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Постановление Европейского суда по правам человека от 05.02.2009 «Дело Макеев (Makeyev) против России» [англ.]





the applicant had confessed to having robbed Ms M., he had denied threatening her with a knife. The court's conclusion that he had committed the offence of armed robbery, rather than the offence of robbery to which he had confessed, had rested solely on the depositions by Ms M. that he had been armed with a knife. It had been also crucial for the applicant to question Ms K., an eyewitness, to clarify whether or not she had seen him brandishing a knife at Ms M. On the second charge, Mr G. had been the only eyewitness to the robbery. Although the court had also relied on the testimony given by his sister Ms G. in court, she had been only a hearsay witness. The conviction had been primarily based on Mr G.'s statements to the investigator. In particular, the court's conclusion that the applicant had robbed Mr G. rather than taken his belongings for the debt had rested solely on Mr G.'s assertion that he had owed nothing to the applicant or Mr S., which had not been corroborated by any other evidence.
30. The applicant further argued that the authorities' effort to obtain the attendance of the witnesses had been insufficient. In particular, they had not delivered the summonses to Ms K. until the day of the hearing. Had this been done in advance, she could have made arrangements for babysitting. Similarly, the police had visited Ms M. only on the day of the hearing. As she had been absent from her flat, they had assumed that she had left Russia. However, they had never verified whether she had indeed moved away. Nor had they attempted to discover her whereabouts. As for Mr G., he had been in custody under the control of the authorities. The summonses had been issued by the court on 27 May 2003, so the authorities had known well in advance that on 17 June 2003 Mr G. had to be present in court. They could therefore have examined the issue of extending the investigation in respect of him on any other day. Moreover, the extension of the authorised period of investigation was a purely formal decision taken in the absence of the accused and without hearing his opinion.
31. Finally, the applicant conceded that he had not objected to the reading out of the witnesses' statements. He argued, however, that such an objection would have been ineffective. Indeed, an objection raised by his co-defendant Mr S. had been dismissed by the court and the witnesses' statement had been read out. Moreover, his failure to object to the reading out of the statements in question had not amounted to a waiver of his right to question the witnesses against him. He had twice asked the court to adjourn the hearing and secure their attendance. He had therefore clearly shown that he had considered it important to have the witnesses questioned.

2. The Court's assessment

32. As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the applicant's complaints under those two provisions taken together (see, among many other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 49, Reports of Judgments and Decisions 1997-III).
33. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Doorson v. the Netherlands, 26 March 1996, § 67, Reports 1996-II, and Van Mechelen and Others, cited above, § 50).
34. The evidence must normally be produced at a public hearing, in the presence of the accused, with a view to ad



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