Communicated on 25 October 2017

THIRD SECTION

Application no. 11620/17 Boris Nikolayevich YEVSTRATYEV against Russia lodged on 31 January 2017

STATEMENT OF FACTS

The applicant, Mr Boris Nikolayevich Yevstratyev , is a Russian national, who was born in 1965 and is detained in Kopeysk . He is represented before the Court by Mr V. Shukhardin , a lawyer practising in Moscow.

A. The circumstances of the case

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

According to the bill of indictment, on 24 October 2013 the applicant and another unidentified person broke into the house of the K. family. The applicant shot dead E.K. Then both perpetrators threatened and beat V.K. and O.K. in order to make them show where they kept cash and jewellery.

1. First trial and appeal hearing

On an unspecified date the investigation into the matter was completed and the case was transferred to Chelyabinsk Regional Court for a jury trial.

On 8 June 2015 the jury acquitted the applicant. The prosecutor and one of the victims appealed.

On 28 October 2015 the Supreme Court of the Russian Federation quashed the verdict and remitted the matter for fresh consideration. The court established that (1) the verdict sheet had not been prepared in accordance with Article 339 of the Russian Code of Criminal Procedure and (2) the defence had exerted undue influence on the jury. The court considered those violations of the rules of criminal procedure to be material and ordered a new trial.

As regards the verdict sheet prepared by the trial judge, the Supreme Court noted as follows:

“Contrary to the requirements set forth in Article 339 of the Russian Code of Criminal Procedure, question no. 1 put to the jury as to whether it has been proven that the act has taken place concerned two crimes, i.e., assault and murder.

...

The jury responded in the negative .... .

However, a single question put in respect of factual circumstances of two crimes with different objects does not comply with the requirements set forth in Article 339 of the Russian Code of Criminal Procedure. Accordingly, a question concerning ... E.K. ’ s murder and assault on the [K. family] could not have been included in the verdict sheet.

...

The verdict sheet prepared in contravention of the provisions of the rules of criminal procedure prevented the jury from assessing correctly the matter and carrying out properly their duties and rights when reaching the verdict.”

As to the conduct of the defence counsel during the trial, the Supreme Court noted as follows:

“Even though the trial judge stopped [the counsel for defence when he made comments concerning admissibility of evidence] and explained to the jury that they should disregard that information, the frequency of the violations committed by the defence and disregard of the court ’ s comments and reprimands show that the jury were not free from [undue] influence exercised by the defence which had an impact on the opinions of the members of the jury and their responses when reaching the verdict.”

2. Second trial and appeal hearing

On 10 December 2015 the Regional Court opened a new jury trial in the applicant ’ s case. The prosecutor presented a number of forensic expert examinations including E.K. ’ s autopsy report, report on the seriousness of injuries sustained by V.K. and ballistics report. The defence asked for the experts to be questioned in court. The trial judge noted that the rules of criminal procedure provided for the expert questioning only in case of doubt expressed by the expert or ambiguity of the contents of the report prepared by him or her. The court discerned no doubt or ambiguity in the experts ’ findings and dismissed the request. The court further refused to admit into evidence forensic “specialist” opinions commissioned by the applicant.

On 9 February 2016 the jury found the applicant guilty and on 19 February 2016 the Regional Court sentenced him to 18 years ’ imprisonment. The court also ordered the applicant to pay damages to the victims of the crimes. The applicant appealed arguing, inter alia , that the trial judge had failed to comply with the rules of criminal procedure and the instructions set out in the appeal judgment of 28 October 2015 when preparing the verdict sheet. In particular, the judge had put a single question in respect of two different crimes – murder and assault – which fact had prevented the jury from assessing correctly the circumstances of the case.

On 2 August 2016 the Supreme Court upheld, in substance, the judgment of 19 February 2016 on appeal. The court considered that the trial had been adversarial and the principle of the equality of arms had been respected. As regards the verdict sheet, the court noted as follows:

“The verdict sheet has been prepared in accordance with the requirements set out in Article 339 of the Russian Code of the Criminal Procedure. Both prosecution and defence were provided with equal rights and opportunities to participate in its preparation. The wording of the questions corresponds to the charges. The answers [given by the jury] are clear and comprehensible.

Contrary to the [applicant ’ s] argument, when quashing his acquittal, [the Supreme Court] did not issue any mandatory instructions ... in respect of the contents of the verdict sheet for the trial court.”

B. Relevant domestic law and practice

1. Questions submitted by the judge to the jury

(a) Russian Code of Criminal Procedure

Upon completion of the trial and the parties ’ final arguments, the judge prepares in writing a verdict sheet for the jury (Article 338 § 1). In respect of each offence the defendant is charged with, the judge is to put three major questions: (1) whether it has been proven th at the act has taken place; (2) whether it has been proven that the defendant has committed the act; and (3) whether it has been proven that the defendant is guilty of ha ving committed the act (Article 339 § 1). It is possible for the judge to put one major question concerning the defendant ’ s guilt that would be a combination of the above questions (Article 339 § 2).

(b) Ruling No. 23 adopted by the Plenary of the Supreme Court of the Russian Federation on 22 November 2005, as amended, On application by the courts of rules of criminal procedure of the Russian Federation concerning the jury trials

The Plenary has specified the instances when it is possible for the judge to put a single major question to the jury that would combine the three questions required by the rules of criminal procedure. In particular, if the jury is to determine the defendant ’ s guilt in respect of several offences, as determined by the Russian Criminal Code, which are the consequences of a single act committed by the defendant, the judge may put one question to the jury. The Plenary referred to such an aggregate crime as “ideal accumulation of offences” (section 28).

(c) Practice

( i ) Appeal judgment of the Supreme Court o f the Russian Federation No. 85 ‑ APU13-17SP of 23 January 2014

On 4 October 2013 the Kaluga Regional Court found, inter alia , five defendants guilty of assault and murder based on a jury verdict. When upholding the defendants ’ conviction on appeal, the Supreme Court dismissed their argument that the jury had been unable to reach an objective verdict given that, in contravention of Article 339 of the Code of Criminal Procedure, the trial judge had put a single question in respect of the offences the defendants had been charged with. The Supreme Court considered that the aggregate crimes (assault and murder) had constituted an “ideal accumulation of the offences” which made it possible for the judge to put a single question to the jury as to whether it had been proven that the defendants had committed the criminal act they had been accused of.

(ii) Appeal judgment of the Supreme Court of th e Russian Federation No. 35 ‑ APU16-7SP of 26 July 2016

On 17 May 2016 the Tver Regional Court found, inter alia , Kol . guilty of assault and murder. On appeal, the defendant argued that the jury had been unable to assess correctly the circumstances of the case given that the judge had put a single question concerning both offences she had been charged with. The Supreme Court dismissed the defendant ’ s argument noting that both crimes had been committed at the same place and time and with the intent to murder K. and take her property. The Supreme Court further reasoned that the acts committed by the defendant had constituted an “ideal accumulation of the offences” which fact had allowed the judge to put a single question to the jury concerning both offences.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the criminal proceedings against him were unfair and that the principle of equality of arms was not respected. In particular, he was denied an opportunity to challenge the findings of the forensic experts appointed by the prosecution. He also complains about the ambiguity of the national courts ’ interpretation and application of the rules governing the contents of the verdict sheet.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular, as regards the trial court ’ s refusal to question the forensic experts or to admit “specialist” opinions commissioned by the applicant into evidence, was the applicant provided with an opportunity to challenge forensic evidence (autopsy and ballistics reports) collected by the prosecution the (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, §§ 717-35, 25 July 2013)?

2. Was the interpretation and application of the domestic rules of criminal procedure (Article 339 of the Russian Code of Criminal Procedure) by the Supreme Court of the Russian Federation in the applicant ’ s case compatible with the requirements set forth in Article 6 § 1 of the Convention? In particular, did the Supreme Court apply the relevant domestic provisions in a foreseeable and consistent manner (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011)?