TrustHLT/LaCour huggingface dataset:
GR1 (Government): However, should this court decide otherwise and apply such an approach, it would find that the applicant's right to fair trial wasn't breached anyway.
GR1 (Government): In the mentioned cases, the court has developed a test ascertaining whether there has been a violation of the convention when statements of a witness who hadn't been present and questioned during the trial were used as evidence.
GR1 (Government): Following this established test, the chamber should examine, first, whether there was a good reason for non-attendance of the witness and consequently for admission of absent witnesses and tested statements as evidence.
GR1 (Government): Second, whether evidence of the absent witness was the sole or decisive basis for the defendant's conviction.
GR1 (Government): And third, whether there were sufficient factors to compensate for the defense's inability to question certain witnesses and to ensure that the trial judged as a whole was fair.
GR1 (Government): With regard to the first criterion, as it was established in the course of the national court proceedings, on the day when the defense filed a motion to examine Mr. A, he was on duty mission out of Moscow
GR1 (Government): and thus couldn't appear in the court.
GR1 (Government): It is important to note that neither the applicant nor her lawyers contested this fact and didn't insist on examining of Mr. A in the court.
GR1 (Government): Moreover, both the prosecution and the defense expressed their mutual consent to reading out of Mr. A's
GR1 (Government): pretrial statements.
GR1 (Government): In this connection, I point out that announcements of the witness statements was conducted in according to section 1 of Article 281 of the Court of Criminal Proceedings.
GR1 (Government): This article has really two sections.
GR1 (Government): First, states that reading out of the testimonies given in the course of preliminary investigation or at the court hearing is only possible upon the mutual consent of the parties.
GR1 (Government): And such interpretation was approved by the Supreme Court of Russia.
GR1 (Government): Section 2 of this article applies only when there is no mutual consent and therefore is irrelevant for the present case.
GR1 (Government): Finally, as it follows from the court's judgment in the case of Shachashvili, also the absence of good reason for the non-attendance of a witness is a very important factor to be weighed in the balance when assessing the overall fairness of a trial.
GR1 (Government): It cannot of itself be conclusive of unfairness.
GR1 (Government): Regarding the second criterion in Al-Khawai case, whether evidence of an absent witness was the sole or decisive basis for the defendant's conviction, the court reiterated that sole evidence is to be understood as the only evidence against accused.
GR1 (Government): In this term, decisive evidence should be interpreted as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case.
GR1 (Government): Turning to the judgment of the Moscow City Court of 7th of January 2005, Mr. Ace's testimonies
GR1 (Government): were neither sole nor decisive evidence of applicant's guilt.
GR1 (Government): And applicant's conviction wasn't built around these testimonies at all.
GR1 (Government): And if you will have a look on this judgment of a Russian court, it was just two lines from several pages judgments which really mentioned Mr. Ace.
GR1 (Government): When assessing contents of Mr. Ace's testimonies,
GR1 (Government): it becomes obvious that information provided by this witness didn't contain evidence incriminating the applicant or confirming her innocence.
GR1 (Government): His statements were, in fact, irrelevant for the outcome of the case since Mr. Ace simply clarified the facts about how
GR1 (Government): he established a contact with the applicant and helped her find housing.
GR1 (Government): Nothing in his testimonies had any relation to the charges against the applicant.
GR1 (Government): Thus, the probative value of such testimonies was extremely low, and they definitely cannot be considered decisive.
GR1 (Government): On top of that, applicants and her lawyers didn't challenge the credibility of Mr. Ace
GR1 (Government): by, for example, pointing out any incoherence or inconsistency with statements of the applicant herself or other witnesses.
GR1 (Government): Moreover, the applicant acknowledged them in general.
GR1 (Government): So the applicant failed to justify reasons why Mr. Ace should have been
GR1 (Government): considered by the domestic court as a relevant witness.
GR1 (Government): She agreed to reading out of Mr. Ace's testimonies,
GR1 (Government): didn't challenge any information contained in them, and now her lawyer and making a complaint that domestic courts has breached her right to a fair trial by not calling Mr. Ace
GR1 (Government): is not just one more unreasonable request.
GR1 (Government): The applicant's conviction was based on abundant evidence against her, such as the testimonies of other witnesses, according to which the applicant affirmed her participation in military actions with the armed bandit groups against Russian army, influenced her inmates by inspiring to kill Russians and to give their lives for struggle against them, told her inmates about the jihad and suicide bombers.
GR1 (Government): Her own statements, as she acknowledged the subject matter of the conversations, and didn't deny her intentions and willingness to kill Russians.
GR1 (Government): The applicant's handwritten paper note of clear content endorsing terrorist acts in Russia found in the applicant's place of living and saying, and I quote, every time you Russians ask yourselves what moves us, what are we fighting for, why do we explode ourselves?
GR1 (Government): And you will not understand that people live and dream for death at Shahids that can people blow themselves up.
GR1 (Government): Numerous photos of the escalators in the Moscow shopping center, near the Red Square in the very center of Moscow, made by the applicant, which testified to preparation of the terrorist act.
GR1 (Government): And it should be noted that the violent terrorist acts occurred in the same mall in 1999, and near it just a few months before the applicant's apprehension.
GR1 (Government): The videotapes showing her expressing deep satisfaction with Shahid bombings occurred in Moscow in 2003 and 2004, and saying that Russians should be killed and sliced up.
GR1 (Government): And finally, the explosive found in the applicant's purse, as well as traces of the explosives found in the pockets of her jacket and inside the purse.
GR1 (Government): Mr. A, in his turn, had no involvement
GR1 (Government): in the act of arrest of the applicant's offense at all.
GR1 (Government): In fact, he wasn't there when she incited her flightmates V and Q to terrorism.
GR1 (Government): He wasn't at the shopping center while she was making photos.
GR1 (Government): He wasn't present during the applicant's apprehension.
GR1 (Government): And he was not in police station where she alleged that explosives were planted in her bag.
GR1 (Government): So the statements of Mr. A had no or very little value
GR1 (Government): in comparison with other evidences exactly on which conviction of the applicant was based.
GR1 (Government): Turning to the third point of Al-Khawaiya case and Shachashvili case, as it was already specified, the defense was afforded plenty of counterbalancing factors to compensate for inability to examine Mr. A in the court.
GR1 (Government): In particular, the applicant's request to have Mr. A interrogated at the pretrial stage
GR1 (Government): was granted, and she posed questions before him to which the letter gave detailed answers.
GR1 (Government): She could also have filed a motion to carry out an additional interrogation of Mr. A
GR1 (Government): or to have a cross-examination with him during the pretrial stage of the proceedings.
GR1 (Government): Her lawyers could have objected to reading out of Mr. A
GR1 (Government): testimony in a court requesting to postpone the hearing until he had returned from a duty mission.
GR1 (Government): They could have requested that his testimony is given at the pretrial stage be excluded from the case file.
GR1 (Government): The domestic courts shouldn't be liable for defense failure to make use of any of these procedural possibilities.
GR1 (Government): So even if this case is to examine from the standpoint of the principle of Al-Khawaiya and Shachashvili case, there still wouldn't be violation of the applicant's right under Article 6 of the Convention.
GR1 (Government): Distinguished judges, proceedings further, I would cover the applicant's allegation that Mr. A was an agent provocateur.
GR1 (Government): I would like to emphasize that for the first time, the applicant referred to Mr. Aroll as the agent provocateur
GR1 (Government): in her complaint, not to the court of the first instance, not to the appeal to the Russian Supreme Court, but to this international court.
GR1 (Government): At the same time, this court has stressed that an entrapment complaint must be formulated clearly and in good time in the domestic proceedings.
GR1 (Government): The applicant never stated in the course of domestic proceedings that Mr. A had somehow incited her
GR1 (Government): to commit any crimes.
GR1 (Government): The applicant's lawyer first time made the brief comment that the whole criminal case against the applicant was a provocation by the officers of law enforcement bodies and without any clarification which and whose actions exactly resulted in such a provocation.
GR1 (Government): It was done only when the Russian court had already finished examination of all evidences.
GR1 (Government): The applicant and her lawyers, if alleged that Mr. A acted as an agent provocateur,
GR1 (Government): should have taken sufficient procedural measures to state it clear before the domestic court.
GR1 (Government): Therefore, contrary to the court's case law, in particular the case of Khudobin versus Russia, which was mentioned today, there was no arguable plea of entrapment in the domestic proceedings.
GR1 (Government): Nothing said now could render proceedings in the Russian court retrospectively unfair.
GR1 (Government): Even if the court decides to nevertheless examine the agent provocateur ill-founded argument, it would conclude that no breach of Article VI acute.
GR1 (Government): According to the court case law, police entrapment accused when the officers incite the person to commission of an offense that would otherwise not have been committed.
GR1 (Government): Turning to the circumstances of the present case, as it follows from the applicant's own testimonies, after Mr. A gave his mobile phone number to her,
GR1 (Government): it was she who called him seeking help in her rein statement at work.
GR1 (Government): It was she who told him that she was looking for a flat.
GR1 (Government): And it was she who called him immediately after her arrest on 4th of March, 2004.
GR1 (Government): Thus, the most important applicant's interaction with Mr. A accused solely on the initiative of the applicant,
GR1 (Government): but not Mr. A.
GR1 (Government): The applicant further acknowledged to have been aware from the very beginning that Mr. A was a policeman.
GR1 (Government): Neither pretrial testimonies of Mr. A himself,
GR1 (Government): nor the testimonies of other witnesses examined in the court, including witnesses of Mrs. V and Mrs. Khoo,
GR1 (Government): contained any information long to conclude that Mr. A inspiring the applicant to commit any crimes.
GR1 (Government): Vice versa, Mr. A activities as a policeman
GR1 (Government): do not in itself constitute the entrapment.
GR1 (Government): On the contrary, in the case of Romanowskos versus Lithuania, the courts had stressed that police are increasingly requested to make use of undercover agents, informers, and covert practices.
GR1 (Government): The court has thus consistently accepted the use of undercover investigative techniques in combating crime.
GR1 (Government): This court has on several occasions held that undercover operation per se didn't interfere with the right to a fair trial under Article VI.
GR1 (Government): Therefore, the findings of the chamber expressed in paragraph 87 of the judgment are accurate.
GR1 (Government): And I quote, when the applicant's lawyers requested the court to summon A, they didn't explain even briefly why his attendance was important for their line of the defense, whether his actions has amounted to entrapment, or whether he had expected any pressure on the applicant, and finally, whether his testimony would have served no exonerate the applicant or at minimum to strengthen her position in any way.
GR1 (Government): In fact, they didn't explain in all why they wished to have Mr. A summoned.
GR1 (Government): And it's the end of the quote.
GR1 (Government): And I respectfully ask the grand chamber to affirm these findings.
GR1 (Government): Now I will turn to the applicant's other complaint concerning her inability to question attesting witnesses Mr. B and Mrs. K. They were present
GR1 (Government): in the course of her personal search in police station.
GR1 (Government): It follows from the case file that the examination of these witnesses was requested by the defense in order to shed light on the alleged planting of explosive in the applicant's bag.
GR1 (Government): Attesting witnesses are not witnesses on the merits.
GR1 (Government): They are invited by the investigator to act as a neutral observers.
GR1 (Government): They do not testify concerning the circumstances of the case or the defendant's guilt or innocence.
GR1 (Government): On numerous occasions, the applicant explicitly stated in the court that she didn't have any complaints about her personal search itself, that it had been conducted in accordance with the procedural law.
GR1 (Government): What is more, she further stated that she didn't insist on summoning Mrs. B and Mrs. K as the explosives had been
GR1 (Government): allegedly planted in her bag prior to her personal search.
GR1 (Government): According to the national law, the applicant had the right to insist on the exclusion of evidence allegedly obtained by entrapment.
GR1 (Government): However, no motions were filed in this respect.
GR1 (Government): Only persons that could have clarified the facts around the applicant's allegations were police officers who apprehended and searched her.
GR1 (Government): All of them gave testimonies under the oath in the national court.
GR1 (Government): Policewoman who searched applicant's bag was also cross-examined with applicant on the pretrial stage.
GR1 (Government): Thus, the inability of the applicant to question attesting witnesses hasn't violated her rights to a fair trial.
GR1 (Government): With all stated, it becomes clear that the applicant's representative encourages the court to go beyond its subsidiary competence in making a naked attempt to raise the interest of this court in points of some legal principles.
GR1 (Government): However, there is one more fundamental principle.
GR1 (Government): Before any witness is summoned to a court to give evidence, there must be a sensible reason to hear from that witness.
GR1 (Government): The party wanting attendance of the witness must obviously demonstrate why justice requires his attendance.
GR1 (Government): This involves showing that the witness can give relevant and important evidence.
GR1 (Government): The applicant and her lawyers have failed to do that.
GR1 (Government): This honorable court wasn't designed to act as a fourth instance court, and it shouldn't serve as a place for attempting to make up for mistakes and omissions of the applicant's lawyers on the domestic level.
GR1 (Government): Therefore, the government asked to upheld the chamber's judgment and to dismiss all applicant's complaints.
GR1 (Government): Concluding my submissions, I would like, with all due respect to the court and the applicant, to raise final point deserving attention.
GR1 (Government): In my modest opinion, significant questions of combating terrorism and now concern, which will now concern all member states of the Council of Europe, could have been decided in not such clear and ill-founded cases as the present one, but in sophisticated situations which nevertheless hasn't been referred to the ground chamber, as for example, Tagaeva versus Russia case that relates to the murderous terrorist acting Beslan in the same year, 2004.
Guido Raimondi (JudgeP): And now I invite my colleagues, the judges of the Grand Chamber, who wish to do so, to put their questions before the parties.
Guido Raimondi (JudgeP): I see Judge Vehabović, please.
Faris Vehabović (Judge): I have several questions for the government.
Faris Vehabović (Judge): My first question is why the applicant was put in custody in December 2003, for the first time when she was put in custody, and why she was kept for several days in custody for identity verification.
Faris Vehabović (Judge): Is that a regular procedure when you perform identity verification to keep someone in custody for several days?
Faris Vehabović (Judge): Second question, what happened to the remaining 15 videotapes, and why they never heard at the trial?
Faris Vehabović (Judge): And third question, how it's possible, how come that the police failed to test the applicant's hand for residue?
Faris Vehabović (Judge): As far as I know, that is a standard procedure to prove connection between subject and object.
Faris Vehabović (Judge): And why witnesses of her search in a police station were never heard at the trial before the court? Thank you.
Guido Raimondi (JudgeP): Thank you very much. Now Judge Griţco, please.
Valeriu Griţco (Judge): I have a question for the applicant.
Valeriu Griţco (Judge): In paragraph 48 of applicant's observations to the grand chamber, it stated the following.
Valeriu Griţco (Judge): I quote, the applicant's motion to examine witness A. as the trial was not dismissed by the trial court.
Valeriu Griţco (Judge): Please explain the grounds for this statement.
Guido Raimondi (JudgeP): Thank you very much. Judge Harutyunyan.
Armen Harutyunyan (Judge): I have a question for both sides.
Armen Harutyunyan (Judge): What were the procedural mechanisms available to the defense to ensure presence of witness A. at trial and his examination?
Armen Harutyunyan (Judge): And did the defense make use of all these mechanisms?
Guido Raimondi (JudgeP): Judge Pinto de Albuquerque.
Paulo Pinto de Albuquerque (Judge): My question is addressed to the government, but of course the applicant may also comment on it.
Paulo Pinto de Albuquerque (Judge): I would like to know why the fingerprints on the packages, alleged packages of explosives were not taken.
Paulo Pinto de Albuquerque (Judge): It seems that these packages and the alleged explosives were destroyed, no sample was taken.
Paulo Pinto de Albuquerque (Judge): So is it a practice that the material evidence is destroyed by police before the trial takes place?
Paulo Pinto de Albuquerque (Judge): Why is it that witnesses B. and K. were not included in the list of witnesses to be summoned to the trial?
Paulo Pinto de Albuquerque (Judge): They were not even included in the list of witnesses to be summoned to the trial hearing.
Paulo Pinto de Albuquerque (Judge): Is this the practice that these so-called attesting witnesses are not even called to the court?
Paulo Pinto de Albuquerque (Judge): And the final point is the one that was raised by the applicant with regard to the interpretation in the light of the Russian case law, the Russian Supreme Court's case law of Article 281.
Paulo Pinto de Albuquerque (Judge): If I understood correctly, I'm not sure that I understood correctly what was proposed to us by the applicant, but if I understood correctly, he was arguing or she was arguing, the applicant, that Article 281 was not even applicable because the witnesses were not even summoned.
Paulo Pinto de Albuquerque (Judge): So for the purposes of this article, they could not and should not even be considered as absent because they were not even summoned.
Paulo Pinto de Albuquerque (Judge): Is this so?
Paulo Pinto de Albuquerque (Judge): Is this in line with the Russian Supreme Court's case law?
Paulo Pinto de Albuquerque (Judge): Because then we are talking about a totally different legal scenario.
Paulo Pinto de Albuquerque (Judge): So these are my questions.
Guido Raimondi (JudgeP): Judge Yudkivska, please.
Ganna Yudkivska (Judge): I have one question to the applicant.
Ganna Yudkivska (Judge): Apart from the fact that Mr. A, according to your submissions, organized video surveillance of the applicant, what other his actions, if any, could qualify his role as agent provocateur?
Guido Raimondi (JudgeP): Thank you. Judge Eicke please.
Tim Eicke (Judge): This is a question to the applicant.
Tim Eicke (Judge): The government in its written observations to the Grand Chamber in paragraphs 41 and 44, and again in paragraph 104, suggested that the record shows that the acceptance by the applicant's lawyers and by the applicant herself for the record of the statement of witness A. to be read amounts to a waiver.
Tim Eicke (Judge): Are there any further submissions you want to make in response of that?
Tim Eicke (Judge): And also address the point why the Grand Chamber should not take as a point of admissibility and therefore declare this case inadmissible?
Guido Raimondi (JudgeP): Thank you very much. There are no futher questions so the court will withdraw for 20 minuts. Following which the parties will be able to submit brief observations in replies to eachtotherse submisson and reply to the questions of the judges. The hearing is suspended.
Guido Raimondi (JudgeP): The hearing is resumed and I call Mr. Koroteev.
AP1 (Applicant): I will firstly make some brief comments on the government submissions and then move to the judges' questions.
AP1 (Applicant): Firstly, with regard to nature of witness Akhmayev as only a defense witness, the responding government submitted that persecution never relied on his evidence.
AP1 (Applicant): But that is not correct, as his statement is entered as part of the indictment of 7 December 2004.
AP1 (Applicant): And also, it was persecution who moved to read his statement out.
AP1 (Applicant): And finally, it was relied upon both by the trial and the appeal courts.
AP1 (Applicant): Secondly, the responding government said that it is the role of the defense, not the court, to ensure Akhmayev's presence for the reason that the court doesn't act for persecution or for defense.
AP1 (Applicant): But we say it was the trial court who had the obligation to compel witness to attend.
AP1 (Applicant): And that is because Russian Code of Criminal Procedure provides for active role of the judge in the conduct of the trial.
AP1 (Applicant): And for her powers to make multiple procedural decisions of her own motion.
AP1 (Applicant): And that includes powers to hold preliminary hearing, to refer case back to prosecutor, to amend the charges, to obtain forensic expert report, to put questions to witness, and importantly, to decide to read out the statement of an absent witness.
AP1 (Applicant): So the court is, under Russian law, is also a body that produces evidence.
AP1 (Applicant): Now, the responding government said the defense has never challenged the witness's absence on duty mission.
AP1 (Applicant): Well, it is impossible to do so in the absence of disclosure of documents that justify that mission.
AP1 (Applicant): These documents are in sole possession of authorities.
AP1 (Applicant): And it is the state who controls the missions and generally the agenda of a policeman who witness a vaults.
AP1 (Applicant): So the state controlled where he was at which point in time.
AP1 (Applicant): Now, the government's reference to our paragraph 9 of written submissions is obviously taken out of the context.
AP1 (Applicant): Because the reasons for the request to call Mr. Akhmayev at the trial
AP1 (Applicant): were not entered in the trial record.