Постановление Европейского суда по правам человека от 04.03.2010 «Дело Хаметшин (Khametshin) против России» [англ.]

review.

II. Relevant domestic law and practice

A. Code of Criminal Procedure (CCrP)

20. Under Article 47 § 3 of the CCrP, a defendant has a right to adequate time and facilities for the preparation of his defence. Article 47 § 4 contains a list of procedural rights, including a right to legal assistance and to free legal representation in certain circumstances, a right to participate in hearings before first-instance and higher courts, to have access to the trial record and to lodge comments on it. During the first interview the defendant should be informed of the above procedural rights (Article 47 § 6).
21. All evidence should normally be presented at a court hearing during which the court should hear statements from the defendant, victim, witnesses and so on and examine physical evidence (Article 240). The reading of pre-trial depositions should only be allowable under Articles 276 or 281 of the Code (ibid).
22. Under Article 281 § 1 of the Code, in its version before 10 July 2003, the reading out of earlier statements made by the victim or witness was allowable if the parties gave their consent to it and if (i) there were substantial contradictions between the earlier and the later statements, or (ii) the victim or witness had not appeared before the trial court.

B. Supreme Court of Russia

23. Sitting as a court of appeal in a criminal case examined by the first-instance court in 2003, the Supreme Court interpreted Article 281 as requiring consent from both parties only when it was the intention of the trial court ex officio to read out a pre-trial statement rather than a request from one of the parties (Appeal decision No. 3-74/03 of 19 February 2004).

C. Constitutional Court of Russia

24. In its admissibility decision of 27 October 2000 (No. 233-O), the Constitutional Court held that the reading out of pre-trial depositions should be considered as an exception to the court's own assessment of evidence and should not upset the procedural balance between the interests of the prosecution and those of the defence. If a party insists on calling a witness whose testimony may be important to the case, the court should take all available measures to ensure this witness's presence in court. When that witness is available for questioning, the reading out of his or her deposition should be considered inadmissible evidence and should not be relied upon. However, when the witness is not available for questioning, the defence should still be provided with appropriate procedural safeguards such as challenge to the read-out deposition, a request for challenge by way of examining further evidence, as well as pre-trial face-to-face confrontation between that witness and the defendant when the latter was given an opportunity to put questions to the former (see also the admissibility decision of 7 December 2006 (No. 548-O)).

THE LAW

Alleged violation of Article 6 of the Convention

25. The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that he had not had a fair trial. In particular, he complained of the trial court's assessment of the available evidence and of the fact that he had not been afforded any opportunity to examine officers S. and A. in the criminal proceedings against him. Article 6 in the relevant parts reads as follows:
"1. In the determination of... any criminal charge against him, everyone is entitled to a fair and public hearing...
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;..."
26. The Government su

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