FIFTH SECTION

DECISION

Application no. 6261/16 Artavazd Vladimirovič BARSEGIAN against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 15 December 2022 as a Committee composed of:

Stéphanie Mourou-Vikström , President , Mattias Guyomar, Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 6261/16) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 22 January 2016 by a Russian national, Mr Artavazd Vladimirovič Barsegian (“the applicant”), who was born in 1980 and is currently detained in Prague, and who was represented by Mr T. Gřivna , a lawyer practising in Prague;

the decision to give notice of the applicant’s complaint concerning his allegedly unfair conviction to the Czech Government (“the Government”) represented by their Agent, Mr V. A. Schorm, from the Ministry of Justice, and to declare inadmissible the remainder of the application;

the notice given to the Russian Government of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court), and the fact that they did not avail themselves of this opportunity;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant’s conviction for murder, which he considered to have been incompatible with Article 6 §§ 1 and 3 (d) of the Convention as being based, to a decisive extent, on testimony given by an absent prosecution witness.

2. On 17 January 2008 a police patrol was called to the apartment where the applicant’s family resided and where one of his cousins had been shot dead. The police secured the crime scene and established the identities of all family members present except for one individual who was later identified as being the applicant. All persons present exercised their right to remain silent, except for one of the applicant’s cousins, A.B., who agreed to make a statement. On 24 January 2008 he was questioned in the presence of his counsel, an interpreter and a judge. The questioning was carried out as an “urgent or non-repeatable measure” since the witness was a foreign national who did not permanently reside in the Czech Republic. He stated that he had been sleeping in the same room as the victim, and that on the morning of the murder the applicant had come in and asked him to leave the room. He further indicated that he had then gone to the bathroom from where he had heard his aunt screaming. He concluded by specifying that he had found the victim dead in their room but had not seen the applicant nor witnessed the moment of the shooting. He subsequently travelled to Russia and was later found to be in a Russian prison where he was serving a custodial sentence during the applicant’s trial and appeal proceedings.

3. The applicant was first convicted in absentia . After his arrest in Armenia in November 2011 and his extradition to the Czech Republic, the proceedings were reopened and on 28 November 2012 he was convicted anew by the Prague Municipal Court. The applicant attended the trial and was assisted by a counsel and an interpreter, but he chose to remain silent. The conviction was based on the testimony of the police officers who had arrived at the crime scene shortly after the events, various expert examination reports about the circumstances of the crime, and the pre-trial statements made by A.B. which were read out at the hearing. Other members of the applicant’s family present in the apartment on the day of the shooting refused to testify and the parts of the police officers’ testimony relating to their communication with those witnesses at the crime scene were declared inadmissible by the domestic courts. The domestic courts ruled out the possibility that the crime could had been committed by another person or in another way, as those versions were not supported by the evidence collected during the investigation.

4. On different dates, the applicant’s appeals were rejected by the Appeal, Supreme and Constitutional Courts. The latter notably referred to the practice of the European Court of Human Rights on the admission of testimony of absent prosecution witnesses and observed that the applicant had not indicated what aspect of the testimony he alleged to be untrue or specified the questions or arguments he had intended to raise.

THE COURT’S ASSESSMENT

5. Referring to Article 6 §§ 1 and 3 (d) of the Convention, the applicant considered that his conviction had been unfair since it had been based, to a decisive extent, on the testimony of an absent prosecution witness.

6. The general principles with regard to the right to obtain the attendance and examination of witnesses can be found in the Grand Chamber judgments of 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, § 100, ECHR 2015), in which the Court once again reiterated its primary concern, namely to assess the overall fairness of criminal proceedings. In this context, the Court is mindful that the Czech criminal procedural legislation sets out a specific framework for the examination of an absent witness and contains safeguards aimed at compensating handicaps the defence might face in such situation (see BátÄ›k and Others v. the Czech Republic , no. 54146/09, § 55, 12 January 2017, and compare with Zadumov v. Russia , no. 2257/12, § 63, 12 December 2017).

7. With this in mind, the Court finds that the applicant failed to demonstrate that his defence rights had been restricted to such an extent that it prejudiced the overall fairness of the criminal proceedings against him. It is apparent from the material available to the Court that the applicant’s presence in the apartment on the day of the shooting was not in dispute and had been confirmed notably by the testimony of the police officers. He was the only person present whose identity could not be ascertained on that day and who had subsequently disappeared and travelled to another country. The applicant denied being the person who had shot the victim, and submitted that there had been no direct evidence linking him to the crime – not even the pre ‑ trial testimony of A.B., who had left the room and so had not witnessed the moment of the shooting. However, it appears from the material available to the Court that the domestic courts did in fact examine alternative versions of the events, notably the possibility that the shooting could have been carried out by a person other than the applicant, but ruled them out as being inconsistent with the evidence and expert examinations conducted in the course of the investigation. Finally, the applicant had had an opportunity to question the credibility of the absent witness by pointing out any inconsistencies in his statements or by questioning his motivation. He had, however, failed to do so. That being so, and having regard to all the material used in evidence against the applicant, the Court does not discern sufficient grounds to conclude that the applicant’s conviction could be said to have been based “to a decisive extent” on the statements of the absent witness.

8. Given that finding, the Court does not consider it necessary to examine any other arguments submitted by the parties and concludes that it is appropriate to reject the present application in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 January 2023.

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President