CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 janvier 2010

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margin-bottom:0pt; text-indent:14.2pt; text-align:center } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }       FIRST SECTION         CASE OF MELNIKOV v. RUSSIA   (Application no. 23610/03)                 JUDGMENT     STRASBOURG   14 January 2010   FINAL   14/04/2010   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Melnikov v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 15 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 23610/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Anatolyevich Melnikov (“the applicant”), on 3 July 2003. 2.     The applicant, who had been granted legal aid, was represented by Ms   V.   Bokareva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P.   Laptev, the then Representative of the Russian Federation at the European Court of Human Rights. 3.     On 12 December 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 4.     On 21 September 2006 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, that the Government should submit further observations on the admissibility and merits of the application. 5.     The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1968 and is currently detained in prison no.   72/1 in the Ulyanovsk Region. A.     Criminal proceedings against the applicant 1.     First and second offences 7.     On 15 May 2000 the applicant, together with Mr S. and another unidentified person, broke into the premises of a private company and stole several items of property. 8.     On 19 September 2000 the applicant, together with Mr S. and Mr I., committed another theft. 9.     Mr S. was arrested on an unspecified date and was questioned by the investigating authority. At the interview, in the presence of counsel, he admitted to the thefts. He gave a detailed account of the events, stating that the applicant had forced the window frames in order to enter into the buildings, and described how they had then shared the proceeds from the sale of the stolen items. 10.     On 6 December 2001 the investigator set up a face-to-face confrontation between S. and the applicant (see paragraph 38 below for “Relevant domestic law and practice”). According to the record, the investigator asked them if they knew each other and whether they had committed the offences. The applicant replied that he was acquainted with S. but had not committed any criminal offence with him; S. insisted that they had committed the above offences together. The record contained a note saying that they had been apprised of their right to put questions to each other; that they had waived this right and that they had no comments to add to the record. The copy of the record submitted by the Government bears S.’s and the applicant’s signatures. According to the applicant, he did not sign the record. 2.     Third offence 11.     On 28 September 2001 the applicant, together with Mr A. and two other unidentified accomplices, robbed a warehouse belonging to a private company. During the preliminary investigation A. confessed to the robbery and named the applicant and another person as his accomplices. Allegedly, no counsel was present at this interview. 3.     Trial 12.     The applicant and A. were detained pending trial. S. and I.   were not detained but were ordered not to leave the town. 13.     In April 2002 the prosecutor signed the bill of indictment. The criminal case against the above persons was scheduled to be tried before the Vyshniy Volochek Town Court of the Tver Region. At the trial the applicant denied his involvement in the offences with which he was charged. He also argued that S. and A. had wrongly accused him, alleging that A. had admitted to the charges against him during the preliminary investigation following ill-treatment by the police. 14.     On an unspecified date, S. went into hiding from justice. On 18 June 2002 the judge issued an arrest warrant in respect of S. On 19   June 2002 this order was sent to the Vyshniy Volochek police department. As is clear from an undated letter submitted by the Government, the trial judge asked the police department to speed up the enforcement of her earlier order. On 5   September 2002 the Town Court resumed the trial proceedings. On 6   September 2002 the trial court suspended the proceedings noting that S. had previously named the applicant and I. as his accomplices and that an arrest warrant had been issued against S., who went into hiding. The trial court also extended the applicant’s detention. The applicant appealed against the preventive measure. On 24   October 2002 the Regional Court upheld the preventive measure but decided that the suspension of the proceedings was not justified. 15.     The trial proceedings resumed. At the hearing on 3 December 2002 A. retracted the statement he had given to the investigator in relation to the third offence and argued that he had confessed and implicated the applicant under duress. At the prosecutor’s request the trial court heard evidence from two officers of the Vyshniy Volochek district investigation department, who had arrested the applicant and A. Having also examined the video recordings in which A. showed the scene of the crime and pointed to the applicant as his accomplice, the trial court rejected as unfounded the allegation of confession under duress. 16.     The applicant contended that he had not been afforded an opportunity to examine S., who had evaded prosecution and was in hiding. At the hearing on 4   December 2002 the prosecutor asked the trial court to allow the reading-out of S.’s pre-trial deposition. The applicant and I. objected to this request. The judge granted the request in the interests of the “objective examination of the case”. 17.     On 10 December 2002 the Town Court convicted the applicant of robbery and two counts of theft. The court sentenced him to eight years and six months’ imprisonment. In finding the applicant guilty of two thefts, the court relied on S.’s pre-trial statement accusing the applicant, and referred to various statements by the employees of the private companies from which the thefts had been committed. Those statements only concerned the assessment of the pecuniary damage caused by the thefts. The court also listed several items of “other physical evidence” including the record of the crime scene description and the articles stolen. 18.     On 20 March 2003 the Tver Regional Court upheld the judgment in substance, while reducing the applicant’s prison term to eight years. The appeal court stated that the trial court had rejected the allegation of duress after a proper inquiry. Regarding S., the appeal court pointed out that the applicant had had an opportunity to confront him and challenge the credibility of his statements during the face-to-face confrontation at the pre-trial stage of the proceedings. B.     Conditions of detention in the remand centre 19 .     From October 2001 to April 2003 (in relation to the above proceedings) and from 24 November 2003 to 8   December 2004 (in relation to new proceedings) the applicant was kept in remand centre no.   69/1 in the town of Tver. Between April and November 2003 the applicant served his sentence in Tver colony no. 10 in relation to the above criminal case. 1.     The applicant’s account 20 .     In his letter of 1 May 2004 the applicant described his conditions of detention in the remand centre since 24 November 2003 as follows. On his arrival the applicant was put in cell no.   19. The cell measured approximately thirty square metres and was designed to accommodate twelve inmates. However, at that time the applicant shared the cell with more than thirty   inmates. In 2004 the number of inmates in his cell exceeded the limit, varying between twenty and forty. In these circumstances the applicant had to share a bed with another inmate. The applicant was confined in one cell with a HIV-positive inmate and others suffering from tuberculosis and hepatitis B and C. The concrete floor in the cell was always wet because the water tap was broken. Besides the fact that water ran freely on the floor, the accumulation of humidity was conducive to the spread of infectious diseases among the cell inmates. The cell was infested with bugs, cockroaches and lice and was poorly ventilated. From 23 December 2003 until 6 January 2004 the applicant was not allowed to shower. No radio receiver, TV set or light reading such as crossword puzzles for entertainment were allowed by the authorities of the detention facility. In late 2003 and 2004 the applicant was allowed to have meetings with his family, during which he could talk to them through a glass partition with the aid of a telephone. 2.     The Government’s account 21 .     From 24 November 2003 to 22 October 2004 the applicant was kept in cell no.   19 together with up to twenty-one detainees, the average cell population being fourteen detainees. From 22 October to 15 November 2004 the applicant was in cell no.   20, which housed up to eighteen persons, the average cell population being thirteen detainees. Both cells measured twenty-four square metres and had twelve beds. No information was submitted regarding the period from 15 November to 8 December 2004. 22.     Each cell was equipped with a table, two benches and a toilet. Each cell had both natural and mandatory artificial ventilation, as well as ventilator windows. The necessary disinfection or sanitary measures were taken on a regular basis. 23.     The applicant was provided with an individual bed and bedding, including a mattress, a pillow, a pillowslip, a cover, two bed sheets and a towel. Once a week he was allowed to have a fifteen-minute shower. 3.     The applicant’s complaints about his conditions of detention 24.     According to the applicant, in January 2004 he complained to the Moskovskiy District Court of Tver about the conditions of his detention in remand centre no.   69/1. On an unspecified date the President of the District Court sent a letter to the applicant stating that no complaint from him had been received by that court. As he was unsatisfied with the reply of the District Court, the applicant wrote to the Tver Regional Court. No reply was received. 25 .     The applicant complained about the conditions of his detention in the remand centre to the Office of the Russian President. In reply to this complaint he received a letter dated 27   August 2004 from the prosecutor’s office of the Tver Region, which confirmed that the population of the remand centre had exceeded the limit (twenty-one inmates compared with a limit of twelve   persons) at the relevant time.   In the same letter the prosecutor’s office rejected the applicant’s complaint concerning the allegedly unlawful limitations on visits from his family members, including extended visits from his wife. C.     Detention in Tver colony no.   1 26.     Before July 2005 the applicant was detained in Tver colony no.   10. In July 2005 he was transferred to Tver colony no.   1. In both facilities he was reprimanded on several occasions for breaching the prison discipline rules. He was put into a punishment cell for five and later for fifteen days. 27.     On 28 November 2005 the disciplinary committee decided that his prison regime should be changed to a strict regime with effect from 7   December 2005 on account of his repeated breaches of prison discipline. Hence, from late October 2005 until September 2006 he was placed in a punishment cell at least twenty-five times for periods of between six days and two months (on one occasion in 2006). In the meantime, other disciplinary measures (such as reprimands or an “educational talk”) were imposed on him for similar breaches. D.     The applicant’s correspondence with the Court 28.     At the applicant’s request, on 2 May 2006 the Court decided under Rule 36 § 4 (a) of the Rules of Court to give Ms Bokareva, then a legal consultant at the International Protection Centre in Moscow, leave to represent the applicant in the proceedings before the Court. She was invited to submit by 6 July 2006 at the latest any written observations on behalf of the applicant in reply to the Government’s observations, together with any claims for just satisfaction. She was also invited to indicate by the same date the applicant’s position regarding a friendly settlement of the case, and any proposals he might wish to make. The above time-limit was extended to 6   August 2006. 29.     In addition, in response to a request for legal aid by Ms Bokareva on behalf of the applicant, the latter was invited to complete, by 15 June 2006, the form for the declaration of means provided for in Rule 93 § 1 of the Rules of Court. This time-limit was extended to 15 July 2006. 30 .     According to the applicant, on 31 May 2006 in the presence of three other prisoners the applicant gave guard N. of Tver colony no.   1 a package of documents (fifty-seven single or double ‑ spaced pages) containing his observations in reply to the Government’s observations on his application before the Court. He asked that it be dispatched to his representative, Ms Bokareva. N. then informed him that he had transmitted the package to officer K. Later, the applicant learned from unit officer Sh. that the latter had seen the package. The applicant contended that he had handed over his letter to guard N. in the presence of three cellmates. According to the applicant, it was never dispatched. 31 .     The Government produced a copy of Mr N.’s report stating that no documents had been handed over to him while he was on duty from 30 to 31   May 2006. Similarly, Mr K. and Mr Sh. also testified that Mr N. had not been in possession of any documents from the applicant on 31 May 2006. The prison administrative officer reported that all correspondence from the applicant to various authorities and the International Protection Centre had been properly dispatched in 2006. The censorship unit officer reported that a letter from the applicant dated 30 May 2006 (eight pages) had been dispatched to Ms Bokareva without undue delay. 32 .     According to the applicant, in June 2006 another letter pertaining to the proceedings before the Court was belatedly dispatched to his representative. According to the report produced by the Government, the censorship unit officer confirmed that a two-page letter from the applicant dated 5   June 2006 had been dispatched to Ms Bokareva without undue delay. 33.     On 4 July 2006 the applicant’s representative informed the prison authorities that any hindrance of the applicant’s correspondence would violate Article 34 of the Convention. 34 .     On 2 August 2006 Ms Bokareva arrived from Moscow at Tver colony no.   1. She was accompanied by Mr R., a lawyer practising in Moscow. It appears that the purpose of this visit was the drafting of the applicant’s observations in reply to those of the Government. 35.     According to the applicant’s representative, the deputy prison governor, Mr V., refused to allow a meeting with the applicant. Ms   Bokareva made a written request to see the prison governor. Having waited for more than two hours, she saw the prison governor leave the colony premises. His deputy, Mr Sm., undertook to deal with their request but after two more hours they had still not managed to see the applicant. 36 .     According to the Government, on 2 August 2006 Mr V. spoke to Ms   Bokareva and another person, who indicated that they were the applicant’s lawyers. Mr V. informed them that a visit could be granted in compliance with the applicable procedure only at a prisoner’s request (see paragraph 47 below). The visitors left his office and did not return. According to a report dated 2   October 2006 and signed by Mr Sm., on 2   August 2006 he received two persons, one of whom was Mr   R. The latter produced documents certifying that he was a lawyer and the applicant’s counsel. The visitors asked Mr Sm. to contact the applicant so that he could make a written statement asking for an appointment with the lawyers. In the meantime, they were asked to wait outside the colony administrative building. The applicant, who was in a punishment cell, signed the statement and handed it over to Mr Sm. However, when Sm. returned the lawyers had already left the area. 37.     The applicant’s representative submitted observations in reply and claims for just satisfaction on 4 August 2006. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Examination of witnesses 1.     RSFSR Code of Criminal Procedure 38 .     Criminal proceedings were regulated by the RSFSR Code of Criminal Procedure until 1 July 2002, when the 2001 Code of Criminal Procedure (CCrP) entered into force.   Under Article 162 of the Code, an investigator was authorised to set up a face-to-face confrontation between two persons who had been previously interviewed and whose testimonies contained significant discrepancies. 39.     Article 163 of the Code read as follows:   “...The investigator starts the confrontation procedure by asking the participants whether they know each other and what their relationship is. Thereafter, each participant in turn is invited to give evidence on the relevant issues. After they have given evidence, the investigator can ask questions. The participants can ask questions to each other, if allowed by the investigator...” 2.     Code of Criminal Procedure 2001 (CCrP) 40 .     Article 240 of the Code provides as follows: “1.     All the evidence should normally be presented at a court hearing...The court should hear statements from the defendant, the victim, witnesses...and examine physical evidence... 2.     The reading of pre-trial depositions is only permitted under Articles 276 and 281 of the Code...” 41.     Article 276 § 1 of the Code read in 2002 as follows: “The reading out of a pre-trial deposition made by the defendant...may be allowed if requested by the parties and if (1) there are substantial discrepancies between the pre-trial statement and the statement before the court...” 42.     Article 281 § 1 of the Code read as follows in 2002: “The reading-out of earlier statements made by the victim or witness...is permitted if the parties give their consent to it and if (1) there are substantial discrepancies between the earlier statement and the later statement before the court, (2) the victim or witness has not appeared before the court.” 3.     Jurisprudence of the Supreme Court of Russia 43 .     Sitting as a court of appeal in a criminal case, the Supreme Court held that before the legislative amendment in July 2003 the requirement of consent to the reading-out of depositions under Article 281 of the CCrP made it possible for one of the parties to the criminal proceedings to act in breach of the adversarial nature of those proceedings (appeal decision no.   3-74/03 of 19 February 2004). Thus, with reference to Article 15 of the Constitution, the Supreme Court considered that the first-instance court was empowered not to apply Article 281 of the Code and to rely directly on the Constitution. That approach allowed the trial court to proceed with the reading-out of the pre-trial deposition despite the absence of consent from one of the parties. The Supreme Court interpreted Article 281 as requiring consent from both parties only when the trial court decided to read out a pre-trial statement of its own motion rather than in response to a request from one of the parties. 4.     Jurisprudence of the Constitutional Court of Russia 44.     In its admissibility decision of 27 October 2000 (no.   233-O), the Constitutional Court held that the reading-out of pre-trial depositions should be considered as an exception to the court’s own assessment of the evidence and should not upset the procedural balance between the interests of the prosecution and those of the defence. If a party insisted on calling a witness whose testimony might be important to the case, the court had to take all available measures to ensure that witness’s presence in court. Where that witness was available for questioning, the reading-out of his or her deposition should be considered inadmissible evidence and should not be relied upon. However, where the witness was not available for questioning, the defence was still to be provided with appropriate procedural safeguards such as a challenge to the deposition in question, a motion to challenge it by way of examining further evidence or a pre-trial face-to-face confrontation between that witness and the defendant, at which the latter was given an opportunity to put questions to the former (see also the admissibility decision of 7 December 2006 (no.   548-O)). B.     Re-opening of criminal proceedings 45.     Article 413 of the 2001 Code of Criminal Procedure provides that criminal proceedings may be reopened if the European Court of Human Rights has found a violation of the Convention. C.     Conditions of detention 46 .     Order no. 7 issued on 31   January 2005 by the Federal Service for the Execution of Sentences deals with implementation of the “Remand centre 2006” programme. The programme is aimed at improving the functioning of remand centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. The programme mentions Tver remand centre no.   69/1 as one of the detention centres affected. As of 1   July 2004, its design capacity was 1,160 detainees but it actually housed 1,587 inmates. 47 .     Pursuant to Article 89 § 4 of the Code of Execution of Sentences, in force at the material time, for the purpose of receiving legal advice prisoners could have visits from advocates or other persons entitled to provide legal advice. Such visits were not subject to limitation as to their number and could not exceed four hours. At prisoners’ request meetings with advocates could be held in private, without being heard by others. 48 .     The Internal Regulations for Penitentiary Facilities adopted by the Ministry of Justice on 3 November 2005 provided that if they so requested, detainees were allowed to have visits from advocates or other persons authorised to provide legal advice (§ 83). If so requested, such visits could be held in private out of the hearing of others and without the use of listening devices. There was no restriction on the number of such visits. By its decision of 26 June 2007, upheld on 11 September 2007, the Supreme Court ruled that paragraph 83 of the Regulations was unlawful as it made consultation with a lawyer subject to a request from the prisoner concerned. The Supreme Court concluded that this provision of the Regulations contradicted Article 89 § 4 of the Code of Execution of Sentences. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 49.     The applicant complained that the conditions of his detention in Tver remand centre no.   69/1 from 24 November 2003 to 8   December 2004 had been in breach of Article 3 of the Convention. In his submissions in August 2006 he also complained that the conditions of his detention in the remand centre from October 2001 to April 2003 were in breach of Article 3 of the Convention. This provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 50.     The Court observes that the complaint concerning the conditions of detention from October 2001 to April 2003 was introduced by the applicant in August 2006. The Court finds, therefore, that this complaint was introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. 51.     As regards the complaint concerning the conditions of the applicant’s detention in the remand centre from 24 November 2003 to 8   December 2004 (see paragraphs 19 - 25 above), the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 52.     The Government submitted that at the time the authorities had been unable to provide four square metres of cell space per detainee in this remand facility, as required under Russian law (see also paragraph 46 above). The problem of overpopulation had been widespread at the relevant time and could not be resolved in view of the high level of crime and a lack of funding. However, the mere fact of non-compliance with the national requirements concerning cell space per detainee, in the Government’s view, did not suffice to find a violation of Article 3 of the Convention. The remaining conditions of the applicant’s detention (the fact that he had an individual bed and bedding, the light and temperature conditions in the cells, the presence of a toilet and table) had been acceptable. 53.     The applicant maintained his initial allegations and submitted that he could not have been provided with an individual bed since the number of detainees exceeded the number of beds in the cells. 54.     The Court observes that the parties’ accounts differ in various respects. However, it is clear that the applicant was afforded less than two square metres of cell space, while at some times this figure went below one square metre per detainee (see paragraph 21 above). In particular, the Government made no submissions regarding the cell population between 15   November and 8 December 2004, which prompts the Court to give credence to the applicant’s allegation that the cell population might have approached forty persons instead of the twelve detainees for which cells nos.   19 and 20 were designed. Moreover, the Court cannot accept the Government’s submission that the applicant was provided with an individual bed in a situation where the cells housed more than twelve detainees and had a constant number of beds (twelve). 55.     The Court also notes that the applicant’s grievances at the national level gave rise to an enquiry, which confirmed in substance the above findings concerning the overpopulation problem and the related insufficiency of individual beds for all detainees (see paragraph 25 above). 56.     The Court reiterates that in a number of cases the lack of personal space afforded to detainees in Russian remand centres was so extreme as to justify, in itself, a finding of a violation of Article 3 of the Convention. In those cases applicants were usually afforded less than three square metres of personal space (see, for example, Lind v. Russia , no.   25664/05, §   59, 6   December 2007; Kantyrev v. Russia , no.   37213/02, §§   50-51, 21   June 2007; Andrey Frolov v. Russia , no. 205/02, §§ 47-49, 29   March 2007; Labzov v.   Russia , no.   62208/00, §   44, 16 June 2005; and Mayzit v. Russia , no.   63378/00, §   40, 20 January 2005). 57.     As regards the Government’s submission that the overcrowding was due to objective reasons and that the facility officials could not be held liable for it, the Court reiterates that even if there had been no fault on the part of the facility officials, the Contracting Parties are answerable under the Convention for the acts of any State agency, since what is in issue in all cases before the Court is the international responsibility of the State (see Lukanov v. Bulgaria , 20   March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II). Whether overpopulation was due to maintenance works or to other causes is immaterial for the Court’s analysis, it being incumbent on the respondent State to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia , no. 7064/05, § 63, 1 June 2006). 58.     The foregoing considerations are sufficient to enable the Court to conclude that the conditions of the applicant’s detention from 24 November 2003 to 8 December 2004 were inhuman and degrading. 59.     In view of the above findings, the Court does not consider it necessary to establish the truthfulness of the remaining allegations made by the applicant. 60.     There has accordingly been a violation of Article 3 of the Convention. II.     ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 61.     The applicant complained that he had not been afforded an effective opportunity to examine S. in relation to two theft charges. He also contended that the reading-out of S.’s pre-trial incriminating statement and its admission in evidence had been unlawful. He relied on Article 6 of the Convention, which, in its relevant parts, reads as follows: “1.     In the determination of...any criminal charge against him, everyone is entitled to a fair ... hearing... 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...” A.     Admissibility 62.     The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 63.     The applicant alleged the face-to-face confrontation could not be considered as an effective opportunity to examine S. since the applicant’s lawyer had not been given notice to attend. The applicant affirmed that he had refused to sign the record. Furthermore, the authorities had not taken reasonable steps to secure S.’s presence at the trial. The Government had provided no evidence to prove that any summons had been issued or measures taken. According to the applicant, S. had incriminated the applicant in exchange for release from custody. Moreover, S.’s testimony was unreliable since he had changed his deposition several times before the trial, in particular regarding the identity and number of persons involved in the thefts. In view of the above, the trial court’s reliance on S.’s pre-trial statement in finding the applicant guilty on two counts of theft had been unlawful and in breach of the presumption of innocence. 64.     The Government submitted that during the preliminary investigation S. and the applicant had had a face-to-face confrontation at which the applicant had waived his right to ask S. questions. Moreover, all reasonable efforts had been made to secure S.’s presence at the trial. A subsequent suspension of the trial proceedings would have impinged upon the accused’s rights, in particular their right to a trial within a reasonable time. Accordingly, the trial court had been justified in allowing the reading-out of S.’s pre-trial statement. The reading-out had been lawful. 2.     The Court’s assessment (a)     General principles 65.     The Court reiterates that all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence.   As a general rule, paragraphs 1 and 3   (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Van Mechelen and Others v. the Netherlands , 23 April 1997, §   51, Reports 1997 ‑ III, Lüdi v. Switzerland , 15   June 1992, § 49, Series A no. 238). Indeed, as the Court has stated on a number of occasions (see, among other authorities, Lüdi , cited above, § 47), it may prove necessary in certain circumstances to refer to statements made during the investigative stage. If the defendant has been given an adequate and proper opportunity to challenge the statements, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3 (d) of the Convention (see, for instance, Belevitskiy v. Russia , no. 72967/01, §   117, 1   March 2007). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on statements that have been made by a person whom the accused has had no opportunity to examine or to have examined at some stage of the proceedings, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Unterpertinger v. Austria , 24   November 1986, §§ 31-33, Series A no. 110; Saïdi v. France 20   September 1993, §§ 43-44, Series A no.   261-C; Lucà v. Italy , no.   33354/96, § 40, ECHR 2001 ‑ II; and Solakov v. the former Yugoslav Republic of Macedonia , no.   47023/99, §   57, ECHR 2001-X). 66.     The Court also reiterates that 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 a co-accused, it constitutes evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention apply (see Lucà , cited above, § 41).   In the event that the impossibility of examining the witnesses or having them examined is due to the fact that they are absent or otherwise missing, the authorities must make a reasonable effor t to secure their presence (see Bonev v. Bulgaria , no.   60018/00, § 43, 8 June 2006). The Court also considers that while the appearance of a witness is a prerequisite for the defence’s opportunities to confront this witness, there must also be an adequate opportunity to question him or her (see Kaste and Mathisen v.   Norway , nos.   18885/04 and 21166/04, § 47, ECHR 2006 ‑ ...). 67 .     The Court considered in Isgrò v. Italy (19 February 1991, § 35, Series A no.   194 ‑ A) that the confrontation procedure in that case had enabled the applicant to put questions directly to a key witness and to discuss his statements, thus providing the investigating judge with all the information which was capable of casting doubt on the witness’s credibility. Mr Isgrò had also been able to repeat in person his claims before the first ‑ instance and appeal courts. Despite the fact that Mr Isgrò had not been represented during the confrontation in question, the Court noted that the public prosecutor had likewise been absent, and that the purpose of the confrontation did not render the presence of the applicant’s lawyer indispensable. The Court also noted that the national authorities had made efforts to take evidence from the witness in person; having been unable to do so, they had based their decision solely on the witness’s pre-trial statements; those statements had been made by him to an investigating judge, whose impartiality had not been contested; the courts had regard to other testimony and to the observations submitted by the applicant during the investigation and at the trial. Since it had been open to the applicant to put questions and to make comments himself, the Court concluded that the applicant enjoyed the guarantees secured under Article 6 § 3 (d) to a sufficient extent. 68.     In Doorson v. the Netherlands (26   March 1996, §§   24-25 and §§ 66 et seq., Reports 1996 ‑ II), which concerned anonymous witnesses, the Court found no violation of Article 6 when two of six such witnesses against the applicant had been questioned by an investigating judge on the direction of the appeal court and the defence lawyer had had an opportunity to examine the witnesses, albeit in the absence of the applicant. 69 .     The Court considered in a recent case against Russia that the confrontations carried out by an investigator between several witnesses and the applicant in the presence of his lawyer satisfied the requirements of Article 6 §§ 1 and 3 (d) in so far as questions had been put to those witnesses and their answers had been recorded (see the partial admissibility decision in Slyusarev v. Russia (dec.), no.   60333/00, 9   November 2006). The Court noted that the applicant had not explained in what other respect the confrontations had been procedurally deficient and why further questioning of the above witnesses before the trial court had been necessary. The Court was not provided with any evidence that the defence had somehow been placed in a disadvantageous position vis-à-vis the prosecution during the face-to-face confrontations. Lastly, noting that the applicant’s conviction on the relevant charges had not been based solely on the testimonies of the above witnesses, the Court held that although the latter had been absent at the trial, the applicant’s right under Article 6 §   3 (d) had been properly secured at the pre-trial investigation stage (see also, for similar reasoning, Vozhigov v. Russia , no. 5953/02, §§ 52-58, 26 April 2007).   (b)     Application of those principles in the present case 70.     Turning to the circumstances of the present case, the Court considers that, although S. did not testify at a court hearing he should, for the purposes of Article 6 §   3   (d) of the Convention, be regarded as a witness because his statement, as taken down by the investigative authorities, was used in evidence by the domestic courts. It is noted that he was not an anonymous witness and that his absence at the trial was due to his having absconded. 71.     First of all, as regards the alleged unlawfulness of the reading-out of S.’s pre-trial statement, the Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general 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, Van Mechelen, cited above, § 50, and Doorson, cited above, § 67; see also Babkin v. Russia (dec.), no.   14899/04, 8 January 2009).   The Court thus considers that it was up to the national courts to determine what provision of the Code of Criminal Procedure applied to the co-defendant’s statement (see paragraph 40 above). 72.     The Court further notes that the main thrust of the applicant’s complaint was the alleged lack of an adequate opportunity to examine S. or have him examined, in particular on account of the alleged lack of any reasonable effort on the part of the national authorities to ensure S.’s presence at the trial. 73.     It is uncontested between the parties that the applicant pleaded not guilty throughout the proceedings and that his conviction on two counts of theft was based, to a decisive extent, on S.’s pre-trial deposition. In finding the applicant guilty of two thefts, the trial court relied on this deposition and referred to various statements by the employees of the private companies from which the thefts had been committed. Those statements, however, only concerned the assessment of the pecuniary damage caused by the thefts. The court also listed several items of “other physical evidence” including the record of the crime scene description and the articles stolen, without any further discussion of their probative weight. 74.     The Court’s case-law under Article 6 § 3 (d) of the Convention requires that a defendant be given an adequate opportunity to examine, or have examined, a witness at some stage of the proceedings, and it is preferable for such examination to take place in the course of adversarial proceedings before an independent and impartial tribunal. 75.     The Court notes in that connection that S. not only admitted the charges but named the applicant as his accomplice and gave a detailed account of the applicant’s and his own role in the commission of the thefts. In the Court’s opinion, there is a considerable risk that a co-accused’s statement may be unreliable, given his or her obvious inte