ITEMID: 001-110916
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF FERNÁNDEZ MARTÍNEZ v. SPAIN
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
JUDGES: Alejandro Saiz Arnaiz;Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 8. The applicant was born in 1937 and lives in Cieza. He is married and has five children.
9. He was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from the obligation of celibacy. The following year he was married in a civil ceremony. With his wife, to whom he is still married, he has five children.
10. From October 1991 onwards, the applicant was employed as a teacher of Catholic religion and ethics in a State-run secondary school of Murcia under a renewable one-year contract. In accordance with the provisions of an Agreement of 1979 between Spain and the Holy See, it was the responsibility of the Bishop of the diocese to confirm, every year, the renewal of the applicant’s employment, and the Ministry of Education was bound by the Bishop’s decision.
11. In November 1996 the Murcian newspaper La Verdad contained an article about the “Movement for Optional Celibacy” for priests. It reported that the applicant had previously been rector of a seminary and included a photograph showing him, together with his wife and their five children, attending a gathering of the movement, of which he was a member. The article quoted the comments of a number of participants, naming four of them including the applicant. The members in question were urging the ecclesiastical authorities to introduce optional celibacy and calling for the Church to be democratic rather than theocratic, with the possibility for the laity to elect priests and bishops. They further indicated their disagreement with the Church’s position on abortion, divorce, sexuality and contraception. The article explained that the publicity given to the event in the press had dissuaded a significant number of the Movement’s members from attending the gathering. Others had approached the agreed venue but, on seeing the media present, had simply waved to their colleagues without getting out of their cars and had driven away immediately. Only about ten secularised priests, including the applicant, had remained with their families.
12. On 15 September 1997 the Vatican authorities granted the applicant’s request for dispensation from celibacy. The document stipulated that anyone granted such a dispensation was barred from teaching the Catholic religion in public institutions, unless the local bishop decided otherwise “according to his own criteria and provided that there [was] no scandal”.
13. On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education of its intention not to approve the renewal of the applicant’s contract for the 1997/98 school year. The Ministry notified the applicant of the decision, which was effective from 29 September 1997.
14. In an official memorandum of 11 November 1997 the Diocese reiterated that, in accordance with the applicable provisions, the applicant was required to give his lessons “without any risk of scandal”. The Diocese explained in that connection that the publicity given by the applicant to his personal situation had entailed a breach of that duty, thus preventing the church authorities from proposing him again for the following school year, in order to protect the sensitivity of the parents of children who attended the centre where the applicant was teaching.
15. Having been unsuccessful in his administrative complaint against that decision, the applicant appealed to the Murcia Employment Tribunal no. 3, which gave its judgment on 28 September 2000. The judge began by referring to the arguments used by the Diocese to justify the non-renewal of the applicant’s contract, namely the fact that he had made public his situation as “married priest” (he had not received dispensation from the Vatican until 1997) and father, together with the need to avoid scandals and to protect the sensitivity of the parents of the school’s pupils, as they might be offended if the applicant continued to teach Catholic religion and ethics. In this connection the judge took the following view:
“ ... in the light of the facts thus presented, Mr Fernández Martínez was discriminated against because of his marital status and his membership of the Movement for Optional Celibacy, his appearance in the press having been the ground that led to his dismissal.”
16. The judge further pointed out that:
“The principle of non-discrimination at work encompasse[d] the prohibition of discrimination on account of belonging to a trade union, as [was] the case for membership of any other association.”
17. Lastly, the judge noted that the applicant’s situation as “married priest” and “father” had been known to the pupils and to their parents and to the directors of the school centres where he had worked. Consequently, the judge upheld the applicant’s appeal, declared his dismissal null and void and ordered his reinstatement in his former post.
18. The Ministry of Education, the Education Authority for the Region of Murcia and the Diocese of Cartagena lodged an appeal (suplicación). In a judgment of 26 February 2001, the Murcia High Court of Justice upheld the appeal, finding as follows:
“... The teaching [of Catholic religion and ethics] is associated with the doctrine of the Catholic religion ... Accordingly, the bond created [between the teacher and the Bishop] is based on trust. [As a result,] it is not a neutral legal relationship, such as that which exists between citizens in general and public authorities. It can be placed on the borderline between the pure ecclesiastical dimension and a skeleton employment relationship.”
19. Moreover, the court referred to the Bishop’s prerogatives in such matters and took the view that in the present case there had not been a violation of Articles 14 (prohibition of discrimination), 18 (right to respect for private life) or 20 (freedom of expression) of the Spanish Constitution, since the applicant had taught religion since 1991, the Bishop having extended his employment from year to year even though his personal situation had been identical. The court concluded that, when the applicant had decided to reveal that situation publicly, the Bishop had merely used his prerogative in accordance with the Code of Canon Law, that is to say, ensuring that the applicant, like any other person in that situation, carried out his duties with discretion and without his personal circumstances causing any scandal. In the court’s view, if such a situation became public knowledge, it was the Bishop’s duty to stop proposing the person concerned for a post of that nature, in accordance with the requirements of the official document granting dispensation from celibacy.
20. In addition, as regards Article 20 of the Constitution in particular, the court noted that for the purposes of Article 10 § 2 of the European Convention on Human Rights, the restrictions imposed on the applicant’s rights had to be considered legitimate and proportionate to the aim pursued, namely the avoidance of scandal.
21. Furthermore, the court analysed the question of the bond of trust and concluded as follows:
“... Where such a bond of trust is broken (and in the present case there are circumstances that reasonably allow such a conclusion to be reached), the Bishop is no longer obliged to propose [the applicant] for the post of teacher of Catholic religion.”
22. Lastly, as to the nature of the contract, the court took the view that, since its renewal was subject to annual approval by the Bishop for the following school year, it was a temporary contract, which in the present case had simply expired. It was thus not possible to consider that the applicant had been dismissed.
23. Relying on Articles 14 (prohibition of discrimination), 18 (right to respect for private and family life) and 20 (freedom of expression) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 30 January 2003, the Chamber to which the case had been allocated declared the appeal admissible and, in accordance with sections 50 to 52 of the Institutional Law on the Constitutional Court, notified the decision to the parties and requested a copy of the case file from the courts below.
24. In a judgment of 4 June 2007, served on 18 June 2007, the Constitutional Court dismissed the appeal.
25. In its decision, the Constitutional Court took the view that the arguments raised in fact fell within the scope of Articles 16 (freedom of thought and religion) and 20 of the Constitution. In this connection it began by noting that the applicant’s situation as “married priest” had been known to the Diocese, which had discontinued its renewal of the contract only when the article was published in the press, a fact for which the applicant himself had been responsible. The court further highlighted the special status of teachers of religious education in Spain, being different from that of other teachers and justifying the fact that teachers of religion were selected purely on the basis of religious criteria rather than the ordinary criteria provided for in domestic law.
26. The Constitutional Court further took the view that the main question in the amparo appeal was whether the facts at issue could be justified by the religious freedom of the Catholic Church, in relation to the State’s duty of religious neutrality (Article 16 § 3 of the Constitution), or whether, by contrast, they constituted a breach of the applicant’s right to freedom of thought and religion in relation to his right to freedom of expression (Article 20 § 1 (a) of the Constitution). In answering this question the court began by noting that the reason for the non-renewal had been the article in a regional newspaper, regarded as causing a scandal according to the arguments of the Diocese of Cartagena in its official memorandum of 11 November 1997. On this point, the court took the view that the duty of neutrality precluded it from ruling on the notion of “scandal” invoked by the Diocese or on the merits of the “optional celibacy of priests” advocated by the applicant. It further observed that the judgment of the High Court of Justice provided for judicial review of the Bishop’s decision, in particular concerning his inability to propose candidates who did not have the requisite professional qualifications for the post and the obligation to ensure respect for fundamental rights and civil liberties.
27. Noting that the Bishop’s decision did not fall completely outside the supervision of the domestic courts, the Constitutional Court found as follows:
“... the interferences with the applicant’s rights are neither disproportionate nor unconstitutional ... They are justified by respect for the lawful exercise of the Catholic church’s fundamental right to religious freedom in its collective or community dimension (Article 16 § 1 of the Constitution), in relation to the right of parents to choose their children’s religious education (Article 27 § 3 of the Constitution). [Indeed], the reasons for the non-renewal of the applicant’s contract ... are of an exclusively religious nature, related to the rules of the faith to which the applicant freely adheres and whose beliefs he sought to teach in a public education centre.”
28. Moreover, the court referred to its judgment no. 38/2007 of 15 February 2007, observing as follows:
“... it would be quite simply unreasonable, as regards the teaching of religion in secondary education centres, if the religious beliefs of those who decide of their own free will to apply for such teaching posts were not taken into account in the selection process, on the basis of guaranteeing the right to religious freedom in its collective and community dimension.”
29. Two judges appended a dissenting opinion to the majority judgment.
30. The applicant subsequently requested that the Constitutional Court’s judgment be declared null and void, on the ground that two of the judges in the Chamber which had given the judgment were known for their affinities with the Catholic Church, one of them being a member of the International Secretariat of Catholic Lawyers.
31. In a decision of 23 July 2007 the Constitutional Court dismissed the applicant’s request on the ground that, under section 93(1) of the Institutional Law on the Constitutional Court, the only possible remedy against a judgment of that court was a request for clarification.
32. The relevant provisions of the Spanish Constitution read as follows:
“Spaniards are equal before the law; they may not be discriminated against in any way on grounds of birth, race, sex, religion, opinions or any other condition or personal or social circumstance.”
“(1) Freedom of thought, religion and worship shall be guaranteed to individuals and communities, without any restrictions on its expression other than those necessary to maintain public order as protected by law.
(2) No one may be compelled to make statements regarding his or her ideas, religion or beliefs.
(3) No religion shall have the nature of State religion. The public authorities shall take account of all religious beliefs within Spanish society and consequently maintain appropriate relations of cooperation with the Catholic Church and other faiths.”
“(1) The right to respect for honour, for private and family life and for one’s image shall be guaranteed.
...”
“(1) The following rights shall be recognised and protected:
(a) the right to free expression and dissemination of thoughts, ideas and opinions through words, in writing or by any other means of reproduction;
...
(2) The exercise of such rights may not be restricted by any form of prior censorship.
...
(4) The said freedoms shall be limited by respect for the rights recognised in the present Title, by the laws implementing the same, and in particular by the right to respect for honour, private life and one’s image and to the protection of youth and childhood.
...”
33. The relevant provisions of this law at the time of the admissibility of the applicant’s amparo appeal read as follows:
“A decision shall be given on the admission of an amparo appeal. The section shall decide unanimously, by an order without reasoning (providencia), to admit the appeal in whole or in part ...”
“Once the amparo appeal has been admitted, the chamber shall submit an urgent request to the body or authority from which the decision, act or fact emanated, or to the judge or court which previously heard the case, to transmit to it, within a maximum period of ten days, the judicial case-files or documentary evidence relating to the case.”
“1. After receiving the judicial case-files and on the expiry of the summons period, the chamber shall transmit the files to the person who submitted the amparo appeal, the parties who appeared in the proceedings, the Government advocate in cases involving public authorities, and the public prosecutor’s office. The hearing shall take place within a period applicable to all parties of not more than twenty days during which observations may be submitted.
2. The chamber may, of its own motion or at the request of the parties, decide to hold a hearing instead of waiting for the deadline for the submission of arguments.
3. After the submission of arguments or the expiry of the period allowed for that purpose, the chamber, or if appropriate the section, shall give the requisite judgment within ten days.”
“The provisions of the Institutional Law on the Judiciary shall be applied, supplementing the present Law, in matters of ... requests for [the] withdrawal and abstention [of judges].”
34. The applicable provisions of this Law in the present case are the following:
“1. Requests for withdrawal shall be submitted by a party as soon as it becomes aware of the ground for such withdrawal. If the party was aware of that ground before the litigation, the request must be made at the start of the proceedings, failing which it will be declared inadmissible.
In particular, a request for withdrawal shall be declared inadmissible in the following cases:
(1) where it is not submitted within a period of ten days from the service of the first decision identifying the judge ...;
(2) where it is submitted while the proceedings are pending, if the ground for withdrawal was already known beforehand.
...”.
35. The relevant provisions of this Agreement read as follows:
“... Religious education shall be taught by the persons who, every school year, are appointed by the administrative authority from among those proposed by the Ordinary of the Diocese. The latter shall notify sufficiently in advance the names of persons who are considered competent ...”.
36. Section 6(1) of this Law reads as follows:
“Registered churches, faiths and religious communities shall be fully autonomous and may establish their own principles of organisation, internal rules and staff regulations. In such principles ..., they may include clauses for the purpose of safeguarding their religious identity ... and ensuring respect for their beliefs, without prejudice to respect for the rights and freedoms enshrined in the Constitution, and in particular [rights to] freedom, equality and non-discrimination”.
37. In its second additional provision, this Law provided as follows:
“The teaching of religion shall be adapted in line with the provisions of the Agreement on education and cultural affairs between the Holy See and the State of Spain ... Religious education shall be proposed systematically by [education] centres and shall be voluntary in nature for the pupils.”
38. The third additional provision of this Law reads as follows:
“... 2. Teachers who, without having the status of public servant, give religious education classes in public education institutions, shall perform their duties in a contractual framework, in accordance with the Labour Code. ... They shall receive the same level of remuneration as temporary teaching staff.
3. It shall be incumbent in all cases on the religious entities to propose a candidate for the said teaching of religious education; such proposal shall be renewed automatically from year to year ...”
39. At the time of the events in the present case, the teaching of Catholic religion in public education centres was organised in accordance with Institutional Law no. 1/1990 of 3 October 1990 on the general organisation of the education system, which, in its second additional provision, referred to the Agreement of 3 January 1979 on education and cultural affairs between the Holy See and Spain.
40. The Catholic religion in Spain has the same status as the other faiths which have also entered into cooperation agreements with the State, namely the Evangelical, Jewish and Muslim communities.
41. Parents have the right to ensure that their children receive religious education at school and if appropriate to choose the faith that they are taught. In all cases the State covers the cost of such education, as provided for in the relevant agreements, which also stipulate that teachers are appointed after a declaration of suitability has been issued by the competent church authority. That principle was developed in the Constitutional Court’s judgment no. 38/2007 of 15 February 2007 (see paragraph 44 below).
42. The relevant canons of the Code of Canon Law provide as follows:
“The Ordinary [of the diocese] is to be careful that those who are appointed as teachers of religion in schools, even in non-catholic ones, are outstanding in true doctrine, in the witness of their Christian life, and in their teaching ability.”
“The Ordinary [of the diocese] has the right to appoint or approve teachers of religion and, if religious or moral considerations so require, the right to remove them or to demand that they be removed.”
43. In this judgment the Supreme Court set out the following points:
“... The present case displays the characteristics provided for in Article 1 § 1 of the Labour Code, capable of classifying the legal relationship between the parties as “contractual” in nature: [an activity] carried on voluntarily for another, being remunerated and under a form of management. No rule grants such teachers [of religious education] the status of public servant. [In addition], the relationship is not administrative in nature, this being an imperative condition [for classification as a public servant].”
44. The relevant passages of this judgment read as follows:
“... The fact that teachers of religious education must be appointed from among persons previously proposed by the Bishop and that this proposal requires a prior declaration of suitability based on moral and religious considerations, does not mean that the lawfulness of such appointments cannot be reviewed by the national courts, with a view to determining whether they are in accordance with the law, as is the case with all discretional acts of authorities when they have effects vis-à-vis third parties ...
Firstly, the courts must review whether the administrative decision [of appointment] has been adopted in accordance with the applicable legal provisions, that is, whether the appointment was made from among persons proposed by the Bishop to provide religious instruction ... in conditions of equality and with respect for the principles of merit and capacity. Or ... the reasons for not appointing a given person must be considered [by the courts] and, specifically, whether it is a result of the person not being included among those nominated by the ecclesiastical authority, or of other grounds that may likewise be subject to review.
...
The competent courts must also determine whether the person’s not being included among those proposed by the Bishop of the diocese is the result of applying criteria of a religious or moral nature to determine the person’s suitability to provide religious instruction, criteria that the religious authorities are empowered to define by virtue of the right to freedom of religion and the principle of the religious neutrality of the State. [It is also for the courts] to examine whether the non-inclusion is based on grounds that do not stem from the fundamental right of religious freedom and are not protected thereby.
Lastly, once the strictly ‘religious’ grounds for the decision have been determined, the court will have to weigh up any competing fundamental rights in order to determine to what extent the right to freedom of religion, exercised through the teaching of religion in schools, may affect the employees’ fundamental rights in their employment relationships.
...
The authority granted to the ecclesiastical authorities in determining the persons qualified to teach their religious creed constitutes a guarantee of the freedom of churches to organise the teaching of their doctrines without interference from the public authorities. ... The cooperation [required by the Constitution] in that regard is fulfilled in the appointment of the teachers, for which the public authority is responsible (Article 16.3 of the Constitution).
In conclusion, the declaration of suitability is one of the requisites necessary for appointment. This requirement is in conformity with the right to equal treatment and the principle of non-discrimination (Article 14 of the Constitution).”
45. In this judgment the Constitutional Court set out the following findings:
“... The [applicant’s] complaints must be examined in the light of the principles established in judgment no. 38/2007 of 15 February 2007.
... Contrary to the arguments of the courts below, the Bishop’s decision [to propose one candidate or the other] does not fall entirely outside the review of the courts. Thus, ... once the strictly religious grounds for the non-renewal decision have been determined, ... it is incumbent on the [Constitutional] Court to verify whether the courts have appropriately balanced the fundamental rights in issue and to reconcile the requirements of religious freedom (both individual and collective) and the principle of the State’s religious neutrality with the judicial protection of fundamental rights and of the teachers’ employment relationships.
... In the present case, it does not appear that in exercising her duties as teacher of Catholic religion and ethics the applicant called into question the doctrine of the Catholic Church concerning marriage or defended civil marriage, such that her personal situation was completely separated from her professional activity.
[After balancing the fundamental rights in issue], it is noteworthy that the religious grounds put forward by the Bishop are at odds with the applicant’s rights not to suffer discrimination, with her freedom of thought concerning the right to marry and with her personal and family privacy.”
Recital 24
“The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.”
Article 4
Occupational requirements
“1. ... Member States may provide that a difference of treatment which is based on a characteristic related to [religion or belief] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
2. Member States may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. ...
Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-81372
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF FLUX  v. MOLDOVA (No. 2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Gheorghe Ulianovschi;Nicolas Bratza
TEXT: 5. On 19 June 2002 Flux published on its first page the title of an article due to appear in a future issue together with a summary of the article. The title of the summary was “The red millionaires” and it was accompanied by a big picture of the leader of the Communist Party parliamentary group, Victor Stepaniuc, wearing a top hat.
6. The summary read as follows:
“The Communists want to sell off piece-meal the Anenii Noi canned food plant
The Anenii Noi plant is the only undertaking in the region which is still alive. The rest of the plants have been sold off piece-meal. Since the Communists came to power, a campaign to liquidate this plant has commenced. Certain members of the Parliament of Moldova wish to dismantle it and sell it off piece-meal. Sources from the plant told our newspaper that the member of Parliament M.A., who is responsible for Anenii Noi County, with the support of the main creditors ... is behind this dirty affair. Having great influence and parliamentary immunity, he wants to fill his pockets following the sale of the plant.
At present the plant is not operating and is making substantial losses, and this situation is being used to maximum advantage by this MP. Since the plant is not operating and is not profitable, the shareholders want to liquidate it. The problem is that the plant could operate if the shareholders did not hinder the plant's staff.
(A detailed article about this affair will be published in the Friday issue on page 5)”.
7. The next day, on 20 June 2002, Mr Stepaniuc brought civil defamation proceedings against the newspaper and against the author of the article. He argued, inter alia, that:
“... the defendants disseminated information which is defamatory of me as a citizen, an MP and as the leader of the Communist Party parliamentary group ...
... the article, which is accompanied by my picture, contains the following defamatory statements: 'The Communists want to sell the Anenii Noi canned food plant off piece-meal' ... 'Since the Communists came to power, a campaign to liquidate this plant has commenced. Certain members of the Parliament of Moldova wish to dismantle it and sell it off piece-meal'.
By publishing this article, the defendants, acted in bad faith, misinforming public opinion about my actions in my capacity as MP and also about the activity of the Communist Party parliamentary group which I represent, accusing us of destroying an enterprise which is part of the national economy.”
8. On 21 June 2002 Flux published the article announced in its 19 June issue. The article was based on the account of V.N., the deputy Chief Executive Officer of the Anenii Noi canned food plant, and reported on events concerning alleged attempts by a Communist parliamentarian (M.A.), to have the plant declared bankrupt and sold off. It stated, inter alia, that the parliamentarian had made use of the Tax Authority and other State bodies for that purpose and that he (M.A.) had told V.N. that his actions were supported by the Communist Party parliamentary group. According to V.N., three other plants from the region had already been declared bankrupt and sold off in the same manner.
9. On 1 August 2002 Judge I.M., who was also President of the Buiucani District Court, ruled in favour of Mr Stepaniuc, relying on the following grounds:
“From the content and meaning of the article [of 19 June 2002] it is clear that Flux and the author made defamatory and false accusations against Mr Stepaniuc, in particular to the effect that he, in his capacity as MP and leader of the Communist Party parliamentary group, had engaged in actions directed at destroying enterprises within the national economy of the Republic of Moldova for personal gain.
In addition, the article was accompanied by a picture of the plaintiff.
The defendants did not present in the article any proof of the truthfulness of their accusations.
In such circumstances, the court considers it necessary to note that any article should be sincere, correct and contain only truthful revelations which correspond to reality and are not based on rumours, anonymous letters or inadequately checked information from unreliable sources.
The defendants, however, did not abide by common sense and unjustly defamed the plaintiff.
Accordingly, the defendants clearly overstepped the limits of constructive criticism of public persons necessary in a democratic society.
In the court's view, the fact that the plaintiff's name was not given in the article is not conclusive, since his picture and the meaning and content of the article make it clear that it is directed against him. Consequently, he was exposed to mental and moral suffering which should be remedied by the defendants.
In establishing the compensation to be paid for non-pecuniary damage, the court shall take into consideration the considerable vehemence of the attack against Mr Stepaniuc, the large readership of the newspaper and the degree of suffering endured by the plaintiff.
The court should also take into consideration the public functions occupied by Mr Stepaniuc, that of MP and leader of a parliamentary group, which should increase the award for moral damage. Therefore the court considers it necessary to award the plaintiff the maximum amount of compensation provided for by the law.”
10. The court found the statement: “The Communists want to sell the Anenii Noi canned food plant off piece-meal” to be defamatory and ordered the newspaper and the author to pay the plaintiff 3,600 Moldovan Lei (MDL) (the equivalent of 270 euros (EUR) at the time) and MDL 1,800 respectively. It further ordered the newspaper to issue an apology within fifteen days. The defendants were also ordered to pay the court fees.
11. The newspaper lodged an appeal against the judgment in which it argued, inter alia, that the article had been directed against M.A., another MP from the Communist Party parliamentary group and not against Mr Stepaniuc. The latter's picture had been published in order to make it easy to identify the Communist Party parliamentary group, since he was its President.
12. The applicant also argued that the impugned article was only an abstract of an article to be published subsequently and that the statement found by the first-instance court to be defamatory was merely a subjective conclusion drawn by the author based on the information published in the main article. The applicant further submitted that M.A. had also instituted defamation proceedings against the newspaper and requested that the two actions instituted by Mr Stepaniuc and by M.A. be joined and examined together.
13. The applicant finally argued that Judge I.M. lacked independence and impartiality because he was a friend of Mr Stepaniuc and had been appointed President of the Buiucani District Court by the Communist Party parliamentary group. The majority of the defamation cases between Flux and Mr Stepaniuc were examined by him personally and his decisions were stereotyped. In other defamation cases between Flux and representatives of the Government, Judge I.M. had always ruled in favour of the latter and had awarded them the maximum amount provided for by law.
14. On 6 February 2003 the Chişinău Regional Court dismissed the appeal as being unfounded. It did not take into consideration the article published on 21 June 2002.
15. The newspaper lodged an appeal on points of law, relying on the same grounds as in its appeal and added, inter alia, that the impugned article merely reproduced the opinion of the management of the Anenii Noi canned food plant.
16. On 1 April 2003 the Court of Appeal dismissed the appeal. It stated, inter alia, that it was clear that the information published in the article about Mr Stepaniuc did not correspond to reality; moreover, his picture had been attached to the article.
17. It appears that the defamation action brought by M.A. against Flux was struck out due to M.A.'s failure to appear before the court.
18. The relevant provisions of the Civil Code in force at the material time read:
Article 7. Protection of honour and dignity
“(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality.
(2) When the media body which circulated such statements is not capable of proving that these statements correspond to reality, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.”
Article 7§ 1. Compensation for moral damage
“(1) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality, as well as statements concerning his or her private or family life, without his or her consent, shall be compensated by way of a pecuniary award. The amount of the award shall be determined by the court.
(2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 months' minimum wages if the information has been circulated by a legal person and between 10 and 100 month's minimum wages if the information has been circulated by a natural person.”
19. The Freedom House Organisation 2003 country report for Moldova, insofar as relevant, reads as follows:
“... In 2002, the principle of the rule of law was under challenge in Moldova. This was evidenced by the rising number of cases filed by Moldovan citizens in the European Court of Human Rights and actions taken by the Parliament and government to suppress judicial independence. Also affecting the fragile balance of power among the legislative, executive, and judicial branches of government in 2002 were a series of judicial nominations based on loyalty to the ruling party, the dismissal of the ombudsman, and attempts to limit the independence of the Constitutional Court.
...
In April, the Moldovan Association of Judges (MAJ) signaled that the government had started a process of “mass cleansing” in the judicial sector. Seven judges lost their jobs, including Tudor Lazar, a member of the court of appeals, and Gheorghe Ulianovschi, the chairman of the Chisinau Tribunal. In the case of Lazar, the move was likely revenge for decisions by the court of appeals that favored the Basarabian Metropolitan Church and local oil importers over the government.
The situation worsened when President Voronin refused to prolong the mandates of 57 other judges. The MAJ conveyed a statement on the matter to COE rapporteurs who were in Chisinau at the time on a fact-finding mission. The government instructed the Ministry of Justice to delay court decisions related to the payment of material damages by state institutions. In October, Gheorghe Susarenco, chairman of the Moldovan Association of Judges, stated at a press conference that senior government officials were pressuring judges to issue rulings that favored government bodies.
In December, President Voronin promulgated a constitutional amendment giving him the right to appoint judges. Under the amendment, the head of state will appoint the chairs of courts, their deputies, and lower-ranking judges for four-year terms at the recommendation of the Higher Council of Magistrates. Parliament will appoint for four-year terms members of the Supreme Court of Justice, including the chief of the Supreme Court of Justice, the prosecutor-general, and the minister of justice. These changes provide evidence that the country's Communist leaders are weakening judicial independence and subordinating this branch of governance to their authority...”
20. The United States Department of State 2003 country report on Moldova read as follows in its relevant parts:
“... The Constitution provides for an independent judiciary; however, official pressure and corruption of judges remained a problem.
There continued to be credible reports that local prosecutors and judges extorted bribes for reducing charges or sentences.
Following a major reorganization in May, the judiciary consists of three levels: lower courts, courts of appeals, and the Supreme Court. A separate Constitutional Court has exclusive authority in cases regarding the constitutionality of draft and final legislation, decrees, and other government acts. While the Constitutional Court was generally regarded as fair and objective, observers frequently charged that other courts were corrupt or politically influenced.
The Constitution authorizes the President, acting on the nomination of the Superior Court of Magistrates, to appoint judges for an initial period of 5 years. Before being reappointed, judges must undertake specialized judicial training and pass a test evaluated by the Superior Council of Judges. Political factors have played a large role in the reappointment of judges.”
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-90099
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MIRILASHVILI v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1960 and is currently serving a prison sentence in correctional colony YuK-25/8, Orenburg Region.
7. On the morning of 7 August 2000 the applicant’s father, an important businessman, was kidnapped from his car in St Petersburg. The abduction was organised by Mr Kervalishvili and Mr Berkadze, known within the Georgian criminal milieu, with a view to receiving a ransom for his life.
8. Mr Kogan, the personal driver of the applicant’s father, managed to escape from the kidnappers. He contacted the police and the applicant’s relatives and told them what had happened. The police immediately started an investigation.
9. On the afternoon of 7 August 2000, having received the information about his father’s abduction, the applicant flew from Israel to Russia. As regards the following events, the parties’ accounts differ.
10. According to the applicant, once he arrived in St Petersburg he went to his office, where he met his brother and a group of his employees. In the presence of an unidentified police officer, the applicant’s brother assured the applicant that the best policemen had been deployed to find and release his father.
11. On the same evening the applicant was contacted by Mr Berkadze (an accomplice to the kidnappers), who offered his services to locate the applicant’s father. On the following morning Mr Berkadze called Ms Margvelashvili from the applicant’s office and asked her to assist in finding the applicant’s father. In exchange, Mr Berkadze offered to facilitate the release of her friends, Mr Dvali, Mr Kakushadze and Mr Grigolashvili, who had been arrested by the police earlier that evening. The applicant spoke to Ms Margvelashvili by telephone as well. He asked for help in finding his father.
12. On the evening of 8 August the applicant’s father was released by his abductors.
13. According to the prosecution authorities’ account, on arrival in St Petersburg the applicant, acting through his bodyguards (namely Mr Kazimirchuk and several others), ordered several unidentified individuals to go to Ms Margvelashvili’s flat on the basis that she had allegedly been involved in the abduction of the applicant’s father, and to kidnap members of her family, in order to exchange them for his father. The information that Ms Margvelashvili might have been implicated in the abduction of the applicant’s father had been received earlier that day from the police officers in charge of the official investigation into the event.
14. Early in the morning of 8 August 2000 the applicant’s men, posing as uniformed police officers, broke into Ms Margvelashvili’s flat, kidnapped Mr Dvali and Mr Kakushadze and took them to the applicant’s office. Ms Margvelashvili and her minor son remained in the flat under the surveillance of two “policemen”. Since Mr Dvali and Mr Kakushadze were unable to indicate the whereabouts of the applicant’s father, the applicant ordered the kidnapping of another person, Mr Grigolashvili, who allegedly knew where the applicant’s father was detained.
15. In the applicant’s office, Mr Dvali, Mr Kakushadze and Mr Grigolashvili were questioned and beaten by six of the applicant’s employees, including Mr Kazimirchuk, the applicant’s chief bodyguard. It appears that the applicant and his brother took part in their questioning and that the applicant hit Mr Grigolashvili in the face at least once. The applicant invited his father’s driver, Mr Kogan, to his office and showed him Mr Dvali, Mr Kakushadze, and Mr Grigolashvili. However, the driver stated that none of those people had taken part in the abduction of the applicant’s father.
16. In the afternoon of 8 August 2000 the applicant called Ms Margvelashvili and threatened her and her son with death if she did not tell him who had been behind the abduction of his father. Fearing for her life and the lives of those detained by the applicant, Ms Margvelashvili, via her friend Ms Avaliani, contacted Mr Kervalishvili, the abductor of the applicant’s father, and informed him of the developments. The latter called the applicant and they agreed to “exchange hostages”.
17. In the evening of 8 August 2000 Mr Kervalishvili released the applicant’s father, and the applicant ordered the release of Mr Grigolashvili, Ms Margvelashvili and her son.
18. As to Mr Dvali and Mr Kakushadze, they had been so badly beaten by the applicant’s men that he ordered that they be killed. Mr Dvali and Mr Kakushadze were suffocated and their bodies were dismembered and buried in an empty water cistern situated on the premises of a service station (garage) belonging to a certain Mr Sidler.
19. In September 2000 Mr Kervalishvili, the leader of the criminal group which had abducted the applicant’s father, left Russia. He moved to Georgia, where he was arrested on suspicion of having killed a policeman and was later charged with other crimes, not related to the events of 7 and 8 August 2000.
20. On an unspecified date in 2000 the Russian police opened a criminal investigation into the abduction of the applicant’s father. However, the investigation was later closed on the ground that Mr Kervalishvili and his group had voluntarily released the applicant’s father. In September 2001 that decision was quashed by the Vyborgskiy District Court of St Petersburg and the proceedings against Mr Kervalishvili were reopened. There is no information available about the results of that investigation.
21. On 11 July 2000 (before the events described above), in connection with an unrelated inquiry carried out by the St Petersburg police, the President of the St Petersburg City Court ordered that the telephone lines at the flats of Mr Grigolashvili and Ms Margvelashvili be tapped. As a result, the police recorded all telephone calls to and from these flats. One of the voices recorded by the police belonged to an unknown man, calling on 8 August 2000 from the applicant’s office, who threatened Ms Margvelashvili with death in connection with the disappearance of the applicant’s father.
22. On 21 September 2000 Mr Tsartsidze, a cousin of the deceased Mr Kakushadze, informed the police of the latter’s disappearance. The prosecutor’s office opened an official investigation into the disappearance of Mr Kakushadze.
23. On 22 September 2000 Mr Grigolashvili was questioned by the investigator. During the questioning he showed the police the place where he had been taken in the morning of 8 August 2000. It happened to be one of the office buildings belonging to the firms owned by the applicant. Mr Grigolashvili told the police that in that building he had been questioned by several persons in connection with the disappearance of the applicant’s father. Mr Grigolashvili had described one of those persons as a Georgian of 30 – 32 years of age who was “a son of Mr Mirilashvili-senior” (for more details see the summary of Mr Grigolashvili’s deposition in paragraph 49 below).
24. On 29 November 2000 the prosecutor’s office received thirteen audiotapes from the police containing recordings of telephone conversations made as part of a surveillance operation at the flats of Ms Margvelashvili and Mr Grigolashvili. These audiotapes contained no recording of the period between 5 p.m. on 7 August and 1.40 p.m. on 8 August 2000. In March 2001 the investigator in charge of the case requested that the police produce the missing recordings, but the police informed him that this part of the recording “had been lost for technical reasons”.
25. Over the following months the investigator questioned a number of other persons, including Ms Margvelashvili and Ms Avaliani. Their written testimonies were added to the case file relating to the disappearance of Mr Kakushadze.
26. On an unspecified date Mr Grigolashvili left Russia and settled in Kutaisi, Georgia. Ms Margvelashvili also moved to Georgia. In November 2000 Mr Grigolashvili was questioned by the Georgian prosecution authorities in connection with the investigation into the disappearance of Mr Kakushadze, at the request of the Russian prosecution authorities. On 5 April 2001 the Georgian prosecution authorities also questioned Ms Margvelashvili within the same criminal proceedings. Both witnesses confirmed the depositions they had made earlier in Russia.
27. In December 2000 Mr Tsartsidze transmitted to the investigative authorities two audiotapes, alleging that they contained a recording of a conversation between him and Mr Grigolashvili, made without the latter’s knowledge, on 19 September 2000. The conversation concerned the events of 7 and 8 August 2000. During the conversation Mr Grigolashvili confirmed, at least in substance, that those who had abducted Mr Dvali, Mr Kakushadze and himself had been acting on the applicant’s orders.
28. On 23 January 2001 the applicant was arrested and placed in custody. He denied his involvement in the abduction and murder of the persons concerned. The applicant requested a confrontation with the witnesses against him, in particular Ms Margvelashvili, Mr Kervalishvili and Mr Grigolashvili, but the investigative authorities rejected that request.
29. On 31 January 2001 the applicant was formally charged with ordering the abduction of Mr Dvali and Mr Kakushadze.
30. On 14 July 2001 the bodies of Mr Dvali and Mr Kakushadze were discovered on the premises of the service station. On 16 July 2001 the investigation ordered the forensic examination of their bodies.
31. On 21 July 2001, in order to identify the voice of a man who had telephoned Ms Margvelashvili’s flat on 8 August 2000, the investigator commissioned a phonological analysis of the audiotapes made by the police as part of the surveillance operation. A team of three experts was employed for this purpose. The experts were provided with test audiotapes containing samples of the applicant’s voice.
32. On 9 August 2001 Mr Kervalishvili was questioned by the Georgian prosecution authorities. On 24 January 2002 he was questioned again. He testified that the applicant was behind the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili.
33. On 20 September 2001 the expert team submitted a report on the audio recordings. Two Russian-speaking experts, Mr Koval and Mr Zubov, confirmed that the voice on the audiotapes belonged to the applicant. Ms Kikalishvili, a Georgian-speaking expert, came to the opposite conclusion (the conversation between the man and Ms Margvelashvili was conducted in Georgian, whereas on the “sample” audiotapes the applicant was speaking in Russian).
34. On 5 and 8 October 2001 the applicant was charged with ordering the murder of Mr Dvali and Mr Kakushadze, abducting a third person, Mr Grigolashvili, and threatening Ms Margvelashvili and her child with death. Several other persons were also charged as part of the same criminal investigation, including Mr Kazimirchuk, the applicant’s bodyguard, and Mr Sidler, who, according to the prosecution authorities, had helped to hide the bodies of Mr Dvali and Mr Kakushadze.
35. On 26 February 2002 the applicant, referring to Article 6 § 3 (d) of the Convention, requested a face-to-face confrontation with the witnesses for the prosecution. In a letter of 15 March 2002 the investigator in charge of his case replied that the applicant would have an opportunity to confront witnesses during the trial.
36. In April 2002 Mr Grigolashvili wrote a letter to the prosecution authorities in Russia and Georgia. In this letter he withdrew his earlier statements concerning the applicant’s involvement in his abduction (see paragraphs 23 and 26 above). On an unspecified date a Deputy City Prosecutor of St Petersburg requested that the Georgian authorities re-examine Mr Grigolashvili, in order to elucidate discrepancies in his earlier testimony to the Russian and Georgian investigative authorities.
37. On 2 April 2002 the prosecution reformulated the charges against the applicant and informed him about that decision.
38. According to the Government, on 3 June 2002 the preliminary investigation was completed. On 5 June 2002 the applicant and his lawyers obtained access to the case file.
39. On an unspecified date the applicant complained to the Oktyabrskiy District Court of Saint-Petersburg about the refusal of the investigative authorities to carry out face-to-face confrontation with Mr Grigolashvili and Mrs Margvelashvili. On 19 June 2002 the court dismissed that complaint. It held that under the Code of Criminal Procedure the investigator was free to decide whether a face-to-face confrontation of a witness with the accused was necessary. It also held that Mr Grigolashvili and Mrs Margvelashvili, as victims of the alleged crimes, were not bound to testify. According to the court, Ms Margvelashvili refused to participate in the face-to-face confrontation with the applicant, whereas Mr Grigolashvili had left Russia out of fear of reprisals from unidentified persons. In such circumstances the decision of the investigator not to hold face-to-face confrontations with the applicant was justified. The defence appealed against that decision. There is no information about the outcome of the appeal.
40. On 25 June 2002 Mr Grigolashvili was questioned by the Georgian authorities (see paragraph 36 above). Mr Grigolashvili testified that he had falsely accused the applicant under threats from Mr Tsartsidze and a relative of the deceased Mr Kakushadze. Mr Grigolashvili was shown a photo of the applicant; after having examined that photo he explained that it was not the men who had questioned and slapped him on the night of the events. His written submissions were transmitted by the Georgian authorities to the Russian prosecution authorities. According to the applicant, those documents were not added to the case file.
41. On 1 July 2002 the defence informed the prosecution that they had finished studying the material in the case file. On 19 July 2002 the City Prosecutor approved the bill of indictment; a copy of that bill was handed to the applicant.
42. According to the indictment, the prosecution charged the applicant with having organised, through his bodyguards, the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili, the illegal detention of Ms Margvelashvili and her minor son, and the murder of Mr Dvali and Mr Kakushadze.
43. Mr Kazimirchuk and several other people who had previously worked for the applicant were also brought to trial as his accomplices. According to the prosecution, on 7 August 2000 the applicant had ordered Mr Kazimirchuk and five other co-accused (Mr Polunin, Mr Demenko, Mr Kuzmenko, Mr Petrov and Mr Mogutov) to find his father’s abductors and bring them to him. In turn, Mr Kazimirchuk and his colleagues had delegated that task to a group of men who remained unidentified by the investigation. Those men, acting as police officers, had kidnapped Mr Dvali, Mr Kakushadze and Mr Grigolashvili and brought them to the applicant’s office. Acting on the applicant’s orders, those unidentified men had also murdered Mr Dvali and Mr Kakushadze.
44. In addition to the charges relating directly to the events of 7 and 8 August 2000, a number of auxiliary charges were also brought by the prosecution against the applicant’s co-accused. Thus, Mr Petrov, one of the applicant’s employees, was charged with illegal possession of ammunition for a firearm. Mr Sidler, who owned the service station where the bodies of Mr Dvali and Mr Kakushadze had been discovered, was charged with concealing a crime.
45. In support of the charges against the applicant, the prosecution authorities referred to the written statements obtained from Ms Margvelashvili, Mr Grigolashvili, Mr Tsartsidze, Ms Avaliani and Mr Kervalishvili in 2000 and 2001 during the official investigation. Their depositions are summarised below.
46. Ms Margvelashvili testified that on the evening of 7 August 2000 a group of men who introduced themselves as police officers had broken into her house and abducted Mr Dvali and Mr Kakushadze. She was left in her house under the surveillance of two intruders. Some time later, on the following morning, the applicant had telephoned her and threatened her and her son with death if she did not say where his father was. The applicant allowed her to speak on the telephone to Mr Dvali and Mr Grigolashvili, who were being held in the applicant’s office. Mr Dvali and Mr Grigolashvili told her that the applicant had threatened them with death if his father was not found safe and unharmed.
47. On 8 August 2000 Ms Margvelashvili contacted Ms Avaliani, her friend, and informed her of the events of 7 August 2000. She asked her to find Mr Kervalishvili, who had organised the abduction of the applicant’s father, and to describe the situation to him.
48. On the evening of 8 August 2000 Mr Grigolashvili was released by the applicant. The applicant then called Ms Margvelashvili and offered an apology for the offensive language he had used the previous night. He also informed her that Mr Dvali and Mr Kakushadze had been released. However, they never returned home.
49. According to Mr Grigolashvili’s statement, on the morning of 8 August 2000 he was abducted by a group of men who claimed to be police officers. He was taken to a building which he later identified as the applicant’s office. There, he was questioned by several people, including, allegedly, the applicant (Mr Grigolashvili was not sure of that person’s identity, since he had never met the applicant and only identified him from a photo). They beat him up and threatened him with death if he did not indicate the whereabouts of the applicant’s father. One of the men forced him to call Ms Margvelashvili and tell her that she should contact the alleged abductors of the applicant’s father in order to save his life and that of Mr Dvali. On the evening of 8 August 2000, after the applicant’s father had been set free, Mr Grigolashvili was released. Before he left, one of the men from the applicant’s office gave him documents belonging to Mr Dvali and Mr Kakushadze. Later Mr Grigolashvili returned the documents to Mr Tsartsidze, the cousin of Mr Kakushadze.
50. Mr Kervalishvili confirmed that on 7 August 2000 his employees, one of whom had been disguised in police uniform, had kidnapped the applicant’s father for the purpose of obtaining a ransom. The applicant’s father was kept in a flat which had been rented for that purpose. On the following day Mr Kervalishvili was approached by Ms Avaliani, who informed him about the abduction of Mr Kakushadze, Mr Dvali and Mr Grigolashvili, and about the threats to Ms Margvelashvili and her son. Mr Kervalishvili then called the applicant and agreed to release his father if the applicant released the three men. During that conversation Mr Berkadze, who had also been involved in abducting the applicant’s father and was at that point in the applicant’s office, confirmed to Mr Kervalishvili that all the hostages taken by the applicant were alive. The applicant also threatened to kill the hostages if his father was not returned safely.
51. Ms Dzhimshiashvili, Mr Grigolashvili’s wife, testified that early on the morning of 8 August 2000 several “policemen” had taken her husband away. In the evening he had returned home; he was seriously injured and she had provided him with elementary medical assistance. He did not tell her what had happened to him; he simply explained that he had been beaten up by the police.
52. The prosecution further referred to a verbatim record of the conversation between Mr Grigolashvili and Mr Tsartsidze on 19 September 2000 (see paragraph 27 above), and a verbatim record of thirteen audiotapes made by the police as part of the surveillance operation (see paragraphs 11 and 24 above).
53. The prosecution also relied on the reports by Mr Koval and Mr Zubov, who had identified the applicant’s voice on the audiotapes (see paragraph 33 above). A considerable amount of circumstantial evidence and hearsay witness testimony was also referred to in the indictment.
54. As Mr Sidler, one of the co-accused, was a serving military officer, the case was examined by a military court. On 28 August 2002 the military court held a preparatory hearing. The applicant was present at the hearing; he was assisted by several lawyers. Those lawyers represented him throughout the subsequent proceedings.
55. The trial commenced on 5 November 2002. The court was composed of Mr Popovich, the professional judge, and two lay judges.
56. The applicant and the other co-accused pleaded not guilty. According to the applicant, the abductions in question had been carried out by real policemen, together with Mr Berkadze, who had then decided to shift the blame onto the applicant and his men after Mr Dvali and Mr Kakushadze had disappeared.
57. On 25 November 2002 the applicant’s lawyers questioned Mr Grigolashvili and Ms Margvelashvili in Georgia, in the presence of their lawyers, and through an interpreter. On an unspecified date in 2003 the lawyers also questioned Mr Kervalishvili. A verbatim recording of those questioning was made. The lawyers further obtained written statements by Mr Kervalishvili, Ms Margvelashvili, Ms Dzhimshiashvili and Mr Grigolashvili concerning the events of 7 and 8 August 2000. Those statements were addressed to the Georgian authorities, to the Military Court of Leningrad Command, and to the applicant’s lawyers. In 2003 the defence lawyers submitted the above written testimonies and statements to the Military Court; they were added to the case file.
58. All of the above witnesses withdrew their previous testimony to the police, which had incriminated the applicant. In particular, Ms Margvelashvili explained in her statement of 25 November 2002 that, although she did not speak Russian, she had signed written depositions drafted in Russian by the prosecution authorities. She explained that the “policemen” who had abducted Mr Dvali and Mr Kakushadze from her flat had been led by Mr Berkadze, one of those who had kidnapped the applicant’s father. Ms Margvelashvili testified that the man who had called and threatened her in the morning of 8 August 2000 was not the applicant but Mr Berkadze.
59. In his written submissions of 25 November 2002 Mr Grigolashvili indicated that the person who had questioned and beaten him in the applicant’s office had introduced himself as “a son of the kidnapped businessman”, but that it had not been the applicant, and that he had not seen the applicant at all on that day.
60. In his written deposition of 22 March 2002 Mr Kervalishvili declared that everything he had said to the prosecution authorities about the applicant was a lie (cf. paragraph 32 above).
61. The defence lawyers also questioned the applicant’s brother, who lives in Israel and who confirmed the applicant’s account of events. The transcript of that interview was also produced to the court.
62. The defence commissioned an expert analysis of the recording of the telephone conversations at Ms Margvelashvili’s flat. The phonological analysis of the audiotapes submitted by the defence concluded that the recording of the telephone conversations on 7 and 8 August 2000 did not contain the applicant’s voice. This report was admitted by the court as evidence.
63. The court examined two out of the thirteen audiotapes made by the police in the flats of Ms Margvelashvili and Mr Grigolashvili (audiotapes nos. 13462 and 14123), and examined the verbatim records of the remaining eleven audiotapes made by the police. The defence requested access to all thirteen audiotapes in order to be able to compare them with the verbatim record, but the court rejected that request.
64. The defence also requested the court to obtain from the prosecution the recordings made between 5.30 p.m. on 7 August 2000 and 1.40 p.m. on 8 August 2000. The defence stressed that during that period the applicant had had a telephone conversation with Ms Margvelashvili. In its submission, the disclosure of the content of that conversation could have proved his innocence.
65. The defence lawyers asked the court to disclose the materials authorising the telephone tapping of Ms Margvelashvili’s flat and, in particular, the court decision authorising that surveillance. At the hearing of 12 September 2002 Judge Popovich, after having examined briefly a file produced by the State prosecutor, dismissed the request “on the grounds of secrecy”. He explained that he was satisfied with the explanation provided by the prosecution as to the lawfulness of the telephone tapping. It appears that the lay judges did not see the materials submitted by the prosecutor to the presiding judge.
66. On 4 January 2003 the defence repeated their request for the disclosure of the materials authorising the wiretapping. In particular, they sought the disclosure of the request for the wiretapping by the police and the court’s order of 11 July 2002 authorising the wiretapping (see paragraph 21 above). In an interim decision of the same date the court, composed of Judge Popovich and the two lay judges, dismissed that request on the ground that the materials at issue, relating to the operational and search activities of the police, contained State secrets, and therefore could not be shown to the defence. The court referred to subsection 4 of section 12 of the 1995 Operational and Search Activities Act (see “Relevant domestic law” below), which did not provide for the disclosure of the information on such activities of the police to the lawyers.
67. The court questioned a number of policemen involved in the wiretapping of telephone conversations at Ms Margvelashvili’s flat. They submitted that the police had been keeping an eye on Mr Kervalishvili and persons around him, including Ms Margvelashvili, since March 2000. Ms Margvelashvili’s flat had been under surveillance since July 2000, and when the applicant’s father was kidnapped the police had known that Ms Margvelashvili’s friends or relatives might be involved in some way. The witness explained that all telephone conversations within that period had been recorded. However, the recording covering the period between 5.30 p.m. on 7 August 2000 and 1.40 p.m. on 8 August 2000 had been lost “for technical reasons” (see paragraph 24 above).
68. On 25 December 2002 the court started the examination of the expert report of 20 September 2001 by Mr Koval and Mr Zubov. The applicant insisted that the conclusions of the above-mentioned two experts were wrong, and that the man’s voice on the audiotapes did not belong to him. Further, he claimed that the translation from Georgian was inaccurate.
69. On 29 January 2003 the court questioned the experts who had prepared the report, Mr Koval and Mr Zubov. They testified that at the request of the investigator they had analysed four audiotapes. They had not detected any traces of editing on those audiotapes. In their view, the voice on five recordings belonged to the applicant.
70. The presiding judge asked Mr Koval whether he had worked with the Georgian language before. Mr Koval replied that, for the purposes of a phonological analysis, knowledge of a particular language was not necessary. He also confirmed that, although the conversation recorded on the audiotapes was in Georgian, he and his colleague only had samples of the voice of the applicant speaking Russian. However, in his opinion that did not make much difference.
71. On 5 January 2003 the applicant asked the court to order an new expert examination of the voices on the audiotapes. The defence submitted that the voice on the audiotape was not the applicant’s but that of another person, allegedly Mr Berkadze.
72. In order to rebut the findings of the expert report relied on by the prosecution, the defence lawyer asked the court to call two phonologists, Ms Rossinskaya and Ms Galyashina. They were summoned to court and on 29 January 2003 they testified that the methods of phonological analysis employed by Mr Koval and Mr Zubov were questionable and that their conclusions were unreliable. In their submission, Mr Koval and Mr Zubov had not used State-approved methods of voice recognition but had relied on their own method, which was unreliable. They produced to the court a report criticising the findings of Mr Koval and Mr Zubov; that report was added by the court to the case file.
73. On 12 February 2003, in view of the contradictory nature of the conclusions reached by Mr Koval, Mr Zubov and Ms T. S. Kikalishvili, the court ordered an additional analysis of the audiotapes. The defence lawyers asked the court to include Ms Galyashina in the expert team, but the court rejected that request on the ground that she had already given her opinion on the subject in the capacity of a “specialist” (специалист). The court assigned four experts, including Mr Koval, the same expert who had drafted the first report, proposed by the prosecution, and Mr Serdyukov, proposed by the defence. Two experts were appointed on the court’s initiative: Mr Yakushev and Ms Kikalishvili (the latter had also taken part in the first analysis).
74. The defence contested the appointment of Mr Koval and Mr Yakushev. The defence cast doubt on the impartiality of these experts, in that Mr Koval’s wife had previously worked for the applicant and had been fired by him, and Mr Yakushev was a member of the Russian security service.
75. On 15 April 2003 the court heard evidence from the experts Mr Koval, Mr Serdyukov and Ms T. S. Kikalishvili. The court also heard two witnesses, namely Mr Bazunov and Mr Korobetskiy. Mr Bazunov confirmed that he had known Mr Koval and his wife since 1999. She had worked at the reception desk at a casino owned by the applicant. In September 1999 she had been fired on the direct orders of the applicant. Mr Bazunov had then called Mr Koval and explained that her dismissal had not been his decision, but that of the applicant. Mr Korobetskiy confirmed the statement by Mr Bazunov about Mr Koval’s wife and her dismissal from the casino.
76. The court refused to discharge Mr Koval and Mr Yakushev. As a result of the new analysis, Mr Koval and Mr Yakushev found that the voice on the audiotape belonged to the applicant. The two other experts came to the opposite conclusion.
77. On 24 June 2003, at the prosecutor’s request, the court ordered a third expert analysis of the audiotapes, with a view to eliminating discrepancies in the earlier findings. The analysis was entrusted to Mr Koval, Mr Yakushev and Mr Serdyukov, who had participated in the previous examination, and two new experts: Mr Kurdiani, a Georgian-speaking expert, proposed by the defence, and an anonymous expert, proposed by the prosecution, whose name was given only as “A. P. Ivanova”. The defence asked the court to disclose the identity of “A. P. Ivanova” or to dismiss her from the expert team, because in such circumstances it was unable to challenge her credentials.
78. The next hearing was held on 25 June 2003. The court and the parties questioned several witnesses, namely the experts Mr Kurdiani, Mr Yakushev and “Ms Ivanova”. The latter was questioned through a system of audio teleconferencing. The applicant was present at that hearing and was able to put questions to the witnesses. The defence challenged Mr Koval, alleging that he was biased, but the court refused to grant their request.
79. On 27 June 2003 the court decided to discontinue the phonological examination of the audiotapes. The court noted that since Mr Kurdiani was a Georgian national he could not be held legally responsible for false testimony and could not therefore act as an expert in the proceedings. The court also observed that the defence lawyers could not ascertain the personal credentials and professional competence of “A. P. Ivanova”.
80. On 2 July 2003 the court declared that the examination of evidence was over and asked the parties how much time they needed to prepare their final submissions. The defence requested one day; the prosecution requested twelve days. The court decided to start hearing the final submissions on the morning of 15 July 2003.
81. On 15 July 2003 at 10 a.m. the prosecutor submitted an additional phonological analysis of the audiotapes prepared by the same anonymous expert, “A. P. Ivanova”. Despite the objections raised by the defence, the court admitted the report in evidence and included it in the case file. However, the court refused to reopen the examination of evidence. The report of “A. P. Ivanova” was added to the case file without examination by the parties. The court rejected a request by the applicant’s lawyers to disclose the contents of the report. At 11.05 a.m. the court discontinued the examination of evidence and proceeded to hear the parties’ final submissions.
82. The court also heard the audio recording of a conversation between Mr Grigolashvili and Mr Tsartsidze, made by the latter (see paragraph 27 above). The court had ordered an expert examination of the recording in order to identify the voices on the audiotapes, but it later cancelled the examination.
83. Several witnesses for the prosecution, including Ms Margvelashvili, Mr Grigolashvili, Mr Kervalishvili and Ms Dzhimshiashvili, did not appear at the hearing. At the beginning of the trial the court asked the parties whether the proceedings should continue in the absence of the above witnesses. The prosecutor supported the idea of continuing the proceedings in the absence of those witnesses. The applicant’s counsel, Mr Afanasyev, did not oppose the commencement of the proceedings, but asked the court that the witnesses be summoned through the channels of international judicial cooperation.
84. On 12 November 2002 the Military Court of Leningrad Command sent a letter rogatory to the Georgian authorities asking them to assist in summoning several witnesses, namely Mr Grigolashvili, Ms Margvelashvili, Ms Dvali, Ms Dzhimshiashvili and Mr Kervalishvili. On 9 March 2003 the Deputy Minister of Justice of Georgia informed the President of the Leningrad Circuit Military Court that Mr Grigolashvili, Ms Margvelashvili and Ms Dzhimshiashvili were not able to go to Russia to appear before the court. The Deputy Minister also explained that they had all retracted the statements they had previously given to the Russian prosecution authorities.
85. At the hearing of 19 March 2003 the prosecutor requested leave to read out written depositions by Ms Margvelashvili, Mr Grigolashvili, Mr Kervalishvili and Ms Dzhimshiashvili, made to the investigator at the pre-trial stage (see paragraphs 46 – 51 above). The defence objected, referring, inter alia, to Article 6 § 3 (d) of the Convention. They submitted that the applicant had been deprived of his right to cross-examine witnesses against him. The defence stressed that they had asked the investigator to carry out face-to-face questioning of these witnesses but that the investigator had refused. In those circumstances, the written depositions by those witnesses should have been declared inadmissible. Despite that objection, on 20 March 2003 the court decided to admit the written depositions and to read them out at the trial.
86. In the course of the trial the court questioned several other witnesses, in particular Mr Tsartsidze, Ms Avaliani and Mr Kogan. Their testimony can be summarised as follows.
87. According to Mr Tsartsidze, on 8 August 2000 Ms Margvelashvili called him and informed him of the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili, which, in her opinion, was related to the kidnapping of the applicant’s father a day earlier.
88. On 11 August 2000 Mr Tsartsidze met Mr Grigolashvili, who gave him more details of what had happened to him and to others. Mr Grigolashvili handed over to Mr Tsartsidze documents belonging to Mr Dvali and Mr Kakushadze, explaining that he had received them in the applicant’s office on 8 August 2000. These documents were later seized by the police.
89. On 19 September 2000 Mr Tsartsidze met Mr Grigolashvili again and suggested that he file a complaint with the police about the events of 7 and 8 August 2000. Mr Grigolashvili refused, allegedly for fear of reprisals by the applicant and his family. Knowing that Mr Grigolashvili might refuse to tell the police the true story of his abduction, Mr Tsartsidze recorded their conversation on two audiotapes using a dictaphone. In December 2000 Mr Tsartsidze gave those tapes to the police (see paragraph 27 above).
90. Ms Avaliani testified that on 8 August 2000 her friend Ms Margvelashvili had called her, explained the situation and asked her to find Mr Kervalishvili. Ms Avaliani met Mr Kervalishvili and relayed the information. During their conversation Mr Kervalishvili confirmed that he had masterminded the abduction of the applicant’s father. He then called the applicant and they agreed to exchange the applicant’s father for the hostages taken by the applicant, namely Mr Dvali, Mr Kakushadze, Mr Grigolashvili, Ms Margvelashvili and her son.
91. Mr Kogan, the applicant’s father’s driver, who had been present at the time of the latter’s abduction by Mr Kervalishvili’s and Mr Berkadze’s men testified that the applicant’s father had been kidnapped from his car on the morning of 7 August 2000. In the evening the driver was invited to the applicant’s office, where he was shown “three Georgian men” and asked whether he recognised any of the men who had abducted the applicant’s father. He replied that he did not.
92. Ms Volkova, a former girl-friend of Mr Kakushadze, and her mother, testified that they had heard from other relatives that Mr Dvali and Mr Kakushadze had been abducted on the applicant’s orders. A statement in similar terms was given by Ms M.A. Kikalishvili, a relative of Mr Tsartsidze.
93. Mr Mirilashvili senior, the father of the applicant, testified before the court. He described the circumstances of his kidnapping by Mr Kervalishvili. He also confirmed that Mr Kervalishvili had spoken to his son, the applicant, by telephone.
94. The court heard evidence from a number of policemen who had visited the applicant’s office on 7 and 8 August 2000. The court was told that during the night of 7 August 2000 the applicant had spoken on the telephone with the deputy chief investigator of the Vyborgskiy District of St Petersburg. On the following morning that police officer, together with a colleague, had arrived at the applicant’s office. However, the policemen denied that they had been involved in the abduction of Mr Dvali and others.
95. The court questioned six of the applicant’s employees, who, according to the prosecution, had assisted him in the abduction and murder and had found the men who had abducted Mr Dvali, Mr Kakushadze and Mr Grigolashvili. The applicant’s employees testified that on 7 August 2000 the police had provided them with certain information about the progress of the official investigation. The applicant’s employees also submitted that they had been in permanent contact with the police officers in charge of the investigation throughout 7 and 8 August. However, they all denied that they had been involved in the abduction, beating and murder of the victims. They submitted that they had never instructed anyone to abduct Mr Kakushadze, Mr Dvali and Mr Grigolashvili, or to detain Ms Margvelashvili and her son, and had never received any such instructions from the applicant. They also denied that they had seen the victims in the applicant’s office.
96. The court questioned several other indirect witnesses. However, their statements were not used against the applicant.
97. On 1 August 2003 the Military Court of the Leningrad Command gave judgment in the applicant’s case.
98. The court started by describing the applicant’s own account of the events at issue. However, in the court’s opinion, that account was rebutted by other evidence. In support of that conclusion it referred, firstly, to the statements by Ms Margvelashvili, Mr Grigolashvili, Mr Kervalishvili and Ms Dzhimshiashvili obtained by the investigator and read out at the trial (see paragraphs 46 – 51 and 85 above). In the court’s opinion, those statements confirmed the applicant’s guilt.
99. As to the written statements by Ms Margvelashvili, Mr Grigolashvili and Mr Kervalishvili, submitted by the defence (see paragraphs 57 – 60 above), the court declared that evidence inadmissible as having been obtained in breach of the domestic legislation. The court noted that those persons had already been questioned by the investigator as witnesses. In the court’s view, their subsequent examination by the defence lawyers could not therefore be recognised as “lawful collection of evidence” within the meaning of the domestic legislation. Consequently, the court declared those statements inadmissible. The court further noted that the statement by the applicant’s brother had been obtained by his defence lawyers in accordance with the law. However, the court noted that the veracity of the statement could not be confirmed in accordance with the Code of Criminal Procedure, namely at an oral hearing before the court. On that basis the court declared this evidence inadmissible.
100. Secondly, the judgment referred to the testimonies of Ms Kikalishvili and Mr Tsartsidze, the relatives of Mr Kakushadze. They testified about what Mr Grigolashvili had told them about the events of 7 and 8 August 2000. Thirdly, the court referred to the recordings of the conversation between Mr Grigolashvili and Mr Tsartsidze, made by the latter in September 2000. Fourthly, the judgment referred to the testimony of Ms Volkova, the former girl-friend of Mr Kakushadze. She testified before the court about what Mr Tsartsidze had told her about the events. Fifthly, the court analysed the testimony of Ms Avaliani, who had heard the telephone conversation between the applicant and Mr Kervalishvili, and who had spoken to Ms Margvelashvili and Ms Kervalishvili about the applicant’s involvement in the abduction of Mr Grigolashvili, Mr Dvali and Mr Kakushadze.
101. Finally, the court referred to the phone calls recorded at Ms Margvelashvili’s flat on 7 and 8 August 2000, The court accepted the conclusions of the experts for the prosecution (Mr Koval, Mr Zubov and Mr Yakushev), who identified the voice on the audiotape as belonging to the applicant, and rejected the findings of the other experts. In particular, the court discounted the arguments of Ms Galyashina, Ms Rossinskaya, Ms Kikalishvili and Mr Serdyukov as unreliable. The judgment contained no reference to the findings of the anonymous expert “A.P. Ivanova”.
102. The judgment also contained references to various other items of hearsay and circumstantial evidence, such as the testimonies of the police officers and reports of the examination of the personal belongings of one of the victims.
103. As a result, the Military Court found the applicant guilty of unlawful entry into a house and the abduction and illegal detention of Mr Grigolashvili, Mr Dvali and Mr Kakushadze, and sentenced him to twelve years’ imprisonment. The applicant was acquitted on other counts, including the charges of murder. The court fully acquitted the applicant’s co-defendants, including Mr Kazimirchuk and Mr Sidler. Mr Petrov was found guilty of illegal possession of firearms.
104. On 11 August 2003 the applicant’s lawyers lodged an appeal against the judgment of 1 August 2003. On 18 September and 21 October 2003 they filed additional written observations with the appeal court. Their grounds of appeal may be summarised as follows.
105. The defence lawyers indicated that the court had misinterpreted or even distorted the testimony of many witnesses, as well as the content of the telephone conversations recorded by the police. Nothing in Mr Grigolashvili’s and Ms Margvelashvili’s testimony indicated that the applicant had organised the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili. On the contrary, Ms Margvelashvili and Ms Avaliani had on many occasions in their testimony referred to “coppers” and “the nick”, which suggested that the police had been involved in the case. Both Ms Margvelashvili and Ms Avaliani mentioned that the “cops” had arrived at Ms Margvelashvili’s flat in the company of Mr Berkadze, and that it was Mr Berkadze who had called and threatened Ms Margvelashvili with death. The defence also pointed to certain logical discrepancies in the testimony of various witnesses and challenged their credibility.
106. The defence complained that the court had failed to summon Mr Kervalishvili, Mr Grigolashvili, Ms Dzhimshiashvili and Ms Margvelashvili. At the same time the court declared inadmissible written statements by those witnesses, obtained by the defence, in which they had retracted their previous statements to the investigative authorities. The defence also indicated that the court had refused to obtain from the prosecutor’s office the results of the questioning of Mr Grigolashvili, which had been carried out by the Georgian authorities at the request of the Russian prosecution authorities on 25 June 2002. That information had been added to the case file by the prosecution during the trial, without the defence having been informed (see paragraph 40 above).
107. As regards the evidence obtained as a result of wiretapping, the defence complained that they had had no opportunity to challenge its admissibility, because the court had refused to give them access to the materials authorising the wiretapping. The defence further indicated that the prosecution had produced only a selective record of the relevant telephone conversations. Firstly, the defence had had access to only two out of the thirteen audiotapes made by the police, whereas the prosecution had submitted the verbatim record of all thirteen tapes. Secondly, a period of more than twenty hours of wiretapping (between 5 p.m. on 7 August 2000 and 1.40 p.m. on 8 August 2000) was missing, whereas the police had recorded all the conversations which had taken place within that period. In its decision the court had not mentioned the testimony of the police officers involved in the wiretapping operation, which was of crucial importance for the case.
108. The defence also contested the court’s findings as to the identity of the man who had threatened Ms Margvelashvili and her son with death in the telephone conversation of 8 August 2000. The court concluded that the voice on the tape belonged to the applicant. That conclusion was based on the findings by the Russian experts Mr Koval, Mr Zubov and Mr Yakushev. The defence pointed out that those experts did not speak Georgian and had had at their disposal only samples of the applicant’s voice when speaking in Russian; moreover, the impartiality of those experts was open to doubt for the reasons adduced by the defence before the court. The defence further complained that the court had disregarded the opinion of those experts proposed by the defence, had refused to entrust the analysis of the audiotapes to Ms Galyashina and had discharged Mr Kurdiani. In their opinion, the court’s assessment of the contradicting expert opinions was significantly affected by a report by an anonymous expert, “A. P. Ivanova”, to which the defence had had no access during the trial.
109. With regard to the audiotapes recorded by Mr Tsartsidze in September 2000, the defence lawyers indicated that the court had failed to establish whether the recorded voice actually belonged to Mr Grigolashvili. No analysis had ever been carried out to that effect. Moreover, Mr Tsartsidze could not explain to the court why he had handed over to the investigative authorities only copies of the audiotapes, and not the original records. In those circumstances the court ought to have disregarded the contents of those tapes.
110. In addition to the grounds of appeal submitted by the applicant’s lawyers, Mr Grigolashvili, as a victim, lodged a separate appeal against the judgment. Mr Grigolashvili submitted that he had never seen the applicant or spoken to him. According to Mr Grigolashvili, he had spent some time in the applicant’s office on 8 August 2000, but he had not seen Mr Dvali or Mr Kakushadze there. The man who had hit him in the applicant’s office was not the applicant. He submitted that the story he had told Mr Tsartsidze, as recorded on the audiotape, was untrue and that he had recounted it under serious pressure from Mr Tsartsidze, a cousin of the deceased Mr Kakushadze, and his relatives. He had been instructed what to say by Mr Tsartsidze and by the investigators.
111. Ms Margvelashvili, as a victim, lodged a similar appeal. She indicated that her initial statements, referred to by the trial court as evidence incriminating the applicant, had been given under duress. She explained that Mr Dvali and Mr Kakushadze had been arrested at her flat by police officers who were led by Mr Berkadze. Later that night a police officer in uniform had come to her flat and taken documents belonging to Mr Dvali and Mr Kakushadze. On the morning of 8 August 2000 she had spoken to Mr Berkadze by telephone, not the applicant. No one had ever mentioned the applicant’s name in connection with the abduction of Mr Dvali and Mr Kakushadze. She had given testimony against the applicant because she had been persuaded by the investigators that the applicant had ordered the killing of Mr Dvali and Mr Kakushadze, but she now understood that the applicant was innocent.
112. On 5 November 2003 the Supreme Court of the Russian Federation upheld the conviction in the main, excluding several aspects on formal grounds (in particular, the episode concerning the abduction of Mr Grigolashvili, and the illegal entry into Ms Margvelashvili’s house). As a result, the sentence was reduced to eight years’ imprisonment.
113. Ms Margvelashvili appeared before the appeal court as a victim of the crimes of which the applicant was accused. She repeated the arguments stated in her grounds of appeal. However, the appeal court upheld the findings of the first-instance court, referring again to the written depositions given by Mr Grigolashvili, Ms Margvelashvili and Mr Kervalishvili at the pre-trial stage, the recording of the telephone conversation of 8 August 2000 between Ms Margvelashvili and the applicant, the recording of the conversation between Mr Tsartsidze and Mr Grigolashvili, written and oral submissions by Ms Avaliani and Mr Tsartsidze and certain pieces of circumstantial evidence produced by the prosecution. The court of appeal noted that the wiretapping of the telephone line of Ms Margvelashvili’s flat had been lawfully authorised by the President of the St Petersburg City Court for the period between 7 and 17 August 2000. As regards the depositions submitted by the defence, which were declared inadmissible by the trial court, the appeal court noted that “the trial court [had made] the correct legal assessment” and declared them inadmissible. Further, the appeal court dismissed the complaint regarding the trial court’s failure to summon Ms Galyashina and its discharge of Mr Kurdiani. The appeal court further noted that the first-instance court had not referred to the report prepared by the anonymous expert “A. P. Ivanova” and had not breached any procedural rules by accepting her report. It also noted that the report had been admitted to the case file before the end of the trial. As to the grounds of appeal by Ms Margvelashvili and Mr Grigolashvili, the court of appeal held that “their arguments ... were untenable, since their testimony had been thoroughly examined by the [first instance] court, it analysed them in its judgment, the findings of the [first instance] court are duly reasoned”.
114. The Federal Operational and Search Activities Act of 1995 sets down the rules for “operational and search activities” (“OSAs” – such as collecting information, infiltrating the criminal milieu, conducting undercover surveillance and intercepting correspondence) by the law-enforcement bodies, in particular the police. One of the permitted forms of OSA is the wiretapping of telephone conversations.
115. Section 12 of the 1995 Act is entitled “Protection of information concerning the bodies involved in the OSA”. The first subsection of that section provides that information about, inter alia, undercover operations, their methods and agents who infiltrate criminal groups is a State secret. Disclosure of such information can only be authorised by the head of the law-enforcement body involved in the OSA.
116. The second subsection of section 12 provides that information about undercover agents and informants can be disclosed only with their written consent and in cases defined in federal law.
117. The third subsection of section 12 provides that a court decision authorising an OSA, as well as other materials in support of that decision, are to be kept by the body conducting the OSA.
118. The fourth subsection of that section provides that documents containing information about the results of the OSA may be submitted to the judge, to the prosecutor supervising the legality of the OSA, to the investigative authority in charge of a criminal case, to other law-enforcement bodies, and in other cases set out in the Federal Act and in accordance with established procedure.
119. Article 89 of the Code of Criminal Procedure of 1960 (“the old CCrP”), in force until 1 July 2002, provided that unlawfully obtained evidence had no legal force and could not be used during a trial.
120. Article 75 of the Code of Criminal Procedure of 2002 (“the new CCrP”) provides that evidence obtained in breach of the provisions of the Code is inadmissible.
121. The old CCrP provided that the duty to obtain evidence fell to the investigative bodies; however, the defence had the right to produce evidence to the investigative authorities and the courts (Article 70). Article 86 of the new CCrP formulated the rules on collecting evidence as follows:
“1. In the course of the criminal proceedings evidence shall be collected by ... the investigator, the prosecutor and the court by means of investigative measures.
2. [An accused] ... and his representatives may collect and produce written documents ... to be added to the case file as evidence.
3. The defence lawyer may collect evidence by:
(1) obtaining objects, documents and other information;
(2) questioning persons with their consent; or
(3) requesting ... documents from the authorities ... and other organisations which are obliged to produce such documents or their copies.”
122. Article 89 of the old CCrP provided that the results of the OSA should not be used as evidence if they had been obtained in breach of the Code.
123. Article 360 of the new CCrP (applicable at the time of the appeal proceedings in the present case) provides that the court of appeal should examine the case within the scope of the grounds of appeal.
124. As a rule, the court of appeal does not examine evidence directly. However, under Article 377 of the new CCrP, the court of appeal may examine evidence, at the request of one of the parties.
125. Under Article 377 of the Code, the parties may submit “additional materials” to the court of appeal. However, those “materials” cannot be obtained by means of an investigative measure.
126. In its ruling of 5 March 2004 the Plenum of the Supreme Court of Russia (the highest judicial authority) held that the court of appeal could directly examine only the evidence from the case file – that is, the evidence which had been already assessed by the first-instance court. As examples of such evidence the Supreme Court referred to the records of questioning of witnesses and to expert reports. It also cited several examples of “additional materials” which could be examined by the court of appeal, such as: personal characteristics, certificates concerning governmental decorations, disability certificates and copies of other court decisions that had taken effect. The Supreme Court also explained that there was no need to keep records of hearings before the courts of appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1