CASE OF BELIKOVA v. RUSSIA
(Application no. 66812/17)
17 December 2019
This judgment is final but it may be subject to editorial revision.
In the case of Belikova v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 26 November 2019,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 66812/17) 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, Ms Irina Ivanovna Belikova (“the applicant”), on 27 August 2017.
2. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
3. On 2 February 2018the Government were given notice of the complaints concerning the alleged unfairness of the administrative proceedings and the remainder of the application was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.
4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1974 and lives in Votkinsk, Udmurtiya Republic.
6. On 6 July 2016 the traffic police instituted administrative proceedings against the applicant for refusing to undergo a breathalyser test. The incident took place in Sochi, Krasnodar Region.
7. On 5 September 2016 the acting justice of the peace of Circuit no. 1 of the Industrialniy District of Izhevsk of the Udmurtiya Republic opened a trial against the applicant. The applicant maintained her innocence. She claimed that the police officers had advised her not to undergo the test. Otherwise, she would have had to spend the whole day in hospital, her car could have been impounded and it would have been a hassle for her to get it back. She further submitted that the policemen had failed to follow the correct procedure. In particular, no attesting witnesses had been present when they had drawn up the administrative-offence record. She asked the court to summon the officers concerned and the alleged attesting witnesses, whose names were indicated in the administrative-offence record, and examine them. The justice of the peace dismissed that request. Relying on the administrative-offence record, a report prepared by one of the policemen and the applicant’s submissions, the justice of the peace found the applicant guilty as charged, ordered her to pay a fine of 30,000 Russian roubles and suspended her driving licence for one and a half years. The applicant appealed.
8. On 17 October 2016 the Industrialniy District Court of Izhevsk of the Udmurtiya Republic started hearing the applicant’s appeal. The applicant maintained her arguments. The court questioned P. and S., who had been in her car on 6 July 2016 when she had been stopped by the police. Both of them confirmed that there had been no attesting witnesses present when the police officers had stopped the applicant and drawn up an administrative offence record. The court asked the police in Sochi to provide information regarding the two people indicated in the administrative-offence record as attesting witnesses. The acting head of the traffic police questioned one of the officers who had stopped the applicant. The latter explained that he had indicated the names of the witnesses on the basis of their driving licences, which had not contained any information as regards their home addresses, and that he had recorded the addresses given by them verbally. According to the documentation submitted, the attesting witnesses did not live at the addresses indicated in the administrative-offence record.
9. On 27 February 2017 the District Court upheld the judgment of 5 September 2016 on appeal. The court dismissed the applicant’s allegation that no attesting witnesses had been present when the police had stopped her, stating that she had failed to indicate this in the administrative-offence record, despite having had ample opportunity to do so.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
10. The applicant complained that the administrative proceedings against her had been unfair. In particular, she alleged that she had been unable to examine the attesting witnesses and confront the police officers in court. The applicant relied on Article 6 of the Convention, the relevant parts of which read 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 …”
11. The Government contested that argument. They considered that the proceedings in the applicant’s case had been fair. The fact that the courts had not questioned the police officers had had no impact on the fairness of the proceedings. The appellate court had asked the local police to question the officer who had prepared the administrative-offence record. It had been sufficient for the court to examine his statement. Furthermore, the applicant had not proved that there had been no attesting witnesses present when the police had recorded her refusal to undergo a breathalyser test. The appellate court had thoroughly examined the relevant evidence and substantiated its findings in that regard.
12. The applicant maintained her complaint. She pointed out that in her case the national courts had relied exclusively on the evidence which had come from the police officers, without exhausting every reasonable possibility of scrutinising it. In particular, the courts had failed to summon the police officers and the attesting witnesses for questioning. They had also failed to assess the statements of P. and S., who had been eyewitnesses to the events in question.
13. The Court accepts, and the Government have not argued otherwise, that Article 6 of the Convention applies in the present case under its criminal limb. In this connection, it takes into account that the penalties imposed on the applicant – a monetary fine and driving licence suspension – were punitive and deterrent in nature (compare, Mikhaylova v. Russia, no. 46998/08, § 64, 19November 2015).
14. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. General principles
15. The general principles concerning the right of an accused to examine witnesses against him or her and obtain the attendance and examination of witnesses on his or her behalf are well established in the Court’s case law (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-31, ECHR 2015, and Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 150-68).
2. Application of the principles in the present case
16. As regards the applicant’s complaint that the domestic courts did not provide her with an opportunity to obtain the examination of the attesting witnesses, the Court observes that the justice of the peace chose not to question those persons when asked to do so by the applicant, and that the appellate court considered it unnecessary to question them.
17. The Court accepts that the applicant’s request to obtain the examination of those witnesses was sufficiently reasoned. She sought to challenge the authenticity of the administrative-offence record and to prove that the police had tricked her into refusing to undergo a breathalyser test. It also notes that the justice of the peace gave no explanation for the dismissal of the applicant’s request to obtain the attendance of those witnesses. The appellate court did not remedy that omission on the part of the lower court. When considering it sufficient that the applicant had had an opportunity to comment as to the authenticity of the administrative-offence record drawn up when she was stopped by the police, the appellate court did not refer to any domestic law which would have prevented her from questioning the witnesses under the circumstances. Accordingly, the Court concludes that the domestic courts did not consider the relevance of the testimony sought by the applicant. Nor did they provide sufficient reasons for the decision not to examine those witnesses.
18. As regards the overall fairness of the proceedings, the Court takes into account that in the case under consideration, the only evidence referred to by the courts when finding the applicant guilty was the administrative‑offence record, the report and the statement made by one of the police officers. Even though the appellate court adduced new evidence and questioned the two people present, who confirmed, to a certain extent, the applicant’s version of events, it did not assess that testimony or its probative value.
19. Regard being had to the above, the Court concludes that the failure on the part of the national judicial authorities to obtain the attendance of the attesting witnesses, as requested by the applicant, undermined the overall fairness of the proceedings. There has therefore been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
20. In view of this finding, the Court considers it unnecessary to examine separately whether the domestic courts’ failure to question the police officers had an impact on the fairness of the proceedings in the applicant’s case (compare, for example, Vladimir Romanov v. Russia, no. 41461/02, § 107, 24 July 2008).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
21. 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.”
22. The applicant claimed 30,000 Russian roubles (RUB) and RUB 100,000 in respect of pecuniary and non-pecuniary damage respectively.
23. The Government considered that there had been no violation in the present case, and that the applicant’s claims should be dismissed in full. They further submitted that her claim in respect of pecuniary damage corresponding to the amount of her fine should be dismissed given that it had been imposed lawfully. Lastly, they submitted that her claims in respect of non-pecuniary damage were excessive and unreasonable.
24. The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6 § 1 of the Convention. It cannot speculate as to what the outcome of the proceedings compatible with Article 6 § 1 might have been, had the requirements of this provision not been violated (compare Menchinskaya v. Russia, no. 42454/02, § 46, 15 January 2009, and Popov v. Russia, no. 26853/04, § 260, 13 July 2006). Accordingly, it does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court awards the applicant 1,000 euros (EUR) in respect of non‑pecuniary damage.
B. Costs and expenses
25. The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award her any sum on that account.
C. Default interest
26. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declaresthe application admissible;
2. Holdsthat there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;
(a) that the respondent State is to pay the applicant, within three months EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Alena Poláčková