EUROPEAN COURT OF HUMAN RIGHTS
CASE OF MATYTSINA v. RUSSIA
(Application No. 58428/10)
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Matytsina v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Isabelle , President,
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Wampach, Deputy Section Registrar,
Having deliberated in private on 4 March 2014,
Delivers the following judgment, which was adopted on that date:
- The case originated in an application (No. 58428/10) 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 Veronika Viktorovna Matytsina («the applicant»), on 22 September 2010.
- The applicant was represented by Ms Ye. Karpova, a lawyer practising in Khabarovsk. The Russian Government («the Government») were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
- The applicant alleged, in particular, that her criminal conviction resulted from an unpredictable interpretation of the criminal law and that her trial was unfair.
- On 14 December 2011 the application was communicated to the Government.
- The circumstances of the case
- The incident involving Ms S.D. (April — June 2002)
- The applicant was born in 1971 and lives in Khabarovsk.
- In 1997 the Department of Justice of the Irkutsk Region registered a non-profit non-governmental association, «The Art of Living» (hereinafter «the association»). The goals the association set out in its charter included the «promotion of social adaptation», the popularisation of a healthy lifestyle, helping people in stressful situations and improving social and family relations. In practical terms the activity of the association consisted of training sessions, lectures, personal consultations and the like. Participation in the «programmes» of the association was offered to anyone interested and was free of charge, although participants were encouraged to make voluntary contributions to support the activities of the association. The association also issued a number of brochures containing information about its goals and basic principles. The brochures explained that the association was inspired by the teachings of SriSri Ravi Shankar, a modern Indian spiritual leader. According to one of the brochures, participation in the programmes of the association would help its participants to fight insomnia and depression, strengthen their cardio-vascular systems, control their emotions and boost their natural defence mechanisms.
- The association operated without a licence. On 2 February 2001 the association applied to the Committee on Sport and Recreation of the Administration of the Khabarovsk Region for a licence. On an unspecified date in February the Committee confirmed to the association that it did not require a licence to run its programmes, stating the following:
«…Your type of activity, [namely] yoga seminars with application of the postures (asana) of Hatha Yoga, Bhakti Yoga, and Kriya Yoga (practising kriya pranayama, i.e. rhythmical breathing at different speeds) does not belong to the category of sports activities or health-improving gymnastics and is not listed in the Unified Russian Register of Sports Activities».
- In the spring of 2002 Ms S.D., who was at the time a third-year student at the Institute of Pedagogy in Irkutsk (hereinafter — «the university»), enrolled in the basic programme of the association, «The Healing Breath Workshop». She enrolled together with her twin sister, Ms N.D. The applicant was one of the «instructors» of the association responsible for that programme. The course included elements of yoga, special breathing techniques, mantra singing, meditation, listening to music, aromatherapy and other similar practices. Participants were recommended to follow a certain diet and do exercises at home. The applicant claimed that she had been doing the exercises regularly herself since 1994.
- In April 2002 Ms S.D. and her sister started to attend daily training sessions on the premises of the association. Ms S.D. contributed 700 roubles (about 20 euros) to the association as a gift. Upon completion of the course Ms S.D. was encouraged to enrol in an advanced course called «Eternity», which was run by a different instructor, Ms M.S.
- At a certain point Ms S.D. started experiencing serious psychological problems. Her mother called the association and blamed the instructors for having turned Ms S.D. «into a zombie». According to the applicant, Ms S.D.’s mother was a fervent Orthodox Christian and did not approve of her daughters’ interest in a group which the mother described as a «sect».
- According to Ms S.D.’s mother, after the training sessions Ms S.D. started having hallucinations and delusions, lost contact with her family, skipped classes at the university, and almost completely stopped eating. On 27 June 2002 Ms S.D.’s mother called the emergency psychiatric services for her daughter; a doctor administered an injection, which did not help. Shortly thereafter Ms S.D. fainted and was hospitalised.
- In the following months Ms S.D. was hospitalised several times. The diagnosis initially made was «reactive psychosis». Later the doctors described her mental condition as a «stress-related schizoid disorder». The parties disagreed as to whether the disorder of Ms S.D. was serious enough to be characterised as «schizophrenia» according to the classifications of mental illness in use in Russia; subsequent expert opinions were not unanimous on that point.
- According to the doctors at the clinic where Ms S.D. was treated, her mental condition was related to her participation in the programmes of the association, which was referred to in the medical record of 2 July 2002 as a «sect». Later entries in her medical record also mentioned the «religious» character of her delusions. Following the admission of Ms S.D. to the clinic, an internal inquiry was conducted, which concluded that her medical condition was of a «religious and occult nature» and had been caused by her participation in the programmes of the association.
- In 2003 the association ceased its activities due to lack of funds.
- In the years that followed, the diagnosis of Ms S.D. was re-formulated several times; in 2009 the doctors concluded that she was suffering from schizophrenia.
- Criminal investigation; expert opinions obtained by the parties
- Psychiatric examination of Ms S.D. (25 July 2003, report No. 1170) and opening of criminal proceedings
- On 24 July 2003 an investigator from the Khabarovsk Region police force questioned Ms S.D. in connection with the events of April-June 2002. According to her testimony, the association received payment from the participants of the programme; the programme consisted of breathing techniques, listening to audio-recordings of the voice of the guru, and other similar practices which Ms S.D. characterised as brainwashing. Ms S.D. testified that she had almost stopped eating completely during the period she was attending the courses because the teachers had told her that food was poison. She had also dropped out of her course at the university. At some point she had lost track of the events and had returned to her normal self only in the clinic.
- On an unspecified date in the first half of 2003 the police investigator ordered an expert examination of the alleged victim, Ms S.D.
- On 25 July 2003 Ms S.D. was examined by a group of psychiatrists, including Dr Gul., Dr N., and Dr Ig. Dr Ig. acted as the «rapporteur» for the group of experts. In report No. 1170, the group concluded that Ms S.D. had developed an «acute schizoid psychotic disorder» which was related to her participation in the programmes of the association. The experts concluded that after 5 September 2002 Ms S.D. had regained her mental health and, at the time of examination, was capable of participating in the proceedings and giving accurate testimony to the investigator and before the court.
- On 30 July 2003 an investigator from the Khabarovsk Region police department opened a criminal investigation under Article 235 of the Criminal Code («Illegal medical practice»). The investigative authorities suspected that members of the association had been involved in quackery and had dispensed medical services to Ms S.D. («the alleged victim») without the necessary licences and training. However, the investigative authorities did not charge anybody with that crime when opening the case.
- First expert examination by the Medical Forensic Bureau (19 November 2003, report No. 197)
- On 11 August 2003 the investigator ordered an expert examination of the activities of the association. In particular, the investigator sought to establish whether the association had been dispensing medical services to the participants of the programmes, and whether the alleged victim had suffered any damage to her health as a result of participating in those programmes. The examination was entrusted to the Medical Forensic Bureau (MFB) of the regional Public Health Department. An expert team was put together which consisted of Dr Chern. (the president), Dr Makh., Dr Bes., and Dr Ch.
- On 17 September 2003 the investigative authorities searched the applicant’s house and seized documents and literature related to the activities of the association.
- On 19 November 2003 the MFB delivered the first report. The report was based on an examination of the materials in the criminal case file. The report noted that the techniques used by the association in its programmes were known both in conventional (scientific) and alternative («folk») medicine circles. However, it did not answer the question as to whether those techniques were medical. It also concluded that the medical condition of the alleged victim was «most probably» related to her participation in the programmes of the association.
- Second expert examination by the Medical Forensic Bureau (9 April 2004, No. 36)
- On 10 December 2003 the investigator asked the MFB to carry out an «additional» (dopolnitelnaya) expert examination of the activities of the association. The MFB expert team was composed of Dr Chern. (the president), Dr Makh. and Dr Ch. Again, the experts did not examine Ms S.D. in person and based their conclusions on the written materials contained in the case file.
- On 9 April 2004 the MFB delivered a second report as requested by the investigator (No. 36). The MFB again did not give a definite answer to the question of whether the association had been dispensing medical services. It noted that the charter of incorporation and other documents pertaining to the association did not contain any indication as to the medical nature of its programmes. In the opinion of the experts, it was important to distinguish between the «Eternity» programme and the other programmes of the association.
- The experts also concluded that in the particular case of the alleged victim the techniques used by the association were at the origin of her mental disorder. The basic programme, referred to by the experts as «The Art of Living», had weakened the alleged victim physically. Her subsequent involvement in the «Eternity» programme had aggravated her somatic condition with a psychiatric disorder.
- Position of the Ministry of Health
- In April 2004 the investigator in charge of the case requested the opinion of the Ministry of Health of the Khabarovsk Region concerning the activities of the association. On 22 April 2004 the Acting Minister of Health replied in the following terms:
«The practising of folk medicine… is subject to the licensing requirement laid down in the Federal Law of 8 August 2001 «On the licensing of certain types of activities», Governmental Decree No. 499 of 4 July 2002 «On the licensing of medical activities», and Order of the Federal Ministry of Health No. 238 of 26 July 2002 «On the organisation of the licensing of medical activities», as well as on the basis of the «Basic Principles of the Legislation of the Russian Federation on Public Health» adopted on 22 July 1991.
Order of the Ministry of Health No. 142 of 29 April 1998… is no longer in force. At present the list of medical services… is set out in Order No. 238 of 26 July 2002.
Breathing techniques and other methods listed in the list of medical services, as well as hypnotic infusion, belong to the category of «medical activities» and must be licensed under the head «psychotherapy» on the basis of:
(1) Order of the Ministry of Health No. 438 of 16 September 2003 «On psychotherapeutic treatment»;
(2) Methodological recommendations… which are annexed to Order No. 438;
(3) Psychotherapeutic Encyclopaedia by B. Karvasarskiy (2002).
The use of trancelike states as a part of Eriksonean psychotherapy is considered as a medical practice. However, that technique is not used in the «Art of Living» programme; [the programme is based on the use of] relaxation on the basis of traditional meditation within the framework of spiritual practices, which do not require a license.
Physical exercises on the basis of yoga asanas [(postures)] are not medical activities and are not liable to the licensing requirement.
The term «private medical practice» includes both medical services and services of folk medicine, so those notions are different.»
- Expert examination by Dr A. (5 May 2004)
- On 22 April 2004 the investigator questioned Ms S.D. again. She largely confirmed her earlier testimony. She also explained that as a part of her participation in the «programme» she had had an obligation to practise special breathing techniques every evening for forty days in a row, and that she had not been allowed to eat meat or fish in any form. She described in detail the «Eternity» programme, which was conducted by the applicant’s co-accused, Ms M.S., and described the effects that programme had had on her physical condition.
- On 23 April 2004 the investigator ordered a new expert examination of the activities of the association. The examination was entrusted to Dr A., chief psychotherapist of the Khabarovsk Health Department.
- The report was prepared on 5 May 2004. A copy of that report was submitted to the Court by the Government but is only partially legible.
- The first question put to the expert concerned the licensing requirements for folk medicine. The expert replied that the licensing of folk medicine was regulated by Governmental Decree No. 238 of 26 July 2002.
- The investigator further asked whether certain practices (such as «breath gymnastics», «hypnotic infusion», «physical exercises on the basis of yoga postures», and «entrancement») belonged to the methods of folk medicine and required a medical licence. As to «yoga postures», the expert concluded that they were not «medical activities» and did not require a licence. Concerning «breath gymnastics» and «hypnotic infusion», the expert confirmed that these were well-known psychotherapeutic methods, but they had not been used by the association. Elements of those programmes could be used by medical doctors as supplementary methods of psychotherapeutic treatment; however, the «Art of Living» programmes, according to the expert, did not have any medical purpose, were not aimed at curing ailments and, therefore, were not «medical».
- First expert examination by Dr Iv. (23 November 2004)
- On 12 August 2004 the investigator ordered a «forensic and legal examination» of the activities of the association. It was entrusted to the Ministry of Public Health of the Khabarovsk Region.
- On 23 November 2004 Dr Iv., a doctor in psychiatry and the chief psychiatrist of the Health Department of the Jewish Autonomous Region, drew up a report in which he concluded that the activities of the association had been «medical» in nature and had thus required a licence.
- Charging of the applicant and expert examination by the State Medical Academy of Krasnoyarsk
- On 26 November 2004 the applicant was formally charged. She pleaded not guilty as from the first questioning.
- On 16 December 2004 the defence obtained an expert opinion by four doctors from the State Medical Academy of Krasnoyarsk (including one professor of medicine). The expert team examined 118 people who had participated in the «Art of Living» programmes for at least three months. The team concluded that most of the people in the test group had observed various positive effects of the programmes, including easing of their chronic diseases, restoration of psychological balance and increased efficiency at work. The report emphasised that «moderate and consistent practice of yoga within the «Art of Living» programme is not incompatible with chronic diseases or old age and can be recommended for rehabilitation after traumas, surgical operations and diseases». It is unclear whether that written opinion was added to the case file.
- On 27 December 2004 the applicant’s lawyer asked the investigator to carry out an additional forensic examination. From the materials in the case file it is unclear whether that examination was supposed to cover the activities of the association, the state of health of Ms S.D. or another issue. On 28 December 2004 the investigator replied that all the necessary expert examinations had already been carried out, that the applicant’s guilt had been established, and that there was no need to carry out any new examinations.
- Second expert examination by Dr Iv. (1 April 2005)
- On 5 March 2005 the investigator commissioned a new expert examination on the activities of the association, which was again entrusted to Dr Iv. On 12 March 2005 the defence was handed a copy of the investigator’s decision to order an expert examination.
- The report was produced on 1 April 2005. It was based on the written materials of the case file. Dr Iv. started by analysing the applicable legislation. Section 57 of the Public Health Act of 1993 provided that the practising of alternative medicine (also referred to in the law as «folk medicine», «traditional medicine» or «healing») required a «healer’s diploma». Section 56 of the Public Health Act required a private practitioner to have a doctor’s or paramedic’s degree, a «specialist certificate» and a licence (for example, for practising «alternative medicine»). Decree No. 142 of the Ministry of Health of 29 April 1998 provided that folk medicine was subject to the licensing requirement.
- The Licensing Act of 8 August 2001 (No. 128-FZ) and Government Decree No. 135 of 11 February 2002 included folk medicine in the list of activities subject to the licensing requirement.
- Order of the Ministry of Public Health No. 113 of 10 April 2001 contained a glossary of «simple medical services», which included, amongst other activities, items Nos. 13.30.005 («psychotherapy») and 13.30.006 («hypnotherapy»). The expert concluded that such services were covered by the licensing requirement and should be provided by specialists in the relevant fields.
- Furthermore, referring to Government Decree No. 499 of 4 April 2002 on the licensing of medical services, the expert indicated that a person providing medical services was required by law to have, in addition to a special degree or training, a certain amount of work experience in their specific field of medicine. Decree of the Ministry of Public Health No. 238 of 26 July 2002 set out a list of what constituted «medical services», which included a section on folk medicine. The Decree stipulated that a licence was required to practise folk medicine. On 14 November 2003 the First Deputy Minister for Public Health issued a «Methodological Directive on the Licensing of Folk Medicine», which described certain activities as falling within the ambit of folk medicine; the list included «traditional systems of invigoration».
- The expert also studied specialised medical literature. He concluded that the applicant had used psychotherapeutic methods which were described in the medical literature, such as «trance inducement», «breath control» and «therapeutic gymnastics». The latter, according to the Ministry of Public Health’s recommendation No. 2001/13 of 14 March 2001, could include elements of yoga. The expert concluded that the use of such methods placed the applicant’s activity within the scope of «private medical practice», which needed a licence under the heads of «psychotherapy» and «therapeutic gymnastics».
- The expert referred to the Methodical Directive of the Ministry of Health of 26 February 2002, which characterised yoga as a «traditional method of healing». The same Directive noted that «traditional methods of healing», including yoga, were not officially recommended by the Ministry of Health for application in medical practice, and, therefore, were not covered by a licensing regime. From that, the expert inferred that in Russia «official application of traditional methods of healing» was not allowed. The expert further referred to the Decree of the Ministry of Health of 13 June 1996 which warned against the use of «occult practices» and other non-recommended healing techniques.
- The expert noted that the charter of incorporation of the association did not mention that it had been created to dispense medical services. However, the brochures issued by the association described the effects of its «programmes» in medical terms, for example: «a complex of detoxicating dynamic exercises», «improved functioning of all internal organs», «harmonisation of all levels of the personality», «controlled meditation and certain other techniques which guarantee deep relaxation, appeasement of emotions, and help to overcome stress», and so on. The brochures referred to cases of seriously ill individuals suffering from, inter alia, insomnia and depression, having been cured following completion of the association’s programmes. The techniques used in the programmes were described as a «synthesis of old wisdom and modern science». On 10 May 2003 SriSri Ravi Shankar obtained patent No. 2203645 «on the breathing technique» which specified that this technique could be used for medical purposes.
- The expert further studied witness evidence from former participants of the programmes of the association. According to some of the participants, the instructors told them that they had medical diplomas and that the programmes were supposed to have healing effects. The participants were required by the instructors to fill in forms which contained questions about their health. The expert also analysed their description of the techniques used in the programmes, such as relaxation techniques, physical exercises, breathing techniques, meditation and so on.
- To describe the activities of the association its brochures used terms such as «psychological adaptation», «autogenic training» and «relaxation» which could be found in specialised medical literature and were in fact techniques of psychotherapy and psychiatric treatment. The expert compared the techniques used by the instructors of the association with «holotropic therapy», which is a method used in psychotherapy, and pointed out a number of similarities.
- On the strength of that evidence the expert concluded that the activities of the association could be characterised as «folk medicine», which required a license. The activities of the association, in the opinion of the expert, were medical in nature.
- The attempts of the defence to have certain witnesses questioned
- On an unspecified date in April 2005 the defence asked the investigator to question a number of witnesses in order to decide whether there was a need for a further psychiatric examination of the victim. On 29 April 2005 the investigator replied in the negative, stating that the personality of the victim had already been thoroughly examined and that the investigator had obtained an expert report and questioned one of the members of the expert team, Dr Ig.
- Expert opinion of Prof. Z. from the Far East State Medical University (1 July 2007)
- On 1 July 2007 Prof. Z. from the Far East State Medical University situated in Khabarovsk delivered an expert opinion at the request of the applicant’s lawyer. Prof. Z. criticised the earlier expert assessments, which had characterised the activities of the association as «medical». Prof. Z. asserted that elements of the programmes of the association could be found in many traditional practices, such as yoga, qigong and various martial arts. He also cast doubt on the conclusions of the earlier expert reports that the mental condition of Ms S.D. had been caused by her participation in the association’s programmes. He supposed that her interest in the activities and ideas practised within the association could have been caused by her mental condition.
- Expert opinion by the Independent Association of Russian Psychiatrists
- On an unspecified date the applicant’s lawyer solicited the opinion of the Moscow-based Independent Association of Russian Psychiatrists (IAPR) in respect of the expert opinion of 25 July 2003. The applicant’s lawyer provided the IAPR with copies of certain materials from the criminal case file, in particular, reports Nos. 197 and 36 and the witness testimony of Dr Ig.
- On 17 January 2006 a group of experts from the IAPR, composed of two psychiatrists, Dr Sp. and Dr Sav., and one psychologist, Dr Vin., delivered a written opinion. Their report criticised the methods used to carry out the expert examination of 25 July 2003 which resulted in report No. 1170 (see paragraphs 16 et seq.), and condemned the report as unreliable and incomplete.
- First round of court proceedings
(a) Position of the defence
- The applicant’s case was heard by Judge Sh. of the Tsentralniy District Court of Khabarovsk.
- At the trial the applicant and her co-defendant, Ms M.S., pleaded not guilty. They acknowledged that neither they nor the other instructors at the association had medical degrees. They also acknowledged that the alleged victim had been their apprentice and that she had had health problems after completing the two programmes. However, they denied having caused any harm to the alleged victim and insisted that her mental disorder was related to a pre-existing condition or other life circumstances.
- In particular, they claimed that both the alleged victim and her sister had been born and raised in a very religious family, that they had both had problems fitting in at school, and that they had a difficult relationship with their mother. Several members of the alleged victim’s family had a history of mental disorders, so her own problems could have been explained by a hereditary predisposition. She had started attending the programmes of the association because of her social and psychological problems.
- Further, the applicant asserted that the «programmes» of the association could not be described as «medical treatment». Since its creation the association had been inspected several times by the Department of Justice, which had not detected anything illegal in its activities.
- The defence also claimed that the programmes of the association were not «medical» in nature, and thus did not require any special education or licence. Their purpose was to help people to attain social and psychological harmony, discover the true meaning of life, and so on. The instructors did not receive any remuneration of their work and their participation in the programmes was voluntary.
(b) Evidence submitted by the prosecution
- In the first round of the proceedings the court questioned several witnesses. They gave evidence about the mental and physical condition of the alleged victim before, during and after her participation in the programmes of the association. They all associated Ms S.D.’s health problems with her participation in the programmes.
- From the materials and explanations produced by the Government it appears that neither Ms S.D. herself (the alleged victim) nor her twin sister, Ms N.D., appeared in court. Thus, at the hearing of 27 March 2007 Judge Sh. stated that according to the medical certificates of 19 January 2006 and 22 March 2007 the doctors did not recommend that Ms S.D take part in the trial as it could cause a relapse. Both medical certificates were issued at the request of Ms S.D. and contained no further information about her state of health or any examination conducted in that connection.
- The court heard several other witnesses called at the request of the prosecution, namely, Ms O.L., the president of the association, Ms L.P., a member of the association and a former teacher of Ms S.D. at university, Ms E.B., a member of the association who had attended the programme together with Ms S.D. (the alleged victim), Ms S.Ch. and Ms V.Z. The testimonies of those witnesses were generally consonant with the case of the defence.
- The court heard an expert for the prosecution, Dr N., who had participated in the expert teams which had earlier assessed the materials of the case. Dr N. was not categorical in her conclusions and testified that she had not been given information or materials about the alleged victim’s character, social and family life or medical history, and that her conclusion about the link between the programme and the ailments of Ms S.D. had been assumptive.
- Dr Ig., who had participated in the preparation of report No. 1170, was summoned but failed to appear. The judge tried to secure her attendance for 27 March 2007 through the regional hospital where she worked. However, according to a letter from the hospital, Dr Ig. was on leave until 29 March 2007; after that date her contract with the hospital would be terminated since she planned to move abroad. At the hearing of 27 March 2007 the court, at the request of the prosecution, decided to read out Dr Ig.’s previous testimony. In her testimony Dr Ig. had asserted that the mental condition of Ms S.D. was directly linked to her participation in the programmes of the association.
- The court examined written evidence from the case file submitted by the prosecution, in particular, records of the questioning of Ms I.G., a former teacher who had been Ms S.D.’s class tutor at school, other documentary evidence and official correspondence. The court examined a letter of 17 June 2003 from the acting chief of the Public Health Department of Khabarovsk. In that letter Ms S.D.’s problems were associated with the activities of the association, which was characterised as a «sect». The court examined search records and items seized during the searches, including brochures, books and audio-cassettes released by the association for its members. The court examined Ms S.D.’s medical history, the expert report by the MFB of 19 November 2003, the expert report of 23 November 2004 and the expert report by Dr Iv. of 1 April 2005.
- The court also heard other witnesses, who gave circumstantial evidence about the case.
(c) Evidence submitted by the defence
- The court questioned a number of witnesses proposed by the defence, namely, Ms D., a former member of the association and an acquaintance of Ms S.D., Ms K., the association’s lawyer, and Dr L., who had been contacted by Ms S.D.’s mother in connection with the mental condition of the former. They all testified that the mental condition of Ms S.D. had been caused by pre-existing factors.
- A similar statement was made by Dr A., who had prepared a written expert report on Ms S.D.’s case on 5 May 2004. Dr A. was questioned in the capacity of «specialist».
- The court also examined the written opinion of Prof. Z.
(d) The first judgment and the appeal proceedings
- On 23 July 2007 the Tsentralniy District Court of Khabarovsk acquitted the applicant and Ms M.S. In particular, the court concluded that the applicant and Ms M.S. had not realised that their activities might fall within the ambit of medical practice or that they could have been harmful to the health of others. The court also found that the programmes of the association did not amount to medical practice.
- The court excluded from evidence the expert reports of 25 July 2003, 19 November 2003, 9 April 2004 <*> and 1 April 2005 as incomplete, self-contradictory and unreliable. The court also detected various irregularities in the way the expert examinations had been ordered and conducted. As to the expert opinion by Dr Iv. (reports of 23 November 2011 and 1 April 2005) the court noted, inter alia, that it had been based on legislation which had entered into force after the events imputed to the applicant and to Ms M.S.
<*> The date in the judgment indicated as 8 April 2004.
- The court also refused to admit the report by Prof. Z. in evidence as it had been obtained in breach of the domestic law, notably because Prof. Z. had not been informed by the investigator or the president of the court about criminal liability for false statement.
- The prosecution appealed.
- On 20 December 2007 the acquittal was quashed by the Regional Court and the case was referred back to the trial court. The Regional Court disagreed with the assessment of evidence by the trial court, and with its decision to declare some evidence, namely, expert reports, inadmissible. The Regional Court also pointed to various procedural shortcomings in the trial proceedings. The Regional Court noted that Dr A. should not have been questioned, since he had participated in the proceedings earlier in his capacity as an expert. Amongst other things, the Regional Court recommended that the trial court conduct new psychiatric examinations of Ms S.D., the alleged victim.
- Second round of proceedings
- In the second round of the trial proceedings the case was heard by the District Court in a single-judge formation: first by Judge Z. and subsequently by Judge M.
(a) Examination of evidence
(i) Trial by judge Z.
- At the trial both the prosecution and the defence submitted their evidence to the court. The prosecution submitted written expert opinions and witness statements, items of documentary evidence and exhibits obtained at the previous trial or at the investigation stage. The prosecution also submitted medical certificates of 19 January 2006 and 22 March 2007 whereby the doctors recommended that the alleged victim refrain from attending court hearings in order to avoid a relapse.
- The alleged victim (Ms S.D.) did not appear in court. As follows from the materials submitted by the Government, her name was on the list of prosecution witnesses to be called. Instead, Ms S.D. sent to the court a written declaration asking the court to discontinue the criminal prosecution of the applicant and her co-accused due to their «reconciliation». She also informed the court that she did not wish to participate in the proceedings.
- The District Court heard Ms Z.D. (the mother of the victim) and several other witnesses. Expert Dr Ig. did not appear; according to the court, the summons had not been handed to her and had returned by post. The defence insisted that Dr Ig. be contacted through her employer.
- On 29 July 2008 the judge sent a request to the town psychiatric hospital concerning the state of health of Ms S.D., the victim. The hospital replied that they had lost contact with Ms S.D. in September 2007, and that Ms S.D. had refused to continue to receive out-patient treatment by the doctors of that hospital. The hospital also informed the judge that Ms S.D.’s brother (Mr Ye.D.) and sister (Ms N.D.) had previously been treated in the hospital in connection with certain mental disorders.
- According to the hearing records, the prosecution asked permission to read out the testimony Ms S.D. had given at the investigation stage. The defence did not object to her testimony being read out. According to the applicant, the defence sought to question those witnesses in person. The court decided to read out the records of the questioning of Ms S.D., as well as the statements her mother, brother, and sister had made during the first round of the proceedings and before the investigative authorities.
- Witness for the defence Ms E.K. testified in person before the court. The court also heard several other witnesses for the defence, namely, Ms E.D. and Ms E.Iv. They gave testimony consonant with the position of the defence.
- The court questioned expert Dr N., who had participated in the expert examination of 25 July 2003 (No. 1170). The court also questioned expert Dr Ch., who had participated in the expert examinations of 19 November 2003 and 9 April 2004 (Nos. 197 and 36). They confirmed the conclusions of the expert reports and provided further information on the case.
- The defence sought to exclude the expert opinions produced by the prosecution on the ground that Ms M.S. (the co-defendant) had not been aware of the decision of the investigator to conduct the expert examination. However, the court refused to exclude those opinions on the ground that the defence had had the opportunity to challenge the experts and their conclusions after the completion of the reports or to seek additional expert examinations in the course of the court proceedings.
- On 1 October 2008 the lawyer representing Ms M.S. (the applicant’s co-defendant) asked the court to conduct an additional expert examination of the state of health of Ms S.D (the victim). It appears that a request in similar terms was lodged by the applicant’s lawyer as well.
- On 31 October 2008 the prosecutor asked the court to order another expert examination of the materials of the case in order to clarify whether the «programmes» of the association included medical services. The defence asked the judge to entrust the examination to a State institution in Moscow, but the judge refused and entrusted the examination to a local forensic centre in Khabarovsk. However, the court agreed to include an expert proposed by the defence on the team. The materials of the case were forwarded to the competent expert institution for examination.
- On 14 April 2009 those materials were returned to the court without examination. The expert institution replied that it was impossible to reply to the questions as they had been formulated by the judge in overly broad terms, and that additional experts were needed to carry out that kind of examination.
(ii) Trial by Judge M.
- In the first half of 2009 Judge Z. withdrew from sitting in the case for reasons which remain unknown. He was replaced by Judge M. The trial was resumed on 3 June 2009. It appears that due to the change of judge the case was heard again from the beginning (see Article 242 of the Code of Criminal Procedure in the «Relevant Domestic Law» part below).
- At the hearing of 3 June 2009 the prosecution declared that they would agree to the discontinuation of the case on the ground that the statutory time-limits for prosecuting the defendants had expired. However, the applicant and Ms M.S. insisted on the continuation of the trial, stressing that they wished to prove their innocence.
- Having examined the list of witnesses summoned to the hearing, Judge M. noted that Dr Ig. had been summoned but that the court had «received no information about her proper notification».
- The prosecution again asked to read out the testimony of Ms S.D. and Ms N. D. obtained at the pre-trial investigation stage but the defence objected. They asked the judge to request information about the ability of those witnesses to testify in court in person.
- On 2 July 2009 Judge M. decided to read out the testimony Ms S.D. had given at the pre-trial investigation stage. On the basis of the materials in the case-file and «information received», the judge ruled that the state of health of Ms S.D. prevented her from participating in the trial.
- The judge also noted that it was impossible to hear expert witness Dr Ig., without, however, explaining why, and ordered the reading out of her testimony obtained by the investigator.
- On 4 July 2009 Judge M. requested the opinion of the regional psychiatric hospital as to whether the state of health of Ms S.D. and Ms N.D. permitted them to take part in the proceedings. On 11 July 2009 the hospital replied that since Ms S.D. and Ms N.D. had not been treated in that hospital, it was impossible to say whether they were fit to attend the trial.
- Subsequently the judge read out testimony by several other witnesses who had been questioned at the earlier stages of the proceedings, including Ms Z.D. (the mother of the victim) and Mr Ye. D. (the brother of the victim).
- It appears that at the subsequent hearings the judge heard oral evidence from several witnesses, namely, Ms Ye. Iv. and Ms D. However, the Government did not produce copies of the records of the relevant hearings.
- On 7 December 2009 Judge M. heard two experts — Dr Ch. (who had participated in drafting expert opinions Nos. 197 and 36) and Dr N. (who had participated in the drafting of expert opinion No. 1170). During his questioning Dr Ch. stated, inter alia, that lacunas in the previous expert examinations could have been filled by carrying out a new psychiatric examination of Ms S.D. Dr N. was of the same opinion.
- The defence asked the judge to read out the testimony of expert Dr A., who had drafted the report of 5 May 2004 and who had been questioned at the first trial. The judge agreed and Dr A.’s recorded testimony was examined.
- On the same day the defence requested the court to order an additional expert examination of the causes of the mental disorder of Ms S.D. and its relation to her participation in the programmes of the association. The defence stated that the expert examinations obtained earlier were inconsistent and did not address certain important issues.
- That request was refused: the judge concluded that the previously obtained expert opinions were sufficient to reach a conclusion on the merits of the case. The examination of evidence was closed and the judge ordered the parties to proceed to the final pleadings.
(b) The second judgment and the appeal proceedings
- On 25 December 2009 the Central District Court of Khabarovsk found the applicant and Ms M.S. guilty under Article 235 § 1 of the Criminal Code.
- The District Court found that between 24 April and 23 June 2002, in the guise of «programmes» and «training courses», the applicant and Ms M.S. had dispensed to Ms S.D. the following medical services: «psychological adaptation»; «autogenic training», «dietetic therapy», «medicinal gymnastics», and «psychotherapeutic treatment». All those activities belonged to various fields of medicine (such as psychotherapy, psychiatry and narcology). The nature of the activities of the accused was in itself indicative of the deliberate and conscious nature of their actions. To dispense such services a special education and a licence were required. The defendants had operated without any licence and did not have any medical training. There was a direct causal link between Ms S.D.’s participation in the programme and her health problems in 2003. Thus, the unlawful and careless behaviour of the applicant and Ms M.S. had caused Ms S.D. moderately serious health damage.
- In support of its conclusions the court referred to the following evidence: the testimony of Ms S.D. given on 24 March 2003 and 22 April 2004, the testimony of Ms N.D., the sister of the alleged victim, given during the pre-trial investigation on 9 September 2003, and the testimonies of Ms Z.D. (the mother of the alleged victim), and Mr E.D. (the brother) given at the trial.
- The court further referred to expert opinions, namely, the expert reports of 25 July 2003 (No. 1170), the reports of 19 November 2003 (No. 197) and 9 April 2004 (No. 36), the expert report by Dr Iv. of 1 April 2005, and the record of expert Dr Ig.’s questioning by the investigator. The court also referred to the oral testimony of experts Dr N. and Dr Ch. given at the trial.
- The court also referred to other evidence, namely, the records of the testimonies of Ms E. K., Ms O.L., Ms E.B., Ms I.G. and others, given either to the investigator during the investigation stage of the proceedings or at the first trial. The court also relied on documentary evidence, including the medical history of Ms S.D., the charter of incorporation of the association and brochures and leaflets published by it.
- The court dismissed as inconclusive witness statements by Ms K. (defence witness) and Ms D. (defence witness), and did not analyse the testimony of Dr L. The court also discarded the testimonies of those witnesses who had themselves participated in the programmes of the association on the ground that their opinion about the nature and effects of those programmes was «subjective».
- Expert opinions proposed by the defence were declared inadmissible in evidence. In particular, the District Court held that the expert opinions of Prof. Z. and the IAPR were inadmissible on the ground that they had been obtained in breach of Articles 58, 251 and 270 of the CCrP. The court explained that under the law «a party cannot, on its own initiative and outside of the court hearing, solicit and obtain the opinion of a specialist» (page 25 — 26 of the judgment).
- The written testimony of Dr A. was excluded on the ground that Dr A. had earlier produced an expert report on the case. Consequently, under the Article 72 § 2 of the CCrP he was precluded from being questioned in his capacity as a «specialist».
- As to the references in the report of Dr Iv. of 1 April 2005 to the legal acts adopted after the events imputed to the applicant, the court noted that these references did not contradict the conclusions of Dr Iv. but only strengthened them, and that Dr Iv. had also referred to the legal acts in force at the time of the events at issue (page 27 of the judgment).
- In the concluding paragraphs of the judgment the court noted as follows:
«The court considers that the evidence [submitted by the parties] is admissible, relevant and reliable to the extent that it does not contradict the factual circumstances of the case, as established by the court».
The District Court sentenced the applicant to two years of imprisonment; however, she was relieved from serving the sentence owing to the expiry of the relevant statutory time-limit. Mr M.S. was sentenced to one year and six months of imprisonment.
107. The defence appealed. They complained, in particular, that judge M. had based the judgment on the testimony of witnesses he had not heard in person. They also complained about the refusal of the trial court to admit expert opinions submitted by the defence in evidence and obtain a new expert examination of the condition of Ms S.D. On 25 March 2010 the Khabarovsk Regional Court upheld the conviction. The court of appeal did not find any breach of the domestic substantive or procedural law in the proceedings before the trial court. The Regional Court ruled, inter alia, that the defence had conceded to the reading out of the previous testimony of the alleged victim and her relatives. The Regional Court noted that the record of Ms S.D.’s questioning by the investigator was a reliable source of information because when she had given that evidence she had not been suffering from a mental condition.