TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): It relates to the first step of the Perna test.
AP1 (Applicant): I will demonstrate that the applicant requested to call witness Akhmeyev for questioning during the investigation, and then during trial, each time providing ample reasons for her request.
AP1 (Applicant): The applicant requested the interrogation of Mr. Akhmeyev at the pretrial stage of proceedings
AP1 (Applicant): on the first reasonably available occasion, that is, just after the notification of the charges against her on 12 October 2004.
AP1 (Applicant): In the motion to the investigator, she wrote that, I quote, the evidence that I'm innocent and not involved in this case has never been collected, end of quote.
AP1 (Applicant): She referred, in particular, to the facts that Mr. Akhmeyev had known her and her flatmates,
AP1 (Applicant): that he had spoken to her during her detention in December 2003, and to the police officers who arrested her on 4 March 2004.
AP1 (Applicant): The investigator was not bound by the applicant's questions, but on 13 October 2004, he interrogated Mr. Akhmeyev, who testified that he had taken part
AP1 (Applicant): in a covert operation against the applicant on the instructions of his superiors.
AP1 (Applicant): The prosecution relied on his statement in the indictment of 7 December 2004.
AP1 (Applicant): But even at the end of the pretrial investigation, the extent of Mr. Akhmeyev's involvement in the case
AP1 (Applicant): could not be evident to the applicant, because witnesses, most importantly her flatmates, considerably departed from their pretrial statements later in court.
AP1 (Applicant): I will now set out the applicant's reasons to confront Mr. Akhmeyev at the trial.
AP1 (Applicant): In a recent judgment in the Duma against Russia, the court confirmed that the defendant's version of events presented to the trial court is important for the European Court's adjudication under Article VI.
AP1 (Applicant): In the present case, on 13 January 2005, before the trial court, the applicant gave a detailed account of Officer Akhmeyev's role in the collection of evidence against her.
AP1 (Applicant): He found her flat where she moved with her friends and covered the accommodation costs.
AP1 (Applicant): He also asked her not to move out of Moscow, because the police had a file on a young Chechen woman.
AP1 (Applicant): She said she would receive phone calls from Mr. Akhmeyev
AP1 (Applicant): on a daily basis, asking about the applicant's and her flatmates' daily life.
AP1 (Applicant): The applicant described in much detail at the pretrial investigation and in her depositions at the trial the conversation she had with Officer Akhmeyev at the moment of her arrest on 4 March 2004.
AP1 (Applicant): Importantly, and this is not in dispute between the parties, the applicant was arrested for an offense of not possessing a valid residence registration in Moscow.
AP1 (Applicant): It was punishable by a fine of 100 rubles, that is, three euros at the time.
AP1 (Applicant): And therefore, the provisions of the Code on Administrative Offenses did not allow the police to arrest or search the applicant.
AP1 (Applicant): Thus, Police Officer Akhmeyev's advice that the applicant followed the policeman was in obvious contradiction with the law.
AP1 (Applicant): The applicant followed the advice was taken to the police station, where explosives were found in her bag.
AP1 (Applicant): Given the incompatibility of Mr. Akhmeyev's advice
AP1 (Applicant): with the law, it can be said that he was aware of the police operation to arrest the applicant and was part of it.
AP1 (Applicant): It follows from the evidence in this case that Officer Akhmeyev turned out to have been the only person fully aware of the scale of the operation against the applicant.
AP1 (Applicant): It did not then require a lengthy justification for the defense request made on the same day of 13 January 2005 that Mr. Akhmeyev had to be questioned.
AP1 (Applicant): The defense request was not dismissed for the lack or weakness of reasoning.
AP1 (Applicant): We emphasize it was not dismissed at all.
AP1 (Applicant): However, of its own motion and on the basis of information never disclosed to the defense, the trial court decided not to take any steps to secure Mr. Akhmeyev's attendance
AP1 (Applicant): because he was on a duty mission outside Moscow.
AP1 (Applicant): The chamber found the lack of reasons provided to the trial court by the applicant.
AP1 (Applicant): We respectfully submit that the applicant's motion at the pretrial stage of proceedings and the evidence she gave at the trial only lead to the conclusion that she provided sufficient reasons for the request.
AP1 (Applicant): The chamber also found that it was only in Strasbourg proceedings that the applicant referred to Officer Akhmeyev as a possible agent provocateur.
AP1 (Applicant): Again, the trial record clearly leads to an opposite conclusion.
AP1 (Applicant): The applicant's lawyers relied on the entrapment defense during their concluding statements made on 17 January 2005.
AP1 (Applicant): It was the first occasion where the defense was able to present its overall theory of the case, and it did.
AP1 (Applicant): The trial court was empowered under Article 294 of the Code of Criminal Procedure to revert to hearing the evidence having heard the closing submissions.
AP1 (Applicant): The allegation of entrapment was again raised in the applicant's lawyers' appeals together with the complaint that the trial court had failed to ensure Mr. Akhmeyev's attendance.
AP1 (Applicant): To sum up, as the three dissenting judges in the chamber did, it was upon Officer Akhmeyev's intervention that the applicant was released from the custody of the police in December 2003.
AP1 (Applicant): Under the instructions of his superiors, he helped the applicant to find work in the flat equipped with video tapping and audio tapping devices and visited her several times.
AP1 (Applicant): As the applicant had started to trust Mr. Akhmeyev,
AP1 (Applicant): she immediately telephoned him when she was stopped on the evening of 4 March 2004 by a police patrol.
AP1 (Applicant): The applicant's defense thus implicated Officer Akhmeyev, given that if the explosives had been planted, he would have laid the groundwork for a later conviction based on the alleged evidence collected in her video and audio tapped flat.
AP1 (Applicant): Therefore, witness Akhmeyev's testimony was so clearly part of the applicant's evidence and defense that the applicant would have stated the obvious when arguing in detail while Mr. Akhmeyev had
AP1 (Applicant): to be treated as a key witness.
AP1 (Applicant): Finally, on no occasion did the domestic authorities find the reasons advanced by the applicant for calling Mr.
AP1 (Applicant): Akhmeyev to testify insufficient.
AP1 (Applicant): We invite the Grand Chamber not to review these findings of the domestic authorities in accordance with the principle of subsidiarity.
AP1 (Applicant): The investigator interrogated Mr. Akhmeyev,
AP1 (Applicant): though not having been bound by the applicant's questions.
AP1 (Applicant): The trial court also did not dismiss as unfounded the applicant's motion to call Mr. Akhmeyev,
AP1 (Applicant): but informed the parties of the impossibility to call him to court.
AP1 (Applicant): Preposterous impossibility, we say, with regard to the court's case law, finding that the absence in the place of a trial does not absolve a witness from attending, an issue to which I now turn.
AP1 (Applicant): Mr. President, the respondent government
AP1 (Applicant): submitted that Officer Akhmeyev's due to mission was a good reason for his non-attendance.
AP1 (Applicant): The government referred to the court's judgment in Pauchik against Ukraine.
AP1 (Applicant): However, in that case, the court was struck by the reasons for non-attendance of witnesses.
AP1 (Applicant): That is, holiday outside the region covered by the relevant police department.
AP1 (Applicant): That's paragraph 40 of the judgment in Pauchik.
AP1 (Applicant): The government's submission is thus entirely without foundation.
AP1 (Applicant): What is more, already in a 2008 judgment in Vladimir Romanov against Russia, the court decided not to qualify a several days absence of a witness from Russia as, I quote, insuperable hindrance to the expediency of the proceedings, end of quote.
AP1 (Applicant): No such hindrance could be argued in the present case as well.
AP1 (Applicant): And no good reason existed for Mr. Akhmeyev's absence.
AP1 (Applicant): Mr. President, we further say that the trial court's failure
AP1 (Applicant): to ensure Mr. Akhmeyev's attendance
AP1 (Applicant): and reading out his pretrial statement were not compatible with the provisions of Russian law.
AP1 (Applicant): On 17 December 2004, after the conclusion of the preliminary hearing, the trial judge ordered Mr. Akhmeyev be called for questioning as witness.
AP1 (Applicant): But there is no indication in the case file that the trial court took steps to summon or compel him to attend, even though ample means were at the presiding judge's disposal.
AP1 (Applicant): She was able to wait for his return.
AP1 (Applicant): There was no urgency to finish the trial because she easily adjourned the hearings to allow parties to prepare for the closing submissions.
AP1 (Applicant): She could have ordered witness Akhmeyev be brought forcibly by the police, as provided for in Article 56, Paragraph 7 of the Code of Criminal Procedure.
AP1 (Applicant): Such an attempt to ensure his attendance would have been consistent with the court's judgment in Dorset against the Netherlands.
AP1 (Applicant): Forcing witness to attend is thus of utmost importance.
AP1 (Applicant): But alternatively, the trial judge could impose a financial sanction on the absent witness, Article 111 of the Code of Criminal Procedure stipulated for this power.
AP1 (Applicant): The respondent government submitted that the applicant and her defense agreed to reading out of witness Akhmeyev's statement.
AP1 (Applicant): This argument isn't consistent with the domestic law.
AP1 (Applicant): Firstly, Article 281, Paragraph 1 of the Code of Criminal Procedure allowed for reading out the statements of absent witnesses, that is, those who were summoned but failed to appear after the trial court has taken all necessary steps to ensure their attendance, as provided for by law.
AP1 (Applicant): The present case contains no summonses to Mr. Akhmeyev
AP1 (Applicant): and no traces of attempts to locate him and compel to attend the court.
AP1 (Applicant): So the trial judge could not even proceed to seeking the party's opinion on reading out the pretrial statement of Mr. Akhmeyev.
AP1 (Applicant): Secondly, the applicant only agreed to reading his statement out when the presiding judge informed the defense that they would not be able to confront Mr. Akhmeyev.
AP1 (Applicant): So the applicant had no other option available.
AP1 (Applicant): Finally, the respondent government did not rely on the exceptions set out in Article 281, Paragraph 2 of the Code of Criminal Procedure, which allow reading out the witness statements without parties' consent.
AP1 (Applicant): Such exceptions should amount to death or natural disaster and are obviously irrelevant to the present case.
AP1 (Applicant): Mr. President, we submit there were no counterbalancing factors
AP1 (Applicant): to compensate for non-attendance of witness Akhmeyev.
AP1 (Applicant): Neither a pretrial confrontation, as government argued, nor the court's references to other evidence, as the chamber held in this case, could compensate the applicant's inability to question Mr. Akhmeyev before the trial court.
AP1 (Applicant): The respondent government suggested that the applicant should have moved for confrontation at the pretrial stage.
AP1 (Applicant): In our submission, the alternative suggested by the government has no basis in the court's case law.
AP1 (Applicant): Pretrial confrontation can only substitute interrogation at the trial, where the witness may have reasons to fear the defendant.
AP1 (Applicant): This was the case in the 2017 decision of Ponomarev against Russia, but not in the present case.
AP1 (Applicant): The chamber found that the counterbalancing factor in this case was the availability of other evidence against the applicant.
AP1 (Applicant): We say that, firstly, all this body of evidence was collected by or on instigation of Officer Akhmeyev.
AP1 (Applicant): His activity included establishing and maintaining contact with the applicant, providing her assistance with finding a flat that was being tapped, advising to subject herself to the police arresting her ultra-virus.
AP1 (Applicant): Both the trial and the appeal courts failed to examine and elucidate the role of Mr. Akhmeyev
AP1 (Applicant): to resolve the contradictions in evidence given by the witnesses and by the applicant, and to give reasons for dismissing the allegations of entrapment beyond mere statements of denial, as we say the courts should have done.
AP1 (Applicant): Judicial control and reasoning, setting out objective criteria and verifiable evidence, are fair trial requirements in the cases like the present one, as confirmed by this court in Khudobin against Russia and by the Inter-American Court of Human Rights in Noreen Qatriman and others against Czech.
AP1 (Applicant): This is the case which we referred to in our written submissions.
AP1 (Applicant): Secondly, the evidence presented to the domestic courts was highly inconclusive.
AP1 (Applicant): It is precisely the applicant's inability to argue that the explosives had been planted in her bag and the inability to challenge the prosecution's interpretation of her talks with her flatmates caused by perfunctory examination of videotapes that failed to counterbalance witness Akhmeyev's absence.
AP1 (Applicant): Throughout the proceedings, the applicant contended that the explosives the policeman found in her bag had been planted on her.
AP1 (Applicant): Testimony from attesting witnesses B and K, who had been called by the police to observe the legality of the search, would have resolved the matter.
AP1 (Applicant): But the applicant's request to summon B and K was denied.
AP1 (Applicant): As a result, she had been deprived of the chance or opportunity to elicit directly or indirectly through questioning of these witnesses the only evidence which might possibly be able to support her allegations that the explosives had been planted.
AP1 (Applicant): The investigation never even tried to trace the origins of the explosives.
AP1 (Applicant): No fingerprints were taken from the foil that covered the explosives.
AP1 (Applicant): With regard to the recording of the tapped conversations, we know that the trial court briefly reviewed only one tape out of 10 days of covered recording without comprehensive review in adequate arrangements, allowing the applicant to fully participate in the review.
AP1 (Applicant): She was not able to effectively present her case.
AP1 (Applicant): So while the trial court did indeed refer to evidence other than witness Akhmayev's statement to the investigator, it was strained with ambiguity and doubt.
AP1 (Applicant): It could not counterbalance the applicant's inability to confront in court the principal police agent in the case against her.
AP1 (Applicant): Mr. President, police officer Akhmayev
AP1 (Applicant): was central to the applicant's trial and conviction.
AP1 (Applicant): To provide the applicant with an opportunity to confront witness Akhmayev was what the Russian law and the convention required the trial court to do.
AP1 (Applicant): It would have come at no cost for the state, whereas a lengthy prison term affecting the whole life of the applicant and the whole of her family was at stake for her.
AP1 (Applicant): Concealing witness Akhmayev from questioning by the defense rendered the whole trial unfair.
AP1 (Applicant): We invite the court to find a violation of Article 6 of the convention and to award just satisfaction as claimed.
Guido Raimondi (JudgeP): Thank you very much, Mr. Koroteev.
Guido Raimondi (JudgeP): Now I call Mr. Galperin.
GR1 (Government): Thank you, Mr. President and honorable judges of the court.
GR1 (Government): The present case raising the issue of fairness of the criminal proceeding against the applicant involves the constant principle of the court, which was also mentioned by the counsel of the opposite party, the principle of subsidiarity.
GR1 (Government): And the government are deeply convinced that the clear chamber's judgment serves as a natural example of such subsidiarity.
GR1 (Government): So I wouldn't tie the Grand Chamber with the long submissions, also taking into account that contrary to the counsel allegation, there was a question put into the parties.
GR1 (Government): And it was the sole question.
GR1 (Government): It wasn't a question about the apprehension of the applicant or search of her back.
GR1 (Government): But it was only the question of Mr. A's appearance
GR1 (Government): in the court.
GR1 (Government): It appears that the genuine purpose of lodging the present application and also trying subsequent challenging of the chamber's judgment is to eliminate shortcomings and passiveness of the applicant's lawyers 13 years ago in the domestic court, and also including Russian Supreme Court, which considered this case.
GR1 (Government): In order to achieve this purpose, the applicant's representative used any means, including those misleading the court, and in fact encouraged it to go beyond subsidiarity principle.
GR1 (Government): In this case, they submit new complaints and arguments which they failed to raise in the domestic proceedings.
GR1 (Government): They misrepresent facts and confuse the court's case law and Russian legislation.
GR1 (Government): Moreover, trying to win the court's sympathy, the applicant's representative brings the issue of the applicant's conviction for crimes of terrorism.
GR1 (Government): It is true that the advancing case secured in the period when Russia suffered a surge of terrorist attacks and involving at least nine suicide bombers, with more than 500 killed and 1,000 wounded in only two years, or 2002 and 2003, and a lot of them in Moscow.
GR1 (Government): However, Russian law guarantees the right to fair trial to all defendants, irrespective of their origin and crime committed.
GR1 (Government): Domestic courts are bounded by an obligation to consider all cases impartially, securing adversity of the proceedings, and carefully assessing any evidence provided by the parties.
GR1 (Government): The applicant's principal complaints in this case is that Mr. A was not called by the domestic court
GR1 (Government): to give evidence so that she could question him, and also the applicant's counsel trying to show Mr. A as a central witness in this proceeding.
GR1 (Government): In this regard, I submit that the applicant's rights were not violated by inability to question Mr. A.
GR1 (Government): First, as Mr. A was the witness for defense,
GR1 (Government): therefore, the applicant and her team of lawyers should have justified reasons for summoning Mr. A, which
GR1 (Government): wasn't done.
GR1 (Government): Second, applicants' attempt to challenge this court practice in this regard is misleading.
GR1 (Government): Third, even if the grand chamber in this particular case accepts the approach proposed by the applicant, her right to fair trial wasn't breached anyway.
GR1 (Government): Contrary to the applicant's representative allegation, Mr. A was the witness for defense only.
GR1 (Government): The chamber also shared the same view in its judgment.
GR1 (Government): I respectfully agree with this finding of the chamber, which is supported by the following.
GR1 (Government): First, it was the defense who filed the motion to question Mr. A on the pretrial stage
GR1 (Government): on the proceeding and drafted question answered by him.
GR1 (Government): Second, as it follows from the contents of Mr. A's
GR1 (Government): interrogation, he didn't provide any information incriminating the applicant.
GR1 (Government): Third, the prosecutor didn't request the court to summon Mr. A when introducing witnesses against the applicant,
GR1 (Government): and he didn't in any way rely on his statements as a confirmation of the applicant's guilt in the court.
GR1 (Government): According to both the requirements of the Russian Court of Criminal Proceedings and these court principles, highlighted in particular in the judgments in the cases of Perna v. Italy and Palchik v. Ukraine,
GR1 (Government): it is the defense obligation to explain to the domestic court importance and necessity to examine a particular witness testifying on the defendant's behalf.
GR1 (Government): However, in the present case, defense has failed to do so, and the applicant's representative acknowledged this fact in paragraph 9 of his written submissions to the grand chamber by stating that there were no specific grounds for applicant's lawyer's request to examine witness A before the trial court.
GR1 (Government): Thus, defense failed to justify the need to call Mr. A
GR1 (Government): to the stand in the domestic proceeding.
GR1 (Government): Along with that, contrary to applicant's counsel allegations today, there were a number of counterbalancing measures available to them for ensuring their right to adversarial and fair proceedings in Russian court.
GR1 (Government): However, the defense has failed to use even a single one.
GR1 (Government): For instance, they haven't filed new motions to summon Mr. A to the court.
GR1 (Government): They haven't requested to postpone the court proceedings until Mr. A's return from a duty mission.
GR1 (Government): They haven't challenged the information that he actually was on duty mission.
GR1 (Government): They haven't stated that such duty mission wasn't sufficient for his absence from the court.
GR1 (Government): They haven't requested the courts to compel him to appear.
GR1 (Government): They haven't sought court's assistance in ensuring his participation at the hearing.
GR1 (Government): And the only thing they did is giving the explicit consent during the trial to reading out of Mr. A's testimony
GR1 (Government): is given at the pretrial stage without objecting to it.
GR1 (Government): All of this returned us to the general principle that a judge doesn't act either a prosecutor or defense.
GR1 (Government): This trial's court activism and expressed initiative with respect to collection of evidence, summoning particular witnesses and other similar procedural actions in absence of relevant motions from the parties would constitute flagrant impartiality and prejudice.
GR1 (Government): So should we really blame the domestic court for the applicant's representative's failure to reason their request to call a witness and undertake at least one of the simple procedural steps in order to insist on Mr. A's attendance on the trial?
GR1 (Government): Somehow, reasoned request to call a witness for the first time in the course of the whole proceedings was made only in front of this court.
GR1 (Government): This approach evidently breaches the principle of subsidiarity.
GR1 (Government): Respected judges, now I would like to turn to the evaluation of the applicant's attempts to challenge this court's approach to the defense obligation to justify the importance of proposed witnesses.
GR1 (Government): In particular, the applicant's representative insists that the grand chamber should apply to the present case the principle set forth in the Hawaiian Tahirih case and Shachashvili case versus Germany.
GR1 (Government): However, it should be borne in mind that these cases concerned witnesses who acted on behalf of prosecution and have given discriminating testimonies against their applicants.
GR1 (Government): In the present case, on the contrary, Mr. A didn't make any statements pointing
GR1 (Government): to the guilt of the applicant.
GR1 (Government): There are no reasons to consider Mr. A as a witness
GR1 (Government): against the applicant.
GR1 (Government): Thus, approach of these cases cannot be applied in the present situation.