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

an opportunity to contest them at the trial, but this can scarcely be regarded as a proper substitute for personal observation of the leading witnesses giving oral evidence (see Bocos-Cuesta, cited above, § 71).
43. Having regard to the fact that the applicant was not afforded an opportunity to question Ms M. and Ms K., whose testimony was of decisive importance for the legal characterisation of the offence he was convicted of, and that the authorities failed to make a reasonable effort to secure their presence in court, the Court finds that the applicant's defence rights were restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention.
(b) The reading out of depositions by Mr G.
44. The Court observes that Mr G. was the eyewitness to the robbery of his sister Ms G., the second charge against the applicant. His depositions were identical in many respects to those of Ms G., who testified in court and was questioned by the applicant. Mr G. and Ms G. both stated that the applicant and his accomplice had come to their flat, threatened them and taken their belongings away. The only added value of Mr G.'s testimony was his assertion that he owed nothing to the applicant, while the applicant had claimed that Mr G. was indebted to him and Ms G. had asserted that the belongings had been taken by the applicant for the debt that Mr G. had refused to pay. The Court notes that the existence of a debt was an essential element for the characterisation of the applicant's actions either as robbery of Mr G. and Ms G. or as a forcible assertion of his right to recover the debt. Therefore Mr G.'s depositions had a bearing on the legal characterisation of the applicant's actions under Article 161 § 2 (robbery) or Article 330 § 2 (forcible assertion of one's right) of the Criminal Code and, consequently, on the penalty imposed on him (see paragraphs 22 and 23 above). The Court considers that Mr G.'s statements, although not the sole evidence against the applicant, were nevertheless of decisive importance for his conviction.
45. The Court will next examine whether the authorities made a reasonable effort to obtain Mr G.'s attendance. It notes that Mr G. was in custody at the disposal of the domestic authorities. The Government did not explain why Mr G. had not been brought to the courtroom on 27 May 2003. Their explanation for the failure to bring him to the courtroom on 17 June 2003 appears unconvincing. The investigator in charge of the criminal case against Mr G. had been informed in advance that on that day Mr G. had to be present in court. He could have organised the investigation schedule to allow Mr G. to testify, but apparently did not make any effort to do so.
46. In view of the above, the Court finds that the domestic authorities did not make a reasonable effort to ensure that the applicant had a proper and adequate opportunity to question Mr G., a key witness against him. In these circumstances, the applicant cannot be said to have received a fair trial.
(c) Conclusion
47. Having regard to the fact that the applicant had no opportunity to cross-examine three witnesses whose statements were of decisive importance for his conviction, the Court concludes that his defence rights were restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention. Accordingly, there has been a violation of these provisions.

II. Application of Article 41 of the Convention

48. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

> 1 2 3 ... 6 7 8