FOURTH SECTION

DECISION

Application no . 6290/04 Aleksandrs VDOVINS against Latvia

The European Court of Human Rights ( Fourth Section ), sitting on 9 December 2014 as a Chamber composed of:

Päivi Hirvelä , President, Ineta Ziemele , George Nicolaou , Nona Tsotsoria , Paul Mahoney , Krzysztof Wojtyczek , Faris Vehabović , judges,

and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 10 February 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Aleksandrs Vdovins , is a Latvian national who was born in 1974 and lives in Valka .

2. The Latvian Government (“the Government”) were represented by their agent Mrs I. Reine , who was succeeded by Mrs K. Līce .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Arrest and pre-trial investigation

4. On 23 May 2001 at 11 p.m. the police received information about an incident in the centre of Riga in which S. had been beaten up and robbed.

5. According to the pre-trial statements of two police officers (A.V. and Z.O.), when they arrived at the scene the patrol team saw the victim S. lying on the ground and six young men running away. One of them, the applicant, had dropped a black jacket. S. pointed to the group as the perpetrators, so the police arrested all six of them and took them to a police station.

6. According to the pre-trial statements of the victim S., while he was standing outside a nightclub in the centre of Riga, three young men commenced a conversation with him and afterwards they started walking down the street together. Then two of them grabbed S. by the hands (one of them, P., had his arm in a splint) and tried to drag the victim away. The victim resisted and the man with the splint hit him. Afterwards the victim was kicked in the head and body, and robbed of his jacket and a watch. When the police arrived the victim drove around with a police officer, looking for the perpetrators. The victim saw his jacket next to a group of six men. With the exception of the man with his arm in a splint he could not describe those who had inflicted injuries on him.

7. The victim, the applicant and two other arrested persons ( Ka . and Kv .) were taken to the police station in the same car. During the first identity parade, set up soon after the arrest, the victim did not recognise the applicant as the perpetrator.

8. On 31 May 2001, during a second identity parade, the victim for the first time recognised the applicant and P., who had his arm in a splint, as the perpetrators of the attack. The latter two had spent a week in custody, and they were presented in the identity parade together with people brought in from the street.

9. On 20 June 2001 the applicant was confronted with the victim. The latter had identified him as one of the perpetrators of the attack.

10. In September 2001 a bill of indictment was drawn up. The applicant and another person, P., were charged with aggravated theft, committed as a group. It stated, notably, that on the critical date the applicant and P. had forced the victim to follow them. Then, with the aim of robbing him, P. had hit the applicant in the face and the applicant had kicked him on the body, inflicting minor bodily injuries on him. Afterwards they had both taken off the victim ’ s jacket and watch, causing him total material loss in the amount of about 50 euros (EUR). Both defendants denied the offence.

11 . During the pre-trial investigation the other four members of the group of six were questioned. In May 2001 Kv . and Ka . testified that on the critical date the defendants and another person from their group had been talking to a man. The latter had shown no resistance to being led away down the street. After a couple of minutes the defendants came back; the applicant was carrying a black jacket. When the police arrived the jacket was on the ground. Ka . testified that he had not seen anyone drop the jacket but that it could have been the applicant. According to Kv ., when the police arrived the applicant dropped the jacket. Later, when questioned by a prosecutor, Kv . and Ka . upheld and added to the statements they had made during the police questioning.

2. Trial before the lower court

12 . During court hearings in November 2001 and March 2002 the defendants cross-examined the victim, both police officers (A.V. and Z.O.), and four other witnesses ( Ka ., Kv ., R.P. and R.L). The four other witnesses were all part of the group which had initially been arrested, and R.P. and R.L. had been summoned to the court at the defendants ’ request.

13 . During the hearing defence witnesses R.P. and R.L stated, inter alia , that they had not been with the defendants the whole time.

14 . On 20 March 2002 the Riga Central District Court acquitted the defendants and released them from detention. As far as the applicant was concerned, the lower court indicated, in particular, that the scene of the alleged crime had not been identified, and the victim could not indicate who had attacked him, with the exception of co-defendant P.; that his statements concerning the applicant ’ s clothes and height did not match those of the applicant; and that the victim had not stated that the applicant had beaten him and on what parts of the body; similarly it was not stated that the applicant had stolen the victim ’ s belongings. Finally, the court refused to admit in evidence the results of the identity parade and also refused to cross-examine the victim and the defendants. It emphasised that the record of the identity parade had been drawn up contrary to the domestic law, in that the defendants were presented in the parade after having spent a week in custody, and their clothes and appearance differed considerably from those of the others in the parade; also, no photographs were taken of those in the parade and there was no statement by the victim confirming which characteristics had caused him to recognise the defendants.

15 . The prosecution lodged a protest reiterating the arguments set out in the bill of indictment. They considered that the lower court had failed to give weight to the statements of the victim and witnesses Kv ., Ka . and both police officers.

3. Trial before the appellate court

16 . The appellate court summoned the victim and two witnesses, Kv . and Ka . The latter failed to attend the hearing. Invited by the court to express an opinion about whether the court could commence adjudication in the absence of the witness Ka ., the applicant confirmed that he had no objection.

17. Questioned during the appellate hearing about the circumstances of the attack, the victim stated that although it was dark, at the moment of the attack he had had a clear view of the faces of his attackers, but that immediately after the arrest he could not recognise them, because it was dark and the co-defendant ’ s splint was not visible.

18. Witness Kv . retracted his statements given to the prosecutor during the pre-trial investigation. The statements of the police officers were read out.

19 . Before summing up, defence counsel argued that the objection was also based on the statements of the two police officers, who should be summoned to the appellate court hearing. Without giving reasons, the defence also asked for R.P. and R.L. to be summoned.

20 . The appellate court dismissed the defence ’ s requests for witnesses to be heard, arguing that they had all already been cross-examined. The defence did not object to the court investigation being brought to a close.

21. On 27 October 2003 the Rīga Regional Court convicted the defendants and sentenced the applicant to eight years ’ imprisonment.

22 . The court preferred to give weight to Kv . ’ s statements given during the pre-trial investigation, because, as a friend of the applicant ’ s co-defendant, his statements given during the hearing of the appellate court in the presence of his friend were not to be treated as objective. In relation to the statements given by Ka ., the court noted that he had not changed the statements he had made during the pre-trial investigation and before the court of first instance, and that his statements did not differ in substance from those given by Kv . The court also did not consider that there were contradictions in the victim ’ s statements and that it was not crucial that he could not tell precisely which defendant had kicked him and how many times. The court gave weight to the fact that during the court hearing the victim could describe the situation and explained that he had tried to cover his face instead of observing the actions of each perpetrator. In connection to the varying statements about the exact place of the fight, the appellate court observed that it was explained by the fact that neither the victim nor the defendants lived in Riga. As regards statements about the visual description of the perpetrator ’ s clothes, the court did not consider the slight differences in the statements crucial, given that the events took place at night. The court said that even without the identification parade the defendant ’ s guilt had been proved by other evidence. The court noted that the victim had recognised the applicant during the confrontation.

23 . In their appeal on points of law the applicant and his counsel based their case on the shortcomings identified by the lower court. In connection to the witnesses ’ statements the applicant noted

“ ... the court investigated the case incompletely. [It] did not summon all the witnesses, and the statements they had given before the lower court were not read out and [were not] taken into account”.

4. Proceedings on the points of law

24. On 13 January 2004 the Senate upheld the appellate court ’ s judgment. It noted that the appellate court had excluded from the evidence the contested records of the identification parade. The Senate noted that the appellate court had analysed in detail and assessed all the statements provided by the victim S., as well as the statements of Kv . provided during the pre-trial investigation and during the court hearing, and also the statements of Ka . which had been read out during the hearing, and other evidence described and analysed by the appellate court.

25. It noted that the question concerning the defence ’ s request in relation to witnesses had been examined and decided in accordance with the law.

B. Relevant domestic law

Code of Criminal Procedure ( Kriminālprocesa Kodekss )

26. Article 275 of the Code provides that when a court session is opened the presiding judge is to ask the defendant and his representative whether they request new witnesses to be summoned or the submission of new evidence and inclusion thereof in the criminal matter. The person who submits a request shall specify particular circumstances which should be clarified by the questioning of witnesses or the submission of other evidence. The court shall ask the opinions of other participants in the proceedings concerning each request in accordance with Article 243 of this Code, and shall make a ruling. Refusal of the request shall not deprive the person whose request has been refused of the right to submit the request during the court hearing.

27. Article 442 sets out that the appeal court may summon witnesses who have testified before the first-instance court to a court session if the appeal court deems it necessary.

28. Article 443 stipulates that parties to appeal proceedings have the right to request witnesses to be summoned who have not been heard by the first-instance court. Such witnesses may be summoned on the appeal court ’ s own initiative.

COMPLAINTS

29. The applicant complained under Articles 6 §§ 1 and 3 (d) that the appeal court had refused to hear witnesses requested by the applicant and that it had failed to admit in evidence statements made by witnesses before the first-instance court.

30 . The applicant also complained in a general manner, without citing any express Convention provisions , that he had been ill-treated by police officers during the pre-trial investigation and that he had not received a fair trial by an impartial tribunal.

THE LAW

A. Alleged violation of Article 6 of the Convention

31. The applicant complained that following his acquittal by the lower court the appellate court had refused to hear witnesses who had made statements before the lower court, and that the appellate court had failed to admit in evidence statements made by the defence witnesses before the first-instance court, thus violating Article 6 §§ 1 and 3 d) of the Convention, the relevant parts of which read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... 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”.

1. Arguments of the parties

32. The Government emphasised that during the proceedings before the lower court the applicant had exercised the right to hear and to cross-examine all the prosecution witnesses. In addition, he was granted the right to have further defence witnesses summoned, and all the evidence obtained during the pre-trial investigation was produced during the lower court hearing. As regards the appellate hearing, the Government argued that of the four witnesses the appellate court refused to hear, two were defence witnesses and the other two were prosecution witnesses; therefore, according to the Government, the principle of equality of arms between the prosecution and the defence was fully respected by the appellate court.

33. In relation to the admission and assessment of the evidence, the Government reiterated the principle of subsidiarity and argued that it was within the exclusive competence of the court to assess the evidence, and that in the particular case the national courts had carried out an extensive pre-trial investigation and had examined the evidence in accordance with the national law. The Government pointed out that the applicant was found guilty on the basis of the testimony of the victim, as corroborated by the statements of witnesses Kv . and Ka ., as well as other evidence evaluated by the court. Even though the witness Ka . did not attend the appellate hearing, his testimony given during the pre-trial investigation and before the lower court was read out during the appellate court hearing and the applicant had not raised objections to it. In this connection the Government emphasised that the defence had failed to exercise their procedural right to request the appellate court to read out the statements previously given by other witnesses.

34. The applicant objected, and in substance argued that by not inviting the witnesses the appellate court had violated his rights to a fair trial.

2. The Court ’ s assessment

35. The Court reiterates at the outset that t he rights granted under Article 6 § 3 of the Convention form a particular aspect of the right to a fair trial guaranteed under Article 6 § 1, therefore it will examine the complaints under both articles together (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011; see also Ž. v. Latvia , no. 14755/03, §§ 99-100, 24 January 2008 ).

36. In relation to the scope of Article 6 § 3 of the Convention, the Court has stated that before an accused can be convicted all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions are possible, but the rights of the defence , which require as a rule that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings, must not be infringed (see Lucà v. Italy , no. 33354/96, §§ 39-40, ECHR 2001-II, and more recently Kazakov v Russia , n o 16412/06 § 28, [4 December 2014], not yet public).

37. However, the above-mentioned article does not require the attendance and examination of every witness on the accused ’ s behalf (see Bricmont v. Belgium , 7 July 1989, § 89, Series A no. 158 ), and it is accordingly not sufficient for a defendant to complain that he has not been allowed to question certain witnesses; he must, in addition, support his 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 (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003 ‑ V). In this connection the Court pays particular attention to the national court ’ s reasoning as to the necessity to hear witnesses in cases where the conviction is based principally on the same statements which led the lower court to an acquittal of the defendant (see Destrehem v. France , no. 56651/00, § 45, 18 May 2004 , and Vidal v. Belgium , 22 Apr il 1992, §§ 33-34, Series A no. 235 ‑ B ).

38. Turning to the present case, the Court will first address the applicant ’ s complaint that the appellate court refused to hear witnesses who had made statements before the lower court.

39. The Government raised in substance the objection of non-exhaustion of domestic remedies, because the applicant failed to exercise in full the procedural rights granted to him under the domestic law.

42. Moreover, in connection with the complaint that the appellate court did not hear two defence witnesses and two prosecution witnesses, all of whom had been examined in earlier stages of the proceedings, the applicant did not show what contribution the presence of those witnesses at hearings at the appellate court could have made, or how the statements could have changed the outcome of the case, in particular since the court did not rely on the statements of the two prosecution witnesses when convicting the applicant (see also Ž. v. Latvia , cited above, §§ 99-100 ). By contrast, in relation to the defence witnesses the applicant, assisted by counsel, had not put forward any argument as to how the presence of those witnesses would corroborate the position of the defence (ibid.).

43. The applicant also stated that the appellate court had disregarded the statements made by the defence witnesses (R.P. and R.L). In this respect the Court, in addition to the principles mentioned above, reiterates that the admissibility of evidence is primarily a matter for regulation by national law, and its task under the Convention is not to give a ruling as to whether witness statements 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, Perna , cited above, § 29). In the present case however, the Court considers that the defence failed to substantiate how the testimony of the defence witnesses would have been helpful for the defence , especially in the circumstances of the case where the particular witnesses had not been present when the contested events took place (see paragraph 13 above). Accordingly, the Court does not discern that the decision of the appellate court in any way prejudiced the overall fairness of the applicant ’ s trial.

44. In the light of the above it follows that the complaint under Article 6 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention .

B. Other complaints

45. The applicant alleged in substance other violations of Article 3 and Article 6 § 1 of the Convention.

46. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remainder of the application does not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible and must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Päivi Hirvelä Registrar President