Last Updated on September 22, 2021 by LawEuro
Information Note on the Court’s case-law 215
February 2018
Butkevich v. Russia – 5865/07
Judgment 13.2.2018 [Section III]
Article 6
Administrative proceedings
Article 6-1
Fair hearing
Failure by trial court to afford defence opportunity to question arresting officers in public order case: violations
Facts – The applicant, a journalist, was arrested by two police officers at an anti-globalism march in St Petersburg, where he was taking photographs. He was subsequently prosecuted for disobeying police orders and brought before a court in an expedited procedure under the Code of Administrative Offences. According to the applicant, the court refused to hear the arresting officers, the officers who had compiled the initial and amended administrative-offence records or anyone mentioned in the record. It did, however, hear a witness who was present in the courtroom. The applicant was convicted and sentenced to three days’ detention, reduced to two days on appeal.
Law – Article 6 § 1: The Court reiterated that recourse to an expedited procedure when a “criminal charge” must be determined was not in itself contrary to Article 6 of the Convention as long as the procedure provided the necessary safeguards and guarantees.
There had been some safeguards in the applicant’s case. In particular, there had been an oral hearing, the applicant had been assisted by his lawyer, the trial court had heard representations from the applicant and his lawyer and had granted a request by the defence to examine a witness present in the courtroom.
However, central to the applicant’s case that there were insufficient procedural safeguards in place was the use of the pre-trial reports produced by the two arresting officers and the lack of an opportunity to question them. The Court considered that there was no good reason for the non-attendance of the two officers at the trial. Despite their classification as neither witnesses nor victims under the domestic law, the officers had to be regarded as witnesses for the purposes of Article 6 § 3 (d) of the Convention. Their adverse testimony was, at the very least, decisive. They were at the origin of the proceedings against the applicant and belonged to the authority which had initiated them. They were eyewitnesses to the applicant’s alleged participation in an unlawful public event and his alleged refusal to comply with their related orders.
The Court was thus not satisfied that the applicant’s conviction was the result of a fair hearing, as it was based on untested evidence produced by the police officers who were at the origin of the proceedings and belonged to the authority initiating the case. The counterbalancing factors (the questioning of the defence witness at the trial) were not sufficient.
Conclusion: violation (unanimously).
The Court also found, unanimously, violations of Article 5 § 1 and Article 10 of the Convention and a further violation of Article 6 § 1 (on account of the absence of a prosecuting party in the proceedings – see Karelin v. Russia, 926/08, 20 September 2016, Information Note 199).
Article 41: EUR 7,000 in respect of non-pecuniary damage.
(See also Kasparov and Others v. Russia, 21613/07, 3 October 2013, Information Note 167)
Leave a Reply