THIRD SECTION

DECISION

Application no. 24297/04 Larisa Vasilyevna BIDENKO against Russia

The European Court of Human Rights (Third Section), sitting on 6 February 2018 as a Committee composed of:

Helen Keller, President, Pere Pastor Vilanova, Alena Poláčková, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 20 June 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, Ms Larisa Vasilyevna Bidenko, is a Russian national, who was born in 1958 and lives in Moscow. Her application was lodged on 20 June 2004. She was represented before the Court by Ms K.L. Kostromina, a lawyer practising in Moscow.

2. The Russian Government (“the Government”) were represented by their Agent, Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

A. The circumstances of the case

1. Criminal proceedings

3. On 1 August 2003 the applicant had a quarrel with her neighbour Ms B., which escalated into a scuffle. They stopped the scuffle when another neighbour, Ms K., came out of her room and saw them.

4. On 2 August 2003 B. was examined by a doctor of injury care centre No. 39 in Moscow, who recorded the following injuries: an internal hemorrhage measuring 4 by 4 cm on the right hip, internal hemorrhages measuring 8 by 1 cm and 3 by 1 cm on the left side of the thorax, and an internal hemorrhage measuring 3 by 3 cm on the left shoulder.

5. On 5 August 2003 B. asked the Tverskoy district office of the Ministry of the Interior to institute criminal proceedings against the applicant, alleging that the latter had beaten her. The proceedings were instituted on 15 August 2003.

6. On 20 August 2003 the investigator ordered a forensic medical examination of B and asked the expert to establish whether B. had injuries, when and how they had appeared and whether those injuries had caused any damage to B. ’ s health. In an expert report dated 27 August 2003 no. 5137/12090 an expert of the Bureau of Forensic Medicine of the Moscow Health Committee noted that she found no marks of injuries on B. The expert also studied the medical certificate of 2 August 2003 and concluded, on the basis of the certificate, that the injuries recorded on 2 August 2003 had been inflicted with a solid blunt object and had not caused any damage to B. ’ s health. The expert further stated that in view of insufficiently detailed description of the injuries in the medical certificate of 2 August 2003 it was impossible to draw any conclusions as to the time when the said injuries had been sustained.

7. On 28 August 2003 the investigator served the forensic medical expert report of 27 August 2003 on the applicant and her lawyer and informed them of their right to request an additional or repeated expert examination (see paragraph 19 below). According to the relevant records, they did not raise any comment or objection.

8. On 1 September 2003 they were also notified of the decision of 20 August 2003 and informed of their rights under Article 198 of the Code of Criminal Procedure (the CCrP). They did not comment or object.

9. On 24 October 2003 the Tverskoy District Court heard the case.

10. The applicant pleaded not guilty and insisted that B. could not have sustained the bruises as a result of a fight with her. She contended that the fight on 1 August 2003 had been instigated by B., that she had not beaten B. and had only defended herself, and that by the time of the fight B. had already had the injuries which had been recorded on 2 August 2003. She argued that the injuries must have been caused by three jam jars falling from a shelf, which the applicant had noted in the kitchen. However, the applicant had not seen the injuries in question on B. prior to the fight.

11. B. maintained that on 1 August 2003 she had been attacked by the applicant who had administered five or six blows to her. Then the applicant had pushed B. against a metal sink, and B. had hurt her hip.

12. K. testified that on 1 August 2003 at around 9 a.m. she had been in her room when she had heard noise and screams from the kitchen. She had come out of the room and had seen the applicant raise her hand to hit B. K. had stopped the fight. She had not seen any blows. She did not know if any jars or other objects had fallen on B. before the events either.

13. In the course of the trial the applicant had requested that the expert who had drawn the forensic expert report of 27 August 2003 attend and be examined, as she wished to put the the following questions to the expert: could a bruise on the chest have been caused by a jam pot falling; and could a bruise measuring 4 by 4 cm could have been caused by “hitting against a seven-millimetre thick list” (apparently, a sink rim). The court refused her application in the following terms:

“[The applicant ’ s] motion should be refused, as it appears from the forensic medical expert report enclosed in the case file that it is impossible to answer the [applicant ’ s] question owing to the fact that the medical documents upon which the expert examination had been based do not contain sufficient data to answer the [applicant ’ s] question.”

14. On 30 October 2003 the court found the applicant guilty of battery and sentenced her conditionally to three months ’ corrective labour. The court established that the applicant had administered several kicks and blows which had caused B. physical pain, as well as leaving bruises on her right hip, the left side of her thorax and her left shoulder. The court referred to the statements of the applicant, B. and K. It found that B. ’ s account was corroborated by K. ’ s statement and other evidence, whereas the applicant ’ s version about jam jars falling was not supported by any evidence and had to be rejected as untrue and unsubstantiated. The court quoted from the expert report in so far as the description of the injuries and the lack of health damage was concerned, and noted that the expert had been unable to reach a conclusion as to the time of the injuries, owing to the lack of information.

15. On 10 November 2003 the applicant appealed against this judgment. She claimed that her guilt had not been proven, and that at no stage of the proceedings had she been given an opportunity to question the expert.

16. On 20 November the applicant commissioned V., a forensic medical expert, to prepare a “specialist” opinion to answer her questions (see paragraph 13 above) on the basis of the forensic expert report. According to the “specialist” opinion by V, it was impossible to draw a conclusion as to the date, origin and mechanism and circumstances of their infliction owing to the insufficiency of the information contained in the initial medical certificate of 2 August 2003 and the forensic expert report subsequently prepared on its basis. In any event, the expert noted that a bruise measuring 4 by 4 cm could not have been caused by hitting against an oblong sink of the dimensions cited by the applicant.

17. On 25 December 2003 the Moscow City Court heard the case on appeal. The applicant allegedly submitted the “specialist” opinion to the court during the appeal hearing. According to her, the appeal court examined it in the course of the deliberations and refused to admit it in evidence.

18. On the same date the Moscow City Court dismissed the applicant ’ s appeal and upheld the judgment of 30 October. It found that the District Court had carefully examined all the evidence and had given it due consideration, and that there had been no violation of procedural law which could lead to an annulment of the judgment.

2. Civil proceedings

19. On 29 August 2002 the applicant lodged a civil claim against B. seeking the removal of obstacles to the use of their common bathroom. On 4 February 2003 the first-instance court found for the applicant. On 30 April 2003 judgment was quashed on appeal and the case remitted for a fresh consideration. The applicant stated that she had not been informed of the hearing. On 28 October 2003 the Tverskoy District Court rejected the applicant ’ s claim, having found it unsubstantiated. On 4 February 2004 the Moscow City Court upheld that judgment.

B. Relevant domestic law

20. Article 198 § 1 of the Code of Criminal Procedure of the Russian Federation (“the CCrP”) provides that the defendant has the right to challenge the expert, ask to entrust the examination to another expert institution, ask the investigator to put additional questions to the expert, and, with the approval of the investigator, participate in the examination and provide comments to the expert involved.

21. Article 206 of that Code provides that the investigator has to serve the expert report on the suspect, the accused, or their counsel, and to inform them of their right to request an additional or repeated expert examination. Article 207 stipulates that if the expert ’ s conclusion is not sufficiently clear or complete or if new questions have arisen, an additional expert examination may be ordered. If any doubts arise as to the substantiation of the expert ’ s conclusion, or if the conclusion is contradictory, a repeated expert examination may be ordered.

22. Article 271 § 4 of the CCrP stipulates that the court may not refuse to hear a witness or a “specialist” who has come to court at the request of one of the parties.

COMPLAINTS

23. The applicant complained under Article 6 of the Convention that no stage of the criminal proceedings against her had she been given an opportunity to question the expert who had conducted the forensic medical examination on the victim.

THE LAW

A. Complaint under Article 6 of the Convention concerning the refusal to summon the expert

24. The applicant complained that at no stage of the criminal proceedings had she been given an opportunity to question the expert who had conducted the forensic medical examination on the victim. She referred to Article 6 of the Convention, which, in so far as relevant, reads 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. The parties ’ submissions

25. The Government argued that it had been for the national courts to determine which evidence had been necessary for examination of the applicant ’ s case and to assess such evidence. The equality of arms had not been infringed, and the national courts had complied with the requirements of the Convention provisions. The scope of questioning of an expert under Russian law was limited to the information which had constituted the subject of the forensic examination. The court had rejected the applicant ’ s applications for a good reason, as it had been clear from the very text of the report that the data at the expert ’ s disposal had not been sufficient to answer the applicant ’ s question. The defence had been informed of their right to request an additional or alternative expert examination in good time, but had failed to lodge such applications.

26. The applicant maintained that she had been unable to put questions to the expert at the investigation stage. She further submitted that it had not been for the court to decide whether it had been possible or not to answer the question that the defence had sought to put before the expert. The court had not afforded redress for the violation of the applicant ’ s rights which had occurred in the course of the pre-trial investigation, but, on the contrary, had itself violated the applicant ’ s right to examine the expert in court.

2. The Court ’ s assessment

27. The Court reiterates that witnesses and experts play a different role in proceedings and have a different status. The latter cannot be fully associated with “witnesses”, at least not for all purposes (see Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, § 711, 25 July 2013). However, as the expert examination in the present case was ordered by the prosecution and conducted without the involvement of the defence, the Court accepts that the expert ’ s position was closer to that of a “prosecution witness” (ibid. , § 712). The Court reiterates that if the prosecution decides that a particular person is a relevant source of information and relies on his or her testimony at the trial, and if the testimony of that witness is used by the court to support a guilty verdict, it must be presumed that his or her personal appearance and questioning are necessary, unless the testimony of that witness is manifestly irrelevant or redundant (ibid., § 712).

28. The Court notes that the expert report in the present case, along with witnesses ’ statements, constituted a basis for the conviction. However, its evidentiary value for the determination of the case was marginal, since the report concerned only the presence of the injuries on the victim ’ s body and the lack of damage to B. ’ s health – the circumstances which were not in dispute in the present case. As regards the circumstances in which the injuries were inflicted – the crux of the applicant ’ s complaint and the core aspect of the case – the report was of little relevance, as the information available to the expert did not allow further conclusions as to the time the injuries had been inflicted to be drawn. Indeed, the only document at the expert ’ s disposal was a medical certificate compiled after the quarrel, which, it appears, contained a description of the bruises on B. ’ s body but was not detailed enough to allow conclusions as to their origin. The trial court noted that lack of information and quoted from the report that it had been impossible to draw further conclusions. Contrary to the applicant ’ s submissions, the court did not decide on the cause of each particular bruise, including the bruise on B. ’ s hip (see paragraph 14 above). The court resolved the case on the basis of the witness statements (contrast BalsytÄ— ‑ LideikienÄ— v. Lithuania , no. 72596/01, § 64, 4 November 2008), having found that the victim ’ s description of the domestic fight – unlike the applicant ’ s account of events –had been corroborated by, inter alia , K. ’ s statement. Accordingly, the testimony of that witness was the decisive evidence in the applicant ’ s case.

29. Furthermore, it is a common ground between the parties that in the present case there was no issue of unlawfulness of obtaining the evidence or unreliability of the expert evidence (see, by contrast, Duško Ivanovski v. the former Yugoslav Republic of Macedonia , no. 10718/05, § § 53 et seq., 24 April 2014); or of the credibility of the expert, or possible conflicts of interests, or flaws in the methods of examination, or insufficiency of materials at the expert ’ s disposal (see Khodorkovskiy and Lebedev , cited above, § 714, and Matytsina v. Russia , no. 58428/10, § 177, 27 March 2014), as the report was conducted on the basis of the only existing and available medical document on the matter, that is to say the certificate of 2 August 2003. Indeed, the defence had not pointed to any such issue either in the domestic proceedings or in the submissions to the Court, and otherwise had not any objection or comment to the expert report (see paragraph 7 above). The Court observes that the applicant only sought examination of the expert in order to get corroboration for her allegation that the injuries could have been caused by the jars falling. The trial court reasonably refused to call the expert for questioning, as nothing in the report indicated that none of the accounts of the events advanced by the parties, including the applicant ’ s account, could have been corroborated by it.

30. Against this background, the Court is unable to find that the report was the sole or the decisive item of evidence, unlike the above witness ’ testimony. Moreover, it accepts that, given the expert ’ s clear position as to her inability to draw further conclusions on the basis of the only available medical certificate – the questioning of the expert on the circumstances of the infliction of the injuries would be redundant (see Khodorkovskiy and Lebedev , cited above, § 712).

31. As regards the existing safeguards, the Court reiterates that the extent of the counterbalancing factors necessary in order for a trial to be considered fair will depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair (see Seton v. the United Kingdom , no. 55287/10 , § 59, 31 March 2016). Having found that evidentiary value of the expert report in the relevant part was low, the Court is in any event satisfied that the trial court approached the expert evidence with caution (see paragraphs 14 and 28 above; see, for a summary of relevant principles, Schatschaschwili v. Germany [GC], no. 9154/10, § 126, ECHR 2015) .

32. Lastly, as regards the “specialist” opinion –which, in addition, only reproduced the expert ’ s position regarding the impossibility to draw further conclusions as to the origin of the injuries and circumstances of their infliction (see paragraph 16 above), – the Court notes that the applicant and her lawyer for an unknown reason did not commission the “specialist” at the trial stage and did not submit the said opinion to the trial court (contrast with earlier cases such as Khodorkovskiy and Lebedev , cited above, §§ 732 ‑ 35, and Pichugin v. Russia (no. 2) , no. 38958/07, §§ 21-23 and 36). Instead, they commissioned the “specialist” report one month after the first ‑ instance proceedings had ended, and chose to wait until the date of the examination of the case on appeal and to submit it directly during the appeal hearing. They did not ask the court to question the “specialist” either. However, an oral questioning of the “specialist” at the trial stage a priori constituted another option available to the defence to prove their point. Indeed, in accordance with Article 271 of the CCrP, if the defence had brought a specialist to the hearing the trial court would have been unable to refuse his or her examination (see paragraph 22 above). Although the applicant had not referred to any apparent reason which could have prevented a specialist from attending the trial (contrast Matytsina , cited above, § 190), the defence did not attempt to make use of that opportunity.

33. In these circumstances, bearing in mind the low evidentiary value of the report in the relevant part and the existing procedural safeguards which were not used, for unknown reasons, by the defence to compensate for the alleged evidentiary handicap , the Court finds that the refusal to hear the expert in this case did not affect the overall fairness of the trial.

34. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Other complaints raised by the applicant

35. The applicant complained under Articles 6 § 1 and 13 of the Convention that the courts in both criminal and civil proceedings had erred in their assessment of facts and application of law. She further complained that she had not been informed of the hearing of 30 April 2004 and thus could not attend it.

36. 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 finds that these complaints do not disclose any appearance of a violation of the applicant ’ s rights. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 March 2018 .

FatoÅŸ Aracı Helen Keller              Deputy Registrar President