Last Updated on July 7, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no.29656/07
Mushfig MADATOV
against Azerbaijan
The European Court of Human Rights (Fifth Section), sitting on 5 March 2019 as a Committee composed of:
Síofra O’Leary, President,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 20 June 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mushfig Madatov, is an Azerbaijani national who was born in 1967 and lives in Baku. He was represented before the Court by Mr E. Sadıqov, a lawyer practising in Baku.
2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. At the material time the applicant was serving a sentence at penal facility no. 16 (“the prison”) in the Bina settlement.
5. The applicant shared a cell with N.S, a prominent member of the criminal underworld.
6. On an unspecified date N.S.’s mobile telephone call history was checked by officers of the Organised Crime Department of the Ministry of Internal Affairs (“the OCD”) in connection with an investigation being carried out in respect of his brother, M.S. Based on the list of persons whom N.S. had contacted, several persons, including T.H., T.I., D.R. and L.M., were summoned to appear before the OCD and questioned.
7. T.H., T.I., D.R. and L.M. made the following statements against the applicant and N.S.
8. D.R. stated that in 2002 N.S. had called her and threatened to kill her and her mother if she refused to visit him at the prison. She had agreed to do so. While she was in the prison, N.S. had raped her. In mid-September 2002 N.S. had again called her, threatened her and demanded that she visit him and bring one of her friends to the prison for his friend, the applicant. She had told about this to her friend, T.H., who had agreed to go with her. In the prison N.S. had raped her, and the applicant raped T.H. Sometime later, N.S. had called her once more, threatened her and demanded that she visit him again and bring one of her friends to the prison for his friend, the applicant. That time she had asked another of her friends, T.I., who also agreed to accompany her. In the prison N.S. had raped her and the applicant had raped T.I. Then the applicant had threatened her against complaining to the law-enforcement agencies. D.R.’s testimony was video recorded.
9. In their video-recorded statements, T.H. and T.I. gave statements which corroborated that of D.R.
10. L.M. stated that in mid-September 2002 N.S. had telephoned her and told her that he had seen her on television at a beauty contest and liked her. N.S. had threatened her and demanded that she come to the prison. She already knew that on many previous occasions N.S. had raped her friend, P.A., by deceit. L.M. had nevertheless agreed to go and meet N.S. In the prison she had met N.S., a man of approximately thirty years of age, who had been harsh with her. The applicant had initially protected her from N.S., but had then taken her to another room and raped her. Then N.S. had threatened her against complaining to the law-enforcement agencies. L.M.’s testimony was video recorded.
11. On 4 February 2005 L.M. recognised a photograph of the applicant among the photographs of several persons presented to her and re-stated that she had been raped by the applicant. T.H. and T.I. underwent the same investigative procedure on 5 and 17 February 2005 and also confirmed the applicant’s identity as the person who had raped them.
12. Based on the above statements, a criminal investigation was opened against the applicant on 4 June 2005 by the OCD.
13. A report of 5 July 2005 drafted by an investigating officer of the OCD shows that the documents and other evidence collected during the investigation were presented to the applicant and his lawyer on the same date and that the applicant’s lawyer signed that report.
14. On 5 July 2005 the applicant, through his defence lawyer, lodged a request with the investigating police officer asking that, after having consulted the investigation file, the proceedings be terminated. The lawyer argued that the applicant’s acts could not be classified as a criminal offence. By a decision of the investigator delivered on the same date, the request was rejected.
15. The records of admission to consult the criminal case file (Cinayət işinin materialları ilə tanış olma cədvəli) compiled by the investigating officer show that the applicant and his lawyer were provided with the facilities to read the case file on the premises of the OCD between 10 a.m. and 5.25 p.m. on 21 July 2005, as well as between 10.05 a.m. and 5.45 p.m. on 22 July 2005 (approximately nine hours per day).
16. On 27 July 2005 the Prosecutor General indicted the applicant before the Court of Serious Crimes on the following charges: rape committed by a group of accomplices; rape committed by threatening the victim or another person with death or with serious bodily harm; repeated rape; and making death threats or threats of serious bodily harm.
17. A report drawn up on 28 July 2005 by the investigating officer of the OCDand co-signed by two prison officers shows that the applicant was provided with a copy of the indictment at the detention facility but refused to accept it.
18. On 8 August 2005 the trial court sent a notification to the administration of the detention facility, asking them to ensure the applicant’s attendance at the preliminary hearing scheduled for 19 August 2005. The proceedings were then adjourned twice at the request of the co‑accused, who had asked for more time in order to further consult the case file.
19. By further letters of 19 and 26 August 2005 the presiding judge asked the administration of the detention facility to serve a summons on the accused for the adjourned preliminary hearings scheduled for 26 and 31 August 2005 respectively.
20. The transcript of the hearing shows that both the applicant and his lawyer were present at the preliminary hearings on 19, 26 and 31 August 2005, where another attempt to serve the indictment on the applicant was made. The applicant refused to accept it, but his lawyer received and signed it on the applicant’s behalf. The preliminary hearing ended on 31 August 2005.
21. At the hearing on the merits held on 13 September 2005 the applicant pleaded not guilty and stated that he would give his oral evidence at the end of the trial.
22. At the same hearing the applicant made insulting remarks in respect of the Prosecutor General, all of the prosecutors and members of their families. As a result of that behaviour, the judge ordered his removal from the courtroom on that date and for the remainder of the first-instance proceedings.
23. When questioned by the court, D.R. retracted the statements she had given at the investigation stage, explaining that the OCD investigator had forced her to give them. She testified that she had known N.S. since 2002, had been in a good relationship with him, and had visited him at the prison four times.
24. T.H. also retracted her statements against the applicant. She testified that on the date in question, she and her friend, D.R., had had a meal with the applicant and N.S. at the prison. She had then had consensual sexual intercourse with the applicant. Neither the applicant nor N.S. had forced her and D.R. to do anything.
25. T.I. also retracted the statements she had given at the investigation stage, explaining that she had been forced to give them at the OCD. She testified that she and D.R. had willingly visited the applicant and N.S.
26. L.M. confirmed the statements she had given at the investigation stage and testified that N.S. had threatened to have her forcefully transported to the prison. The incident had happened in 2004 and, being afraid of N.S.’s threats, she had agreed to go and meet him. At the prison N.S. had spoken to her rudely. The applicant had initially protected her, but had then taken her to another room and raped her. She also stated that even at the time of the proceedings in question, she had been receiving threats, including from T.H., who had told her to retract her previous statements for her own sake.
27. According to the transcript of the hearing, the applicant’s lawyer asked L.M. to provide particulars of how the rape had occurred, but she was crying so much that she could not answer. She then left the courtroom, expressing the wish not to be called there again.
28. On 16 September 2005 the applicant addressed a plea to the trial court, expressing his apologies for the insults made by him at the hearing of 13 September 2005 and asking the court to allow him to participate in the proceedings in person.
29. At a hearing on 19 September 2005 the court admitted the applicant’s plea and restored his right to participate in the hearing. However, having been asked by the court to proceed with giving his testimony, the applicant disrespectfully declined and insulted the panel. Further, he said that he withdrew his plea and refused to participate in the proceedings. Following that, the court reinstated its order of 13 September 2005 to remove the applicant from the courtroom for the remainder of the first-instance proceedings.
30. At a hearing of 22 September 2005 the applicant’s lawyer requested the court to call the senior officers of the prison (cəzaçəkmə müəssisəsinin komanda heyəti) as additional witnesses in order to clarify how the victims were permitted to enter the prison and meet with the applicant and N.S. in violation of the existing law. He further requested the court to arrange for a face-to-face confrontation between the applicant and L.M. The court rejected the first request, stating that the victims themselves had given detailed testimonies concerning their visits to the prison on various dates, and that the officers who had engaged in arranging those visits were themselves under a criminal investigation. They were unlikely to add any more relevant information. As to L.M., the court stated that she had asked in writing not to be summoned for further hearings and it was the victim’s right but not an obligation to attend the court proceedings. Moreover, the applicant had been excluded from the proceedings following his misconduct and could not be brought to the courtroom.
31. The video recordings of the victims’ statements given during the investigation and of the on-site examinations were played in the presence of the applicant’s lawyer.
32. The trial court considered the statements given at the hearing by T.H. and T.I. as untruthful, and based its judgment on the statements they had given at the pre-trial investigation stage. The trial court referred to the fact that on 5 and 17 February 2005 T.H. and T.I. had recognised the applicant’s photograph among other persons’ photographs and identified him as the person who had raped them (see paragraph 11 above). The trial court further stressed the fact that during the pre-trial investigation their statements had been video recorded and the records did not show any sign of them having been forced to give incriminating statements (see paragraph 9 above).
33. On 7 October 2005 the Court of Serious Crimes found the applicant guilty of rape committed by a group of accomplices; rape committed by threatening the victim or another person with death or with serious bodily harm; repeated rape and making death threats or threats of serious bodily harm; and sentenced him to thirteen years’ imprisonment.
34. According to the transcript of the hearing, the judgment was pronounced without the participation of the applicant, but in the presence of his lawyer.
35. The applicant appealed, arguing that the trial court had not correctly assessed the facts of the case, particularly the evidence given by T.H. and T.I. at the trial, which had contradicted their previous evidence given during the pre-trial investigation. In addition, T.H. and T.I. submitted appeals in favour of the applicant, arguing that the trial court had not considered their evidence given at the trial vis-à-vis the statements obtained under pressure during the pre-trial investigation.
36. At a hearing of 29 July 2006 held before the Court of Appeal the applicant insulted the victims giving incriminating statements, the Ministry of Internal Affairs and the Prosecutor General’s Office. As a result of that behaviour, the presiding judge ordered his removal from the courtroom on that date and for the remainder of the proceedings before the Court of Appeal.
37. On 31 July 2006 the Court of Appeal dismissed the appeals. It reversed in part the judgment of the first-instance court and acquitted the applicant of the criminal offence of making death threats or threats of serious bodily harm, because prosecution in respect of that offence had become time barred. The applicant’s sentence was reduced to eleven years’ imprisonment. The appellate court essentially endorsed the reasoning of the trial court in the part regarding contradictions between the statements given by T.H. and T.I. at the trial and during the investigation. It found further contradictions between the statements given by T.H. and T.I. at the trial as well as in their appeals, confirming that they had visited the applicant and N.S. at the prison and had had sexual intercourse with them albeit consensually, and those of the applicant and N.S., who had stated at the trial that they did not know T.H. and T.I. at all.
38. The applicant’s lawyer lodged a cassation appeal. Relying on Article 6 taken in conjunction with Article 14 of the Convention, he argued that the applicant had been convicted for having consensual sexual relations with the alleged victims and that those acts could not be counted as a criminal offence. He also asserted that, should the applicant be convicted of rape, then the prison officers, who in breach of the relevant regulations had allowed the victims to visit him and N.S., should also have been held responsible for committing the same crime.
39. In addition, L.M. wrote to the Supreme Court stating that she had no complaints or claims against the applicant.
40. On 4 May 2007 the Supreme Court reduced the applicant’s sentence to seven years’ imprisonment. The court found that the lower courts had been correct in referring to the evidence given by T.H. and T.I. during the investigation as grounds for conviction. The court further found that notwithstanding the retraction of their previous statements, L.M. had still confirmed her incriminating testimony at the trial, which further supported both the indictment and the trial court’s decision to rely on the initial testimony of T.H. and T.I.
41. On 26 May 2011 the applicant was pardoned.
B. Relevant domestic law
42. The following are the relevant provisions of the Code of Criminal Procedure (“the CCrP”) concerning the rights of the accused at the pre-trial stage and at the court proceedings, and the proceedings at the preliminary hearing of the criminal case and the order at the courtroom:
Article 91. The accused
“91.1. An individual charged by order of the investigator, the prosecutor or the court shall be referred to as the accused.
…
91.5. The accused shall be entitled to the following rights in accordance with this Code:
…
91.5.14. To participate in investigative or other procedures or to refrain from doing so unless prohibited from doing so by another provision of this Code;
…
91.5.19. To examine the records of investigative or other procedures in which he has taken part, and to make observations on the accuracy and completeness of the written record; and when participating in investigative or other procedures and in court hearings, to require the inclusion of the relevant circumstances in the relevant record;
…
91.5.22. To examine the case file at the end of the investigation or upon discontinuation of the criminal proceedings and to make copies of the necessary documents which are relevant to him;
…”
Article 299. Preliminary hearing
“…
299.5. … If the court dismisses a request [made by a party to the proceedings], it may be re-submitted during examination of the case on the merits.
…”
Article 303. Discontinuation of proceedings in respect of a criminal
case or simplified pre-trial proceedings and their remittal to the prosecutor
“303.1. If a gross violation that could be remedied only at the pre-trial stage has been revealed at the preliminary hearing, rendering proceedings on the merits impossible, the court shall discontinue the proceedings in respect of the criminal case or simplified pre-trial proceedings and order their return to the prosecutor in charge of the case.
303.3. Discontinuation of proceedings in respect of a criminal case or simplified pre-trial proceedings and their return to the prosecutor in charge of the case shall be ordered if the following gross violations have been revealed:
303.3.1. infringement of the accused’s right to defence (in order to remedy this violation);
303.3.8. violation of the requirements of Articles 284-286, 288 or 296.3.1 of this Code in respect of the obligation to examine the pre-trial case materials;
…”
Article 310. Administering order at a court hearing
“…
310.2. Everyone participating in court proceedings or present in the courtroom shall abide by the following rules:
310.2.1. Comply with orders of the presiding judge and instructions of the court officer based thereon;
…
310.2.8. Refrain from interrupting persons giving statements at the hearing by making explanatory or abusive comments;
310.2.9. Avoid using abusive or insulting statements and actions …
…
310.6. Subject to prior warning, the court shall have the right to order the following measures in respect of persons who commit serious disorder at a hearing, with the exception of the public prosecutor and defence counsel:
…
310.6.3. removal from the courtroom for the whole or part of the proceedings.
…”
Article 392. Determination of the proceedings at the court of appellate instance
“392.1. While determining the proceedings following an appeal complaint or an appeal protest the court of appeal shall decide upon the following issues:
392.1.1. on necessity of conducting a judicial investigation and about its extent;
392.1.2. on necessity of requesting additional evidence;
392.1.3. about the persons to be summoned to the court hearing;
…”
43. The following are the relevant provisions of the Code on Execution of Sentences concerning the rights of imprisoned persons to have meetings with visiting persons:
Article 81. Prisoners’ meetings with their relatives, lawyers and other persons
“81.1. Prisoners shall have a right to have short-term, for the period of up to four hours, and long-term, for the period of one to three days, meetings at the territory of the penitentiary facility.
81.2. Short-term meetings with relatives and other persons shall be held with participation of a representative of the penitentiary facility.
81.3. Long-term meetings with prisoners shall be granted to close relatives (wife, husband, parents, grandfather, grandmother, children, adoptive parents or adopted children, brothers and sisters)…
…”
COMPLAINTS
44. The applicant complained under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention that he had not had a fair trial. He alleged in particular:
(i) that he had not been afforded sufficient time and facilities to prepare his defence;
(ii) that the principle of equality of arms had not been respected and that he had been unable to properly examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf;
(iii) and that his right to a reasoned judgment had been violated.
THE LAW
45. Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention, in so far as relevant, reads 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:
…
(b) to have adequate time and facilities for the preparation of his defence;
…
(c) to defend himself in person …
(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. Adequate time and facilities for the preparation of defence
46. The applicant complained that since he had been confined to the prison where he had been serving his sentence and had not had access to a lawyer, he had had no information about any investigative proceedings against him and had been deprived of any opportunity to familiarise himself with the case file before the trial.
1. The parties’ arguments
47. The Government argued that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, in that he had never raised any similar complaint before the domestic authorities during the preliminary hearing or following an extensive examination of his case. The Government particularly pointed out that some of the co-accused had requested that the trial court adjourn the preliminary hearing specifically in order to have sufficient time to consult the case file and their requests had been granted, whereas no such request had been made by the applicant.
48. The Government further argued that it was evident from the case file that the applicant had been provided with access to the investigation materials.
49. The applicant maintained that he had not been provided with access to the investigation materials until he had been brought to the preliminary hearing on 19 August 2005. He stated that the two days assigned for familiarisation with the investigation materials, 21 and 22 July 2005, had not been enough for reading the 4,132 pages that the case file comprised.
50. The applicant further argued that it was the domestic courts’ primary obligation to examine whether the pre-trial investigation or the proceedings before the lower courts had been carried out in accordance with the requirements of the Criminal Procedure Code. Therefore, he was not obliged to raise a specific complaint before them.
2. The Court’s assessment
51. The Court observes that Azerbaijani law provides avenues for victims of an allegedly unfair investigation to complain, such as the right to apply to the trial court at the preliminary hearing to discontinue the proceedings and to return the case to the prosecutor in charge of the case to remedy any infringement of the accused’s right to defence in general. This applies particularly where the investigating authority is in breach of its obligation to provide the accused with adequate time and facilities to consult the case materials properly (see paragraph 42 above).
52. The Court notes that on 5, 21 and 22 July 2005, the applicant had access to the pre-trial investigation materials and did not raise a complaint before the investigating authority that he had been given insufficient time to examine the case file.
53. Furthermore, the applicant did not address a similar complaint to the trial court at the preliminary hearing. Nor did he ask the court to return the case to the prosecutor in charge of the case, or to adjourn the hearing in order to allow him more time to consult the case file, as was requested by his co-accused.
54. The Court also notes that the applicant failed to raise any complaint concerning his access to the case file for the preparation of his defence in his appeals to the Court of Appeal and the Supreme Court. The higher courts were therefore prevented from examining whether there had been such an infringement. Moreover, the applicant has not cited any special circumstances which could absolve him from the obligation to make use of that remedy.
55. In these circumstances, the Court finds that the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention. It therefore concludes that this complaint must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
B. The principle of equality of arms and the right to examine witnesses
56. The applicant complained that he had been placed in a disadvantageous position during the domestic proceedings vis à vis the prosecution. In particular, he complained that the defence had not been informed about the first-instance court’s preliminary hearing. He further complained that he had been banned from the courtroom at the trial and had not been given an opportunity to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf. The applicant also complained that he had been deprived of the right to deliver his final speech.
1. The parties’ arguments
57. The Government argued that the applicant and his lawyer had been properly informed about the time and place of the preliminary hearing held before the Court of Serious Crimes on 19 August 2005 and had eventually participated in it.
58. The Government produced copies of letters to the detention facility dated 8, 19 and 26 August 2005 requesting the delivery of summonses for the preliminary hearings scheduled respectively on 19, 26 and 31 August 2005 to the accused persons, including the applicant, together with the transcripts of the hearings, which recorded the participation of the applicant and his lawyer.
59. The Government further argued that the applicant’s removal from the courtroom at the trial and later at the appeal proceedings had been caused solely by his aggressive behaviour towards the prosecution and the victims, and his contempt of the court. Nevertheless, the applicant’s lawyer had remained in the courtroom at the trial and had been able to raise complaints about irregularities in the questioning and to cross-examine the victims and the witnesses, as well as to present the applicant’s closing arguments.
60. The applicant did not comment on that issue.
2. The Court’s assessment
61. The applicable general principles under Article 6 §§ 1 and 3 (c) have been stated, inter alia,in cases of Öcalan v. Turkey [GC] (no. 46221/99, § 140, ECHR 2005‑IV, with further references), Huseyn and Others v. Azerbaijan (nos. 35485/05 and 3 others, § 189, 26 July 2011), Sobko v. Ukraine (no. 15102/10, § 69, 17 December 2015) and Faig Mammadov v. Azerbaijan (no. 60802/09, § 19, 26 January 2017).
62. The applicable general principles under Article 6 §§ 1 and 3 (d) have been set out, inter alia,in the case ofMurtazaliyeva v. Russia [GC] (no. 36658/05, §§ 150-168, 18 December 2018).
63. The Court notes that the applicant did not contest the Government’s submission that the panel of the trial court had informed him about the scheduled preliminary hearings by means of letters sent to the detention facility dated 8, 19 and 26 August 2005, in which the presiding judge had asked the administration of the detention facility to deliver summonses for the preliminary hearings scheduled for 19, 26 and 31 August 2005 (see paragraphs 18 and 19 above).
64. According to the transcript of the hearing, both the applicant and his lawyer were present at the preliminary hearings held on 19, 26 and 31 August 2005 (see paragraph 20 above). At those hearings the applicant was fully able to present his submissions regarding the pre-trial investigation stage in person and with the assistance of his lawyer.
65. As to the removal of the applicant from the courtroom during the trial, the Court has held that if the accused disturbs order in the courtroom, the trial court cannot be expected to remain passive and to allow such behaviour. It is a normal duty of the trial panel to maintain order in the courtroom, and the rules envisaged for that purpose apply equally to all present, including the accused (see Marguš v. Croatia [GC], no. 4455/10, § 90, ECHR 2014 (extracts)).
66. In the present case, the applicant was first removed from the courtroom after insulting the prosecuting authorities. His right to attend the courtroom was restored following his plea to the trial court, but he again disrespected the court’s order and expressly refused to participate in the proceedings. Consequently, the trial court reinstated its order to remove him from the courtroom. However, his defence lawyer remained in the courtroom.
67. As to the applicant’s inability to examine witnesses against him, the Court notes that the prosecution’s case was based to a large degree on the pre-trial statements of numerous victims and witnesses which were produced in court. The transcript of the hearings clearly indicates that all those victims and witnesses were called to give their evidence at the trial and that the applicant’s lawyer was actively engaged in questioning them.
68. As to the defence witnesses, namely the senior officers of the prison, the Court firstly notes that when the applicant’s lawyer requested the trial court to summon them, he did not provide any particular factual or legal arguments and did not elaborate in concrete terms, even briefly, on why their attendance was important for his line of defence or on how their testimony would have served to exonerate the applicant or at a minimum, to strengthen his position in any way (see paragraph 30 above). The defence did not elaborate on this either in their appeal (see paragraph 35 above) nor did it specifically request the Court of Appeal to summon the prison officers at the appeal stage (contrast Gabrielyan v. Armenia, no. 8088/05, § 85, 10 April 2012), even though the Court of Appeal had the power to do so (see paragraph 42 above) or challenge the trial court’s decision in respect of the defence witnesses. Instead in his cassation appeal the applicant asserted that the persons who in breach of the prison regulations had allowed the victims to visit him and N.S. must be held responsible for committing the crime and focused on the lower court’s failure to proceed accordingly (see paragraph 38 above).
69. Secondly, the Court notes that the trial records state the reasons given by the trial court for dismissing the defence’s motion to summon the senior prison officers. Namely it considered that the fact of the victims’ visits to the prison premises and the circumstances surrounding them had been established by their statements, and that it was unlikely that the proposed witnesses would provide any more relevant information (see paragraph 30 above).
70. The Court further notes that the applicant’s lawyer requested the trial court to summon not the prison guards who were actually accompanying the victims to and from the meeting room and who might have had the possibility of observing what occurred but the senior prison officers (see paragraph 30 above) and focused on their responsibility for alleged breach of prison rules (see paragraph 38 above). Moreover, according to the trial transcript – and the applicant does not dispute its contents in the relevant part – at no moment during the trial did the applicant’s lawyer claim that the testimonies of the requested witnesses might arguably have contained indications in the applicant’s favour (contrast Kartvelishvili v. Georgia, no. 17716/08, § 63, 7 June 2018). While the domestic courts dismissed the applicant’s motion as unreasoned, there is no indication that the significance of the senior prison officers’ possible testimony, as from the perspective of the trial court, was relevant to the subject matter of the accusation.
71. The Court also emphasises that in his application before the Court the applicant similarly did not elaborate to the relevance of his request to call for the senior officers of the prison to be heard to the subject matter of the accusation and did not explain how their statements could arguably have strengthened the defence position or even led to the applicant’s acquittal (see Dorokhov v. Russia, no. 66802/01, § 72, 14 February 2008, and Polyakov v. Russia, no. 77018/01, § 34, 29 January 2009).
72. Having regard to the general passivity of the defence during the examination of their motion to summon the senior prison officers and the absence of any specific legal or factual arguments as to the necessity of hearing them, the Court considers that the domestic courts cannot be criticised for not providing sufficient reasons for the decision not to examine them at the trial. The reasons given were appropriate in the circumstances of the case and were commensurate, namely adequate in terms of their scope and level of detail, with the reasons advanced by the defence (see Murtazaliyeva, cited above, § 164).
73. Thirdly, the Court would stress that the applicant, assisted by a professional lawyer, was able to conduct his defence effectively, confront and examine witnesses testifying against him, comment without hindrance on the incriminating evidence, adduce evidence he considered relevant and present his account of the events to the domestic courts. His conviction was based on a considerable body of evidence against him including the statements of victims, several prosecution witnesses and video recordings of the victims’ testimonies.
74. Having regard to these circumstances, the Court concludes that the domestic courts’ decision not to examine the senior prison officers at trial did not undermine the overall fairness of the proceedings.
75. As to the applicant’s inability to present his closing arguments, the Court accepts that the closing arguments are an important stage of a trial, where the parties have their only opportunity to orally present their view of the entire case and all the evidence presented at trial and to give their assessment of the result of the trial. However, the Court notes that notwithstanding his removal from the courtroom, the applicant, who was legally assisted throughout the proceedings, had ample opportunity to develop his defence strategy and to discuss with his defence lawyer the points for the closing arguments in advance of the concluding hearing (see Marguš v. Croatia [GC], no. 4455/10, § 90, ECHR 2014 (extracts)).
76. Against this background, and viewing the proceedings as a whole, the Court considers that the removal of the applicant from the courtroom during the trial and his following inability both to participate personally in examination of witnesses against him and to give his closing arguments, as well as the trial court’s refusal to call persons whom the defence sought to examine did not prejudice the applicant’s defence rights to a degree incompatible with the requirements of a fair trial.
77. This complaint must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged arbitrariness of the proceedings and infringement of the right to a reasoned judgment
78. The applicant complained that the domestic courts had not properly assessed the evidence before them and that his right to a reasoned judgment had been violated.
1. The parties’ arguments
79. The Government argued that the applicant had adversarial proceedings and had been able to complain about alleged deficiencies in the investigation. The courts had heard all of the victims and several witnesses, considered the arguments of the parties and reasonably assessed the facts of the case.
80. The applicant argued that the domestic courts had based their decisions on the statements given by T.H. and T.I. at the pre-trial investigation stage, even though they had retracted their incriminating statements at the trial and said that they had been pressured by the police to give their pre-trial statements. The courts had failed to explain why the former statements had been more reliable than those given during the court proceedings.
2. The Court’s assessment
81. The Court has to examine whether the requirements of a fair trial have been satisfied as regards the reliance of the domestic courts upon the incriminating statements made by the victims to the police and then retracted before the trial court, with the allegation that those statements had been obtained against their will and under pressure from the police.
82. At the pre-trial stage of the proceedings, T.H. and T.I. made statements to the police which incriminated the applicant in the offence of rape, without his being present during the questioning. However, the applicant through his defence lawyer, who had remained in the courtroom, was given an opportunity to confront the victims at the trial. At that stage of the proceedings the victims retracted their statements, alleging that the police had put pressure on them to make such statements.
83. Following the statements given by T.H. and T.I. at the trial, the applicant’s lawyer requested that their statements given to the police be excluded from the case file as unlawfully obtained evidence. However, this request was dismissed by the trial court, which found that on 5 and 17 February 2005 respectively, T.H. and T.I. had recognised a photograph of the applicant among the photographs of several persons presented to them and had confirmed their previously given and video-recorded statements that they had been raped by the applicant.
84. The Court observes that the pre-trial incriminating statements given by T.H. and T.I. which were video recorded and played in the presence of the applicant’s lawyer at the hearing on 22 September 2005, did not show any sign of them having been forced to give such statements (see paragraph 32).
85. Furthermore, the reasoning of the trial court was developed by the Supreme Court, which found that notwithstanding the fact that T.H. and T.I. had retracted their statements given during the pre-trial investigation, L.M. had maintained her incriminating testimony at the trial. The Supreme Court concluded that this further supported the trial court’s decision to rely on T.H. and T.I.’s pre-trial statements (see paragraph 40 above).
86. The Court also notes that although the applicant alleged that his conviction had been based on statements of the victims obtained against their will and under pressure from the police, the applicant and his lawyer had not requested at any stage of the proceedings the examination of the investigating officers or any other witnesses who might have supported their allegations about the coercion to give false statements. Nor did the defence lawyer point out in his closing arguments or in his subsequent appeals that the trial court itself should have questioned the police officers who had conducted the interviews or requested a detailed report from the police on the matter (see, by contrast, Erkapić v. Croatia, no. 51198/08, § 76, 25 April 2013).
87. The Court therefore considers that the domestic courts examined all the relevant circumstances surrounding the police questioning of the victims, T.H. and T.I., and in relying thereon for the applicant’s conviction, did not act in breach of the applicant’s right to a fair trial. Given its limited role concerning the assessment of evidence by the national courts, the Court sees no grounds which would allow it to conclude that the domestic courts’ findings were arbitrary, inadequately reasoned or that the proceedings were otherwise contrary to Article 6 of the Convention.
88. Accordingly, this complaint must be rejected as manifestly ill‑founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 March 2019.
Milan Blaško Síofra O’Leary
Deputy Registrar President
Leave a Reply