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

oreover, it has not been argued, and the Court does not consider, that the applicant was not sufficiently aware of his procedural rights, including the right to examine witnesses against him (see, by contrast, Panovits, cited above, § 68, and {Strzalkowski} v. Poland, No. 31509/02, § 54, 9 June 2009). The applicant did exercise his right to call witnesses on his behalf at the trial. At the same time, it does not transpire from the materials in the case file that the applicant made any visible effort to obtain the officers' presence in court or for them to be questioned at some other stage of the proceedings (see, by contrast, Makeyev v. Russia, No. 13769/04, § 37, 5 February 2009).
40. Bearing in mind the above factors, in the Court's opinion, it was incumbent on the applicant, who chose self-representation at the trial, to make an informed decision as to the necessity of examining the officers in open court. There is no reason to believe that the applicant did not understand that his consent to the reading out of the statements implied the waiver of the right to examine them in the subsequent proceedings at the trial. The materials before the Court do not disclose any circumstance which would lead it to consider that the trial judge himself should have taken any particular measure in this respect (see, for instance, Talat {Tunc} v. Turkey, No. 32432/96, § 61, 27 March 2007, and Timergaliyev v. Russia, No. 40631/02, § 59, 14 October 2008).
41. Consequently, the Court concludes that the applicant made an explicit waiver of his right to examine the officers or have them examined. In the circumstances of the case, there is no reason to consider that the applicant was not sufficiently put on notice as to the consequences of his consenting to the admission of the officers' pre-trial statements (compare Craxi v. Italy (No. 1), No. 34896/97, §§ 90 - 93, 5 December 2002, and Bonev v. Bulgaria, No. 60018/00, § 41, 8 June 2006).
42. Lastly, the Court does not consider that the case raised any questions of public interest preventing the aforementioned procedural guarantee from being waived (see Hermi [GC], cited above, § 79).
43. The foregoing considerations have led the Court to conclude that there has been no violation of Article 6 of the Convention.

FOR THESE REASONS, THE COURT

1. Declares unanimously the application admissible;
2. Holds by four votes to three that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

Done in English, and notified in writing on 4 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Soren} NIELSEN
Registrar





In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following joint dissenting opinion of Judges Rozakis, Spielmann and Jebens is annexed to this judgment.

C.L.R.

S.N.

JOINT DISSENTING OPINION OF JUDGES ROZAKIS,
SPIELMANN AND JEBENS

1. We disagree with the majority view that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.
2. The majority come to the conclusion that the applicant made an explicit waiver of his right to examine the officers or have them examined (see paragraph 41 of the judgment).
3. We disagree with this finding. A waiver is acceptable only if it meets the quality requirement of being "unequivocal". We would like to emphasise that we are not satisfied that the alleged waiver of the applicant's right to have both witnesses heard was an "unequivocal" waiver, and hence a valid waiver, as required by the Court's case-law. According to the Oxford Dictionary of English (2nd edition revise



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