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

versarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage (see {Ludi} v. Switzerland, 15 June 1992, § 49, Series A No. 238).
35. As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during the investigative stage. If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3 (d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see {Lucа} v. Italy, No. 33354/96, § 40, ECHR 2001-II, with further references).
36. The Court further reiterates that the authorities should make "every reasonable effort" to secure the appearance of a witness for direct examination before the trial court. With respect to statements of witnesses who have proved to be unavailable for questioning in the presence of the defendant or his counsel, the Court would emphasise that "paragraph 1 of Article 6 taken together with paragraph 3 requires the Contracting States to take positive steps, in particular to enable the accused to examine or have examined witnesses against him. Such measures form part of the diligence which the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner" (see Sadak and Others v. Turkey, Nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR 2001-VIII).
37. The first question to be decided in the present case is whether by failing to object to the reading out of the witnesses' statements the applicant waived his right to have the witnesses examined. In this regard the Court reiterates that the waiver of a right guaranteed by the Convention, in so far as permissible, must be established in an unequivocal manner (see Bocos-Cuesta v. the Netherlands, No. 54789/00, § 65, 10 November 2005). In the present case the applicant twice asked the court to adjourn the hearing and obtain the attendance of the witnesses. It is true that he did not object to the reading out of the statements they had made at the pre-trial stage. However, in view of his repeated requests to secure the witnesses' presence in court, the Court cannot find that he may be regarded as having unequivocally waived his right to have them questioned.
38. The Court will further examine whether the use in court of the statements by the absent witnesses amounted to a violation of the applicant's right to a fair trial. In doing so, it will ascertain whether their statements read out at the trial were corroborated by other evidence and whether a reasonable effort was made by the authorities to secure their appearance in court.
(a) The reading out of depositions by Ms M. and Ms K.
39. The Court observes that Ms M. and Ms K. were respectively the victim and the only eyewitness to the armed robbery, the first charge levelled at the applicant. They both testified that the applicant had approached Ms M. in the street and got hold of her money and merchandise. That testimony was corroborated by the applicant's confession and the results of the search of his flat, where the stolen merchandise had been found.
40. However, Ms M. was the only one to testify that the applicant had threatened her

> 1 2 ... 3 4 5 6 7 ... 8