videotapes. She also complained about the refusal of two of her requests to
summon witnesses: the first, to examine A., who had made a pre-trial statement that he had
established a relationship with her at the order of his superiors; and the second, to examine the two
attesting witnesses, B. and K., who had been present during the police’s search of her bag.

In March 2005, the Supreme Court upheld her conviction, reducing the sentence to eight and a half
years. It notably held that no objections had been lodged with the trial court about the quality of the
videotapes or the way they had been shown; that A. had not been able to testify in court because he
was on a work-related mission, but that his pre-trial statement had been read out with the consent
of the defence; and that the presence of the two attesting witnesses had not been necessary as
Ms Murtazaliyeva had said that the explosives had been planted in her bag before their arrival.

THE DECISION OF THE COURT 

Article 6 §§ 1 and 3 (b)

The Court saw no reason to depart from the Chamber’s conclusion about Ms Murtazaliyeva’s
complaint over the alleged difficulty in viewing the surveillance videotape during her trial.

It noted that only one tape had been played, that the defence had requested the viewing and that it
had not asked for other tapes to be shown. The applicant had not explained, either to the domestic
courts or in Strasbourg, how it had been difficult for her to view the tape. The defence had made no
complaints about the quality of the audio track, which was sufficient to check the accuracy of the
transcript, which is what the defence had wished to achieve by having the tape played in court.

The applicant had submitted that the Court should draw inferences from the Government’s inability
to produce a plan of the court and the arrangements for viewing the tape. However, the Court held
that such a lack of information was not enough to provide grounds for an inference of unfairness.
The Court was satisfied that Ms Murtazaliyeva had been able to participate effectively in viewing the
videotape in a way which had satisfied her needs during the trial, which was to check the accuracy of
the transcript of the recording by comparing it with the audio track. There had therefore been no
violation of Article 6 §§ 1 and 3 (b) of the Convention.

Article 6 §§ 1 and 3 (d) as regards the witness A.

The Court, by a majority, found this complaint manifestly ill-founded, upholding the Government’s
preliminary objection that Ms Murtazaliyeva had waived her right to examine the witness.

The Court noted that on the last day of examining the evidence the defence had not opposed a
prosecution motion to read A.’s evidence out as he had not been available to appear in person. It
had subsequently not objected to resting its case without hearing A. and had not repeated its
request for him to be summoned, even though it had had the right to do so.

Furthermore, the applicant had been assisted by two professional lawyers, who must have been
aware of the consequences of agreeing to have A.’s testimony read out, which was that he would not be summoned and that his pre-trial statements would be taken into account by the court. The defence had had the possibility to renew its request to summon A. before closing the examination of the evidence and during the appeal process, but had not done so. There had never been any question about the competence of the lawyers.

The Court held that she had waived her right to examine the witness, a waiver that was attended by
the minimum safeguards commensurate with its importance. There was no reason to doubt that the
waiver had been a knowing and intelligent relinquishment of a right and that the consequence of her
conduct had been reasonably foreseeable, with the assistance of her two lawyers.

Article 6 §§ 1 and 3 (d) as regards the witnesses B. and K.

The Court found that the defence had argued that the attesting witnesses could give statements
going beyond the way the search had been carried out and they could thus be regarded as witnesses “on behalf” of the applicant within the meaning of the Convention.

It went on to revise and clarify its case-law principles on requesting the examination of defence
witnesses, which were previously set out in Perna v. Italy. Those principles required an examination
of whether an applicant had provided substantiation for a request to call a particular witness, and
whether the refusal of a court to call that witness had undermined the overall fairness of the
proceedings.

The Court noted that its cases had also consistently examined the manner in which a domestic court
had decided on a request to call a witness, meaning a third element had to be considered, which was
whether domestic courts had considered the relevance of the testimony in question and had
provided sufficient reasons for their decision not to examine a particular witness at trial. The Court
thus formulated a new three-pronged test for future cases and provided guidance on how to apply
it.

In Ms Murtazaliyeva’s case, the defence had failed to provide factual or legal arguments or say
concretely how the two witnesses would help her case. On the second element of the test, the Court
noted that the trial court had not given reasons for dismissing the defence motion to call the
witnesses, however, the Supreme Court had done so, in appropriate and commensurate terms.
Lastly, it found that the refusal to call B. and K. as witnesses had not undermined the overall fairness
of the trial as Ms Murtazaliyeva’s conviction had been based on a large body of evidence and her
defence team had been able to confront prosecution witnesses and present her account of events.
The Court therefore found, by 15 votes to two, that there had been no violation of Article 6 §§ 1 and
3 (d) as regards the witnesses B. and K.

Separate opinions

Judges Bošnjak and Pinto de Albuquerque expressed dissenting opinions which are annexed to the
judgment(echrcaselaw.com editing). 


ECHRCaseLaw

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