CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 novembre 2008

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He is represented before the Court by Mr   I.A.   Melnyk, a lawyer practising in Kamyanets-Podilsky. The respondent Government are represented by their agent, Mr   Y.   Zaytsev. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The criminal proceedings against the applicant In January   2002 Mr   V.L. complained to the police that the applicant had taken several hundred U.S. dollars from V.V., his minor son, as well as giving V.V. some forged dollar bills. On 23   February   2002 criminal proceedings were instituted against the applicant. In summer 2002 the police also received complaints from other minors, who alleged that on various occasions the applicant had extorted from them or robbed them of petty cash and various objects, such as an ice-cream cone or a school bag. Having found out about these complaints, the applicant’s mother, cousin, and, according to contested accounts of some minors, his advocate, visited the complainants’ families. On several occasions the applicant’s mother returned to the families the amounts of money claimed to have been stolen by the applicant. According to some records, she also returned the stolen school bag to R.G., one of the minors. According to other records, she gave R.G. a bag which simply resembled his. Following these visits, in August   2002 S.S., one of the complainants, as well as parents of three other complainants (O.L., I.D. and S.Z.) informed the police that their complaints against the applicant had been written under duress on behalf of the police officers. In spite of these submissions, on 26   August   2002 new charges of extortion and robbery were brought against the applicant. In September   2002 the applicant was further charged with hooliganism. In particular, he was accused that in August   2002 jointly with L.L. he had beaten S.R. in a public place. During the pre-trial investigation, twelve minors, including those whose parents had attempted to retract their complaints in August 2002, testified that the applicant had extorted from them or robbed them of their money and possessions. On 29   October   2002 the applicant and L.L. were committed to the Podilsky District Court ( Подільський міськрайонний суд Хмельницької області, “the District Court”) for trial. On 25   November   2002 the District Court allowed the requests submitted by minors S.S., O.P., S.Z. and the parents of O.L., O.P., R.G. and I.D. to hold hearings in camera, in view of pressure purportedly exerted on them by the applicant’s entourage to retract their allegations. In the course of the hearings, the District Court questioned V.V. and his father, who confirmed their earlier testimonies that the applicant had taken several hundred dollars from V.V. and given him some forged bills. Five other minors (I.D., O.L., O.P., S.S. and S.Z.) confirmed their testimonies given to the police concerning petty extortion and robbery. O.L., S.Z. and I.D. corroborated each other’s statements concerning some of the episodes. The parents of O.P., S.S. and S.Z. corroborated the statements of their children and explained that the children had earlier complained to them on several occasions about the applicant’s conduct. The mother of R.G., the seventh minor, who was absent from the courtroom, spoke before the court in support of her son’s testimony given to the police concerning the theft of a school bag and several episodes of petty extortion. Those individuals who had earlier attempted to retract their accusations against the applicant contended before the court that they had done so under pressure from the applicant’s entourage. The judge further announced that another five minors, who had been questioned by the investigation under pseudonyms, had lodged requests to be dispensed from attendance at the hearings for fear of reprisals by the applicant’s entourage and that in these requests they had confirmed their earlier statements given to the police. The judge then read out the depositions given before the police by these minors, and other documentary evidence. According to the case file materials, the applicant, represented by the lawyer, did not question or challenge these testimonies before the District Court. Further, the District Court heard L.L. (the applicant’s co-accused on the charge of hooliganism) and some thirty other witnesses, who gave details predominantly concerning the beating of S.R. and V.V.’s character. On 10   December   2002 the District Court found that the applicant was guilty of some seven counts of robbery and eight counts of extortion in respect of the injured parties who had been examined in the courtroom. It further found that the applicant was guilty of three counts of robbery and six counts of extortion in respect of the victims whose identities had been concealed. The court finally designated the applicant’s actions as repeated robbery and extortion and sentenced him to three years’ imprisonment for each of the offences. The court further found it unnecessary to add up the two full terms and determined the final punishment as four years’ imprisonment. However, in view of the applicant’s age, other personal circumstances and the nature of his offences, the applicant was released from punishment subject to two years’ probation. The applicant, represented by a lawyer, appealed, seeking to be acquitted. He pleaded that the case had been falsified by the police in retaliation for his mother’s complaints that he had been beaten during the first questioning, in January   2002. Hence the victims who gave evidence against the applicant at the trial had done so under threats from the police to institute proceedings against them for their own transgressions, as they were all on the police juvenile offenders’ register. The episodes in respect of the anonymous victims had been completely falsified. Moreover, the testimony of I.B., one of these alleged victims, was improbable, as on the date of the purported offence the applicant had not attended the school in which he had allegedly committed it. No specific challenge was raised to the accounts of events contained in the testimonies of other absentee victims. The applicant further challenged various details of the testimonies obtained during the hearings as unreliable. Lastly, he complained that the hearings had been held in camera. On 4   March   2003 the Khmelnytsky Regional Court of Appeal ( Апеляційний суд Хмельницької області ) upheld the judgment of 10   December   2002, having found no violation, in that the hearing had been held in camera and that the case file materials contained sufficient evidence to find the applicant guilty of repeated extortion and robbery of minors. The applicant appealed in cassation before the Supreme Court of Ukraine, raising essentially the same arguments as before the Regional Court. On 15   July   2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. On 12   January   2004 the applicant and his mother instituted civil proceedings against the Kamyanets-Podilsky Police Department, seeking monetary compensation for the pecuniary and non-pecuniary damage allegedly suffered as a result of their unlawful actions when investigating the applicant’s case. On 16   March   2005 the District Court rejected the applicant’s claim. The applicant appealed. On 17   May   2005 his appeal was dismissed by the Khmelnytsky Regional Court of Appeal. 2.     The alleged ill-treatment and related proceedings On 15 January 2002 the applicant was taken by police officers to the police department, where he was questioned in connection with the case above. The applicant was allegedly put under pressure, threatened and beaten to make him confess; and he was released from the police only upon the arrival of his mother some eleven   hours after his apprehension. On 17   January   2002 the applicant was examined by a court medical expert at his request. No injuries were recorded. According to the applicant, the expert refused to record injuries. On 28   February   2002 the applicant was examined by a doctor, who established that he was suffering from cerebral concussion, injury to the left kidney and hepatitis. It was only then that the applicant told his mother that he had been beaten by the police officers. On 19   March   2002 the applicant’s mother lodged a criminal complaint against the police officers for the alleged ill-treatment of her son. On 16   May   2002 the Kamyanets-Podilsky Prosecutor’s Office decided not to bring any charges against the police officers. It found, inter alia , that there was no evidence that the officers had committed the alleged offences, other than the applicant’s own allegations. Furthermore, regard being had to the lapse of time between the interrogation and the date on which the injuries were discovered by doctors, the injuries could have been sustained elsewhere. On 27   May   2002 the Khmelnytsky Regional Prosecutor’s Office annulled this decision and ordered the applicant to undergo an additional medical assessment and additional measures to be taken to find possible witnesses. On 2   July   2002 the applicant’s mother withdrew her complaint. She explained that she had lodged it because she had been upset about the initiation of criminal proceedings against her son. On 3   July   2002 the Kamyanets-Podilsky Prosecutor’s Office terminated the inquiry into the incident as a result of the applicant’s mother’s request. On 4   October   2002 the Khmelnytsky Regional Prosecutor’s Office annulled this decision, having found that not all measures ordered in its previous decision had been carried out. On 14   October   2002 the applicant was examined by a medical expert. He found that the applicant had no injuries at the time of the assessment. As regards the injuries recorded at the end of February, it was not possible to determine whether the applicant’s version of events was probable, on account of the lapse of time between the purported ill-treatment and his first application to a doctor and the further lapse of time before the present assessment. In light of the above, on 24   October   2002 the Kamyanets-Podilsky Prosecutor’s Office dismissed the applicant’s mother’s request for the institution of criminal proceedings. B.     Relevant domestic law 1.     Criminal Code According to Section   69, the court may sentence a defendant to a more lenient punishment than the one provided by a relevant statute, if this is warranted by the circumstances of the case. According to Section   186, repeated robbery is punishable by four to six years’ imprisonment. According to Section   189, repeated extortion is punishable by three to seven years imprisonment. 2.     Code of Criminal Procedure According to Section 52-1, an injured party in the criminal proceedings may request security measures to prevent a real threat of harm to his life, limb or property. If this request is granted, according to Section   52-3, the injured party’s personal data may be replaced by a pseudonym in all procedural documents. According to Section   290, in exceptional circumstances the court may absolve an injured party, in whose respect security measures have been indicated, from the duty to appear for the hearings, if he submits a written statement that he confirms his earlier depositions. According to Sections   303 and   308, the parties may request cross-examination of a witness or an injured party who is absent from the courtroom for safety reasons, via a teleconference. To reduce the risk of identification of the voice of the witness (the injured party), acoustic distortion may be created. If it is not possible to organise a teleconference, the court may examine the witness (the injured party) in the absence of the defendant. The judge in this event is obliged to disclose his testimony to the defendant and to give him an opportunity to comment on it. The defendant and other parties to the proceedings may ask questions of the witness (injured party), which are answered in the absence of the defendant. Further relevant provisions of the Code concerning the rights of defence in respect of examination of witnesses can be found in the admissibility decision in the case of Khivrenko v. Ukraine (no.   65743/01, 25   September   2007). COMPLAINTS The applicant complained under Article 3 of the Convention that on 15   January   2002 he had been ill-treated by the police and under Article   6   §§   1 and 3   (d) of the Convention that his trial was unfair in that not all the alleged victims of the offences attributed to him had been summoned before the trial court. Additionally, the applicant alleged, referring to Article   6   §   1 of the Convention, that the judge was biased and that the decision to hold hearings in camera was unlawful. Finally, the applicant complained that his eleven-hour detention pending the interrogation on 15   January   2002 was unlawful. He relied on Article   5   §   1 in this respect. THE LAW 1.     The applicant first complained that he had been ill-treated by the police on 15   January   2002. He referred to Article   3 of the Convention, which, in so far as relevant, reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Government contended that the applicant had failed to exhaust domestic remedies in respect of this complaint, in that he had not appealed against the decision of 24   October   2002 not to institute criminal proceedings against the police officers. They further contended, as an alternative, that the applicant had not observed the six-month time-limit for lodging the present complaint before the Court, as he had not raised it within six months of the incident. The applicant disagreed with these submissions. The Court reiterates that the purpose of Article   35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Hentrich v. France , judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33). Thus the complaint intended to be made subsequently to the Court must first have been made - at least in substance - to the appropriate domestic body in compliance with the formal requirements and time-limits laid down in domestic law (see Cardot v. France , judgment of 19   March   1991, Series   A no.   200, p.   18, §   34). As soon as the Court is satisfied that the domestic legal system provided such a remedy and that the applicant has not used it, it falls to the applicant to establish that the remedy was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him from the requirement (see Selmouni v. France [GC], no.   25803/94, §   76, ECHR 1999 ‑ V). A mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent court (see, for example, Elsanova v. Russia (dec.), no. 57952/00,   15   November 2005). The Court finds that the appeal procedure, to which the Government have referred in their objections, should in principle be regarded as an ordinary and accessible domestic remedy for the purposes of Article   35 §   1 of the Convention (see Yakovenko v. Ukraine , no.   15825/06, §§   70-71, 25   October 2007). It does not find any special circumstances in the present case which would absolve the applicant from having recourse to it. Moreover, it recalls that in July   2002 the applicant’s mother, his statutory agent, attempted to have the investigation discontinued, having withdrawn her initial complaint lodged with the prosecutors’ office. It follows that this complaint must be rejected for non-exhaustion of domestic remedies in accordance with Article   35 §§   1, 3 and   4 of the Convention. 2.     The applicant next submitted that he did not have a chance to confront all the injured parties at the hearings and thus had been put at a substantial disadvantage vis-à-vis the prosecution. As a result, his conviction was not fair. The applicant referred to Articles 6   §   1 and §   3(d) in this regard, which, in so far as relevant, read as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal... 3.     Everyone charged with a criminal offence has the following minimum rights: (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...” The Government contended that the unavailability of several injured parties for cross-examination was immaterial in respect of the final outcome of the proceedings, as the applicant’s conviction had been based to a decisive extent on the testimonies of victims and witnesses who had been cross-examined before the court by the parties to the proceedings. Moreover, the applicant had sufficient opportunities to challenge the submissions of the absentee parties, which were read out in court. The applicant disagreed. He maintained that the case against him had been falsified by the police. The absentee injured parties who had allegedly been questioned under pseudonyms did not in fact exist. The other alleged victims had given their testimonies under duress from the police. The Court first notes that the guarantees in Article 6 § 3 (d) of the Convention are specific aspects of the right to a fair trial set forth in the first paragraph of this Article. Consequently, the applicant’s complaint must be examined under the two provisions taken together (see, among other authorities, 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 Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Asch v. Austria , cited above, p. 10, §   26, and Doorson v. the Netherlands , judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 470, § 67). All evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, as the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular where a witness refuses to repeat his deposition in public owing to fears for his safety (see Lindgren v. Sweden (dec.), no.   39470/98, 8   April   2003). In that connection, the Court reiterates that the term “witness” has an “autonomous” meaning in the Convention system. Thus, where a deposition may serve to a material degree as the basis for a conviction, then, irrespective of whether it was made by a witness in the strict sense or by the injured party, it constitutes evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention apply (see Asch v. Austria , cited above, p.   10, §   25). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article   6   §§   1 and   3   (d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Lucà v. Italy , no.   33354/96, §   40, ECHR 2001 ‑ II and S.N. v. Sweden , no.   34209/96, §   44, ECHR 2002 ‑ V). Turning to the facts of the present case, the Court notes first that the applicant was convicted of repeated robbery and extortion of petty cash and other possessions from minors. The conviction in respect of seven counts of robbery and eight counts of extortion dwelled on the testimonies of the injured parties who were directly cross-examined before the court. The facts concerning three counts of robbery and six counts of extortion were largely established on the basis of the depositions given to the police by the victims whose identity was concealed. These parties requested the trial court to absolve them from appearance at the hearings for fear of reprisals from the applicant and his entourage. Regard being had to the fact that they were minors and to the testimonies of other victims about having been subjected to pressure on behalf of the applicant’s entourage, the Court finds that the concealment of these victims’ identities as such was not incompatible with Article   6   §   3(d) of the Convention. The Court must next examine whether, in the circumstances of the case, the defence had a reasonable opportunity to challenge the statements by the victims whose identities were concealed. In this regard it notes that applicable domestic law provided several avenues for so doing. Firstly, the depositions read out in court could be questioned or challenged by the defence in the course of the hearing. Secondly, the defence could demand that the anonymous victims be questioned via a teleconference or in absence of the defendant, upon presentation of relevant reasons why this questioning would be necessary. Finally, a request could be made to exclude the depositions from the case file. The materials before the Court contain no evidence that any of these options was properly used by the applicant, assisted by lawyer. In so far as the appeal against the conviction was concerned, the applicant mentioned only why, in his opinion, the statement by I.B. appeared improbable; as regards the other four absentee victims, his allegations were limited to the vague and general argument that they had been falsified. Regard being had to all the above, the Court finds that the domestic courts’ conclusions that the applicant was guilty of the crimes imputed to him, based on their own assessment of the evidence before them, was not arbitrary and any limitations which might have been imposed on the rights of defence were not such as to deprive the applicant of a fair trial. It follows that this part of the application must be rejected as manifestly ill-founded, in accordance with Article   35 §§   3 and 4 of the Convention. 3.     Lastly, the applicant complained that the hearing in his case had been held in camera, that the courts had been biased and that he had been unlawfully detained in the police department for eleven hours. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must likewise be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.   For these reasons, the Court unanimously Declares the application inadmissible. Claudia Westerdiek   Rait Maruste   Registrar   President