- Relevant domestic law
- Liability for quackery
- Article 235 of the Criminal Code, as it stood at the relevant time, established liability for unlawful private medical or pharmaceutical practice. It was formulated as follows:
Article 235. Engaging in Illegal Private Medical Practice or Private Pharmaceutical Activity
«1. Engaging in private medical practice or in private pharmaceutical activity without having a license for the respective type of activity, if this has entailed by negligence the infliction of harm on human health, shall be punishable by a fine…, by restraint of liberty…, or by deprivation of liberty for a term of up to three years.
- The same act, that has entailed by negligence the death of a person, shall be punishable by restraint of liberty for a term of up to five years, or by deprivation of liberty for the same period.»
- Article 15 of the Public Health Act of 1993 (Federal Law No. 5487-I), as in force at the material time, established licencing requirement for medical activities, procedure and basic criteria for obtaining such a licence. The Government’s decree of 21 May 2001 (in force until 4 July 2002) established further rules and guidance on the procedure for obtaining a medical licence. In addition, it contained a list of «medical activities» which included inter alia remedial gymnastics, psychotherapy, and nutritional science. Article 57 of the 1993 Public Health Act defined «folk medicine» as «methods of health improvement, prophylactic, diagnostic, and healing methods based on the experience of many generations of people and enrooted in the folk traditions and not registered in accordance with the law». That Article provided that to start practicing as a «healer» one needed a special diploma delivered by the official public health bodies at the regional level. According to the last paragraph of Article 57, «unlawful practicing of folk medicine» was criminally punishable.
- Expert evidence and documentary evidence
- Article 74 of the CCrP contains a comprehensive list of sources of information which can be used as evidence in a criminal trial. That list mentions, inter alia, expert reports and expert testimony, as well as «other documents» (Article 74 §§ 2 and 6). Article 84 § 1 of the CCrP provides that «other documents» can be admitted as evidence if they contain information which may be important for establishing the facts which need to be established within the criminal proceedings.
- The CCrP (Articles 57 and 58) distinguishes between two types of expert witnesses: «experts» proprio sensu [experty] and «specialists» [spetsialisty]. Their role in the proceedings is sometimes similar, albeit not identical. Whereas the «experts» are often engaged in carrying out complex forensic examinations prior to the trial (for example, dactyloscopic examinations or post-mortem examinations), a «specialist» is summoned to help the prosecution or court in handling technical equipment, examining an item of material evidence, understanding the results of «expert examinations», assessing the methods employed by the «experts», their qualifications, and so on. Both can submit written reports to the court and/or testify in person (Article 80 of the CCrP). Under Article 57 of the CCrP (with further references) the right to order an expert examination belongs to the investigator or to the trial court. The court may order an expert examination on its own initiative or at the request of the parties.
- Article 58 § 1 of the CCrP defines the functions of a «specialist» (in so far as relevant to the present case) as follows:
«A specialist is a person possessing special knowledge, who is brought in to take part in the procedural actions…, to assist in locating, securing and seizing items of evidence…, in the use of technical equipment…, to put questions to the expert and also to explain to the parties and to the court matters which come within his professional competence».
- Article 58 § 2 of the CCrP stipulates that the summoning of a specialist and his participation in the trial proceedings is governed by Articles 168 and 270 of the Code (see below).
- Article 58 § 4 of the CCrP states that a specialist summoned by the investigator, prosecutor or the court cannot refuse to appear before them.
- Article 168 of the CCrP deals with the participation of a specialist in investigative actions at the pre-trial investigation stage at the request of the investigator. It stipulates, with reference to Article 164 § 5, that the investigator must notify the specialist about his rights and responsibilities, verify his professional qualifications and check his affiliation with the parties.
- According to Article 251 of the CCrP a specialist summoned to the court must take part in the trial in accordance with Articles 58 and 270 of the CCrP.
- Article 270 of the CCrP provides that the presiding judge at the trial should inform the specialist of his rights and responsibilities before questioning.
- Under Article 75 of the CCrP, evidence obtained in breach of the provisions of the Code is inadmissible. By virtue of Article 50 § 2 of the Russian Constitution, in the administration of justice evidence obtained in violation of the federal law cannot be used.
- Article 286 of the CCrP provides that the court may add documents produced by the parties to the case file.
- Expert reports obtained by the investigation
- Chapter 27 of the CCrP regulates obtaining expert opinions at the investigation stage (i.e. before the trial). Article 195 § 2 provides that the «judicial expert examination» (that is, for use in court) must be carried out by «State forensic experts or other experts who have specialist knowledge». Article 193 § 3 stipulates that the investigator must notify the criminal defendant about the decision to order an expert examination. Pursuant to Article 198, 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.
- Collection of evidence by the defence
- The old CCrP (in force before 2002) provided that the duty to obtain evidence fell to the investigative bodies. The new CCrP (applicable to the case) recognises the defence’s right to collect evidence, albeit with important limitations. Thus, Article 53 § 2 of the Code provides that the defence lawyer has a right «to collect and submit evidence necessary for providing legal assistance, in accordance with Article 86 § 3 of the Code». Amongst the other powers of the defence lawyer Article 53 § 3 mentions «engaging [the services of] a specialist in accordance with Article 58 of the Code». However, it does not allow the defence to commission and produce «expert reports».
- Article 86 of the new CCrP formulates the rules on collecting evidence as follows:
«1. In the course of the criminal proceedings evidence shall be collected by… the investigator, the prosecutor and the court by means of investigative measures and other procedural actions provided by the present Code.
- [An accused]… and his representatives may collect and produce written documents… to be added to the case file as evidence.
- The defence lawyer may collect evidence by:
(1) obtaining objects, documents and other information;
(2) questioning individuals with their consent; or
(3) requesting… documents from the authorities… and other organisations which are obliged to produce such documents or copies of them.»
- The defence lawyer’s right to obtain expert evidence is defined in section 6 § 3 (4) of Federal Law No. 63-FZ of 2002 «on advocacy»:
«…3. The advocate can… (4) engage specialists on a freelance basis in order to obtain explanations on the issues relevant to [his task of providing] legal assistance».
- Article 271 § 4 of the CCrP stipulates that the court cannot refuse to hear a witness or a «specialist» who has come to court at the request of one of the parties.
- Position of the Supreme Court on expert evidence
- On 21 December 2010 the Plenary Supreme Court of the Russian Federation issued Decree No. 28 «On court expert examinations in criminal proceedings». That Decree replaced a very old Decree issued by the Supreme Court of the USSR in 1971, which was based on the old Soviet Code of Criminal Proceedings.
- According to point 1 of the Decree, where the judge needs special scientific, technical, artistic, etc. knowledge, he must seek an «expert examination» of the matter (sudebnaya ekspertisa). Where an expert examination is not needed, the court may seek the opinion of a «specialist» (spetsialsit). The court may seek the assistance of non-governmental expert institutions or individual experts but the Decree establishes additional conditions for such expert examinations. Under point 6 of the Decree, certificates, acts, written conclusions and other similar documents issued by expert institutions at the request of the investigative authority and the courts are not regarded as «expert examinations».
- Under point 19 of the Decree, the court, of its own motion or at the request of a party, may employ a «specialist» to assist the court in interpreting a written expert report or questioning the expert. The «specialist» may deliver his opinion orally or in writing. Under point 20 the opinions of «specialists» and «experts» can be used as evidence; however, the Supreme Court emphasised that specialists «cannot conduct a direct examination of physical evidence» and «cannot formulate conclusions but only express an opinion on the questions put to him by the parties». The Supreme Court concludes that where there is a need for «examination» of a matter, the court must order an examination by «experts».
- Under point 22 of the Decree, the courts must hear a «specialist» who appears in court on the initiative of one of the parties. However, the court may refuse to hear that person if his professional competencies are insufficient to answer the questions which the party seeks to address to him.
- Reading out of witness testimony in court
- Article 281 of the CCrP («Reading out of the testimony of the victim and of the witness) reads, in so far as relevant, as follows:
«2. If the victim or the witness did not appear in court, the court shall be entitled at the request of a party or on its own initiative to decide to read out the testimony previously given by them, in the event of:
1) the death of the victim or witness,
2) their very poor health, impeding their appearance in court,
3) the refusal of a victim or witness who is a foreign citizen to appear in court
4) a natural disaster and other extraordinary circumstances impeding their appearance in court.
- At the request of a party the court may decide to read out the testimony of a witness… where there are serious discrepancies between his [oral] testimony given to the court and his earlier testimony.»
- Replacement of a judge
- Article 242 of the CCrP («Immutability of court composition») reads as follows:
«1. The case must be examined by one and the same judge or by a court bench in one and the same composition.
- If one of the judges is no longer able to take part in the hearing he or she must be replaced by another judge, and the court hearing must restart from the beginning.»
- Alleged violation of Article 6 of the Convention
- The applicant complained that the trial in her case was not fair and that the defence was in a disadvantageous position the prosecution in respect of the taking and examination of evidence. The applicant relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:
«1. In the determination of… any criminal charge against him, everyone is entitled to a fair… hearing….
- 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…»
- The parties’ submissions
- The Government
- The Government contested that argument.
- The Government acknowledged that the alleged victim, Ms S.D., had not been heard in person by the trial court or by the court of appeal. When she was questioned by the investigator, the defence was not present. However, the defence did not object to the prosecution reading out the record of Ms S.D.’s previous testimony during the trial. Furthermore, the court decided not to call her as a witness because the doctors had concluded that her participation in the trial might have had a traumatising effect on her. Ms S.D. had been informed about the time and the venue of the hearing before the court of appeal; however, she failed to appear for reasons unknown. The Government maintained that the defence had not sought the questioning of Ms S.D. in person at the hearing before the court of appeal.
- The mother and brother of the victim (Ms Z.D. and Mr E.D.) testified in person before the trial court in the first round of court proceedings. Therefore, the defence had an opportunity to question them. When the court, in the second round of the trial, decided to read out the record of questionings of those witnesses, the defence did not object.
- As to the expert examinations ordered by the investigator, the Government observed that they had been conducted on 25 July 2003 (report No. 1170), from 1 to 19 November 2003 (No. 197), from 10 January to 9 April 2004 (No. 36), and on 1 April 2005. The applicant was charged on 26 November 2004; as a result, she took active part only in the last examination, that of 1 April 2005.
- However, in the course of the trial the defence had the opportunity to question two experts, Mr Ch., who had participated in drafting reports Nos. 197 and 36, and Ms N., who co-authored report No. 1170 (see paragraphs 18, 20 and 23 above).
- The Government indicated that under the Russian law the defence and the prosecution are equal before the court. However, that did not mean that the defence had an unrestricted choice of means to present their case: thus, the CCrP defined the forms in which the defence could seek the presentation of expert evidence at the trial. Articles 197 — 207 and 283 of the CCrP and Articles 19 — 25 of the Federal Law «On State expert examinations» provided that an expert examination in a State expert institution had to be carried out at the request of the investigative bodies, the prosecution or the court. The defence had no power to seek an expert opinion from those institutions.
- The law provided certain procedural guarantees which secured the participation of the defence in expert examinations: thus, the defence could ask the investigator to order an expert examination. Once the examination was ordered, the defence could obtain a copy of the investigator’s decision, ask for the expert institution or individual experts in charge of the examination to be changed, ask for additional questions to be put to the experts, and so on. The defence could also challenge the actions or omissions of the investigator before the court. Where the original expert report was unclear or controversial, the defence could seek an additional examination or full re-examination of the issue by another expert body. The Government argued that the defence had enjoyed all those rights in the proceedings.
- More generally, the Government argued that the defence were able to present their evidence at the trial. Thus, the court heard two witnesses for the defence: Ms K. and Ms D. The domestic court (at the first trial) relied on evidence given by those witnesses in its judgment.
- As to the written opinions of Prof. Z. and the IAPR, which criticised the conclusions of the report of 25 July 2003 (No. 1170), the Government indicated that they were not admissible in evidence pursuant to Article 75 § 2 point 3 of the CCrP. Those «specialists» were invited to give their opinion in breach of the procedure provided for by Articles 58, 251 and 270 of the CCrP.
- On 7 December 2009 the court refused to conduct an additional expert examination, referring to Articles 283 and 207 of the CCrP. At the hearing before the court of appeal the defence did not try to adduce any new material or reports by «specialists».
- The Government concluded that the applicant’s trial was «fair» within the meaning of Article 6 of the Convention.
- The applicant
- The applicant confirmed that the victim, Ms S.D., had not testified in person before the court at the trial or in the appeal proceedings. The defence had been unable to question her before the court or at the investigation stage of the proceedings.
- There was no evidence that any serious illness prevented Ms S.D. from appearing in court throughout the duration of the proceedings. Under Article 196 of the CCrP the judge had been obliged to order a special psychiatric examination of the state of health of Ms S.D. in order to decide whether she was fit to testify orally, but this had not been done. It was unclear why Ms S.D. and her relatives failed to appear before the court of appeal.
- Although the defence had agreed to the reading out of the written testimony of certain witnesses, that could not be interpreted as a waiver of the right to examine those witnesses in person. The defence had been able to question Ms Z.D. and Mr Ye.D. in the previous round of court proceedings, but this had been insufficient, since the judge who convicted the applicant did not assess their testimony directly. Furthermore, in the first round of court proceedings the defence had not been aware that the brother and the sister of the applicant suffered from certain mental disorders.
- The defence had not been able to participate in the preparation of the expert opinions at the investigation stage of the proceedings. All the defence’s requests for additional expert examinations to be carried out had been dismissed by the investigator.
- The applicant also gave their own interpretation of the provisions of the CCrP which regulated the collection of evidence by the parties and the status of such evidence. The applicant stressed that the Government had conceded that while the defence had no power to obtain an expert opinion, the investigator and the court had such powers. When the defence had tried to introduce an expert opinion by Prof. Z., the court had refused to admit it in evidence. Furthermore, on 7 December 2009 the court had refused to commission an additional expert opinion. In its judgment the court had failed to consider the expert opinion of Dr A.
- The applicant further argued that the worsening mental health of Ms S.D. in 2002 was related to pre-existing circumstances and not to her participation in the programmes of the association. The applicant further criticised the court for not distinguishing between her acts and the acts of her co-defendant, Ms M.S., who was the sole person responsible for the programme «Eternity», which immediately preceded the deterioration of Ms S.D.’s mental condition.
- The applicant concluded that the proceedings in her case had been unfair and insisted on the reopening of the case.
- The Court notes that the Government did not put forward any formal objections to the admissibility of this complaint. The Court further observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
- Absence of Ms S.D. from the trial
(a) General principles
- The Court reiterates that it is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and the defence, which means that both the prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see Dowsett v. the United Kingdom, No. 39482/98, § 41, ECHR 2003-VII, and Belziuk v. Poland, 25 March 1998, § 37, Reports of Judgments and Decisions 1998-II).
- Article 6 § 3 (d) enshrines the principle 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 to this principle are possible but must not infringe the rights of the defence, which, as a rule, require 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 (see v. Italy, No. 33354/96, § 39, ECHR 2001-II; and Solakov v. «the former Yugoslav Republic of Macedonia», No. 47023/99, § 57, ECHR 2001-X; Al-Khawaja and Tahery, [GC], Nos. 26766/05 and 22228/06, § 118, ECHR 2011). In the context of absent witnesses, the Grand Chamber of the Court set out two considerations in determining whether the admission of statements was compatible with the right to a fair trial. First, it had to be established that there was a good reason for the non-attendance of the witness. Second, even where there was a good reason, where a conviction was based solely or to a decisive extent on statements made by a person whom the accused had had no opportunity to examine, the rights of the defence might be restricted to an extent incompatible with the guarantees of Article 6. Accordingly, when the evidence of an absent witness was the sole or decisive basis for a conviction, sufficient counterbalancing factors were required, including the existence of strong procedural safeguards, which permitted a fair and proper assessment of the reliability of that evidence to take place (see Al-Khawaja and Tahery, cited above, §§ 119 and 147).
- The Court further reiterates that the right of the defence to examine witnesses and test other evidence introduced by the prosecution should be read in the light of the more general guarantee of adversarial proceedings enshrined in the concept of a fair trial under Article 6 § 1 (see, among many other authorities, F.C.B. v. Italy, 28 August 1991, § 29, Series A No. 208 B; and Poitrimol v. France, judgment of 23 November 1993, § 29, Series A No. 277 A; Al-Khawaja and Tahery, cited above, § 118). Even where the defence was able to cross-examine a witness or an expert at the stage of the police investigation, it cannot replace cross-examination of that witness or expert at the trial before the judges. It is an important element of fair criminal proceedings that the accused is confronted with the witness «in the presence of the judge who ultimately decides the case» in order for that judge to hear the witness directly, to observe his demeanour and to form an opinion about his credibility (see P.K. v. Finland (dec.), No. 37442/97, 9 July 2002; see also, mutatis mutandis, Milan v. Italy (dec.), No. 32219/02, 4 December 2003 and v. Finland, No. 30508/96, §§ 62 — 65, 9 March 2004; see also Pichugin v. Russia, No. 38623/03, § 199, 23 October 2012, and, mutatis mutandis, Valeriy Lopata v. Russia, No. 19936/04, § 128, 30 October 2012).
(b) Application to the present case
- It is not disputed by the parties that Ms S.D. did not testify in court, and that she was not examined by the defence. Instead, the District Court used her testimony obtained in the course of the police investigation.
(i) Whether the defence waived the right to examine Ms S.D.
- The Government claimed that the applicant’s agreement to the use of the record of Ms S.D.’s testimony in the proceedings before Judge M. (see paragraph 77 above) was tantamount to a waiver of her right to obtain Ms S.D.’s examination in court.
- The Court reiterates that Article 6 does not rule out a tacit waiver of one of the guarantees of a fair trial (see Talat v. Turkey, No. 32432/96, § 59, 27 March 2007). However, such a waiver must be, inter alia, established «unequivocally» (see Sejdovic v. Italy [GC], No. 56581/00, § 86, ECHR 2006-II).
- A witness’s testimony may be introduced at the trial in one of two forms: as a recorded speech (written, audio- or video-recorded) or directly, by means of the oral questioning of that witness by the parties before the court. As follows from the text of Article 6 § 3 (d), the Convention attaches particular importance to the direct adversarial examination of a witness before the judges. However, it does not exclude that the parties may also use records of that witness’s earlier statements and testimony in evidence, for example, to uncover inconsistencies in his oral evidence or cast doubt on his trustworthiness (see v. France, 20 September 1993, § 43, Series A No. 261-C). From this point of view, the use of statements previously made by a witness is not inconsistent with Article 6 § 3 (d), at least not by itself.
- Therefore, it is conceivable that a written record of testimony by a witness could be presented at the trial along with his oral examination. The CCrP stipulates that the testimony of a witness may be read out at the trial where that witness has failed to appear in person, but it does not rule out the questioning of that witness in person (see Article 281 § 3 of the CCrP, cited in paragraph 129 above). A witness may be absent on a particular day of the trial, but attend a later hearing. Similarly, oral questioning of a witness at the trial may be followed by reading out of his earlier testimony.
- The facts of the present case show that the judge still considered the option of summoning Ms S.D. to the court despite the fact that her testimony had already been read out (her testimony was read out on 2 July 2009, whereas on 4 July 2009 the judge asked the opinion of the doctors as to whether Ms S.D. was fit to testify in person (see paragraphs 88 et seq. above)). Furthermore, the prosecution included Ms S.D. in the list of witnesses to be called. In such circumstances it is clear that the decision of the defence not to object to the reading out of Ms S.D.’s previous testimony in the proceedings conducted by Judge Z. cannot be interpreted as an unequivocal waiver of their right to examine her in person under Article 6 § 3 (d).
- More importantly, the Court notes that at the hearing before Judge M. (that of 2 July 2009) the defence objected to the reading out of Ms S.D.’s statements obtained at the investigation stage (see paragraph 87 above). Judge M. started the hearing of the case anew, and it was Judge M. who rendered the impugned judgment. Therefore, it is not crucial that in earlier proceedings before Judge Z. the defence conceded to the reading out of Ms S.D.’s previous testimony.
- The Government did not refer to any other episode in the proceedings when the defence waived their right to examine Ms S.D. The Court concludes that the defense did not waive their right to obtain the examination of Ms S.D. in person at the trial.
(ii) Reasons for the absence of Ms S.D. from the trial and her importance as a witness
- The Court reiterates that the trial judge only had the written records of the evidence given by Ms S.D. at his disposal. That testimony had been obtained by the police without the defence’s participation.
- According to Judge M., who examined the case and rendered the contested judgment, Ms S.D.’s fragile mental condition prevented her from participating in the trial. The Court observes that, indeed, Ms S.D. suffered from a mental disorder which was allegedly related to the actions of the applicant and Ms M.S. The Court accepts that the interests of a witness, and in particular the physical and mental integrity of the alleged victim of the crime, are important factors which may sometimes call for the limitation of the rights of the defence under Article 6 § 3 (d). The decision of the national judges not to call Ms S.D. to testify was based on two medical certificates issued in January 2006 and March 2007, which stated that her appearance in court was not recommended since it might cause a relapse (see paragraphs 58 and 88 above). Thus, the judge’s decision not to call Ms S.D. to testify in person was based on the known facts of the case and supported by the doctors’ opinion. The Court is prepared to accept that the decision at issue was not arbitrary (cf. Vronchenko v. Estonia, No. 59632/09, §§ 62 and 63, 18 July 2013, in the context of the questioning of a minor victim of sexual abuse).
- More importantly, the Court considers that Ms S.D.’s evidence yielded no conclusive evidence against the applicant. Thus, the defence did not deny that Ms S.D. had participated in the programmes, as she described, and that she had had health problems afterwards. They also accepted Ms S.D.’s account of the activities and practices in which she had been involved. It thus appears that the defence did not try to refute the essential elements of Ms S.D.’s testimony. Their case was built upon other arguments which pertained to the examination of medical issues (namely, the existence of a causal link between Ms S.D.’s mental disorder and her participation in the programme) and legal issues (determination of the «medical» nature of the practices used by the associations). It is unlikely that Ms S.D., as a lay person, would have been able to elucidate on either of those points. Accordingly, the Court does not find that the testimony of Ms S.D. was «sole and decisive» evidence against the applicant (see Al-Khawaja and Tahery, § 152, and compare to Vronchenko, § 59, both cited above).
- In the circumstances, and in particular given the low level of importance of Ms S.D.’s testimony as a witness, the Court is prepared to conclude that her absence from the trial did not prejudice the interests of the defence in any significant manner and was outweighed by genuine concern for her well-being. Thus, there was no violation of Article 6 § 3 (d) of the Convention on that account.
- Handling of expert evidence
- The applicant also complained about the taking and examination of «expert evidence» by the trial court. She claimed that the reports by the prosecution experts had been accepted for examination by the District Court, whereas reports and opinions by the experts suggested by the defence had been rejected as inadmissible. She also complained that the defence had been unable to participate in the preparation of the expert reports.
- In addressing those complaints the Court will concentrate on «expert evidence» in the broad meaning of the term, that is, sources of information which do not describe the particular facts of a case but instead provide a scientific, technical, or other similar analysis of those facts (which can also be defined as «opinion testimony»). At the same time, the Court will not lose sight of a distinction which is made in the Russian law between two forms of expert evidence: opinions by «experts» and opinions by «specialists», both oral and written (see the «Relevant domestic law» part above, paragraph 111).
(a) General principles
- 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). In analysing whether the personal appearance of an expert at the trial was necessary, the Court will therefore be primarily guided by the principles enshrined in the concept of a «fair trial» under Article 6 § 1 of the Convention, and in particular by the guarantees of «adversarial proceedings» and «equality of arms». That being said, some of the Court’s approaches to the personal examination of «witnesses» under Article 6 § 3 (d) are no doubt relevant in the context of examination of expert evidence and may be applied mutatis mutandis, with due regard to the difference in their status and role (see v. Austria, 6 May 1985, § 29, Series A No. 92, with further references).
- It is primarily for the national courts to decide whether a particular piece of evidence is formally admissible (see Garcia Ruiz v. Spain [GC] No. 30544/96, ECHR 1999-I, § 28). Similarly, under Article 6 it is normally not the Court’s role to determine whether a particular expert report available to the domestic judge was reliable or not (see Khodorkovskiy and Lebedev, cited above, § 700). Subject to some exceptions, the general rule is that the domestic judge has a wide discretion in choosing amongst conflicting expert opinions and picking one which he or she deems consistent and credible. However, the rules on admissibility of evidence may sometimes run counter to the principles of equality of arms and adversarial proceedings, or affect the fairness of the proceedings otherwise (see, for example, Tamminen v. Finland, No. 40847/98, §§ 40 — 41, 15 June 2004). In the context of expert evidence, the rules on its admissibility must not deprive the defence of the opportunity to challenge it effectively, in particular by introducing or obtaining alternative opinions and reports. In certain circumstances the refusal to allow an alternative expert examination of material evidence may be regarded as a breach of Article 6 § 1 (see Stoimenov v. the former Yugoslav Republic of Macedonia, No. 17995/02, §§ 38 et seq., 5 April 2007).
(b) Application to the present case
- Turning to the present case, the Court notes that the second judgment, that is, the judgment of the District Court whereby the applicant was found guilty, referred to several expert reports, namely, the report of 27 July 2003 (No. 1170), the report of 19 November 2003 (No. 197), the report of 9 April 2004 (No. 36), and the second report by Dr Iv. of 1 April 2005. In its conclusions the court also relied on the records of Dr Ig.’s questioning by the investigator.
- In addition, it relied on the oral testimony of experts Mr Ch. and Ms N., as well as on the medical history of Ms S.D.
- Expert evidence submitted by the prosecution to the court sought to address the two key questions of the case, namely (1) whether Ms S.D. suffered any physical or mental harm as a result of her participation in the programmes of the association, and (2) whether those programmes were «medical» in nature. Report No. 1170 of 25 July 2003 was supposed to address the first question; reports Nos. 197 and 36 (of 19 November 2003 and 9 April 2004 accordingly) concerned both aspects of the case. Other reports obtained by the investigator mostly covered question No. 2.
(i) How expert evidence concerning Ms S.D.’s mental condition was obtained
- The Court observes that all expert reports relied on in the judgment had been obtained by the investigator at the stage of pre-trial investigation. Where an investigator orders an expert examination, Article 198 of the CCrP confers on the defence a right to participate in its preparation by suggesting experts and putting questions to them, and so on. The fact that the defence may play certain role in the preparation of the report at this early stage constitutes an important procedural safeguard (see paragraph 120 above). However, that option was not available to the defence, since expert opinions had been obtained before the applicant was given the status of a defendant in those proceedings (see 19 and 34 above). By the time the applicant had formally acquired the status of defendant the investigator had already obtained several expert reports — namely, reports Nos. 1170, 197, and 36, referred to in the final judgment, plus two reports which were not mentioned in the judgment: the report of Dr A. (of 5 May 2004) and the first report of Dr Iv. (of 23 November 2004).
- The Court observes that the defence tried to obtain an additional expert examination of the victim (see paragraph 48 above). However, in this occasion the investigator replied, in a summary manner, that there was no need for further examinations.
- In sum, when the trial started the court had before it only expert reports obtained by the prosecution without any participation of the defence. As such, this is not contrary to the Convention, provided that in the trial proceedings the defence had sufficient procedural tools to examine that evidence and effectively challenge it before the court.
(ii) How expert evidence concerning Ms S.D.’s mental condition was examined at the trial.
Inability of the defence to question a key expert for the prosecution
- The Court reiterates that Ms S.D.’s mental health was examined in report No. 1170. It was the only report based on a personal examination of the alleged victim, all subsequent examinations being based on the documents of the file only. Therefore, the evidentiary value of report No. 1170 was particularly high.
- The Court accepts that the defence had sufficient knowledge of the content of the report and was able, therefore, to criticise its conclusions at the trial. However, the rights of the defence did not stop there. It is the Court’s well-established case-law that the defence must have the right to study and challenge not only an expert report as such, but also the credibility of those who prepared it, by direct questioning (see, amongst other authorities, Brandstetter v. Austria, 28 August 1991, § 42, Series A No. 211; Doorson v. the Netherlands, 26 March 1996, §§ 81 — 82, Reports of Judgments and Decisions 1996-II; and Mirilashvili v. Russia, No. 6293/04, § 158, 11 December 2008).
- Report No. 1170 was prepared by three experts. One of them, namely, Dr Gul., never testified before the court, for reasons which remain unknown. Another member of the expert team, Dr N., did testify in person before Judge M. However, as follows from his oral testimony at the trial, he believed that the expert team had had incomplete information about the character and medical history of Ms S.D., and that the conclusions of report No. 1170 had been based on assumption. At the second trial she expressed the opinion that another psychiatric examination of Ms S.D. was needed to fill the lacunas in the original report (see paragraphs 60 and 93 above). The Court concludes that the oral testimony of Dr N. did not provide sufficient support for the prosecution case and even went in the opposite direction.
- In these circumstances it was of crucial importance for the defence to hear in person Dr Ig. — the only expert who, while being questioned by the investigator, firmly asserted that, in her opinion, there had been a direct causal link between the mental disorder of Ms S.D. and her participation in the programmes of the association (see paragraph 61 above). In addition, the Court stresses that Dr Ig. acted as rapporteur in the expert team which prepared report No. 1170. Therefore, questioning her in person was important for the interpretation of the conclusions of that report.
- The Court observes that Dr Ig. did not appear before the court in the second round of the proceedings (see paragraphs 61 and 89 above). As follows from the trial record, the defence insisted that Dr Ig. be questioned in person; however, for reasons which are unclear from the trial record, the courts considered that «impossible». In the absence of further explanations from the Government on this point, and in view of the brevity of the entry in the trial record, the Court concludes that Judge M. failed to verify what the reason for the absence of Dr Ig. was, and whether it was possible to secure her attendance and questioning. The Court further notes that Dr Ig. was not questioned in the first round of the trial proceedings either. This was explained by the fact that she was about to move to another country (see paragraph 61 above). However, Dr Ig. was available for cross-examination at least until 29 March 2007. When the court decided to read out her previous statement (on 27 March 2007) she was still in the country. Thus, it had been possible to examine that witness at the first trial, but the authorities missed that opportunity. Finally, the Court observes that the defence was not able to question Dr Ig. at the stage of the preliminary investigation — again, for reasons which remain unknown.
- In these circumstances the Court considers that the absence of Dr Ig. from the trial proceedings constituted a serious handicap for the defence.
Inability of the defence to obtain new expert examination of Ms S.D. through the court
- The Court observes that cross-examination of experts at the trial was not the only tool available to the defence for challenging report No. 1170. Another course of action open to the defence was to obtain a new expert examination of Ms S.D. through the court. The defence made such an attempt on 7 December 2009 (see paragraphs 95 et seq.). In support of their request they referred to the opinions of Dr N. and Dr Ch., who had testified before the court earlier on that day and who had suggested that another psychiatric examination of the alleged victim would be advisable (see paragraph 93 above). However, the court refused to order a new expert examination.
- The Court accepts that where the defence asks the court to have a certain issue or item re-examined by an expert, or where the defence tries to introduce a second opinion on certain matters, it remains primarily for the national court to judge whether it would serve any useful purpose (see H. v. France, 24 October 1989, §§ 60 — 61, Series A No. 162-A). On the other hand, the Court retains supervisory power in this field: in exceptional circumstances the need to obtain a second expert opinion on an important aspect of the case may be self-evident and the failure of the court to obtain expert evidence sought by the defence may make the trial unfair (see, for example, G.B. v. France, No. 44069/98, § 69, ECHR 2001-X).
- The Court considers that in the circumstances of the present case, where the defence had not participated in the preparation of the original expert report, where the key expert for the prosecution had never been questioned by the defence (in an open court or otherwise), and where two other experts in the field who had testified orally had recommended a further psychiatric examination of Ms S.D., the domestic court’s refusal to order such an examination is questionable. This conclusion is strengthened by the fact that in the first round of the domestic proceedings, which ended with the applicant’s acquittal, the court refused to consider the impugned report which was used against the applicant in the second round of the proceedings. Even though the judge in the second trial was not bound by the decision of his predecessor, the unqualified reliance on that report in the second trial, without additional verification recommended by two experts, appears unjustified.
Inability of the defence to introduce a second opinion by their own experts
- Finally, the Court observes that the defence had yet another option to counter the findings of report No. 1170, namely, to introduce an opinion by their own experts (as opposed to experts chosen by the prosecution or by the court).
- The Court observes that in 2006 the defence requested an expert opinion from the IAPR and submitted it to the court as a «written opinion by specialists» (see paragraph 51 above). The report by the IAPR criticised the conclusions of report No. 1170 and was therefore relevant to the question of whether Ms S.D.’s mental disorder had been caused by her participation in the programme of the association. However, the district court refused to consider the opinion of the IAPR (see paragraph 103) on the ground that it had allegedly been obtained in breach of Articles 58, 251 and 270 of the Code of Criminal Proceedings. The court explained that under the law «a party cannot, on its own initiative and outside of the court proceedings, solicit and obtain the opinion of a specialist».
- In this regard the Court agrees with the Government that the «equality of arms» principle enshrined in Article 6 § 1 does not require that the defence should have exactly the same powers as the prosecution when it comes to collecting evidence. The ways in which the defence and the prosecution may participate in the collection of evidence are often different (see Mirilashvili v. Russia, cited above, § 225). However, what is important is that those differences do not place the defence at a net disadvantage the prosecution. The rules on taking evidence and producing it at the trial should not make it impossible for the defence to exercise the rights guaranteed by Article 6 of the Convention. In Khodorkovskiy and Lebedev v. Russia (No. 2), cited above, § 731, the Court stressed as follows:
«[I]t may be hard to challenge a report by an expert without the assistance of another expert in the relevant field. Thus, the mere right of the defence to ask the court to commission another expert examination does not suffice. To realise that right effectively the defence must have the same opportunity to introduce their own «expert evidence».»
- The Court observes that under the Russian law the defence does not have the same rights as the prosecution insofar as obtaining expert opinions is concerned. A proper «expert examination» may be obtained either through an investigator (who is the main procedural opponent of the defence) or through the court (see Article 57 of the CCrP, summarised in paragraph 111 above). The defence only has the right to ask for an expert examination and to suggest experts and questions to them (see paragraph 120 above). The power to order an expert examination, to choose the experts, to provide them with the authentic materials and physical evidence, and to formulate questions belongs to the investigator or to the judge. As is demonstrated by the facts of the present case, the prosecution or the court may dismiss a request for further expert examination of a person or an item without much explanation, because, in their view, the case is clear as it is (see, in particular, the answer of the investigator to such a request quoted in paragraph 36 above).
- Alternatively, the defence have the right to seek the assistance of «specialists» (see paragraphs 121 and 122 above). However, it is clear that the status of a «specialist» in Russian law is different from that of an «expert». Although a specialist may «explain to the parties and to the court matters which come within his or her professional competence», his primary role is to assist the court and the parties in carrying out investigative actions which require special skills or knowledge. The difference between the «expert» stricto sensu and the «specialist» is well illustrated by Decree No. 28 of the Supreme Court, summarised in paragraphs 125 et seq. above. Although that Decree was adopted several months after the end of the applicant’s trial, it interpreted the same legal provision which had been applied in the applicant’s case and reflects how the Supreme Court understood the status of «specialists» under the CCrP. Thus, the opinion of a «specialist» cannot replace a full-scale examination of the matter by an expert (see point 1 of the Decree). The specialist cannot examine physical evidence directly; he may only give an «opinion», whereas the expert delivers «conclusions» (see point 20 of the Decree). Where an examination of a complex technical or scientific matter is needed, the court must appoint an «expert», not a «specialist». In sum, although opinions by «specialists» and «experts» can be used in evidence, and both may be professionals in a particular field, the role of a specialist and the weight of his opinion is not, in the opinion of the Supreme Court, identical to that of an «expert».
- Finally, even assuming that an «expert report» produced by the prosecution can be counter-balanced by the opinion of a «specialist», it is unclear whether the defence, in the circumstances of the present case, was capable of introducing such evidence in the proceedings. As to the oral examination of the «specialists», the Court notes that the IAPR was a Moscow-based expert institution, whereas the trial took place in Khabarovsk, over six thousand kilometres away. Therefore, it would have been difficult and onerous for the defence to ensure the personal attendance of their «specialists» at the trial. In addition, a specialist must appear at the request of the investigator or the court (see paragraph 114 above), whereas he has no such obligation where the defence seeks his questioning.
- The remaining option was to introduce the written report by the IAPR in order to challenge the «expert reports» produced by the prosecution. However, the trial court refused to accept the report by the IAPR on the ground that it had allegedly been obtained in breach of the applicable procedural rules. In support of that conclusion Judge M. referred to three provisions of the CCrP: Articles 58, 251 and 270 (see paragraph 103 above). Judge M. did not explain how those provisions had been breached. The Court, for its part, does not see why they should have prevented the court from adding the written opinion of the IAPR to the case file. Thus, Article 58 does not prohibit the defence from seeking and obtaining written opinions by «specialists», at least not in explicit terms. Articles 251 and 270 are not directly applicable since they concern the questioning of a specialist in person, and not the examination of his written opinion.
- On the other hand, the Court notes that Judge M. held that «a party cannot, on its own initiative and outside of the court hearing, solicit and obtain an opinion of a specialist». Indeed, Article 53 § 3 of the CCrP refers to Article 58, which, in turn, refers to Articles 168 and 270 of the CCrP, which regulate the participation of specialists at the request of the prosecution or the court. It is difficult to see how Article 58 of the CCrP can be reconciled with its Articles 53 § 3 and 86 and with section 6 § 3 (4) of the Advocacy Act of 2002 (see paragraphs 122 and 123 above), which provide that the defence may engage the services of a specialist within criminal proceedings. Be that as it may, it is not the Court’s task to explain how the domestic law should be read in abstracto. It appears that Judge M. interpreted the CCrP as prohibiting the defence from obtaining written opinions of specialists otherwise than through the prosecution or the court. Thus, the defence was unable to obtain and produce written opinions by «specialists» to challenge the written opinions of the «experts» collected and presented by the prosecution.