CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 15 décembre 2020

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RUSSIA (Application no. 11620/17)             JUDGMENT   STRASBOURG 15 December 2020   This judgment is final but it may be subject to editorial revision. In the case of Yevstratyev v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Georgios A. Serghides, President,   Georges Ravarani,   María Elósegui, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   11620/17) 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 Boris Nikolayevich Yevstratyev (“the applicant”), on 31   January 2017; the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the possibility for the applicant to challenge “forensic” evidence and the interpretation of the rules of criminal procedure by national courts and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 24 November 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the alleged unfairness of the criminal proceedings against the applicant and, in particular, the principle of equality of arms as regards the possibility for the applicant to challenge forensic evidence presented by the prosecution, and the consistency of the interpretation of the applicable rules of criminal procedure by the domestic courts. THE FACTS 2.     The applicant was born in 1965 and is serving a prison sentence in Kopeysk, Chelyabinsk Region. The applicant, who had been granted legal aid, was represented by Mr V.   Shukhardin, a lawyer practising in Moscow. 3.     The Government were represented by Mr M.   Galperin, Representative of the Russian Federation to the European Court of Human Rights. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Charges against the applicant 5.     According to the bill of indictment, on 24   October 2013 the applicant and another unidentified person broke into the house of the K. family. The applicant shot E.K. dead. Then both alleged perpetrators threatened and beat V.K. and O.K. in order to make them show where they kept cash and jewellery. The victims complied and the alleged perpetrators took 45,000 Russian roubles in cash and two gold rings. 6.     On an unspecified date the applicant was charged with aggravated robbery and murder. First trial and appeal hearing 7.     On an unspecified date the investigation into the matter was completed and on 18   March 2015 the case was transferred to the Chelyabinsk Regional Court for a jury trial. 8.     On 2   June 2015 the presiding judge prepared a verdict sheet which included the questions to be discussed by the jury to reach a verdict. 9.     On 8   June 2015 the jury acquitted the applicant. The prosecutor and one of the victims appealed. 10.     On 28   October 2015 the Supreme Court of the Russian Federation quashed the verdict and remitted the matter to the Regional Court for fresh consideration. The court established that (1) the verdict sheet had not been prepared in accordance with Article   339 of the Russian Code of Criminal Procedure and (2) the defence had exerted undue influence on the jury. The court considered those violations of the rules of criminal procedure to be material and ordered a new trial. Second trial and appeal hearing 11.     On 10   December 2015 the Regional Court opened a new jury trial in the applicant’s case. The prosecutor presented a number of forensic expert examinations including the autopsy report on E.K., a report on the seriousness of the injuries sustained by V.K. and a ballistics report. The defence asked for the experts to be questioned in court. The trial judge noted that the rules of criminal procedure provided for the questioning of experts only in the case of doubt expressed by the expert or ambiguity in the contents of the report prepared by him or her. The court discerned no doubt or ambiguity in the experts’ findings and dismissed the request. The court further refused to admit into evidence forensic “specialist” opinions commissioned by the applicant regarding the cause of E.K.’s death and ballistics. 12.     On 9   February 2016 the jury found the applicant guilty and on 19   February 2016 the Regional Court sentenced him to eighteen years’ imprisonment. The court also ordered the applicant to pay damages to the victims of the crimes. The applicant appealed, arguing, inter alia , that the trial judge had failed to comply with the rules of criminal procedure and the instructions set out in the appeal judgment of 28   October 2015 when preparing the verdict sheet. In particular, the judge had only put a single question in respect of two different crimes – murder and aggravated robbery – which fact had prevented the jury from correctly assessing the circumstances of the case. 13.     On 2   August 2016 the Supreme Court upheld, in substance, the judgment of 19   February 2016 on appeal. The court considered that the trial had been adversarial and the principle of equality of arms had been observed. It upheld the presiding judge’s decisions to dismiss the applicant’s requests regarding the questioning of forensic experts and the examination of the “specialist” opinions commissioned by the applicant. Lastly, the Supreme Court examined the applicant’s argument as to the verdict sheet and its compliance with the rules of criminal procedure and dismissed the argument as unsubstantiated. THE LAW ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 14.     The applicant complained that the criminal proceedings against him had been unfair. In particular, he complained that the principle of equality of arms had not been observed and that he had been denied an opportunity to challenge the findings of the forensic experts appointed by the prosecution. He also alleged that the Supreme Court of the Russian Federation had inconsistently interpreted and applied the rules of criminal procedure governing the contents of the verdict sheet. The applicant relied on Article   6 of the Convention, which reads, in so far as relevant, as follows: “1.     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[.]” Admissibility 15.     The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits Submissions by the parties (a)    The applicant 16.     The applicant maintained his complaints. He submitted that the courts’ refusal to question forensic experts or to admit “specialist” opinions had rendered the criminal proceedings against him unfair. As a result, he had been unable to effectively realise his right to a defence. 17.     As to the compliance of the verdict sheet with the applicable legislation, the applicant submitted that neither the Supreme Court nor the Government had explained the inconsistencies in the Supreme Court’s interpretation and application of the relevant rules of criminal procedure. (b)    The Government 18.     The Government discerned no violation of the applicant’s right to a fair trial as regards the domestic courts’ refusal to provide him with an opportunity to question forensic experts or to admit “specialist” opinions into evidence. The applicant had been able to present his position to the courts and to challenge the evidence presented by the prosecution. Relying on the findings of the domestic courts, the Government concluded that the courts had examined the applicant’s case in full compliance with the rules of criminal procedure applicable to jury trials. The Court’s assessment (a)    Equality of arms 19.     The Court reiterates in the first place that the admissibility of evidence is primarily a matter for regulation by national law. 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 many other authorities, Perna v.   Italy   [GC], no.   48898/99, §   29, ECHR 2003 ‑ V). In particular, “as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. Article   6 §   3   (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses” (see Vidal v. Belgium , 22   April 1992, §   33, Series A no. 235-B). 20.     It further reiterates that the rules on admissibility of evidence may sometimes run counter to the principles of equality of arms and adversarial proceedings, or otherwise affect the fairness of the proceedings (see, for example, Tamminen v. Finland , no.   40847/98, §§ 40-41, 15 June 2004). Although “Article 6 does not go as far as requiring that the defence be given the same rights as the prosecution in taking evidence” (see Mirilashvili v.   Russia , no. 6293/04, §   225, 11 December 2008), the accused should be entitled to seek and produce evidence “under the same conditions” as the prosecution (see Khodorkovskiy and Lebedev v. Russia , nos.   11082/06 and   13772/05, §   728, 25   July 2013). Clearly, those “conditions” cannot be exactly the same in all respects; thus, for example, the defence cannot have the same search and seizure powers as the prosecution. However, as follows from the text of Article 6 § 3 (d), the defence must have an opportunity to conduct an active defence – for example, by calling witnesses on its behalf or adducing other evidence (ibid.). 21.     The Court has already examined a situation in which the applicants had tried to challenge expert evidence introduced by the prosecution by relying on “specialist” opinions. It concluded that the domestic courts’ refusals to admit reports prepared by “specialists” as evidence had breached the principle of equality of arms (ibid., §§   724-35), which, according to its well-established case-law, is one of the features of the wider concept of fair trial by an independent and impartial tribunal (see, for example, Delcourt v.   Belgium , 17 January 1970, §   28, Series A no. 11). 22.     Turning to the circumstances of the present case, the Court sees no reason to hold otherwise. It observes that the applicant sought to challenge the forensic reports presented by the prosecution. They constituted an integral part of the evidence on which the applicant’s conviction was based. Admittedly, it was open to the defence to ask the court to commission a fresh expert examination on the pertinent issues. However, as established in Khodorkovskiy and Lebedev , to obtain such a fresh examination it was incumbent on the defence to convince the court that the reports presented by the prosecution were incomplete or deficient (ibid., §   730). The Court notes that the presiding judge refused to call the relevant forensic experts for questioning. As a result, the applicant was unable to confront them in order to cast doubt as to their credibility. 23.     As to challenging the forensic experts’ findings which were summed up in the reports presented by the prosecution, the Court reiterates that it may be hard to challenge a report by an expert without the assistance of another expert in the relevant field (ibid., §   731). Accordingly, it considers that, in the circumstances, to realise that right effectively the defence must have had the same opportunity to introduce its own “expert evidence”. 24.     The Court does not lose sight of the fact that the right in question is not absolute and the forms in which the defence may seek the assistance of experts may vary (ibid., §   732). In the present case the defence tried to introduce its own “expert evidence” by submitting “specialist” opinions to the court. The opinions were relevant, but the court refused to admit them as evidence (contrast with Khodorkovskiy and Lebedev, cited above, §§   721 ‑ 723). The appeal court merely upheld the trial court’s conclusions. 25.     The Government did not explain what other options were available for the defence to challenge the “expert evidence” presented by the prosecution or to introduce its own “expert evidence”. Admittedly, the defence could consult relevant specialists outside the context of the trial. The Court, however, is not convinced that such measures would suffice to equalise the positions of the prosecution and the defence. 26.     Regard being had to the above, the Court concludes that the way the domestic courts assessed and admitted the evidence in the applicant’s case created an imbalance between the defence and the prosecution, thus breaching the equality of arms between the parties. There has therefore been a violation of Article 6 §§ 1 and 3 (d) on that account. (b)    Interpretation of applicable rules of criminal procedure 27.     In view of the above finding, the Court considers it unnecessary to examine the remainder of the applicant’s grievances concerning the alleged unfairness of the criminal proceedings against him. APPLICATION OF ARTICLE   41 OF THE CONVENTION 28.     Article   41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 29.     The applicant claimed 40,000 euros (EUR) in respect of non ‑ pecuniary damage. 30.     The Government submitted that the most appropriate form of redress in the circumstances of the present case would be the reopening of the criminal proceedings at the domestic level. 31.     The Court does not consider it necessary to make an award under this head in the circumstances of this case (compare Ibrahim and Others v.   the United Kingdom , nos. 50541/08, 50571/08, 50573/08 and 40351/09, §   315, 16 December 2014). It further refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis , Öcalan v. Turkey [GC], no.   46221/99, § 210 in fine , ECHR   2005 ‑ IV, and Popov v. Russia , no.   26853/04, § 263, 13 July 2006). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides the basis for the reopening of the domestic proceedings if the Court finds a violation of the Convention. It therefore considers that its finding of a violation constitutes sufficient just satisfaction and makes no award under this head. Costs and expenses 32.     The applicant claimed EUR   2,960 in respect of cost and expenses incurred in the proceedings before the Court. In particular, he claimed EUR   2,900 in respect of the work of his representative and EUR   60 in respect of postal and telephone costs. He did not submit relevant receipts. 33.     The Government did not comment. 34.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that EUR 850 has already been paid to the applicant by way of legal aid. It does not consider it necessary to make any additional award under this head. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6   §§   1 and 3   (d) of the Convention; Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 December 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Olga Chernishova   Georgios A. Serghides Deputy Registrar   President