CASE OF MURTAZALIYEVA v. RUSSIA

1. The case originated in an application (no. 36658/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Zara Khasanovna Murtazaliyeva (“the applicant”), on 16 September 2005.
2. The applicant was represented by Mr K.N. Koroteyev, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The applicant alleged, in particular, that the domestic courts had failed to ensure the examination of witness A. and attesting witnesses B. and K., and that she had been unable to see and examine effectively a secret surveillance videotape shown in the courtroom.
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 10 November 2010 the application was communicated to the Government.
5. On 28 March 2017 a Chamber of that Section, composed of Helena Jäderblom, President, Branko Lubarda, Luis López Guerra, Helen Keller, Dmitry Dedov, Alena Poláčková, and Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, gave judgment. The Chamber unanimously declared the above complaints under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible. It held by four votes to three that there had been no violation of Article 6 §§ 1 and 3 (d) of the Convention as regards the complaint concerning the absence of witness A. and by five votes to two that there had been no violation of Article 6 §§ 1 and 3 (d) of the Convention as regards the complaint concerning the absence of attesting witnesses B. and K. The Chamber further held, unanimously, that there had been no violation of Article 6 §§ 1 and 3 (b) of the Convention as regards the complaint concerning the applicant’s alleged inability to see and examine effectively a secret surveillance videotape shown in the courtroom. Three separate opinions were annexed to the judgment: (a) the partly concurring opinion of Judge Serghides; (b) the joint partly dissenting opinion of Judges López Guerra, Keller and Serghides; and (c) the joint dissenting opinion of Judges López Guerra and Serghides.
6. In a letter of 9 August 2017 the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. The panel of the Grand Chamber granted the request on 18 September 2017.
7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. At the final deliberations, Péter Paczolay, substitute judge, replaced Erik Møse, who was unable to take part in the further consideration of the case (Rule 24 § 3).
8. The applicant and the Government each filed further written observations on the merits (Rule 59 § 1).
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 14 February 2018.
There appeared before the Court:
(a) for the GovernmentMr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, Ms Y. Borisova, Ms O. Ocheretyanaya, Counsels,
(b) for the applicantMr K.N. Koroteyev, Counsel.
The applicant was also present at the hearing. The Court heard addresses by Mr Koroteyev and Mr Galperin, as well as their replies to questions put by the judges.
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant was born in 1983 and currently lives in Paris.
11. In September 2003 she arrived in Moscow from Chechnya and started working at an insurance company. In October 2003 she went to a mosque where she met V. and Ku., two young Russian women who had converted to Islam.
A. The secret surveillance operation
12. In December 2003 the applicant was stopped on the street by two policemen for an identity check. She was then taken to a police station to have her identity verified. According to the applicant, she was released from custody several days later following the intervention of a certain A., who was also an ethnic Chechen and was employed as a police officer attached to the organised crime division of the Moscow police department. In the meantime she was dismissed by her employer because of her unauthorised absence from work.
13. In February 2004 A. helped the applicant to be reinstated at work. He also found a flat for her, where he visited her on several occasions. The applicant shared the flat with V. and Ku. The flat was located in a dormitory block which belonged to the police department. It was equipped with concealed videotaping and audiotaping devices. The police placed the applicant under surveillance because she was suspected of affiliation with a terrorist group related to the Chechen insurgency movement. The Moscow City Court authorised the use of secret surveillance devices in the flat from 5 February until 4 March 2004.
B. The applicant’s arrest, personal search and the pre-trial investigation
14. On the evening of 4 March 2004 the applicant was stopped by a police patrol for an identity check as her physical appearance allegedly matched the profile of a suspect in a wanted persons notice. The applicant immediately telephoned A., who spoke briefly with the police officers who had stopped her. The applicant was then taken to a police station because the official registration of her stay in Moscow had expired, which constituted an administrative offence under Russian law.
15. At the police station, the applicant was informed that she had been apprehended ( задержана ). Her bag was searched by a female police officer I. in the presence of two attesting witnesses, B. and K., and her fingerprints were taken. The record of the personal search showed that the search of the applicant lasted from 8.35 p.m. until 9.03 p.m. During the personal search, I. discovered two square packages of an unknown substance wrapped in aluminium foil inside the applicant’s bag. The substance, together with the inner lining of the applicant’s bag and the pockets of her jacket, was taken for forensic examination. The forensic examination report stated that the applicant’s fingerprints were taken at 9.30 p.m. The police did not test the applicant’s hands for residue from the substance; nor did they check for her fingerprints on the packages found in her bag. Later the same day the applicant was arrested on charges of terrorism and questioned by the police. A criminal investigation was opened.
16. On 12 March 2004 an expert examination of the substance found in the applicant’s bag was carried out. The examination report showed that the substance contained 196 grams of Plastit-4, an industrial explosive prepared using hexogen. In the course of the examination the explosives were destroyed. The examination of the applicant’s bag and the lining of the pockets of her jacket revealed the presence of hexogen.
17. The police searched the flat where the applicant lived with V. and Ku. and seized a note that had been handwritten by the applicant. The note criticised Russian policy in Chechnya, spoke harshly of Russia and Russians, glorified suicide bombers, preached the way of jihad, vindicated acts of terrorism in Russia and included a statement about “...dreaming of falling [in a] martyr’s death as a shahid on the path of Allah”. The police also found several photographs of an escalator in the Okhotniy Ryad shopping centre in the centre of Moscow.
18. A transcript of the conversations on the video tapes recorded at the flat showed that the applicant had been proselytising Islam to V. and Ku., discussing her hatred for Russians and the need for a “holy war” against them, praising the leaders of the Chechen insurgency, and telling her flatmates about the insurgent camps in the Caucasus.
19. In the course of the investigation the applicant, represented by her defence lawyer, had pre-trial confrontations with witnesses V. and Ku. as well as with police officers S. and I., who had taken part in her arrest and personal search. The applicant had the opportunity to present her account of the events and to put relevant questions.
20. On 12 October 2004 the applicant submitted the following motion to the investigating authorities.
“Today, 12 October 2004, I was charged with [preparing an act of terrorism]. I completely disagree with the charges. I consider that in my case evidence of my innocence and my lack of connection with this case have not been gathered.
I request you to [provide] subpoena records of [my mobile phone calls] on 3 and 4 March 2004, since on those dates the police officers who took me from work and brought me to [the police station] where plastic explosives were planted had talked with A.
I request you to question him [A.], and put the following questions to him:
1. When and under what circumstances did he meet me?
2. Did he provide me with the accommodation where I resided until my arrest?
3. In which police station was I unlawfully held for three days and did he or other officers question me?
4. During the arrest did he talk to me and with the officers who took me from work and brought [me] to [a police station]?
5. What was his relationship with V. and Ku.?”
21. The next day an investigator granted the motion in the part concerning the questioning of A., questioned him and informed the applicant about the decision on her motion.
22. When questioned A. testified that at the end of December 2003, on the order of his superiors, he had established a relationship of trust with the applicant, who had also introduced him to V. and Ku. He further stated that with the support of the police department he had helped the applicant to find accommodation. She had moved into a flat in the dormitory block belonging to the police department with V. and Ku. On 4 March 2004 the applicant had called him because she had been stopped by a police patrol. He had advised her to obey the orders of the police officers and to follow them to the police station.
23. The applicant and her defence lawyer, who had been duly informed about the contents of the record of A.’s questioning, did not attempt to put any further questions to him, nor did they request the investigator to conduct a pre-trial confrontation.
24. On 2 December 2004 the applicant received a copy of the case file for review. On 7 December 2004 the applicant was indicted with preparing an act of terrorism (an explosion) in the Okhotniy Ryad shopping centre and inciting V. and Ku. to commit an act of terrorism. The bill of indictment mentioned A. in the lists of both defence and prosecution witnesses to be summoned to the trial. However, A.’s testimony was merely mentioned by both the prosecution and the defence. The bill of indictment did not contain any information going beyond the statements made during the above ‑ mentioned questioning, and which were neither cross-referenced with any other evidence nor used to substantiate any specific factual or legal point.
25. On 17 December 2004 the Moscow City Court held a preliminary hearing. It granted the applicant’s motion to consider her case in a single judge formation, scheduled the trial hearing and ordered that witnesses be called according to the lists presented by the parties and in the bill of indictment.
26. On 22 December 2004 the applicant’s trial began before the city court. The applicant was represented by two lawyers of her own choosing, U. and S.
27. The trial proceeded in the following manner.
1. Witness testimony regarding the circumstances of the applicant’s case
28. V. testified at the trial that she and Ku. had first met the applicant at a mosque in October 2003. They had become friends and had started frequenting Islamist Internet chat-rooms and surfing pro-insurgency web ‑ sites together. After a while, they had decided to form a religious community ( dzhamaat ) to study Islam and live together. In their conversations the applicant had glorified terrorism and had approved of suicide bombings and the methods and targets of the Chechen insurgents. The applicant had told them about a camp near Baku in Azerbaijan where Muslims received training to become suicide bombers, and that she knew someone from there. She had mentioned that she herself had participated in the Chechen war on the side of the insurgents. Together they had often visited an Internet café in the Okhotniy Ryad shopping centre. The applicant had also taken photos of an escalator in the shopping centre from different positions.
29. On 3 March 2004 the applicant had told V. and Ku. that if something were to happen to her, they would have to remove all Islamic literature and her diary from the flat, and that they were to call her mother in Chechnya. She had also told them that she had just received a call from a friend who had arrived in Moscow to “blow himself up”, and that she (that is, the applicant) “was in danger” and “under suspicion” [by the authorities]. The applicant had not threatened them and had not incited them to commit a terrorist act but had asked them if they were capable of doing so. She had constantly preached “the way of jihad” to them and had given them Islamist books and audiocassettes. Some of those books had been given to her by her acquaintance, A.
30. V. denied having seen any explosives in the flat where they had lived.
31. At the request of the prosecutor, the trial judge allowed V.’s pre-trial testimony to be read out, as it partly contradicted statements she had made at the trial. In particular, during her pre-trial questioning V. had testified that the applicant had undergone terrorist training in a camp near Baku and that she had been indoctrinating V. and Ku. in order to prepare them to become suicide bombers. Asked by the prosecutor to explain her contradictory statements, V. stated that she was not sure whether the applicant had really attended a terrorist training camp. However, she stated that the applicant had been preparing her and Ku. to become suicide bombers.
32. During her cross-examination at trial, Ku. partly retracted her pre ‑ trial statements, which were for the most part similar to the above statements by V. During the trial Ku. confirmed that she, V. and the applicant had taken photos in the Okhotniy Ryad shopping centre at the applicant’s initiative, and that the applicant had “taken snapshots randomly”. In particular, the applicant had taken photographs of the escalator and the people on it. Ku. submitted that the applicant had disapproved of the policy of the Russian federal forces in the Caucasus. However, she had not incited Ku. to become a suicide bomber. According to Ku., they had simply wanted to reside together to pray, read and live free from parental supervision.
33. Ku. further stated that the applicant’s acquaintance, A., was a policeman and that he had paid for the flat where the three of them had lived. He had also occasionally given them money. The applicant had once told her that she liked A.
34. Ku. further stated that during the pre-trial questioning the investigator had misinterpreted her words concerning a suicide attack and that she had never planned to commit any such attack. She denied having given her pre-trial statements under pressure. In view of Ku.’s change of testimony her pre-trial statements were read out during the trial.
(b) Statements by police officers
35. Several police officers who had participated in the applicant’s arrest and personal search (P., S., B., I. and Ke.) were questioned in court. They stated that the applicant’s arrest had occurred during a regular patrol and they had not been aware that her bag contained explosives.
36. P. testified that on the day of the applicant’s arrest he had decided to check the applicant’s documents because “she had been walking idly in the direction of the Prospekt Vernadskogo metro station”. She had shown them her passport and the registration stamp confirming her right to stay in Moscow, which had expired. The policemen took her to a police station. At the point of arrest she had been agitated and aggressive. They had decided to search her bag because such action “was compatible with the law”. P. further explained that he had stopped the applicant “because it had been unclear where she had been going to”, because she had “resembled a girl from a wanted persons notice”, and because she was “a person of Caucasian ethnicity [that is to say from the North Caucasus region]”. P. also stated that the expiry of her registration had been sufficient reason to arrest the applicant. He further testified that they had been routinely searching all individuals whose registration had expired.
37. S.’s testimony was similar. He added that the applicant had been walking quickly and that she had started to threaten the police officers with disciplinary sanctions when they stopped her.
38. B. testified that they had decided to stop the applicant because she had been wearing black clothing and was of “Caucasian ethnic origin”. He added that the applicant’s appearance had matched the description of someone on their wanted persons notice. He also testified that the applicant had her bag with her up until the moment of her personal search at the police station.
39. The court also questioned the police officers who had been on duty at the Prospekt Vernadskogo police station on the day of the applicant’s arrest.
40. I. testified that she had searched the applicant in the presence of two attesting witnesses and had found in her bag two square yellow objects wrapped in aluminium foil, which had later been confirmed to be explosives. The applicant’s fingerprints had been taken only once – after the objects had been discovered in her bag.
41. Ke. testified that before the search the applicant had had all her personal belongings with her and that it had taken approximately twenty minutes before the start of the search to find attesting witnesses to observe the personal search.
42. The prosecution extensively questioned all of the police officers about the circumstances of the applicant’s search and fingerprinting. All of them had consistently testified that the applicant had been in possession of her belongings, i.e. her handbag, at all times prior to the search and that she had been fingerprinted only once after the search. The defence only asked police officer B. whether the applicant had been in possession of her handbag prior to the search and police officer Ke. about the manner in which the attesting witnesses were chosen. Both of the questions were put to the above witnesses only once, and there was no relevant follow-up to their answers.
43. The prosecution finished presenting their evidence on 12 January 2005 without either attempting to call A. to testify at the trial or referring to his pre-trial statements.
2. The applicant’s testimony during the trial
44. At the trial the applicant pleaded not guilty to the charges against her. She testified that on 4 March 2004, after the police patrol had driven her to the police station, she had first been taken to a room where a police officer, S., had been filling in some papers. He had told her that she had been arrested and that her fingerprints would be taken. She had left her jacket and bag in that room. Another police officer, B., had then taken her to another room, where another police officer, L., had taken her fingerprints using ink. Afterwards, she had gone to a bathroom to wash the ink off her hands. When she returned to the first room, she was informed that she would be searched in the presence of two attesting witnesses B. and K. The police officer had searched the applicant’s bag and discovered two packages wrapped in aluminium foil, which did not belong to her. The applicant stated that her fingerprints had been taken before and after the search, and that only the second episode had been recorded.
45. The applicant further stated that the police had questioned her in the absence of a lawyer, and had then decided to detain her. Furthermore, the applicant testified that she had been told to sign a record of her questioning, on pain of ill-treatment. Over the following days she had been beaten by the policemen who were questioning her. However, she had continued to deny her involvement in any terrorist activity.
46. The applicant stated that the packages found in her bag had not belonged to her, that the police had planted them in her bag and that she had never incited V. and Ku. to commit a terrorist attack. When the prosecutor asked whether she had noticed that her rather small bag had become heavier than it was before the personal search, the applicant stated that she had not noticed anything conspicuous.
47. She further stated that the six photographs of the escalator that had been seized from her flat had been taken by her. However, she had been photographing people at random in the shopping centre, rather than the escalator, and she had done so for recreational purposes.
48. The applicant admitted writing the note that had been seized from the flat but stated that she had copied its text from the internet because she had liked it and had simply wanted to have a copy. The applicant’s lawyer argued that her words had been misinterpreted and that there had been nothing in them demonstrating a link to any terrorist activity. She stated that the applicant’s bitter perception of the situation in Chechnya was absolutely natural for someone who had been living in a war zone since childhood and that her words should have been analysed more carefully.
49. At certain points in her testimony the applicant mentioned A. in passing, stating that they had no personal relationship, that he had helped her with finding accommodation free of charge, that he had called her on the phone, given her two books by the American historian Paul Klebnikov, and that he had told her to follow the policemen’s orders at the time of her arrest.
3. Motion for examination of videotapes
50. On 13 January 2005, during the last day of the examination of evidence by the trial court, the applicant’s lawyer U. submitted a motion to play videotapes during the hearing. The relevant part of the trial records reads as follows:
“ Lawyer U. : I request to start playing the videotape, since the accused claims that there are multiple discrepancies between the recording and the transcript. I also request to call an interpreter for the translation of the ethnic speech and to view one videotape 5-489c.
Accused and lawyers : No objections.
Prosecutor : I do not think an interpreter is necessary, since there are transcripts of conversations on the videotapes. In the other part, I agree.
The court decided to grant the motion of the defence and to watch the videotape 5 ‑ 489c, in respect of calling an interpreter – to refuse [the motion].
[The videotape recording is viewed for 30 minutes]
Lawyer U. asking the accused : Did these conversations take place?
Accused : I see nothing illegal in them.”
51. According to the trial records the defence submitted no requests or complaints concerning the quality of the video-recording or the manner in which the tape was played.
4. Motions for the questioning of witness A. and attesting witnesses B. and K.
52. Immediately after viewing the videotape the applicant’s lawyer S. submitted oral motions to summon attesting witnesses B. and K. and police officer A. The relevant part of the trial records reads as follows:
“ Lawyer S. : I request to summon the attesting witnesses who were present during the personal search of Murtazaliyeva, that is, B. and K., in order to determine the relevant circumstances [and] whether or not plastic explosives were planted.
Lawyer U. : I support [the motion].
Accused : I do not dispute that plastic explosives were seized in the presence of these attesting witnesses, but I maintain that they were planted by police officers prior to the personal search. I do not insist on calling these attesting witnesses, but if [the lawyers] consider this necessary, then I agree with them.
Prosecutor : I object, because the accused was questioned and stated that the record [of the search] had been drawn up without any violation of the law...
The court decided that the motion for summoning the attesting witnesses would not be granted.
Lawyer S .: I request to summon witness A.
[The presiding judge informs the parties that witness A. is on a work-related mission outside Moscow and cannot appear in court]
Prosecutor : I request to read out the statements made by witness A. during the pre ‑ trial proceedings.
Lawyer U. : I do not object to the reading out of A.’s statements.
Lawyer S. : I agree to the reading out of his statements.
The court decided under Article 281 of the Criminal Procedure Code and with the agreement of the parties to read out the statements of witness A., made during the pre ‑ trial proceedings.
[The record of witness A.’s interrogation is read out]
Prosecutor asks the accused : Do you agree with the statements of witness A.’s read out?
Accused : I agree with these statements in part, but do not agree that he had no contacts with the girls without me and that we maintained contact only over the phone.”
5. Completion of the examination of evidence
53. Immediately afterwards the defence proceeded to submit evidence in the form of character references about the accused and lodged motions to subpoena the applicant’s phone records and conduct a forensic psychiatric examination of witnesses V. and Ku.; both motions were refused by the court. Subsequently the defence rested its case.
54. The presiding judge inquired as to whether the parties wished to continue with further examination of evidence. Using that opportunity, the prosecution motioned to read out the applicant’s diary entries and the defence motioned to strike that evidence out.
55. After consideration of the above motions the presiding judge repeatedly asked whether the parties were prepared to rest their cases in the absence of those witnesses who had not appeared. There were no objections from either the prosecution or the defence. The trial court closed the examination of evidence and, upon a motion of the defence, adjourned the proceedings until closing arguments on 17 January 2005.
6. The parties’ closing arguments and the applicant’s conviction
56. The State prosecutor in his closing argument gave an overview of the entire body of evidence, pointing out inconsistencies in the applicant’s allegations of her innocence and the absence of an act giving rise to a crime (both actus reus and mens rea ). He asked the trial court to find the applicant guilty as charged and to sentence her to twelve years’ imprisonment.
57. The applicant and her lawyers U. and S. in their closing arguments maintained that the applicant was innocent and that the prosecution had failed to prove her guilt. They provided their own account of the events, alleging that the substance of the accusation was based on misinterpretation of the applicant’s conversations and actions and that the explosives had been planted by the police. The speech by the lawyer U. included the following statement made in passing while describing the applicant’s attitude to the military conflict in Chechnya and religion: “I think that this whole criminal case is a set-up against Murtazaliyeva by law-enforcement agents.” For her part, the applicant’s speech contained the following relevant part:
“... As to conversations in the apartment, many things do not match. I stated that during the hearing. I submitted a motion for confrontation with A. [He] did not appear in court. I do not admit my guilt on any of the charges ...”
The defence’s closing arguments contained one-off statements about the explosives having been planted by the police in the applicant’s handbag, but did not refer to the alleged double fingerprinting or the applicant’s lack of control over her possessions prior to the search, or to any matters concerning the choice and participation of the two attesting witnesses.
58. On 17 January 2005 the court convicted the applicant of preparing an act of terrorism (an explosion), inciting others to commit an act of terrorism and carrying explosives, and sentenced her to nine years’ imprisonment. The court considered the following evidence:
i. the trial and pre-trial statements by V. and Ku., as well as records of their pre-trial confrontations with the applicant;
ii. the trial and pre-trial statements by police officers S., I., P., B., and Ke., as well as records of S.’s and I.’s pre-trial confrontations with the applicant;
iii. the records of the search of the applicant’s residence and her personal search;
iv. a forensic explosives report;
v. six photographs depicting the escalator in the Okhotniy Ryad shopping centre, seized at the flat where the applicant lived, as well as a report on an inspection of the shopping centre premises;
vi. a note containing extremist statements written by the applicant and seized in the flat where she lived, and a forensic handwriting report on that note;
vii. the transcripts of the video tapes recorded in the apartment where the applicant lived;
viii. the pre-trial statement by A.;
ix. the testimony of further prosecution witnesses heard at the trial;
x. the testimony of defence witnesses heard at the trial, and character references about the applicant from her places of residence, study and employment.
59. The judgment referred to witness A.’s testimony only in one part, which read as follows:
“Witness A. [a police officer] testified that at the end of December 2003 under instructions of his superiors he established relations of trust with Murtazaliyeva; [she] introduced him to her friends Ku. and V., who had voluntarily converted to Islam. In view of Murtazaliyeva’s housing problems and with the assistance of [police authorities] she was provided with a room in a dormitory, where she moved with her friends at the beginning of February 2004; in the evening of 4 March 2004 Murtazaliyeva called [A.] and informed him that she had been stopped by a police patrol for an identity check and that she had been requested to go with them to the police station; he recommended that she follow the policemen’s orders.”
In contrast to its approach with regard to the testimony of other witnesses, the court did not cross-reference A.’s statements with those of other witnesses and did not refer to his testimony in support of any conclusions.
60. The judgment contained a detailed analysis of the trial and pre-trial testimony given by V. and Ku., the applicant’s flatmates, as well as the records of their pre-trial confrontations with the applicant. The court accepted the pre ‑ trial statements by V. and Ku. and the trial statements by V. as valid and persuasive, since they were coherent as well as consistent with the remaining body of evidence. As to the change in Ku.’s testimony at trial, the court considered this to be a strategy to assist the applicant and dismissed it. It noted in particular that Ku., assisted by a defence lawyer, had been repeatedly questioned during the pre-trial investigation and that she had never complained of being subjected to duress by the investigating authorities. When questioned at trial she did not dispute that her previous statements had been given voluntarily and without any psychological or physical influence. Ku. did not provide any reasons for making false pre-trial statements. Moreover, she stated in court that after a conversation with the applicant’s lawyer she had formally complained about psychological duress during questioning, but had subsequently withdrawn that complaint as being untrue.
61. The court examined and dismissed the applicant’s claim that the explosives had been planted in her bag. It referred to the testimony by the patrol officers and the officers at the police station, who had denied those allegations, and to the fact that, according to the official report, the personal search of the applicant had preceded the taking of her fingerprints, and there had been no evidence that the fingerprints had been taken twice, as the applicant had alleged.
62. The court further found that the applicant must have drafted the text of the handwritten note herself and that she had not copied it from Islamist websites on the internet, as she had claimed, since the note had contained modifications and corrections.
D. Appeal and supervisory review proceedings
63. The applicant and her lawyers appealed against her conviction. The statements of appeal submitted by the defence lawyer S. indicated the following:
“... during the hearing 15 out of 16 videotapes containing records of the secret surveillance were not examined; they have significant evidentiary value, because their comparison with ... testimony of Murtazaliyeva and the key prosecution witnesses V. and Ku. could have had a considerable impact on [the conviction] ...
Murtazaliyeva claimed and continues to claim in her appeal that there are discrepancies between these video recordings and the transcripts. During the selective viewing of one videotape she was deprived for ‘technical reasons’ of the possibility to point out the inconsistencies ...
The judge did not consider my motion to examine police officer A. as a witness and did not decide on that motion. He limited himself to saying that witness A. [was] on a work-related mission outside Moscow and [could] not appear in court. At the time this appeal is submitted [the case-file] has no documentary proof of that information.
The court’s refusal to call and examine attesting witnesses B. and K., who were present during Murtazaliyeva’s personal search, appears unreasonable. [Murtazaliyeva insists that the plastic explosives were planted in her bag by police officers]. No one can recall who invited the attesting witnesses and how, and when ...
According to the testimony by witness A., read out during the hearing and relied upon by the court in the judgment, he talked on the phone not only with Murtazaliyeva, but also with arresting police officers; [these were not the police officers questioned during the hearing, since they did not mention talking to A. in their multiple statements at the pre-trial and trial stages of proceedings]. [Accordingly] the testimony of A. refutes the testimony [of these police officers] and confirms Murtazaliyeva’s claim that she was arrested by other officers when she was leaving her workplace ...”
64. The lawyer U. in her statement of appeal stated in particular that the defence had requested witness A.’s attendance as both a defence and a prosecution witness. However, that motion had been denied by the trial court with reference to his absence, which was not supported by any documentary evidence.
65. On 17 March 2005 the Supreme Court of Russia upheld the judgment, reducing the applicant’s sentence to eight years and six months.
66. The Supreme Court held that the videotape had been shown at the request of the defence and that no objections or complaints, including that not all of the videotapes had been shown, had been lodged with the court after the videotape had been played.
67. The Supreme Court further considered that the questioning of A. had not been possible due to his absence on a work-related mission and that his pre-trial statement had been read out with the consent of the defence in accordance with Article 281 of the Code of Criminal Procedure. As for the two attesting witnesses B. and K., their personal appearance had not been necessary since the applicant had claimed that the explosives had been planted in her bag before their arrival. In any event, the defence had agreed to proceed to the closing arguments and had not submitted any objections or additional requests about the examination of the applicant’s case.
68. In June 2005 the applicant’s lawyer S. lodged a supervisory review complaint, referring, inter alia, to the trial court’s failure to summon and question witness A. and attesting witnesses B. and K. The complaint in the relevant part labelled A. as “a key witness”, who, following the instructions of his superiors, had “covered” the applicant for more than two months, provided her with a job and accommodation and controlled her actions and movements, including her arrest. In respect of the attesting witnesses the complaint stated that “the examination of the attesting witnesses could have resolved the significant contradictions in the statements [and] could have served as the basis to corroborate or disprove the circumstances immediately prior to the search.”
69. On 13 September 2005 the Supreme Court rejected the supervisory review complaint.
70. The Criminal Code of the Russian Federation of 13 June 1996, which entered into force on 1 January 1997, provides an exhaustive list of criminally punishable actions and regulates all substantive aspects of the criminal law in Russia.
Article 30. Preparation for crime and a criminal attempt
“1. Preparation for crime is considered [to comprise] the gathering, making or implementing by a person of the means or weapons [with which] to commit a crime, soliciting co-offenders, and conspiring to commit crime or any other wilful act aimed at [facilitating the commission of] a crime, [even] if the crime was not completed due to circumstances outside that person’s control...”
“1. [Terrorism, that is to say] the commission of an explosion, arson or other action, creating a danger for people’s lives, or causing considerable pecuniary damage or other socially dangerous consequences, if such actions were committed with the aim of undermining public safety, threatening the population or influencing decision-making by the authorities, or the threat of committing such actions with the same aims, shall be punishable by deprivation of liberty for a term of eight to twelve years...”
Article 205.1. Inciting or otherwise abetting the commission of a terrorist criminal act
“1. Inciting a person to commit a crime stipulated by Articles 205, 206, 208, 211, 277 and 360 of the present Code, or seeking to engage a person in the activities of a terrorist organisation, supplying weapons or instructing a person with a view to committing specified crimes, as well as financing terrorism or a terrorist organisation, shall be punishable by deprivation of liberty for a term of four to eight years...”
Article 222. Illegal acquisition, transfer, sale, storage, transportation and carrying of firearms, its main components, ammunition, explosives and explosive devices
“1. The illegal acquisition, transfer, sale, storage, transportation and carrying of firearms [or the] main components [thereof], ammunition... explosives and explosive devices shall be punishable by the limitation of liberty for a term of up to three years, or detention for a term of up to six months, or deprivation of liberty for a term of up to four years with or without a fine of up to 80,000 roubles or three months’ salary (or other income) of the convicted person.”
B. Russian Code of Criminal Procedure (“CCrP”)
71. The Code of Criminal Procedure of the Russian Federation of 18 December 2001, which entered into force on 1 July 2002, regulates all procedural aspects of criminal trials in Russia.
Article 53. The powers of a defence lawyer
“1. From the moment a defence lawyer joins the case he or she shall have the right...
(5) to take part in interrogations of the accused, as well as other investigative actions with the participation of the accused, either upon the motion of the accused or on his own motion...
(7) to familiarise himself with the materials of the criminal case upon completion of the pre-trial investigation...
(8) to lodge procedural petitions [motions] and motions for recusal...
2. The defence lawyer taking part in an investigative action shall have the right to provide legal advice to the accused in the presence of an investigator, to put questions to interrogated persons with the permission of an investigator, to make written remarks on the accuracy and completeness of the records of investigative actions. An investigator may refuse to [put to the accused the defence lawyer’s questions], but should mention these questions in the records [of that investigative action].”
“1. A witness is a person who may have knowledge of facts relevant to the investigation and resolution of a criminal case and who is subpoenaed to testify...
7. If a witness fails to appear for no valid reason, his or her appearance may be enforced.”
Article 60. Attesting witnesses
“1. An attesting witness is a person disinterested in the outcome of the criminal case who is invited by an investigator ... to attest to an investigative measure having been carried out and also to its substance, progress and results.
2. A person shall not be an attesting witness if that person is:
2) a participant of the criminal case, his close relatives and relatives;
3) [a law enforcement agent entrusted with investigative powers]...”
Article 119. Persons who have a right to bring procedural petitions
“ 1. A suspect, accused, his defence lawyer, victim, his legal representative and representative, private prosecutor, expert, as well as civil plaintiff, civil defendant and their representatives can lodge a petition for procedural acts to be carried out and for procedural decisions to be taken in order to establish the circumstances relevant to the criminal case, to secure the rights and legitimate interests of the petitioner...”
Article 120. Bringing a procedural petition
“1. A procedural petition may be lodged at any moment during criminal proceedings. A written petition is placed in the case file, [and] an oral petition is reflected in the transcript of an investigative act or of a trial hearing.
2. Refusal of the procedural petition does not restrict the right of the petitioner to lodge the same petition again.”
“1. If testimony of previously questioned persons contains significant contradictions, an investigator shall have the right to conduct a confrontation ...
2. An investigator asks the persons taking part in the confrontation whether they know each other and what their relationship is. The questioned persons are asked in turn to give testimony on the circumstances which are to be established by the confrontation. After the statements are made an investigator may put questions to each of the questioned persons. The persons taking part in the confrontation may, with the permission of an investigator, put questions to each other.”
Article 235. Request to exclude evidence
“1. Parties to a criminal case may request a court to exclude any evidence presented in court.
4. Where a defendant seeks to exclude evidence obtained in violation of the provisions of the CCP, the prosecution will have to furnish evidence to the contrary. In other cases, the burden of proof will be on the party which submitted a motion to exclude evidence...”
Article 240. Direct and open [examination of evidence]
“1. All the evidence should normally be presented at a court hearing ... The court should hear statements by the defendant, the victim, witnesses ... and examine physical evidence ...
2. The reading of pre-trial statements is only permitted under [Article 281 of the Code]...”
Article 260. Objections to [the content of] the trial records
“1. The parties may submit their objections to [the content of] the trial records within three days of receiving these records.
2. The objections are to be considered by the presiding judge immediately. If the presiding judge considers it necessary he or she may summon the persons submitting the objections in order to clarify their content.
3. Having considered the objection the presiding judge adopts a decision either certifying the correctness of the objections or dismissing them. The objections and the decision of the presiding judge shall be attached to the trial records.”
Article 271. Submission of requests and decisions on them
“1. The presiding judge inquires whether the parties have requested that new witnesses, experts or specialists be summoned, evidence or documents be presented or evidence excluded that has been obtained in a manner that was in breach of the provisions of the Code. A person who has submitted [such] a request must substantiate it.
3. A person whose request has been denied has a right to submit it again in the course of the proceedings.”
Article 281. Reading out of testimony of a victim and a witness
“1. Reading out of statements of a victim and a witness previously given during pre-trial investigation or trial ... is permitted only with the consent of the parties in the event of a victim’s or a witness’ absence ( неявка ) [in court], except under circumstances prescribed by paragraph 2 of this Article.
2. In case of failure by a victim or a witness to appear at the court hearing, the court may upon the motion of a party or upon its own motion decide to read out previously given statements, in the case of:
(1) the death of a victim or a witness;
(2) grave illness precluding appearance in court;
(3) the refusal of a victim or a witness who is a foreign citizen to appear pursuant to the summons of the court;
(4) a natural disaster or other exceptional circumstances precluding appearance in court...”
Article 291. End of judicial examination [of evidence]
“1. At the end of the judicial examination of evidence presented by the parties the presiding judge inquires whether the parties wish to make any additional submissions in the proceedings. If such a request is submitted, the court shall examine it and issue a ruling thereon...”
Article 294. Reopening of judicial examination [of evidence]
“If participants of the closing arguments or the accused in his or her final statement notify [the court] of new circumstances relevant to the criminal case or if they lodge a motion for examination of new evidence, the court may reopen the examination of evidence. At the end of the examination of evidence the court reopens the closing arguments and gives the accused an opportunity to provide his final statement.”
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The United Nations International Criminal Tribunals
72. The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) in deciding as either Trial or Appeal Chambers on individual criminal cases produced extensive case-law and developed general principles related to various aspects of criminal proceedings, including examination of witnesses.
73. In Prosecutor v. Krstić (Decision on application for subpoenas, Case no. IT-98-33-A, 1 July 2003) the ICTY Appeals Chamber dealt with the request to examine additional witnesses in the appeal proceedings. It stated the following in relation to the general principles governing the relevance of witness testimony and the issuing of witness subpoenas:
“10. Rule 54 [of the Rules of Procedure and Evidence] permits a judge or a Trial Chamber to make such orders or to issue such subpoenas as may be “necessary [...] for the preparation or conduct of the trial”. Such a power clearly includes the possibility of a subpoena being issued ... where that attendance is necessary for the preparation or conduct of the trial. ... [A] subpoena pursuant to Rule 54 would become “necessary” for the purposes of that Rule where a legitimate forensic purpose for having the interview has been shown. An applicant for such an order or subpoena before or during the trial would have to demonstrate a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in his case, in relation to clearly identified issues relevant to the forthcoming trial.
11. The assessment of the chance that the prospective witness will be able to give information which will materially assist the defence in its case will depend largely upon the position held by the prospective witness in relation to the events in question, any relationship he may have (or have had) with the accused which is relevant to the charges, the opportunity which he may reasonably be thought to have had to observe those events (or to learn of those events) and any statements made by him to the prosecution or to others in relation to those events. The test would have to be applied in a reasonably liberal way but, just as in relation to such applications for access to confidential material, the defence will not be permitted to undertake a fishing expedition – where it is unaware whether the particular person has any relevant information, and it seeks to interview that person merely in order to discover whether he has any information which may assist the defence.”
74. In Prosecutor v. Halilović (Decision on the issuance of subpoenas, Case no. IT-01-48-AR73, 21 June 2004) the ICTY Appeals Chamber affirmed that an applicant must demonstrate a reasonable basis that a witness is likely to give information that will materially assist the applicant with respect to clearly identified issues in the forthcoming trial. It further stressed with reference to prior case-law that “[t]he Trial Chamber is vested with discretion in determining whether the applicant succeeded in making the required showing, this discretion being necessary to ensure that the compulsive mechanism of the subpoena is not abused” and that “subpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction” (ibid. § 6). It further provided the following guidance on the judicial decision-making in these matters:
“7. In deciding whether the applicant has met the evidentiary threshold, the Trial Chamber may properly consider both whether the information the applicant seeks to elicit through the use of subpoena is necessary for the preparation of his case and whether this information is obtainable through other means. The background principle informing both considerations is whether, as Rule 54 requires, the issuance of a subpoena is necessary “for the preparation or conduct of the trial.” The Trial Chamber’s considerations, then, must focus not only on the usefulness of the information to the applicant but on its overall necessity in ensuring that the trial is informed and fair.
10. ... Being a mechanism of judicial compulsion, backed up by the threat and the power of criminal sanctions for non-compliance, the subpoena is a weapon which must be used sparingly. While a Trial Chamber should not hesitate to resort to this instrument where it is necessary to elicit information of importance to the case and to ensure that the defendant has sufficient means to collect information necessary for the presentation of an effective defence, it should guard against the subpoena becoming a mechanism used routinely as a part of trial tactics. ... A subpoena involves the use of judicial power to compel, and as such, it must be used where it would serve the overall interests of the criminal process, not where it would merely facilitate a party’s task in litigation. If this were the Trial Chamber’s analysis, its rejection of the subpoena request would be proper.”
75. In Prosecutor v. Martić (Decision on appeal against the Trial Chamber’s decision on the evidence of witness Milan Babić, Case no. IT ‑ 95-11-AR73.2, 14 September 2006) the ICTY Appeal Chamber discussed at length the principles applicable to examination of witnesses at trial. Referring to its own, as well as to this Court’s case-law, it recognised the Trial Chambers’ discretion in relation to the admissibility of evidence, as well as in defining the modalities of cross-examination and the exercise of this right by the defence. It stressed that such deference is based on the recognition of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case”. The Appeals Chamber highlighted that the right of an accused to cross-examine a witness is not absolute, that the fairness of a trial must not be uniquely predicated on the fairness accorded to the accused and that while the proceedings must be conducted with full respect for the procedural rights, the restrictions on the right to cross-examination will not necessarily entail a violation or be inconsistent with a fair trial (ibid. §§ 6, 12).
76. In respect of this Court’s principles pertinent to cross-examinations of witnesses the Appeal Chamber stated the following:
“20. The Appeals Chamber observes in any event that the two principles that the Trial Chamber derived from the jurisprudence of the ECHR, namely that (1) a complete absence of, or deficiency in, the cross-examination of a witness will not automatically lead to exclusion of the evidence, and (2) evidence which has not been cross-examined and goes to the acts and conduct of the Accused or is pivotal to the Prosecution case will require corroboration if used to establish a conviction, are consistent with the jurisprudence of the International Tribunal as well as that of national jurisdictions.”
77. In Prosecutor v. Edouard Karemera and Matthieu Ngirumpatse (Decision on Matthieu Ngirumpatse’s motion to subpoena witness YLH, Case no. ICTR-98-44-T, 29 December 2010) the ICTR Trial Chamber deciding on whether written statements of a certain witness ought to be admitted into evidence and whether that witness needed to be subpoenaed, restated the following principles:
“12. In order for a written statement to be admitted ... it must be ascertained that the statement does not contain references to the acts and conduct of the Accused as pleaded in the Indictment and that it satisfies the criteria laid down in Rule 89(C), namely that it is relevant and has probative value ... Even where a statement satisfies all these conditions, a Chamber must exercise its discretion to admit such statement bearing in mind the overarching need to ensure a fair trial. ... [E]ven where a Chamber finds a statement admissible, it shall also determine whether to admit it in whole or in part and whether to require the witness to appear for cross-examination. In addition to factors related to fair trial, another relevant factor consists in determining whether the evidence relates to a live and important issue between the parties as opposed to a peripheral or marginally relevant one.”
78. In Prosecutor v. Orić (Interlocutory decision on length of defence case, Case no. IT-03-68-AR73.2, 20 July 2005) the ICTY Appeals Chamber stated the following in respect of equality of arms in calling and examining witnesses:
“7. ...The Appeals Chamber has long recognized that "the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee." At a minimum, "equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case", certainly in terms of procedural equity. This is not to say, however, that an [a]ccused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution. The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavor which may require less time and fewer witnesses. This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.”
This position was also confirmed by the ICTR Appeal Chamber in Prosecutor v. Nyiramasuhuko et al. (Butare) (Decision on witness list, Case no. ICTR-98-42-AR73, 21 August 2007, § 26).
B. Inter-American Court of Human Rights
79. The Inter-American Court of Human Rights decides on individual complaints lodged under the American Convention of Human Rights of 1969. That Convention states the following in respect of the right to examine witnesses:
Article 8. Right to a Fair Trial
“1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him ...
2. ... During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts...”
80. In Canese v. Paraguay (Judgment of 31 August 2004, Series C. no. 111, §§ 164-65) the Inter-American Court found a violation of the applicant’s right to a fair trial, because “through judicial negligence, no testimonial evidence was provided [at the trial], eliminating the possibility of Mr Canese presenting probative material in his defence that could “throw light on the facts.” This conclusion had been reached with regard to the fact that the accused was not allowed to obtain a hearing for other persons who, as witnesses and expert witnesses, could “throw light on the facts” and that during the proceedings in the first instance, after having issued an order summoning the witnesses proposed by the defendant, the judge revoked this decision and ordered the evidentiary stage to be closed.
81. In Norín Catrimán et al. v. Chile (Judgment of 29 May 2014, Series C no. 279, § 249) the Inter-American Court – confronted with several applications concerning the exclusive and untested use of anonymous witnesses’ statements at trials – indicated, inter alia referring to the case-law of this Court, that the use of anonymous witness statements must be subjected to judicial control and offset by counterbalancing measures, cautious treatment of that testimony, and availability of supporting and corroborative evidence. In respect of one of the applicants it concluded that he “had no available means of proof” for his case, because his reasoned and specific request to summon two defence witnesses had been initially granted by the investigating judge, but not enforced due to refusal of the witnesses to appear. Since no statements were taken from the defence witnesses and the applicant was convicted on the basis of testimony of three anonymous witnesses absent from trial, the Inter-American Court considered the right under Article 8 (2) (f) of the American Convention to be violated (§§ 258 ‑ 59).
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (b) OF THE CONVENTION AS REGARDS THE VIEWING OF A VIDEOTAPE
82. The applicant complained under Article 6 §§ 1 and 3 (b) of the Convention that the overall fairness of the criminal proceedings against her had been undermined because she had not been able to see effectively a secret surveillance videotape shown in the courtroom. Article 6 of the Convention in the relevant part reads as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence...”
83. The Government contested that argument.
84. The Chamber noted that the case materials contained no evidence that the applicant, either during the trial or on appeal, had complained that she had been unable to see the recording when it was being played. However, it concluded that there was no need to rule on the issue, since in any event the applicant had been able to follow the proceedings (see paragraphs 71-72 of the Chamber judgment). It further found that it had not been “strictly necessary” to see the recording, given that the applicant’s purpose in having the video tape played at the trial was to verify the accuracy of the transcripts. Listening to the tape was sufficient for that purpose.
85. Unanimously, the Chamber held that there had been no violation of Article 6 §§ 1 and 3 (b) of the Convention given that the defence had not alleged that there had been difficulties in hearing the audio track and had not disputed the authenticity of the recording itself (see paragraphs 73-74 of the Chamber judgment).
B. The parties’ submissions to the Grand Chamber
86. The applicant did not mention in her referral request the finding of no violation as regards her ability to see the surveillance videotape shown during the hearing. However, in her submissions before the Grand Chamber, she invited the Court to draw inferences from the Government’s failure to produce the plans of the courtroom and the arrangements for viewing the video recording. She noted that only one tape had been played and she had been prevented from effectively participating in the viewing of it due to the absence of adequate arrangements. She alleged that there had been a violation of Article 6 §§ 1 and 3 (b) of the Convention.
87. The Government maintained that the Chamber’s findings on this issue had not been contested in the applicant’s referral request and should therefore be confirmed. They endorsed the conclusions of the Chamber. The Government noted that the applicant had been able to follow the content of the videotape and that she had not raised any relevant objections or complaints during the trial. Her statement of appeal merely referred to technical difficulties in seeing the recording. Moreover, she had disputed neither the lawfulness nor the authenticity of the recording, nor had she claimed that the quality of the playback was poor. Since she had requested that the tape be played to verify the authenticity of the transcript, seeing the playback, apart from the fact of being able to hear the audio track, had not been necessary.
C. Scope of the case before the Grand Chamber
88. The Court observes at the outset that the content and scope of the case referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility. This means that the Grand Chamber may examine the case only in so far as it has been declared admissible; it cannot examine those parts of the application which have been declared inadmissible (see, for example, Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 78, 21 June 2016). The instant complaint was declared admissible, even if it did not form part of the applicant’s referral request.
89. The Grand Chamber’s jurisdiction therefore extends to ascertaining whether the applicant had been prevented from effectively participating in the viewing of the videotape shown during the hearing as alleged, and, if so, whether this undermined the overall fairness of the criminal proceedings against her contrary to Article 6 §§ 1 and 3 (b) of the Convention.
90. As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention, the Court will examine the complaint from the point of view of these two provisions taken together (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 113, 12 May 2017; see also Lüdi v. Switzerland, 15 June 1992, § 43, Series A no. 238; and Vacher v. France, 17 December 1996, § 22, Reports of Judgments and Decisions 1996-VI).
91. The Court reiterates that Article 6, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial, which includes, inter alia, not only his or her right to be present, but also to hear and follow the proceedings (see Stanford v. the United Kingdom, 23 February 1994, § 26, Series A no. 282 ‑ A). The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may meet this requirement. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will have a real opportunity to comment on them (see Zahirović v. Croatia, no. 58590/11, § 42, 25 April 2013, with further references). The facilities which should be enjoyed by everyone charged with a criminal offence include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands (dec.), no. 29835/96, 15 January 1997; Galstyan v. Armenia, no. 26986/03, § 84, 15 November 2007; and Ibrahimov and Others v. Azerbaijan, nos. 69234/11 and 2 others, § 95, 11 February 2016, with further references).
92. Having regard to the available material, the arguments presented by the parties, and the principles cited above, the Court sees no reason to depart from the Chamber’s conclusions.
93. It observes that only one surveillance videotape was viewed during the hearing. It was shown upon a motion by the defence to view that specific tape in order to verify the accuracy of the transcript (see paragraph 50 above). No motion to view other videotapes was lodged by the defence, and it is not disputed that they were available for examination in court had either of the parties submitted a motion to that effect. Moreover, the transcripts of the conversations recorded on these tapes had been included in the criminal case file and were available for examination.
94. Regarding the alleged technical difficulties when viewing the tape mentioned in her statement of appeal (see paragraph 63 above), the applicant did not explain either to the domestic courts or to this Court what those difficulties were. Furthermore, the record of the trial and other documents in the case file contain no indication of any complaints having been made by the applicant about the quality of the audio track of the recording. The failure of the Government to provide the plans of the courtroom and the arrangements for viewing the video-recording highlighted by the applicant cannot in itself serve as a ground for the drawing of any “inferences” of unfairness in the proceedings.
95. The Court is satisfied that the applicant was able to participate effectively in the viewing of the videotape in a way which satisfied her procedural needs, namely verifying the accuracy of the transcript by comparing it to the audio track of the recording. It follows that there has been no violation of Article 6 §§ 1 and 3 (b) of the Convention in this regard.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION AS REGARDS WITNESS A.
96. The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that the overall fairness of the criminal proceedings against her had been undermined because she had not been able to call and examine witness A. at the trial. The relevant part of Article 6 of the Convention reads as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal...
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”
97. The Government contested that argument.
98. The Chamber, having reaffirmed that it is primarily for the domestic courts to decide on the relevance of evidence the defence seeks to adduce and that it was the Court’s task to ascertain whether the proceedings, considered as a whole, had been fair, decided the case on the basis of the test derived from the judgment in the case of Perna v. Italy ([GC], no. 48898/99, § 29, ECHR 2003 ‑ V) and the subsequent case-law (see paragraph 84 of the Chamber judgment). It examined (a) whether the applicant’s request was sufficiently reasoned and relevant to the subject matter of the accusation and could arguably have strengthened the position of the defence or have even led to the applicant’s acquittal; and (b) whether the trial court, by not securing the attendance of a particular witness to testify on behalf of the applicant, had breached her right under Article 6 § 3 (d) of the Convention.
99. In the first place, the Chamber observed that the testimony given by A. during the pre-trial stage had not been disputed by the applicant. While acknowledging that A.’s testimony might have had at least some relevance to the charges, the Chamber answered the first part of the test in the negative. It considered that the defence had failed to explain, even briefly, why the attendance of A. was important for their line of defence, whether his actions had amounted to entrapment or whether he had exerted any pressure on the applicant and, finally, whether his testimony would have served to exonerate the applicant or, at the very least, strengthened her position in any way (see paragraph 87 of the Chamber judgment). As regards the applicant’s allegations of entrapment, the Chamber specifically observed that they had been raised for the first time in the applicant’s observations before the Court. Accordingly, it concluded that the applicant had failed to support her request to question A. with sufficient reasons (ibid.). Further, the Chamber examined the overall fairness of the proceedings and concluded that the applicant’s conviction had been based on a range of evidence. Despite A.’s absence from the trial his pre-trial statements had been read out at trial and the applicant was able to comment on them as well as on the other evidence.
100. Accordingly, the Chamber concluded, by a majority, that there had been no violation of Article 6 §§ 1 and 3 (d) of the Convention as regards the absence of witness A. (see paragraphs 88-89 of the Chamber judgment).
B. The parties’ submissions to the Grand Chamber
101. The applicant contended that A. was a “key witness” and his activities had led to the creation of the body of evidence against her. Accordingly, his activities could be likened to those of an agent provocateur. She maintained that she had consistently and explicitly referred to possible entrapment in her submissions before the domestic courts. She had underlined A.’s central role to the investigating authorities and the courts and insisted that he be questioned directly.
102. While admitting that her lawyer S. had requested the questioning of A. at trial without putting forward specific reasons, she argued that the importance and relevance of A.’s testimony could have been inferred from references to him during her own examination and her flatmates’ earlier questioning.
103. As regards the applicable Convention standard, the applicant invited the Grand Chamber to revise the Perna approach, at least for cases where the defence requests the examination of a witness whose attendance it has been unable to secure, for example law-enforcement officials, and whom the prosecution does not call for questioning. In her opinion, the Perna approach was “mechanical” and devoid of substantive criteria and placed an unduly high burden on the defence, which was required to justify calling a witness over whom the prosecution could have control.
104. In support of the above argument the applicant referred to the evolution of the applicable standard for prosecution witnesses in Al ‑ Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015, as well as the current trends in entrapment and peaceful assembly case-law (she referred to Bannikova v. Russia, no. 18757/06, § 73, 4 November 2010, and Navalnyy and Yashin v. Russia, no. 76204/11, § 83, 4 December 2014). In her opinion, these developments indicated that domestic courts were required to employ a heightened standard of review in verifying incriminating evidence. Referring to the practice of the Inter-American Court ( Canese v. Paraguay and Norín Catrimán et al. v. Chile, paragraphs 80-81 above), the ICTY Appeals Chamber ( Prosecutor v. Martić; Prosecutor v. Halilović; and Prosecutor v. Krstić, paragraphs 73-75 above) and the United States Supreme Court ( Cruz v. New York, 481 US 186 (1987), and Lilly v. Virginia 527 US 116 (1999)), she argued that international law concerning the examination of witnesses had advanced beyond the Perna standard and that it was necessary to call not only witnesses who could give evidence capable of leading to acquittal, but “generally witnesses of fact”.
105. The applicant submitted that the domestic courts had failed to ensure the presence of witness A., despite his role as a covert agent. It had been convincingly shown that he was the key witness and the domestic courts had relied on his testimony for her conviction. In her opinion, A. was both a defence and a prosecution witness and the courts should have compelled his attendance.
106. The Government addressed two preliminary points of disagreement with the applicant regarding the manner in which the examination of A. at trial had been requested.
107. First, they stated that the trial records accurately and adequately reflected the progress of the proceedings. In support of that argument they referred to the fact that the defence had not challenged the trial records pertaining to the request to question A., whereas they had filed detailed and elaborate objections to the content of the trial records on various other points. Furthermore, one of the applicant’s lawyers had expressly agreed to the unchallenged parts of the records.
108. Second, the applicant’s contention that she had consistently raised an entrapment defence at the domestic level contradicted the case material. They stated that the applicant did not advance an agent provocateur issue until the submission of her observations before the Court, and no such allegation had been made by the defence when requesting the attendance of A. The Government claimed that any entrapment complaint was in any event manifestly ill-founded, since the applicant had refuted her involvement in the crime she had been charged with. In support of their position they referred to the Court’s decision in Koromchakova v. Russia (dec.) (no. 19185/05, § 19, 13 December 2016).
109. Turning to the subject-matter of the present complaint, the Government suggested that the fairness of the proceedings in terms of the examination of defence witnesses should be assessed using the following test:
- Did the applicant clearly and explicitly inform the authorities of her wish to question a certain witness by lodging the relevant request?
- Was that request sufficiently reasoned, relevant to the accusation and capable of strengthening the position of the defence?
- Did the domestic courts breach Article 6 § 3 (d) by failing to secure the attendance of a witness?
110. The Government concluded that the applicant failed already at the first step of the test. They highlighted that the defence had only once submitted a motion to examine A., had not objected to the reading out of his pre-trial testimony, although the procedural legislation afforded such an opportunity and, in fact, had largely concurred with the contents of the statements read out. Given the parties’ consent to the reading out of A.’s statements and in the absence of any motion to adjourn the proceedings, the trial court had continued with the case as the parties had seen fit. Accordingly, in the Government’s opinion, the applicant had failed to take the minimal procedural actions necessary for the exercise of her right to examine A; she had limited herself to A.’s pre-trial questioning and had clearly and explicitly waived her right to examine him at trial.
111. Despite the above assertion the Government nevertheless proceeded to the second step of their test and argued that the applicant had not adduced sufficient reasons for the questioning of A. On the factual side they highlighted that during the pre-trial proceedings the applicant had lodged a request to question A. seven months after her arrest and the start of the investigation. She had put only factual questions to him, which were not related to the charges against her, and the defence had failed to put further questions to A. after receiving the answers to the initial questions.
112. They further stated that in any event the applicant’s questions could have been answered by other witnesses examined at the trial. Moreover, the prosecution did not refer to A.’s testimony and the courts did not rely on A.’s testimony in convicting her.
113. Given the negative answers to the first two limbs of the test, they concluded that it was not necessary to examine the third limb.
114. The Court takes note of the Government’s argument that the applicant had waived her right to examine witness A. at the trial. It considers that this argument must be examined as a preliminary objection to the admissibility of this complaint (see, in this connection, Palchik v. Ukraine, no. 16980/06, §§ 36-38, 2 March 2017, and Giurgiu v. Romania (dec.), no. 26239/09, § 99, 3 October 2017).
115. It reiterates that under Article 35 § 4 in fine of the Convention it can “reject any application which it considers inadmissible ... at any stage of the proceedings”. Thus, even at the merits stage and subject to Rule 55 of the Rules of Court, the Grand Chamber may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see Regner v. the Czech Republic [GC], no. 35289/11, § 97, 19 September 2017, referring to Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 56, 25 March 2014, with further references).
116. In their submissions before the Chamber and the Grand Chamber the Government argued that the applicant and her counsel had clearly and explicitly waived the right to obtain the attendance and examination of witness A. by consenting to the reading out of his pre-trial statements at trial.
117. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. A waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi, cited above, § 115 with further references).
118. It follows that a waiver of the right to examine a witness, a fundamental right among those listed in Article 6 § 3 which constitute the notion of a fair trial, must be strictly compliant with the above requirements.
119. Turning to the present case, the Court observes that the applicant, assisted by her defence lawyers, consented to the reading out of witness A.’s pre-trial statements at the hearing of 13 January 2005 (see paragraph 52 above). Significantly, the applicant neither disputed the accuracy of the relevant trial records nor alleged that she had not had the benefit of appropriate legal advice on the matter.
120. It further notes that in several previous cases dealing with analogous situations the Court had regard to various factual and legal circumstances in reaching the conclusion that the applicants had either waived (see, for example, Khametshin v. Russia, no. 18487/03, § 41, 4 March 2010; Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, no. 26711/07 and 2 others, § 87, 12 May 2016; and Palchik, cited above, § 36) or not waived the right to examine a witness (see, for example, Bocos-Cuesta v. the Netherlands, no. 54789/00, § 66, 10 November 2005; Makeyev v. Russia, no. 13769/04, § 37, 5 February 2009; and Gabrielyan v. Armenia, no. 8088/05, § 85, 10 April 2012).
121. The Court must now determine whether in the circumstances of the present case the applicant had waived her right to examine witness A. It notes at the outset that nothing in the available material suggests that her actions had not been voluntary or had run counter to any important public interest.
122. Having regard to the trial records, it is to be noted that the defence had agreed in an unequivocal manner to the reading out of A.’s pre-trial statements. On the last day of the examination of evidence, lawyer S. requested the court to summon witness A. The presiding judge then informed the parties that this witness was not available, whereupon the prosecutor requested that witness A.’s pre-trial statements be read out. Lawyer U. did not object to the reading out, and lawyer S. explicitly agreed to this (see paragraph 52 above).
123. Subsequently, the presiding judge, before closing the examination of the evidence, inquired as to whether the parties were prepared to rest their cases in the absence of those witnesses who had not appeared. The applicant did not raise any objections and, in particular, she did not repeat her request to hear witness A. at the trial (see paragraphs 52-55 above).
124. However, Russian criminal procedure law had afforded the applicant an opportunity to object, even without invoking any reasons, to the reading out of these statements. Had she done so and had she insisted on A. being summoned, the trial court could have read out A.’s pre-trial statements only in the specific circumstances prescribed in Article 281 § 2 CCrP (see paragraph 71 above). If these requirements were not met, adjourning the hearing and re-summoning of witness A. would have been a possible way to proceed.
125. The applicant, at the trial court, was represented by two professional lawyers of her own choosing. Nothing suggests that they were not aware of the consequences of their having agreed to the reading out of A.’s statements, namely that they would lose the possibility to have the witness heard before the trial court and that his statements would be taken into consideration by the court when deciding on the charges against the applicant.
126. Furthermore, nothing in the applicable legislation or in judicial practice prevented the defence from lodging subsequent motions to examine A. in the appeal proceedings. However, the applicant, again assisted by two lawyers, chose not to use that possibility either. Regard must also be had to the fact that at no point in the proceedings, either before the domestic courts or this Court, has the applicant alleged that the services of her lawyers were inadequate.
127. The above considerations are sufficient to enable the Court to conclude that the applicant, by agreeing to the reading out of witness A.’s pre-trial statements and by not insisting on her request that he be heard in court, waived her right to examine that particular witness (see Palchik, cited above, § 36). This waiver was attended by minimum safeguards commensurate with its importance. In this respect, the Court reiterates that the applicant was assisted by two lawyers and was explicitly asked by the presiding judge whether she was prepared to rest her case in the absence of the witness, a course of action she did not object to. It also observes that the applicant had the possibility to comment on A.’s statements, but did not advance any substantive objections to their content (see paragraph 52 above). Furthermore, the Court does not consider that the case raised any questions of public interest preventing the specific procedural guarantees from being waived (see Hermi v. Italy [GC], no. 18114/02, § 79, ECHR 2006 ‑ XII). No reason can be discerned to doubt that the applicant’s waiver constituted a knowing and intelligent relinquishment of a right and that she could, with the assistance of her two lawyers, reasonably have foreseen the consequences of her conduct (see, Khametshin, cited above, § 41, and, Palchik, cited above, § 36; a contrario, Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 91-92, 2 November 2010).
128. Consequently, the Court upholds the Government’s preliminary objection and dismisses the applicant’s complaint about the absence of witness A. at her trial as manifestly ill-founded according to Article 35 § 3 (a) of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION AS REGARDS WITNESSES B. AND K.
129. The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that the overall fairness of the criminal proceedings against her had been undermined because she had not been able to call and examine at the trial the two attesting witnesses B. and K.
130. The Government contested that argument.
131. The Chamber observed that under Russian law, attesting witnesses are invited by the investigator to act as neutral observers of an investigative measure. Unlike material witnesses, they are not expected to have any knowledge of the case and they do not testify as regards the circumstances of the case or an accused’s guilt or innocence (see Shumeyev and Others v. Russia (dec.), no. 29474/07 and 3 others, § 31, 22 September 2015).
132. Having established that the trial court did not rely on any statements that B. and K. had made during the proceedings either in favour of the applicant or against her and that they could have testified only about the manner in which the search had been carried out and its results, the Chamber considered that their testimony was incapable of influencing the outcome of the applicant’s trial (see paragraphs 96-97 of the Chamber judgment).
133. The Chamber found, by a majority, that there had been no violation of Article 6 §§ 1 and 3 (d) (paragraph 98 of the Chamber judgment).
B. The parties’ submissions to the Grand Chamber
134. The applicant maintained that even if she had not insisted on the questioning of the attesting witnesses, her lawyers had done so. They considered their testimony to have been relevant to establishing the circumstances of her personal search at the police station and to clarifying how the attesting witnesses had come to be chosen. Accordingly, in her opinion, there had been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
135. The Government supported the Chamber’s conclusions on this point. They stated that summoning the attesting witnesses was not necessary given that their testimony had not been used by the domestic courts. These two persons were unable to give evidence about the alleged planting of explosives in the applicant’s bag since this had purportedly taken place before her search in their presence. The motion to summon them was lodged only once. The motion was denied by the domestic courts, and the defence did not insist on it any further. Referring to Shumeyev and Others, cited above, the Government further maintained that nothing indicated that the attesting witnesses would have been able to provide any evidence beyond that already available to the courts.
136. The Court observes that Russian criminal procedure contains separate provisions on material witnesses ( свидетели ) and attesting witnesses ( понятые ) and uses different terms to distinguish between them. Attesting witnesses are invited by an investigator to act as neutral observers of an investigative measure. They are not considered to be witnesses for the prosecution or the defence, since, unlike material witnesses, they have no knowledge of the case and they do not testify about the circumstances of the case or a defendant’s guilt or innocence. The absence of attesting witnesses from criminal trials does not infringe the guarantees of Article 6 §§ 1 and 3 (d) of the Convention insofar as their testimony is limited to the manner of conducting investigative measures and is, in essence, redundant evidence (see Shumeyev and Others, cited above, § 37).
137. However, it is to be noted that the above principles were developed in a context where the testimony of the attesting witnesses had been adduced by the prosecution.
138. In the present case it was the defence who intended to rely on the testimony of the attesting witnesses B. and K. in order to support their claim that the explosives had been planted in the applicant’s handbag prior to her personal search. Viewed in that light, B. and K.’s testimony would have ranged beyond the mere modalities of the search and the information subsequently entered in the police records. Therefore, B. and K. are to be considered as “witnesses on behalf” of the applicant within the meaning of Article 6 § 3 (d) of the Convention.
1. General principles established in the case-law regarding the examination of defence witnesses
139. The Court reiterates that under Article 6 of the Convention the admissibility of evidence is primarily a matter for regulation by national law and the Court’s task is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports 1997 ‑ III, and Perna, cited above, § 29). Article 6 § 3 (d) of the Convention does not require the attendance and examination of every witness on the accused’s behalf, the essential aim of that provision, as indicated by the words “under the same conditions” is to ensure a full “equality of arms” in the matter (see Engel and Others v. the Netherlands, 8 June 1976, § 91, Series A no. 22, and Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235 ‑ B).
140. In its judgment in the Perna case (cited above, § 29), extensively referred to by the parties and the Chamber, the Court summarised the principles applicable to the calling and examining of defence witnesses. First of all, as a general rule, it is for the domestic courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce and Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call a particular witness. Second, it is not sufficient for a defendant to complain that he or she has not been allowed to question certain witnesses; he or she must, in addition, support the request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth.
141. The test as formulated in Perna essentially consists of two questions: firstly, whether the applicant substantiated his or her request to call a particular witness by referring to the relevance of that individual’s testimony for “the establishment of the truth” and secondly, whether the domestic courts’ refusal to call that witness undermined the overall fairness of the proceedings (see Perna, cited above, §§ 29, 32).
142. It is instructive to examine the development of the approach established in Perna in the subsequent case-law and the difficulties to which its practical application has given rise.
143. It has been repeatedly clarified by the Court that when a defence witness’ testimony is capable of reasonably establishing an accused’s alibi such a witness is considered prima facie relevant (see, for example, Polyakov v. Russia, no. 77018/01, § 34, 29 January 2009). On the contrary, in a case where the examination of a defence witness had been requested in order to establish an issue beyond the scope of a charge or the testimony had been incapable of proving the accused’s innocence, the absence of the witness had not compromised the fairness of the criminal proceedings (see Tymchenko v. Ukraine, no. 47351/06, § 92, 13 October 2016). The Court has also stressed that a domestic court is not required to answer clearly vexatious requests to call defence witnesses (see Dorokhov v. Russia, no. 66802/01, § 72, 14 February 2008).
144. An applicant satisfies Article 6 § 3 (d) requirements if he or she submits a request which is sufficiently reasoned, relevant to the subject matter of the accusation and can arguably strengthen the position of the defence or lead to his or her acquittal (see Dorokhov, cited above, §§ 67-72, and Polyakov, cited above, § 34). Applicants are required to explain to the domestic courts with sufficient clarity why the examination of a particular witness is necessary (see Miminoshvili v. Russia, no. 20197/03, § 122, 28 June 2011).
145. The significance of a defence witness’ testimony needs to be weighed against its ability to influence the outcome of a trial. For example, calling a witness who, it is claimed, might have supported an accused’s allegation that he was ill-treated in order to make him confess to an offence, might not be necessary if the impugned confession did not play a crucial role in establishing the applicant’s guilt (see Tarasov v. Ukraine, no. 17416/03, § 105, 31 October 2013). Once the national authorities themselves recognise the relevance of a defence witness’ statement, for example, by referring to his statements in a bill of indictment and repeatedly granting requests to call that witness, then if in the further course of the proceedings that witness is not summoned it might not be necessary for the defence to provide the domestic courts with further detailed reasons for his examination (see Pello v. Estonia, no. 11423/03, § 33, 12 April 2007).
146. When the defence requests the examination of a witness who could have arguably strengthened the position of the defence or whose testimony could even have given rise to an acquittal, the domestic authorities must provide relevant reasons for dismissing such a request (see Topić v. Croatia, no. 51355/10, § 42, 10 October 2013). In this context a reference by the courts to other facts of the case, which indicate why a witness could not have supplied new or important information, might be sufficient (see Sergey Afanasyev v. Ukraine, no. 48057/06, § 70, 15 November 2012, and Janyr v. the Czech Republic, no. 42937/08, §§ 81-82, 31 October 2013).
147. The Court has noted that a decision to call a defence witness at a certain point during the investigation or trial and the subsequent absence of that witness from trial is significant, but not in itself conclusive (compare Popov v. Russia, no. 26853/04, § 188, 13 July 2006, where the absence of the witness led to a violation of Article 6 of the Convention, and Andrey Zakharov v. Ukraine, no. 26581/06, §§ 61-62, 7 January 2016, where it did not). However, once the domestic courts have accepted, at least in principle, that the examination of a witness for the defence was relevant, they have an obligation to take “effective” measures to ensure the witness’ presence at the hearing by way of, at the very least, issuing a summons (see Polufakin and Chernyshev v. Russia, no. 30997/02, § 207, 25 September 2008) or by ordering the police to compel a witness to appear in court (see Pello, cited above, § 34).
148. It is only in exceptional circumstances that the Court will be led to conclude that the failure to hear a witness was incompatible with Article 6 of the Convention (see Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158). The dismissal of a request without giving reasons or the “silence” of the domestic courts in respect of a sufficiently reasoned and relevant request to call a defence witness does not necessarily lead to a finding of a violation of Article 6 (see Dorokhov, cited above, §§ 74-75). Since the overall fairness of the proceedings is an overriding criterion under Article 6 an applicant has to demonstrate not only that a particular defence witness was not examined, but also that the examination of that witness was necessary and that the refusal to call the witness prejudiced the rights of the defence (see Guilloury v. France, no. 62236/00, § 55, 22 June 2006, with further reference).
149. It must be reiterated that it is not the function of this Court to deal with errors of fact or of law allegedly committed by a domestic court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010). In the determination of whether the proceedings were fair this Court does not act as a court of fourth instance deciding on whether the evidence had been obtained unlawfully in terms of domestic law, its admissibility or on the guilt of an applicant (see, mutatis mutandis, Gäfgen, cited above, § 162; Tseber v. the Czech Republic, no. 46203/08, § 42, 22 November 2012; and Nikolitsas v. Greece, no. 63117/09, § 30, 3 July 2014). These matters, in line with the principle of subsidiarity, are the province of the domestic courts. It is not appropriate for this Court to rule on whether the available evidence was sufficient for an applicant’s conviction and thus to substitute its own assessment of the facts and the evidence for that of the domestic courts. The Court’s only concern is to examine whether the proceedings have been conducted fairly and that in a given case they were compatible with the Convention, while also taking into account the specific circumstances, the nature and the complexity of the case (see Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, and Al-Khawaja and Tahery, cited above, § 118).
2. Clarification of the general principles
150. Before the Grand Chamber the applicant urged the Court to revise the existing Perna standard since, in her opinion, the existing principles were “mechanical” in their application and devoid of substantive criteria, and placed an unduly high burden on the defence. She argued that the rules of international law concerning the examination of witnesses had evolved considerably beyond the Perna standard in that the burden on the defence to show the need to call a particular witness for questioning had decreased and the trial court’s review of the reasons for the failure to appear and of the consequences of that failure for the overall fairness of the proceedings had assumed greater significance. The applicant referred inter alia to the practice of the ICTY Appeals Chamber and the Inter-American Court of Human Rights (see paragraph 104 above).
151. Having carefully considered the practice of other international tribunals referred to in the submissions, the Court does not discern any elements capable of supporting the applicant’s claim. On the contrary, the case-law of the ICTY Appeals Chamber and the Inter-American Court of Human Rights demonstrates that the general principles employed by these tribunals for the evaluation of the overall fairness of criminal proceedings are comparable, if not identical, to the principles developed by this Court. The Court also observes that the international tribunals mentioned above have extensively referred to this Court’s case-law in formulating their own principles (see paragraphs 75 and 81 above).
152. That being said, the Court considers it useful in the present case to clarify the general principles concerning the examination of defence witnesses as formulated in its case-law under Article 6 §§ 1 and 3 (d) of the Convention.
153. The applicable Perna test consists of two questions: firstly, whether the applicant has substantiated his or her request to call a particular witness by referring to the relevance of that individual’s testimony for “the establishment of the truth” and, secondly, whether the domestic courts’ refusal to call that witness undermined the overall fairness of the proceedings (see paragraph 141 above).
154. However, a careful study of the case-law reveals that despite generally following the above approach the Court has also consistently examined the manner in which the domestic courts decided on a request to call a certain witness. The conduct and decision-making of the domestic courts have attracted independent scrutiny and were weighty factors in the Court’s analysis in the great majority of pre- and post- Perna cases (see, among many other examples, Bricmont, cited above, § 89; Destrehem v. France, no. 56651/00, §§ 41-45, 18 May 2004; Asci v. Austria (dec.), no. 4483/02, 19 October 2006; Popov, cited above, § 188; Polyakov, cited above, § 35; Tarău v. Romania, no. 3584/02, §§ 74-76, 24 February 2009; and Topić, cited above, § 42). The Court’s careful and deferential examination of the domestic courts’ reasoning is in line with the established principles that, firstly, those courts are best placed to assess the relevance and admissibility of evidence and, secondly, that only exceptional circumstances will prompt the Court to conclude that the failure to hear a particular person as a witness was incompatible with Article 6 of the Convention.
155. Therefore the question whether the domestic courts considered the relevance of that individual’s testimony and provided sufficient reasons for their decision not to examine a witness at trial must be recognised as an independent and integral component of the test under Article 6 § 3 (d) of the Convention.
156. It appears that the judicial assessment of the relevance of a witness’ testimony and the reasoning of the domestic courts in their response to the defence’s request to examine a witness provide the logical link between the two elements of the Perna test and have operated as an implicit substantive element of that test. The Court considers it desirable in the interests of clarity and consistency of practice to make this element explicit (see, similarly, Perez v. France [GC], no. 47287/99, § 54-56, ECHR 2004 ‑ I).
157. This development appears to be in line with the recent case-law under Article 6 of the Convention stressing the decisive importance of the domestic courts’ duty to engage in a careful scrutiny of the relevant issues if the defence advances a sufficiently reasoned claim. For example, the Court in the Grand Chamber judgment in the case of Dvorski v. Croatia ([GC], no. 25703/11, § 109, ECHR 2015) maintained that when the domestic authorities are presented with a legal challenge which might influence the overall fairness of the proceedings they must engage in a careful scrutiny of the issues, take steps to establish the relevant circumstances, and provide reasons adequate for their decisions. In a similar way, in agent provocateur cases the Court has stated that when “confronted with a plausible – and even arguable – allegation” of entrapment the courts “should have had regard to whether the results of the test purchases were admissible as evidence, in particular verifying that they were not tainted by incitement” (see Lagutin and Others v. Russia, nos. 6228/09 and 4 others, § 118, 24 April 2014).
158. Where a request for the examination of a witness on behalf of the accused has been made in accordance with domestic law, the Court, having regard to the above considerations, formulates the following three-pronged test:
1. Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation?
2. Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial?
3. Whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings?
159. The Court considers that the existing case-law already provides a solid basis for the application of all three steps of the test, but finds it appropriate to provide the following guidance for the examination of future cases.
(a) Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation
160. In respect of the first element the Court notes that under the Perna test the issue of whether an accused substantiated his or her request to call a witness on his or her behalf is decided by reference to the relevance of that individual’s testimony for “the establishment of the truth”. While certain post- Perna cases examined whether a witness’ testimony was relevant for the “establishment of the truth”, others relied on its ability to influence the outcome of a trial (see Tarasov, cited above, § 105), reasonably establish an accused’s alibi (see Polyakov, cited above, § 34), arguably lead to an acquittal (see Dorokhov, cited above, § 72) or arguably strengthen the position of the defence or even lead to the applicant’s acquittal (see Topić, cited above, § 42). What appears to unite all of the above standards is the relevance of a witness’s testimony to the subject matter of the accusation and its ability to influence the outcome of the proceedings. In the light of the evolution of its case-law under Article 6 of the Convention the Court considers it necessary to clarify the standard by bringing within its scope not only motions of the defence to call witnesses capable of influencing the outcome of a trial, but also other witnesses who can reasonably be expected to strengthen the position of the defence.
161. The relevance of testimony is thus also determinative of the assessment of whether an applicant has advanced “sufficient reasons” for his or her request to call a witness, since the strength of reasoning considered “sufficient” depends on the role of that testimony in the circumstances of any given case (see Pello, cited above, § 33, largely reflecting this approach). It is impossible to evaluate in the abstract whether certain reasons for the examination of a witness could be considered sufficient and relevant to the subject matter of the accusation. This assessment necessarily entails consideration of the circumstances of a given case, including the applicable provisions of the domestic law, the stage and progress of the proceedings, the lines of reasoning and strategies pursued by the parties and their procedural conduct. Admittedly, the relevance of a defence witness’ testimony might be so apparent in certain cases that even scant reasoning given by the defence would be sufficient to answer the first question of the test in the affirmative (compare Pello, cited above, § 33).
(b) Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial
162. The second element of the test requires the domestic courts to consider the relevance of the testimony sought by the defence and obliges them to provide sufficient reasons for their decisions. These requirements are well-established in the Court’s case-law (see, for example, Popov, cited above, § 188, and Topić, cited above, § 42).
163. The Court reiterates that, on the one hand, under Article 6 of the Convention the admissibility of evidence is primarily a matter for regulation by national law and the domestic courts are best placed to decide on the issue and, on the other hand, Article 6 § 3 (d) of the Convention does not require the attendance and examination of every witness on the accused’s behalf, but aims to ensure equality of arms in the matter. Within this framework it is primarily for the domestic courts to scrutinise carefully the relevant issues if the defence advances a sufficiently reasoned request to examine a certain witness.
164. Any such assessment would necessarily entail consideration of the circumstances of a given case and the reasoning of the courts must be commensurate, i.e. adequate in terms of scope and level of detail, with the reasons advanced by the defence.
165. Since the Convention does not require the attendance and examination of every witness on behalf of the accused, the courts cannot be expected to give a detailed answer to every motion of the defence but must provide adequate reasons (for a similar logic in the context of the courts’ obligation to address appeal arguments, see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288, and Boldea v. Romania, no. 19997/02, § 30, 15 February 2007).
166. Generally the relevance of testimony and the sufficiency of the reasons advanced by the defence in the circumstances of the case will determine the scope and level of detail of the domestic courts’ assessment of the need to ensure a witness’ presence and examination. Accordingly, the stronger and weightier the arguments advanced by the defence, the closer must be the scrutiny and the more convincing must be the reasoning of the domestic courts if they refuse the defence’s request to examine a witness.
(c) Whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings
167. The Court considers that the examination of the impact which a decision refusing to examine a defence witness at the trial has on the overall fairness of the proceedings is indispensable in every case (see, in different contexts, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 250-52, 13 September 2016; Dvorski, cited above, § 82; and Schatschaschwili, cited above, § 101). Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident (see Ibrahim and Others, cited above, § 251).
168. In the Court’s opinion, the preservation of overall fairness as the final benchmark for the assessment of the proceedings ensures that the above three-pronged test does not become excessively rigid or mechanical in its application. While the conclusions under the first two steps of that test would generally be strongly indicative as to whether the proceedings were fair, it cannot be excluded that in certain, admittedly exceptional, cases considerations of fairness might warrant the opposite conclusion.
3. Application of these principles to the present case
(a) Whether the request to examine witnesses B. and K. was sufficiently reasoned and relevant to the subject matter of the accusation
169. As the trial records indicate, the applicant’s lawyers requested the court to summon B. and K. in order to determine the exact circumstances of the search with a view to establishing whether the explosives had been planted on the applicant. The applicant in turn stated that she did “not insist” on their presence, since in her opinion the explosives had been planted by police officers already before she was searched. However, she had supported the motion because her lawyers considered B. and K.’s presence to be necessary (see paragraph 52 above).
170. It is of significance that during the trial it was the prosecution which extensively questioned the police officers who had been involved in the applicant’s arrest, personal search and fingerprinting (see paragraph 42 above). All of the police officers testified that the applicant had been in possession of her handbag at all times prior to the search and that she had been fingerprinted only once after the search. For its part, the defence remained generally passive during the cross-examination of these witnesses and only put two questions to them aimed at exploring further the details of the above events.
171. The Court notes that the defence gave little more than a brief indication of the relevance of B. and K.’s potential testimony. However it did not provide any particular factual or legal arguments and did not elaborate in concrete terms on how their testimony could reasonably be expected to strengthen the case for the defence. Nor did the defence elaborate on this in their appeal (see paragraph 63 above). Given that the applicant herself had stated that the explosives were planted prior to the arrival of the attesting witnesses (see paragraph 52 above), further reasons for the examination of these witnesses would have been required.
(b) Whether the domestic courts considered the relevance of any testimony on the part of B. and K. and provided sufficient reasons for their decision not to examine them at trial
172. The Court notes that the trial records do not mention the reasons given by the trial court for dismissing the defence’s motion to summon the attesting witnesses (see paragraph 52 above). However, the Supreme Court, sitting as an appeal court with the competence to review both facts and points of law, reasoned that the personal appearance of B. and K. had not been necessary since the applicant herself had claimed that the explosives had been planted in her bag before she was searched. It further noted that the defence had agreed to proceed to the closing arguments and had not raised any objections nor made any additional requests for the hearing of evidence (see paragraph 67 above).
173. While the domestic courts did not dismiss the applicant’s motion as unsubstantiated or unreasoned, it is clear that the significance of the attesting witnesses’ possible testimony, as claimed by the defence, and from the perspective of the trial court, was only remotely relevant to the subject matter of the accusation.
174. Having regard to the general passivity of the defence during the examination of the police officers about the events surrounding the alleged planting of explosives, and the absence of any specific legal or factual arguments as to the necessity of examining the attesting witnesses, the Court concludes that the Supreme Court provided sufficient reasons for the decision not to examine them at the trial. The reasons given were appropriate in the circumstances of the case and were commensurate, namely adequate in terms of their scope and level of detail, with the reasons advanced by the defence.
(c) Whether the domestic courts’ decision not to examine B. and K. undermined the overall fairness of the proceedings
175. The Court would stress that the applicant, assisted by two professional lawyers, was able to conduct her defence effectively, confront and examine witnesses testifying against her, comment without hindrance on the incriminating evidence, adduce evidence she considered relevant and to present her account of the events to the domestic courts. Her conviction for preparing an act of terrorism and inciting others to commit such an act was based on a considerable body of evidence against her including the statements of several prosecution witnesses, the material (an extremist note and photographs) seized from the applicant’s flat, forensic examination reports and the transcripts of the police surveillance videotapes.
176. Having regard to these considerations, the Court concludes that the domestic courts’ decision not to examine B. and K. at trial did not undermine the overall fairness of the proceedings.
177. Accordingly, the Court, being mindful of its role as explained above (see paragraph 149 above), finds that there has been no violation of the applicant’s rights under Article 6 §§ 1 and 3 (d) of the Convention as regards witnesses B. and K.
1. Upholds, by a majority, the Government’s preliminary objection that the applicant waived her right to examine witness A. and declares the complaint about the absence of witness A. at the applicant’s trial inadmissible;