CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 juillet 2007

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s1D4E86C8 { margin-top:0pt; margin-bottom:0pt; text-indent:11.6pt; text-align:justify } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF0D62E79 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s48125EFE { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; font-size:10pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s2DF49AA6 { width:24.54pt; display:inline-block } .sD79BB263 { width:196.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 6293/04 by Mikhail MIRILASHVILI against Russia The European Court of Human Rights (First Section), sitting on 10 July 2007 as a Chamber composed of:   Mr   C.L. Rozakis, President,   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 FACTS 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 2001 [1] , 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. 4.     Trial 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 wh