FIFTH SECTION
\nCASE OF DIMITROV AND MOMIN v. BULGARIA
\n(Application no. 35132\/08)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n7 June 2018<\/p>\n
FINAL
\n07\/09\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention.It may be subject to editorial revision.<\/p>\n
In the case of Dimitrov and Momin v. Bulgaria,<\/p>\n
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:<\/p>\n
Erik M\u00f8se, President,
\nAndr\u00e9 Potocki,
\nYonko Grozev,
\nS\u00edofra O\u2019Leary,
\nM\u0101rti\u0146\u0161 Mits,
\nGabriele Kucsko-Stadlmayer,
\nL\u04d9tif H\u00fcseynov, judges,
\nand Claudia Westerdiek, Section Registrar,<\/p>\n
Having deliberated in private on 20 Marchand 15 May 2018,<\/p>\n
Delivers the following judgment, which was adopted on the last-mentioned date:<\/p>\n
PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 35132\/08) against the Republic of Bulgaria lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Bulgarian nationals, Mr Dimitar Angelov Dimitrov and Mr Ventseslav Tobiev Momin (\u201cthe applicants\u201d), on 4\u00a0July 2008.<\/p>\n 2.\u00a0\u00a0The applicants were represented by Ms Y. Vandova, a lawyer practising in Sofia. The Bulgarian Government (\u201cthe Government\u201d) were represented by their Agent, Mr V. Obretenov, from the Ministry of Justice.<\/p>\n 3.\u00a0\u00a0Relying on Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention, the applicants alleged that they had been convicted on the basis of statements by the victim, whom they had never had the opportunity to examine.<\/p>\n 4.\u00a0\u00a0On 12\u00a0December 2016 notice of that complaint was given to the Government and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054\u00a0\u00a7\u00a03 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicants were born in 1965 and 1964 respectively and live in Plovdiv.<\/p>\n 6.\u00a0\u00a0On 14 March 1998 a 26-year-old woman, S.D., lodged a complaint with the Plovdiv police stating that she had been abducted, held captive and raped by the two applicants the previous day.<\/p>\n 7.\u00a0\u00a0On the same day, criminal proceedings for rape were instituted against a person or persons unknown. S.D. underwent a medical examination, which revealed several bruises on her head, neck, arms and knees. The doctor stated that there were no other physical marks or biological evidence from which it could be conclusively determined that S.D. had had sexual intercourse.When questioned by the investigator, S.D. explained that the applicants had forced her to accompany them into premises in Plovdiv city centre, where they hadill-treated and raped her.<\/p>\n 8.\u00a0\u00a0On 18 March 1998 S.D. was questioned again. She withdrew her initial statement, explaining that she wanted to keep her peace, that she was not feeling well and that she had personal problems.<\/p>\n 9.\u00a0\u00a0On the same day, the investigator questioned Mr Momin as a witness. Mr Momin explained that S.D. had accompanied him and the other applicant to a caf\u00e9 in Plovdiv city centre early in the morning of 13 March 1998, but he denied having had sexual intercourse with her. He added that, as far as he knew, Mr Dimitrov had not had sexual intercourse with S.D. on that day either. Both of them had then accompanied S.D. back to her home.<\/p>\n 10.\u00a0\u00a0On 24 March 1998 Mr Dimitrov was also questioned as a witness. He stated that, on the morning of 13 March 1998, he and the other applicant had planned to go for coffee in Plovdiv city centre, that he had also decided to invite S.D., with whom he had previously had an intimate relationship, and that she had accepted the invitation. After they had entered the premises, which were being refurbished, he had had consensual sex with S.D. while Mr Momin had gone out to buy coffee nearby. Shortly afterwards, he, S.D. and Mr Momin had taken a taxi, which had dropped Mr\u00a0Momin off at his workplace and S.D. at her home.<\/p>\n 11.\u00a0\u00a0On 29 January 1999 S.D. was questioned again. She stated that she had had an intimate relationship with Mr Dimitrov in the past. On 13 March 1998 she had gone with the two applicants to premises in Plovdiv city centre for a coffee, and on arriving there, they had found that the coffee machine was not working.Mr Momin had then gone out to buy three coffees. S.D. stated that while he was out, she had had consensual sex with Mr Dimitrov and that later on, after drinking the coffees brought back by Mr\u00a0Momin, the three of them had taken a taxi and she had returned home. Thefollowing day, under pressure from her relatives and to take revenge on Mr Dimitrov, who had admitted to her that he was married, she had lodged a complaint with the police against him and Mr Momin.<\/p>\n 12.\u00a0\u00a0On 1 February 1999 the investigator sent the file to the district prosecutor\u2019s office, attaching his opinion to the effect that the criminal proceedings could be discontinued in the absence of a criminal offence.<\/p>\n 13.\u00a0\u00a0On 10 March 1999 the prosecutor in charge of the investigation returned the file to the investigator for further inquiries. That order was set aside on 26 April 1999 by the Plovdiv district prosecutor\u2019s office, which ordered the prosecutor in charge of the investigation, I.P., to carry out a number of additional investigative measures himself.<\/p>\n 14.\u00a0\u00a0On 12 April 2000 S.D. sent a letter to the prosecutor I.P. reiterating her wish to withdraw her initial statement and asking him to discontinue the proceedings. She also informed him that she was very ill and undergoing chemotherapy.<\/p>\n 15.\u00a0\u00a0On 12 May 2000 the prosecutor I.P. formally charged Mr\u00a0Dimitrov with the rape of S.D.<\/p>\n 16.\u00a0\u00a0On 18 December 2000 the prosecutor I.P. asked the Plovdiv District Court to question S.D. under Article 210a \u00a7 1 of the Code of Criminal Procedure, on the grounds that her testimony was of particular importance to the investigation.<\/p>\n 17.\u00a0\u00a0On 19 December 2000 at 9.40 a.m., in the presence of the prosecutor I.P., a judge of the Plovdiv District Court questioned S.D. The judge noted that Mr Dimitrov had been informed of this procedure in a letter from Plovdiv no. 4 police station.<\/p>\n 18.\u00a0\u00a0During questioning, S.D. altered her previous statement and reiterated her original version of the events, according to which she had been kidnapped, taken captive and raped by the two applicants. In particular, she stated that Mr Dimitrov had picked her up from her home on the morning of 13 March 1998 and had forced her into a taxi where Mr\u00a0Momin was sitting inside. Both applicants appeared to have consumed alcohol.The taxi had dropped them off at a caf\u00e9 that was being refurbished in Plovdiv city centre; she had tried to escape, but Mr Dimitrov had hit her on the neck and pushed her inside, where he had forced her to undress and had hit her on the headseveral times.She had then suffered an episode of hypoglycaemia, from which she had recovered by taking several sachets of sugar found by the two applicants.Then she had had non-consensual sex twice with Mr Dimitrov and once with Mr Momin.Afterwards, she had been taken home in a taxi paid for by the applicants. She hadlodged a complaint the following day, after confiding in her family.<\/p>\n 19.\u00a0\u00a0S.D. explained that she had withdrawn her original statement because she had been threatened by Mr Dimitrov and other people close to the two applicants. Immediately after a chemotherapy session she had received a visit from a lawyer, Ms N., who had apparently been sent by the same people. The lawyer had persuaded her to sign the letter retracting her original statement and withdrawing her complaint, and the letter had then been sent to the prosecutor in charge of the investigation (see paragraph 14 above). S.D. added that she had cancer, but was feeling well.<\/p>\n 20.\u00a0\u00a0On 20 April 2001 both applicants were charged with the abduction, false imprisonment and rape of S.D.<\/p>\n 21.\u00a0\u00a0On 3 May 2001 counsel for both applicants, Mr S., requested that his clients be confronted individually with S.D. His request was rejected on 2\u00a0July 2001 by the prosecutor I.P., on the grounds that this was a non-compulsory investigative measure which, moreover, was not necessary for the establishment of the facts of the case at hand.<\/p>\n 22.\u00a0\u00a0On 25 June 2001 S.D. died of her illness.<\/p>\n 23.\u00a0\u00a0On 11 February 2002 the district prosecutor\u2019s office drew up the indictment and committed both applicants for trial. They were accused of having abducted S.D., held her captive, issued death threats against her and raped her.<\/p>\n 24.\u00a0\u00a0The Plovdiv District Court examined the criminal case between 14\u00a0January 2004 and 21 February 2007. It decided to admit S.D.\u2019s statement of 19 December 2000 in evidence. The record of the questioning was accordingly read out in court. The court also heard evidence from the two applicants, the three police officers who had attended to S.D. when she had lodged her complaint, the victim\u2019s relatives and three other witnesses. In addition, it heard the opinion of a medical expert on the nature and origin of the injuries found on S.D.\u2019s body during her medical examination on 14\u00a0March 1998. The applicants, represented by lawyers of their choosing, challenged the evidence against them, adducedevidence in their defence and sought their acquittal.<\/p>\n 25.\u00a0\u00a0In a judgment of 21 February 2007 the Plovdiv District Court found Mr Dimitrov guilty of raping S.D. and acquitted him on the other charges. He was given a suspended sentence of three years\u2019 imprisonment. The court acquitted Mr Momin on all the charges.<\/p>\n 26.\u00a0\u00a0In the reasoning set out in its judgment, the District Court held that the only fact that could be established from the evidence gathered was that S.D. had had non-consensual sexual intercourse with Mr Dimitrov. It based that conclusion in particular on the two defendants\u2019 statements, part of S.D.\u2019s statement, the findings of the expert medical opinion and the statements of the other witnesses questioned. It rejected the rest of S.D.\u2019s evidence. In that connection, the court noted that the victim had changed her account during the investigation, that it had not had the opportunity to examine her in person, that the other witnesses had portrayed S.D. in a negative light, that her statement had been given two years after the events and that it contradicted the other statements and the findings of the medical examination performed on S.D. the day after the events in question.<\/p>\n 27.\u00a0\u00a0Mr Dimitrov and the public prosecutor\u2019s officeboth appealed.<\/p>\n 28.\u00a0\u00a0The Plovdiv Regional Court heard the case between 27\u00a0June and 4\u00a0July 2007. It ordered two expert medical opinions on the basis of the evidence to establish the process and causes of an episodeof hypoglycaemia, and to check the accounts given by S.D. and Mr Dimitrov as to the cause of the injuries found on S.D.\u2019s body during her initial medical examination. The applicants, represented by lawyers of their choosing, challenged the evidence against them, including the admissibility and credibility of the victim\u2019s statement of 19 December 2000, and sought their acquittal.<\/p>\n 29.\u00a0\u00a0In a judgment of 4 July 2007 the Plovdiv Regional Court overturned the first-instance judgment and found both applicants guilty of having abducted S.D., held her captive, issued death threats against her and raped her. Mr Dimitrov was sentenced to six years\u2019 imprisonment and Mr Momin to five and a half years\u2019 imprisonment.<\/p>\n 30.\u00a0\u00a0In the reasoning set out in its forty-four-page judgment, the Regional Court established the facts of the case as follows. At the material time S.D. had been suffering from diabetes. She was separated from her husband and lived with her son at her grandmother\u2019s house. She knew Mr Dimitrov as she had previously had an intimate relationship with him. She also knew Mr\u00a0Momin, who worked in a shop near her home. On the morning of 13\u00a0March 1998, after consuming alcohol the previous night, the two applicants had taken a taxi to S.D.\u2019s home. Mr Dimitrov had called S.D. and she had come out of the house. He had then grabbed her by the hand, threatened her and forced her into the taxi, where the other applicant, Mr\u00a0Momin, was waiting for them. The taxi had dropped them all off in front of a bar that was being refurbished in Plovdiv city centre. Mr Dimitrov, who had the keys, had opened the door and let Mr Momin in first, before pushing S.D. inside. The two applicants had then forced S.D. to undress. Mr\u00a0Dimitrov had threatened her and hit her several times. S.D. had suffered an episode of hypoglycaemia, and the applicants had made her swallow the contents of several sachets of sugar. They had carried on threatening her, holding her down and beating her, and in that way had forced her to have sex with each of them. Subsequently, they had all left the premisesin a taxi, which had dropped the applicants off at a restaurant and S.D. at her home. She had confided in her relatives, who had persuaded her to alert the police. During the subsequent investigation, S.D. had been threatened by Mr\u00a0Dimitrov and people close to the two applicants in an attempt to make her withdraw her statement. Under pressure, S.D. had changed her version of eventsduring the course of the investigation. She had then become seriously ill. The pressure on S.D. had increased further: she had been persuaded by a lawyer, apparently sent by Mr Dimitrov\u2019s employer, to sign a declaration withdrawing her statement and her complaint; the declaration had then been sent to the investigating bodies. S.D. had subsequentlybeen questioned by a judge, had retracted her original statement and had given evidence about the pressure exerted on her during the investigation. On 25\u00a0June 2001 S.D. had died.<\/p>\n 31.\u00a0\u00a0The Regional Court based its findings of fact on S.D.\u2019s statement of 19 December 2000, the statements by the three police officers who had attended to her at the police station the day after the events and had carried out the initial investigative steps, the statement by S.D.\u2019s husband and a certain V.M., part of the statements by the applicants and Mr Dimitrov\u2019s employer, the findings of the site inspection report and the photographs taken in the course of the inspection, variousitems of documentary evidence, the findings of the initial medical examination of the victim and the two additional medical examinations, andthe two psychiatric examinations of the applicants.<\/p>\n 32.\u00a0\u00a0The Regional Court devoted six pages of its reasoning to an analysis of S.D.\u2019s statement of 19 December 2000. It accepted the statement in its entirety, findingit to becoherent, logical, precise,specific and consistent with the details emerging from the other material admitted in evidence.<\/p>\n 33.\u00a0\u00a0The Regional Court noted firstly that S.D. had had no cause to make false accusations against the applicants; it rejected as ill-founded and illogical the applicants\u2019accounts to the effect that S.D.\u2019s statement had been influenced by her relatives, or even motivated by a desire for revenge or a feeling of jealousy.<\/p>\n 34.\u00a0\u00a0Next, the Regional Court found that the statement in question was credible in that it was consistent with those given by the police officers who had registered the victim\u2019s complaint and had observed her psychological and physical state on the day after the events. It added that the statement was also consistent with the findings of the medical examinations and expert opinions and the findings noted in the site inspection report.<\/p>\n 35.\u00a0\u00a0The Regional Court further noted that, although two years had elapsed between the events and the questioning of S.D., her statement was very detailed. It found that her alteration of her version of events in the course of the investigation had been due to the pressure exerted on her by the applicants and people close to them.<\/p>\n 36.\u00a0\u00a0The Regional Court lastly noted that both applicants and two of the defence witnesses, who had close links to them, had tried to discredit S.D. by accusing her of amoral behaviour. Itrejected their evidence and found that the evidence given by S.D.\u2019s husband was credible in this respect. By describing S.D. as a caring mother and a person whose behaviour and way of life were in no way morally objectionable, the husband had, despite being separatedfrom her, given testimony from which a positive psychological image of S.D. could be formed.<\/p>\n 37.\u00a0\u00a0Both applicants appealed to the Supreme Court of Cassation.Among other things, they challenged the admissibility and credibility of S.D.\u2019s statement of 19 December 2000.<\/p>\n 38.\u00a0\u00a0In a judgment of 7 January 2008 the Supreme Court of Cassation dismissed the applicants\u2019 appeals as to the establishment of the facts and the defendants\u2019 guilt, and upheld the Regional Court\u2019s judgment in respect of those issues. However, it decided to reduce the applicants\u2019 sentences to five years\u2019 imprisonment for Mr Dimitrov and four years for Mr Momin.<\/p>\n 39.\u00a0\u00a0The Supreme Court of Cassation found that the applicants\u2019 right to participate in the questioning of S.D. on 19 December 2000 had not been violated. In particular, it noted that, although Mr Dimitrov had yet to appoint a lawyer at that time, he had been informed of S.D.\u2019s questioning and had therefore had the opportunity to take part. With regard to Mr\u00a0Momin, at that stage of the investigation he had yet to be charged and he had therefore not been entitled to participate in the questioning of S.D.<\/p>\n 40.\u00a0\u00a0The Supreme Court of Cassation rejected the applicants\u2019 arguments challenging the credibility of S.D.\u2019s statement. It found that the Regional Court had correctly accepted the statement in its entirety after testing its credibility by comparing it with the other evidence gathered. It noted that the Regional Court had examined and rejected all the arguments casting doubt on the statement. It further held that the Regional Court had established the facts on the basis of all the evidence and that, on that basis, S.D.\u2019s statement was \u201can important element, but not the only element\u201d in establishing Mr Dimitrov\u2019s guilt and \u201cthe main evidence\u201d in establishing Mr\u00a0Momin\u2019s guilt.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 41.\u00a0\u00a0The relevant provisions of the 1974 Code of Criminal Procedure, which was in force at the material time, were worded as follows:<\/p>\n Article 210a<\/p>\n \u201c1.\u00a0\u00a0Where there is a risk that the witness might not appear in court because of serious illness, prolonged absence from the country or any other reason making it impossible for him or her to appear at a hearing, and where it is necessary to take evidence from a witness that is of special importance for the establishment of the facts, the questioning shall be carried out by a judge of the competent first-instance court. …<\/p>\n 2.\u00a0\u00a0The investigator or prosecutor shall secure the appearance of the witness and shall make it possible for the accused and, as appropriate, his or her defence counsel to participate in the questioning.\u201d<\/p>\n Article 279<\/p>\n \u201c1.\u00a0\u00a0Witness evidence taken in the same case by a judge at the preliminary investigation stage shall be read out [at the hearing] where:<\/p>\n …<\/p>\n (4)\u00a0\u00a0the witness cannot be found for the purposes of a summons, or has died.\u201d<\/p>\n THE LAW<\/strong><\/p>\n ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 AND 3 (d) OF THE CONVENTION<\/p>\n 42.\u00a0\u00a0The applicants complained that they had been convicted on the basis of a statement by a witness, S.D., whom they had had no opportunity to confront or examine. They relied on Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention, which provides:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (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;<\/p>\n …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 43.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n (a)\u00a0\u00a0The applicants<\/p>\n 44.\u00a0\u00a0The applicants referred first of all to the principle established in the Court\u2019s case-law concerning the application of Article 6 of the Convention, to the effect that the accused must be given the opportunity to be confronted with witnesses against them and to examine them. They argued that this principle was particularly important when the testimony in question was the main evidence for the prosecution. The opportunity to be confronted with and to examine a witnesscould be provided when the statement was taken or at another stage of the proceedings.<\/p>\n 45.\u00a0\u00a0The applicants further stated that in their own case, they had not had the opportunity to examine S.D. at any stage of the criminal proceedings, either during the investigation or during the trial. Yet S.D. had been the main witness for the prosecution and it was on the basis of herstatement that they had been convicted.<\/p>\n 46.\u00a0\u00a0The applicants submitted that there had not been sufficient counterbalancing factors to compensate for the handicaps under which the defence had laboured as a result of the admission of that evidence and to ensure the fairness of the criminal proceedings as a whole.The evidence in question should have been rejected by the courts, just as they had rejected the statement by the victim\u2019s grandmother whom the applicants had not been able to cross-examine; the reduction of their sentences by the court of final instance had been unable to compensate for that shortcoming. The applicants contended that S.D.\u2019s questioning had been carried out in breach of Bulgarian procedural law, since they had not been informed of it and had thus been denied any opportunity to attend it. Furthermore, the courts had not performed a thorough analysis of the credibility of this witness, who had changed her account several times during the investigation.In that connection, the allegation that S.D. had been pressured into withdrawing her statement had never been proved. The absence of any opportunity to examine that witness could in no way be offset by the opportunity they had hadat the trial to challenge the accuracy of her statement or tocross-examine the other witnesses, since her statement had been the main evidence for the prosecution, and the other evidence was contradictory and did not corroborate S.D.\u2019s version of events as set out in herstatement.<\/p>\n (b)\u00a0\u00a0The Government<\/p>\n 47.\u00a0\u00a0The Government contested the applicants\u2019 position and submitted that there had been no violation of Article 6 of the Convention in the present case. Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention required accused persons to be given the opportunity to familiarise themselves with the evidence, which had to be presented to them at the hearing. There could be exceptions to this principle, but they should not infringe the rights of the defence, which as a rule required accused persons to be entitled to examine or have examined a witness against them, either when the witness gave a statement or at a later stage (they cited Solakov v. the former Yugoslav Republic of Macedonia, no.\u00a047023\/99, \u00a7 57, ECHR 2001\u2011X).Furthermore, inSchatschaschwili v.\u00a0Germany ([GC], no. 9154\/10, \u00a7 107, ECHR 2015),Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766\/05 and 22228\/06, \u00a7 119, ECHR 2011) and Seton v. the United Kingdom, (no.\u00a055287\/10, \u00a7\u00a7\u00a058 and\u00a059, 31 March 2016), the Court had established three criteria which criminal proceedings had to satisfy in order to be compatible with Article 6 \u00a7\u00a7 1 and 3 (d) where witnessstatements had been admitted in evidence without the witness having been examined by the accused.<\/p>\n 48.\u00a0\u00a0Concerning the first of the three criteria, namely the existence of a good reason for S.D.\u2019s absence from the trial, the Government pointed out that the young woman had died eight months before the indictment had been drawn up and the applicants had been committed for trial.The fact that the applicants had not examined S.D. before the trial was not attributable to the authorities.In that connection, Mr\u00a0Dimitrov, who at the time had been charged but had yet to appoint a lawyer, had been notified by the police that S.D. would be questioned on 19\u00a0December 2000, and since Mr Momin had yet to be charged, there had been no obligation for the authorities to secure his presence at the questioning.<\/p>\n 49.\u00a0\u00a0As regards the second criterion established in the Court\u2019s case-law, namely the significance of the evidence in question, the Government referred to the judgment delivered by the Supreme Court of Cassation in the present case and acknowledged that S.D.\u2019s statement had indisputably constituted the main evidence in the case.Nevertheless, the statement had not been the sole basis for establishing the applicants\u2019 guilt and had been corroborated by a range of other items of evidence.<\/p>\n 50.\u00a0\u00a0The Government submitted, lastly, that there had been sufficient counterbalancing factors to compensate for the handicaps under which the defence had laboured as a result of the admission of S.D.\u2019s statement. They contended that the applicants had been able to challenge the admissibility and credibility of the statement in question at the trial; that the courts dealing with the case had carried out a thorough analysis of the statement, giving consideration to all the factors which, as the applicants had argued, could undermine its credibility, and in particular had had regard to the circumstances in which the statement had been taken; and that the courts had also excluded other items of evidence against them for failure to comply with procedural rules. Furthermore, the applicants had actively participated in the trial\u2013 having been able to examine the other witnesses and to submit arguments in favour of their acquittal \u2013 and their respective sentences had been reduced by the Supreme Court of Cassation.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 51.\u00a0\u00a0The Court reiterates that the various guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedingsas a whole (see Al-Khawaja and\u00a0Tahery, cited above, \u00a7 118; G\u00e4fgen v. Germany [GC], no. 22978\/05, \u00a7\u00a0169, ECHR 2010; and Simeonovi v. Bulgaria [GC], no. 21980\/04, \u00a7\u00a0113, 12 May 2017).<\/p>\n 52.\u00a0\u00a0Article 6 \u00a7 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence (see Al\u2011Khawaja and Tahery, cited above, \u00a7\u00a0118).In particular, the Court has established the following criteria in its case-law for assessing the compliance with Article 6 of a trial at which a witness statement has been admitted in evidence even though the defendant has not had the opportunity to examine or to have examined the witness in question: firstly, it must ensure that there was a good reason for the non-attendance of the witness at the trial; next, it must ascertain whether the applicant\u2019s conviction was based solely or to a decisive extent on the statement of the absent witness; and lastly, it must determine whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps under which the defence laboured as a result of the admission of such evidence and to ensure that the trial, judged as a whole, was fair (ibid., \u00a7\u00a7 119 and 147).<\/p>\n 53.\u00a0\u00a0Subsequently, inSchatschaschwili v. Germany ([GC], no.\u00a09154\/10, \u00a7\u00a0118, ECHR 2015) the Court pointed out that as a rule, it was pertinent to examine those three steps in the order set out above, although it might be appropriate, in a given case, to examine them in a different order, especially if one of the steps proved to be particularly conclusive as to either the fairness or the unfairness of the proceedings. It also specified what factors should be taken into account in analysing the third step mentioned above, namely: the trial court\u2019s approach to the evidence in question, the availability and strength of further incriminating evidence, and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the absent witness at the trial (ibid., \u00a7\u00a7 125-31).<\/p>\n (b)\u00a0\u00a0Application of those principles to the present case<\/p>\n (i)\u00a0\u00a0Whether there were \u201cgood reasons\u201d for not arranging a confrontation between the applicants and the witness in question<\/p>\n 54.\u00a0\u00a0The Court observes that in the present case, the applicants complained that they had been convicted on the basis of the statement taken from S.D. during the preliminary investigation and that they had never had the opportunity to examine her as a witness.<\/p>\n 55.\u00a0\u00a0The Court observes that S.D. did not give evidence at the applicants\u2019trial because she died before it had started(see paragraphs 22 and 24 above). The statement she had made at the preliminary investigation stage was read out at the trial, in accordance with domestic law, and was admitted in evidence by the criminal courts (see paragraphs 24, 26, 31 and 40 above). The Court considers that S.D.\u2019s death constituted a \u201cgood reason\u201d, within the meaning of its case-law, for not hearing her as a witness at the trial and for admitting in evidence the statement she had made while still alive (see Al-Khawaja and Tahery, cited above, \u00a7 153).<\/p>\n 56.\u00a0\u00a0Both the applicants complained that the investigating authorities had not given them the opportunity to be confronted with the witness during the criminal investigation (see paragraph 45 above).The Court observes, for its part, that Mr\u00a0Dimitrov had been informed of the date on which S.D. was to be questioned by a judge, but did not attend (see paragraph 17 above).It is obliged to take this fact into account. Nevertheless, it observes that at that stage he did not have a lawyer who could have explained the importance of the questioning for the subsequent course of the proceedings(see paragraph\u00a039 above). Accordingly, having regard to its case-law in this area (see Dvorski v.\u00a0Croatia [GC], no. 25703\/11, \u00a7 100, ECHR 2015, and Pishchalnikov v.\u00a0Russia, no. 7025\/04, \u00a7 77, 24 September 2009), the Courtcannot accept that Mr Dimitrov\u2019s absence amounted to a waiver of his right to examine the witness at a later stage of the proceedings.In the case of Mr\u00a0Momin, on the date of the questioning he had yet to be formally charged and the applicable domestic law did not require the authorities to notify him of that investigative measure (see paragraphs 17, 20, 39 and 41 above).The Court considers that this fact is also relevant in the present case.It does not rule out the possibility, having regard to the criminal complaint lodged by S.D. (see paragraph 6 above) and the questioning of Mr\u00a0Momin on 18\u00a0March 1998 (see paragraph 9 above), and with reference to the criteria outlined in Simeonovi (cited above, \u00a7\u00a7 110 and 111), that this applicantcould have been regarded as having been \u201ccharged with a criminal offence\u201d within the autonomous meaning of Article 6 of the Conventionand thus as being entitled to the guarantees of that Article.However, this would not imply that Mr Momin, who had yet to be formally charged at that time, should have been invited to attend the questioning of S.D. on 19 December 2000. In the light of those circumstances, the Court considers that the fact that the two applicants were not present during the questioning cannot in itself amount to a violation of Article 6 \u00a7\u00a7\u00a01 and 3\u00a0(d) of the Convention.<\/p>\n 57.\u00a0\u00a0It is true that counsel for bothapplicants subsequently asked the authorities to arrange a confrontation between his clients and S.D. That request was refused by the public prosecutor on the grounds that that this was a non-compulsory investigative measure which was not necessary for the establishment of the facts (see paragraph 21 above).<\/p>\n 58.\u00a0\u00a0TheCourt emphasises, however, that S.D. had complained that she had been the victim of a particularly serious sexual assault, involving rape and physical violence. In the context of criminal proceedings for rape, the victims are frequently in a fragile psychological state. The investigating authorities therefore havea particular duty of care towards them, especially when it comes to taking their statements and arranging a confrontation with their alleged attackers (see Przydzia\u0142 v. Poland, no.\u00a015487\/08, \u00a7 48, 24 May 2016). This was especially true in the present case, where the victim was also seriously ill and had come under pressure during the investigation to withdraw her complaint and alter her statement (see paragraphs 19 and 30 above). In view of these very specific circumstances, the Court cannot reproach the investigating authorities for not arranging a confrontation between S.D. and the two applicants at the preliminary investigation stage.<\/p>\n 59.\u00a0\u00a0Admittedly, S.D.\u2019s death before the end of the investigation (see paragraphs\u00a022 and 23 above) had the effect of denying the applicants the opportunity to be confronted with that witness during the trial. The investigating authorities had indeed been aware since April 2000 that S.D. was ill and undergoingchemotherapy (see paragraph 14 above).However, there is no indication in the present case that either the investigator or the prosecutor knew that S.D.\u2019s condition was so serious that she might be unable to attend the trial. It must be noted that when questioned on 19\u00a0December 2000, S.D. had explained before the prosecutor that she had cancer but was feeling well (see paragraph 19 in fine above).The Court observes that the present case differs in that respect fromSchatschaschwili (cited above, \u00a7\u00a7 159 and 160), wherethe authorities knew that the key witnesses would probably not give evidence at the trial.<\/p>\n (ii)\u00a0\u00a0Whether the applicants\u2019 conviction was based solely or to a decisive extent on the statement of the witness in question<\/p>\n 60.\u00a0\u00a0With regard to the significance of S.D.\u2019s statement in forming a basis for the applicants\u2019 conviction, the Court observes that in its judgment of 7 January 2008 theSupreme Court ofCassation noted that it was \u201can important element, but not the only element\u201d in establishing Mr Dimitrov\u2019s guilt and \u201cthe main evidence\u201d in establishing Mr Momin\u2019s guilt (see paragraph\u00a040 in fine above).The parties agreed on this issue: the applicants submitted, and the Government acknowledged,that S.D.\u2019s statement had been the main item of evidence forming the basis for their conviction (see paragraphs 45 in fine and 49 above).In the specificcircumstances of the case, the Court can see no reason to reach a different conclusion on this point. It therefore considers that the statement by S.D. was the decisiveevidence in securing the applicants\u2019 conviction.<\/p>\n 61.\u00a0\u00a0The Court observes, however, that S.D.\u2019s statement was not the sole evidence against the applicants in the criminal proceedings. The Regional Court, which convicted the applicants and whose decision was upheld by the Supreme Court of Cassation, had before it other witness statements and other circumstantial evidence against the accused corroborating S.D.\u2019s statement:the statements by the police officers who had registered S.D.\u2019s complaint, the findings of the medical examinations and expert opinions, and the findings of the site inspection report (see paragraph 34 above).The applicants\u2019 conviction was therefore based on a body of evidence within which the statement in question was not an isolated element.<\/p>\n (iii)\u00a0\u00a0Whether there were sufficient counterbalancing factors to ensure that the criminal proceedings as a whole were fair<\/p>\n 62.\u00a0\u00a0Next, the Court must address the question whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps under which the defence laboured as a result of the admission of S.D.\u2019s statement and to ensure that the trial as a whole was fair (see paragraph 52 above). To that end, it will examine the trial courts\u2019 approach to the evidence in question, the availability and strength of further incriminating evidence, and the procedural measures taken to compensate for the lack of opportunity to cross-examine S.D. directly (see paragraph 53 above).<\/p>\n 63.\u00a0\u00a0The two courts that heard the criminal case on the merits and the Supreme Court of Cassation addressed issues relating to the admissibility and credibility of S.D.\u2019s statement.The first-instance court rejected most of the statement (see paragraph 26 above), whereas the appellate court accepted it in full and thus convicted both applicants(see paragraph 32 above).The latter approach was endorsed in the judgment of the Supreme Court of Cassation(see paragraphs 38-40 above).TheCourt therefore considers it appropriate to focus its analysis on the approach of the Plovdiv Regional Court and the Supreme Court of Cassation tothis evidence.<\/p>\n 64.\u00a0\u00a0The Plovdiv Regional Court devoted a significant part of the reasoning in its judgment to S.D.\u2019s statement (see paragraph 32 above).It sought to test its credibility by first determining whether the young woman might have had a motive for making unfounded accusations against the two applicants.The various accounts submitted by the applicants on this issue were rejected by the court as ill-founded (see paragraph 33 above).<\/p>\n 65.\u00a0\u00a0Next, the court compared the statement with other witness evidence,the findings of the medical examinations and expert opinions and the findings of the site inspection report. It found that the victim\u2019s statement was corroborated by those items of evidence and thus credible(see paragraph 34 above).<\/p>\n 66.\u00a0\u00a0In assessing the credibility of the statement, the Regional Courttook care to point out that it had been taken two years after the events, but observed that the passage of this period of time had in no way prevented the victim from making a verydetailed statement (see paragraph 35 above).<\/p>\n 67.\u00a0\u00a0The question concerning S.D.\u2019s alteration of her account in the course of the investigation was also addressed by the court, which found that this had been due to the pressure exerted on her by the applicants and people close to them (see paragraph 35 in fine above).<\/p>\n 68.\u00a0\u00a0Lastly, the Regional Court addressed and rejected the arguments put forward by the applicants and people close to them,when questioned during the course of the proceedings, in an attempt to discredit the victim by accusing her of amoral behaviour. In so doing, the court found that the statement by S.D.\u2019s husband, painting a positive picture of her, was credible(see paragraph 36 above).<\/p>\n 69.\u00a0\u00a0In the light of the above circumstances, the Court considers that the Regional Court\u2019s examination of S.D.\u2019s statement was thorough, objective and comprehensive. The Regional Court addressed all the relevant questions for the assessment of her credibility as a witness and the truthfulness of her statements of 19 December 2000.It therefore provided detailed reasons for its conclusion that the statement as a whole was credible and for its subsequent decision to admit it as the main evidence against the applicants.<\/p>\n 70.\u00a0\u00a0The Court further reiterates that the Regional Court had before it other witness statements and other circumstantial evidence against the accused corroborating S.D.\u2019s statement: the statements by the police officers who had registered S.D.\u2019s complaint, the findings of the medical examinations and expert opinions, and the site inspection report (see paragraphs 34 and 61 above). The applicants\u2019 conviction was therefore based on a body of evidence within which the statement in question was not an isolated element.<\/p>\n 71.\u00a0\u00a0In their observations, the Government emphasised the existence of severalprocedural safeguards serving as counterbalancing factors in the present case (see paragraph 50 above).The applicants contested the Government\u2019s position(see paragraph 46 above).<\/p>\n 72.\u00a0\u00a0The Court observes that the applicants played an active role in the proceedings brought against them: with assistance from their lawyers, they challenged the admissibility and credibility of the victim\u2019s testimony and adduced evidence in their defence(see paragraphs 24 in fine and 28 in fine above).The Regional Court and the Supreme Court of Cassation addressed and rejected their arguments in decisions that contained detailed reasoning and werenot arbitrary (see paragraphs 29-36 and 38-40 above).In this connection, the Court attaches particularsignificance to the detailed and comprehensive analysis of the credibility of the victim\u2019s statement performed by the Regional Court with a view to ensuring fairness and due process(see paragraphs 64-69 above).<\/p>\n (iv)\u00a0\u00a0The Court\u2019s conclusion<\/p>\n 73.\u00a0\u00a0To sum up, the Court considers that S.D.\u2019s death constituted a \u201cgood reason\u201d, within the meaning of its case-law, for not hearing her as a witness during the trial and for admitting in evidence the statement she had made while still alive during the criminal investigation. It also finds that there were valid reasons for not arranging a confrontation between the two applicants and S.D. during the preliminary investigation.Although the applicants\u2019 subsequent conviction was based primarily on the statement by that witness, the courts also took other corroborating evidence into account.Moreover, in the criminal proceedings against the applicants, sufficient procedural safeguards were available to them to compensate for the handicaps under which the defence laboured as a result of the admission of S.D.\u2019s statement and to ensure that the trial as a whole was fair: the applicants actively participated in the trial and submitted arguments in favour of their acquittal; the courtscarried out a very careful analysis of the credibility of the main evidence against the applicants, considering their objections in that regard and providing reasons for rejecting them; and lastly, the domestic courts\u2019 decisions contained detailed reasoning and were not arbitrary.<\/p>\n 74.\u00a0\u00a0The Court therefore finds that there has been no violation of Article\u00a06 \u00a7\u00a7 1 and 3 (d) of the Convention in the present case.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the application admissible;<\/p>\n 2.\u00a0\u00a0Holds that there has been no violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention.<\/p>\n Done in French, and notified in writing on 7 June 2018, pursuant to Rule\u00a077 \u00a7\u00a7 2 and 3 of the Rules of Court.<\/p>\n Claudia Westerdiek\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Erik M\u00f8se
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n