Постановление ЕСПЧ от 27.03.2014 «Дело «Матыцина (Matytsina) против Российской Федерации» (жалоба N 58428/10) Часть 8

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Overall assessment of the handling of expert evidence on the effects of the programme on the mental condition of Ms S.D.

  1. The Court stresses that the distinction between the procedural status of a «specialist» and an «expert» in the Russian law would not lead to a violation of Article 6 § 1 automatically in all cases. Moreover, as a matter of principle it is legitimate for the national legislator to set certain rules on how the defence may collect and introduce their own expert evidence at the trial.
  2. However, in the present case this distinction, in combination with other handicaps which the defence experienced throughout the proceedings in connection with expert evidence, put it at a net disadvantage the prosecution. The Court reiterates that expert evidence, and in particular report No. 1170, played a central role in the case of the prosecution. The key expert for the prosecution, Dr. Ig., was never questioned by the defence. The defence did not participate in the process of obtaining expert reports at the investigation stage. The prosecutor and the court refused, in a summary manner, to conduct additional examinations, contrary to the opinion of two professionals examined at the trial and to the position of the court in the first round of the proceedings. And, lastly, the defence had virtually no possibility of challenging those reports with their own counter-evidence. The defence could only seek the assistance of «specialists», whose status was lower than that of «experts», and, in addition, the defence was not allowed to introduce written opinions by «specialists» at the trial, whereas the prosecution and the court relied on the written opinions of the «experts» collected by the investigator at the pre-trial investigation stage.
  3. The Court concludes that, in so far as the handling of expert evidence concerning the mental condition of Ms S.D. was concerned, the defence was in a such a disadvantageous position the prosecution that it cannot be reconciled with the requirements of the principle of equality of arms under Article 6 § 1 of the Convention.

(iii) Handling of expert evidence concerning the «medical» nature of the programmes of the association

  1. The Court will now turn to the expert evidence which addressed the second question in the present case, namely, whether or not the activities of the association were «medical» in nature.
  2. The Court notes that the handling of that group of expert evidence was tainted with the some of the defects examined above. Thus, the first four examinations of the programmes of the association (reports Nos. 197, No. 36, the first report by Dr Iv., and the report of Dr A.) were conducted without the involvement or even knowledge of the defence. That being said, the defence was in a somehow better situation as regards the second group of evidence, and that is for the following reasons.
  3. First, the Court notes that the defence was informed about the last expert examination by Dr Iv., which resulted in the report of 1 April 2005 (see paragraph 37 above). The defence was therefore able to exercise its rights provided by Article 198 of the CCrP. Even though respect for those rights depended on the investigator, the defence might have at least tried asking the investigator to put additional questions to the expert or appoint another expert.
  4. Second, the Court observes that in the second round of the proceedings judge M. heard oral evidence from only one of the four experts who had participated in the preparation of reports Nos. 197 and 36, relied on in the judgment. Furthermore, Dr Iv., who prepared the expert report of 1 April 2005, was not examined in person. However, from the materials of the case it is unclear whether the defence solicited the examination of the absent experts in person (cf. to the situation pertaining to Dr Ig., the rapporteur of the group who had prepared report No. 1170, whose presence was sought by the defence). In the circumstances, it appears that their presence was not regarded by the defence as necessary.

Inability of the defence to introduce a second opinion by their own experts

  1. Still, the Court is not persuaded that the principle of equality of arms has been respected in relation to the second group of expert evidence. Thus, the defence was unable to challenge the conclusions of Dr Iv. by submitting an alternative report by Prof. Z. (which defined the notion of «medical activities» and thus related to question No. 2). The court refused to admit his report in evidence for the very same reason it did not accept the report by the IAPR (see paragraphs 49 and 103 above). Thus, the defence did not have an option of an «active defence»: they were unable to introduce written opinions of their own «specialists» and, in any event, any opinion of a «specialist» would be of a lesser weight than that of the «expert».

Exclusion by the court of the testimony of Dr A.

  1. Lastly, what is particular about the second group of expert evidence is how the prosecution and the courts dealt with the expert opinion by Dr A. (see paragraph 29 above). The Court observes that the expert opinion of Dr A. was obtained at the pre-trial investigation stage on the initiative of the investigator. The report by Dr A. was clearly favourable to the defence. However, there is no reference to that expert report in either of the two judgments rendered in the present case. It appears that either the report of Dr A. was never produced in court, or it was produced but the courts disregarded it. The Court considers that in either scenario the authorities breached the fundamental principles of a fair trial. The Court’s case-law states that the prosecution must disclose to the defence «all material evidence in their possession for or against the accused» (see, amongst many other authorities, Edwards v. the United Kingdom, 16 December 1992, § 36, Series A No. 247-B). Certain exceptions to that rule are permissible, but the Government did not refer to them. A fortiori, the rule of disclosure of exculpatory evidence requires the prosecution to submit such evidence to the court for consideration. However, that rule would make no sense if the courts were allowed to leave such evidence without any consideration and not even mention it in their judgments.
  2. The Court further observes that the defence tried to introduce the expert opinion of Dr A. in another form: thus, at the first trial (which ended with the applicant’s acquittal) he was questioned as a «specialist». However, in subsequent proceedings the oral submissions of Dr A. were excluded from the body of evidence on the ground that Dr A. had already participated in the trial in the capacity of an «expert» (see paragraph 104 above).
  3. The exclusionary rule applied by the domestic courts in the circumstances meant that by employing a person as an «expert», the prosecution were capable of neutralising him as a prospective «specialist» for the defence. And if the prosecution did not like the opinion of their «expert», they were free not to refer to it at the trial. As a result, Dr A.’s opinion was excluded from examination at the trial, in any form, and that was to the detriment of the defence.
  4. The exclusion of Dr A.’s opinion from the body of evidence appears especially inopportune in the light of the courts’ inconsistent approach to expert evidence. The Court notes that Judge Z., who received the case from the court of appeal, considered that a new expert examination of the question concerning the «medical» nature of the activities of the association was necessary (see paragraph 82). However, Judge M., who stepped into the proceedings after the withdrawal of Judge Z., proceeded without having obtained the report requested earlier by Judge M. (see paragraphs 83 et seq.).
  5. Again, the Court is not well placed to indicate to the national judge the best course of action. Judge M. had several options: for example, he could have obtained a fresh expert examination of the matter, could have allowed the defence to submit a written opinion by one of their «specialists», or could have examined Dr A.’s written report or his oral submissions. Instead, Judge M. contented himself with relying on the same written opinions by the prosecution’s experts which had earlier been rejected by another judge as inadmissible, unreliable and inconclusive, that is, without any meaningful verification of their credibility.
  6. In sum, the Court concludes that, insofar as the handling of expert evidence concerning the nature of the activities of the association was concerned, the defence was placed in a disadvantageous position the prosecution and the proceedings were not truly adversarial. That situation is contrary to the requirements of Article 6 § 1 of the Convention.

(c) Summary of the Court’s conclusions under Article 6 of the Convention

  1. The Court is mindful of the fact that Judge M. heard a number of witnesses for the defence, examined several expert opinions and studied various documents. However, the question of whether or not the defence enjoyed «equality of arms» with the prosecution and whether the trial was «adversarial» cannot be addressed solely in quantitative terms. In the present case it was very difficult for the defence to effectively challenge the expert evidence submitted to the court by the prosecution. The Court stresses that the case against the applicant was built upon that expert evidence. In those circumstances, the way in which expert evidence was handled made the applicant’s trial unfair. Therefore, the Court does not need to address the other procedural violations alleged by the applicant.
  2. On the strength of the above the Court concludes that there has been a violation of Article 6 § 1 of the Convention.


  1. Alleged violation of Article 7 of the Convention


  1. The applicant complained that her conviction had been unforeseeable and had been based on legal acts adopted after the events at the heart of the case. She relied on Article 7 of the Convention, which reads as follows:

«1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

  1. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.»
  2. The Government contested that argument. They claimed that criminal liability for illegal medical practice was established in the Criminal Code with sufficient clarity. The domestic courts, in convicting the applicant, had relied on provisions of Russian legislation on public health which pre-existed the events which led to the applicant’s conviction.
  3. The applicant maintained her complaints.
  4. The Government did not put forward any formal objection 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.
  5. Turning to the merits, the Court considers that in order to decide whether or not the acts imputed to the applicant could be characterized as «illegal medical practice» — a crime punishable under Article 235 of the Criminal Code — the courts needed to address certain questions of fact, in particular those related to the nature of the activities of the association in the light of the applicable legal norms. As demonstrated above, the procedure in which the court examined those questions, which required the help of the professionals in this field, was deficient. The applicant’s conviction was therefore unsafe. In these circumstances, and in view of its findings under Article 6, the Court considers that it is not necessary to examine separately whether there has been a violation of Article 7 of the Convention on account of the applicant’s conviction.


III. Application of Article 41 of the Convention


  1. Article 41 of the Convention provides:

«If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.»


  1. Damage


  1. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.
  2. The Government claimed that a finding of a violation would constitute sufficient just satisfaction «since, in such case, the applicant’s sentence would be quashed pursuant to the procedure established by the Criminal Procedure Code of the Russian Federation within the Court’s judgment execution proceedings».
  3. The Court considers that the re-opening of the case would be the most appropriate measure to restore the applicant’s rights under Article 6 of the Convention and notes that this possibility is available to the applicant under the domestic law. However, it does not consider that a re-opening constitutes, by itself, sufficient compensation in the circumstances, given the duration of the criminal proceedings and the seriousness of the procedural violations found in the present case. On the other hand, the Court considers that the amount sought by the applicant is excessive. In light of the materials in its possession and on an equitable basis the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be charged on this amount.


  1. Costs and expenses


  1. The applicant also claimed 500,000 Russian roubles (RUB; approximately EUR 11,350) for legal costs incurred before the Court. She submitted to the Court an agreement between her and her lawyer, Ms Karpova, dated 1 August 2010, which stipulated that a part of that amount (RUB 90,000) was payable within six months after the communication of the case to the Government, whereas the remaining amount was payable within two years after the Court’s decision on admissibility. Under that agreement the applicant also had to cover the lawyer’s travel expenses, postal expenses and translation costs separately. The applicant produced payment slips confirming receipt of RUB 90,000 by her lawyer and RUB 12,500 by her translator. She also submitted a calculation of the travel expenses of her lawyer covering a three-day trip from Khabarovsk to Strasbourg.
  2. The Government claimed that the applicants failed to produce documents showing that the amounts claimed had been incurred. As to the costs related to the applicant’s lawyer’s trip to Strasbourg, those costs had not «actually and necessarily» been incurred.
  3. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court rejects the claim for travel expenses, as the lawyer’s trip to Strasbourg was not necessary. Furthermore, the Court observes that the applicant’s lawyer did not indicate her hourly/daily rate and did not produce a detailed description of the work done in this case and the time spent on it. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads plus any tax that may be chargeable to the applicant on that amount.


  1. Default interest


  1. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.




  1. Declares, unanimously, the application admissible;
  2. Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention on account of unfair handling of expert evidence in the proceedings;
  3. Holds, by six votes to one, that there has been no violation of Article 6 § 3 (d) of the Convention on account of absence of Ms S.D. from the trial;
  4. Holds, by five votes to two, that there is no need to examine the complaint under Article 7 of the Convention;
  5. Holds, unanimously,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the Russian roubles at the rate applicable at the date of settlement:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.


Done in English, and notified in writing on 27 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


Deputy Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) Joint partly dissenting opinion of Judges Pinto de Albuquerque and ;

(b) Partly dissenting opinion of Judge Pinto de Albuquerque.





  1. We regret that the majority did not deal with the most important substantive issues of the Matytsina case, namely the unforeseeable and retroactive application of a blanket criminal provision and the waiver of the statute of limitations in criminal law. The novelty and gravity of these two issues should have merited the attention of the Chamber.


The deficient application of a blanket criminal provision


  1. The applicant was convicted of the criminal offence of quackery provided for in Article 235 («Engaging in Illegal Private Medical Practice or Private Pharmaceutical Activity») of the Russian Criminal Code and sentenced to two years’ imprisonment. She did not serve the sentence since the prosecution was time-barred. The facts of the case occurred during a period of three months, from April 2002 to June 2002.
  2. The legal framework at the material time was extremely confusing, so confusing that seventeen experts engaged during the domestic proceedings could not agree whether the practices imputed to the association constituted «medical services,» «scientific medicine» or «folk medicine» or something else. In fact, the following reports were produced before the domestic authorities: (1) report No. 1170 of 25 July 2003, which concluded that the alleged victim had developed an «acute schizoid psychotic disorder» related to the alleged victim’s participation in the programmes of the association, without expressing a view on the nature of these programmes; (2) report No. 197, of 19 November 2003, based on written material in the file, which did not answer the question as to whether the techniques of the association were medical; (3) report No. 36, of 9 April 2004, based on written material in the file, which did not give an answer to that question either; (4) the opinion of 22 April 2004, which considered that techniques used by the association such as relaxation and yoga postures, did not require licensing; (5) the report of 5 May 2004, which concluded that the techniques of the association were not «medical»; (6) the report of 16 December 2004, which did not express an opinion on the nature of the association’s practice; (7) the report of 17 January 2006, which criticised the methods of report No. 1170 of 25 July 2003; and finally, (8) the report of 1 July 2007, which concluded that the association’s activities were not «medical» and that no clear link could be established between the alleged victim’s mental condition and the association’s programmes.
  3. Even more strange is the fact that only one expert, Dr Iv., affirmed that the association’s activities could be characterised as «folk medicine», which required a licence, and that the activities of the association were medical in nature. She stated this opinion in her two reports of 23 November 2004 and 1 April 2005, but never appeared in court to be questioned and cross-examined as to her conclusions. Moreover, she expressed her opinion only on the basis of written material, without ever examining the alleged victim or questioning the defendant. Worse still, her opinion referred to various laws and regulations which entered into force after the relevant events, such as the decree of the Ministry of Public Health No. 238 of 26 July 2002, and the Minister of Public Health’s directive of 14 November 2003.
  4. It is indeed incomprehensible that the domestic courts accepted this sole expert’s opinion as convincing evidence and found the respondent guilty as charged. The total unpredictability of the domestic courts’ interpretation of the legal framework is compounded by the fact that the most important commentaries on the Russian Criminal Code do not refer to any previous cases regarding the application of its Article 235.
  5. Above all, the case raises an issue of principle. The criminal provision of Article 235 of the Russian Criminal Code is a blanket legal norm, which makes the punishability of the criminal offence of quackery dependent on non-criminal laws and regulations. In the case at hand, both the experts and the courts referred to several administrative laws and regulations that allegedly defined and circumscribed «medical practice». While the compatibility of blanket criminal provisions with the principle of legality (nullum crimen sine lege praevia, certa et stricta) has been a subject of heated discussions, it is nonetheless generally accepted that these provisions are, in principle, necessary in certain fields of criminal law, namely where complex technical details of the constitutive elements of the offence are provided for by other non-criminal laws and regulations. {Thus, the blanket criminal provision is applied in conjunction with the supplementing non-criminal provisions. In any case, these non-criminal laws and regulations which supplement the constitutive elements of the offence missing in the blanket criminal provision must themselves comply with the requirements of the principle of legality. An individual must know from the wording of the criminal provision, interpreted in conjunction with the relevant non-criminal provisions and, if need be, with the assistance of a third person’s legal expertise, what acts and omissions will make him or her criminally liable and what penalty will be imposed for his or her acts or omissions <*>. Thus, the non-criminal laws and regulations which supplement the blanket criminal provision must comply with the requirements of lex praevia, certa et stricta.}<**> Otherwise the State could punish conduct that no one could have foreseen as criminal at the material time.


<*> In the Court’s case-law, see Cantoni v. France, 15 November 1996, §§ 29 — 32, Reports 1996-V; Radio France and Others v. France, No. 53984/00, §§ 18 — 20, 30 March 2004; Liivik v. Estonia, § 101 — 104, 25 June 2009; Soros v. France, No. 50425/06, §§ 55 — 62, 6 October 2011; and Khodorkovskiy and Lebedev v. Russia, Nos. 11082/06 and 13772/05, §§ 791 — 815, 25 July 2013; and in the European Court of Justice’s case-law, see Koenecke, case 117/83, 25 September 1984, and Vandemoortele NV, case C-172/89, 12 December 1990.

<**> В тексте документа вместо подчеркивания использовано выделение фигурными скобками.


  1. That was exactly the case here. The administrative laws and regulations that were supposed to supplement Article 235 of the Russian Criminal Code lacked clarity. In fact, a careful analysis of the legal framework at the time of the facts (i.e., from April 2002 to June 2002) shows that no law, regulation or directive provided for a clear definition of the legal concepts of «medical practice», «scientific medicine», «scientific medical procedure» or «folk medicine» for the purposes of the criminal-law provision of Article 235 of the Russian Criminal Code. The laws and regulations in force at the material time only governed the administrative organisation of several health services, without any concrete and detailed reference being made to the specific characteristics of the acts and practices performed within the fields of «scientific medicine» and «folk medicine».
  2. Admittedly, in the area of regulation under consideration it may be difficult to couch laws with absolute precision and a certain degree of flexibility may be called for to enable courts to follow scientific developments. Indeed, there is an inevitable element of judicial interpretation of every legal norm, however clearly drafted it may be, but in its interpretation courts may not go beyond what could reasonably have been foreseen in the circumstances <*>. Nonetheless, in the present case, owing to the vagueness of the administrative regulatory framework of «health services», it was not foreseeable at the material time that the unlicensed practices of the association would constitute a criminal offence. From the wording of the relevant administrative provisions, read in conjunction with the Criminal Code, the defendant could not have known, even with the assistance of expert interpretation, as testified by the conflicting expert’s reports, that the unlicensed association’s practices would make her criminally liable <**>.


<*> For example, Baskaya and Okcuoglu v. Turkey, Nos. 23536/94 et al., §§ 39 — 40, 8 July 1999.

<**> See mutatis mutandis, Baskaya and Okcuoglu, cited above, § 36.


  1. Moreover, although it is in the first place for the national authorities to interpret and apply national law, in the present case the wide and overreaching judicial interpretation of the administrative provisions was not even consistent with the essence of the criminal offence of «Engaging in Illegal Private Medical Practice» <*>. The administrative law provisions were arbitrarily construed by the second trial court to the defendant’s detriment, since it labelled practices like yoga, breathing techniques, mantra singing, meditation, aromatherapy and other similar practices as «medical services».


<*> See mutatis mutandis, CR v. the United Kingdom, No. 2190/92, § 37, 22 November 1995, and Kafkaris v. Greece, No. 21906/04, § 141, 12 February 2008.


  1. In addition, some of the administrative laws, regulations and directives mentioned by the expert Dr Iv. and the domestic courts entered into force only after the material time, thus representing an inadmissible retroactive application of the blanket criminal provision. As the Tsentralny District Court of Khabarovsk rightly pointed out in its decision of 23 July 2007, the expert opinion of Dr Iv. was based on legislation which had entered into force after the events imputed to the applicant. The same happened with other expert’s reports, which also relied on the same ex post facto provisions in coming to their, albeit opposite, conclusions.
  2. The obvious conclusion is that the administrative provisions existing at the material time were not sufficient to supplement the constitutive elements of the offence, and the second trial court had to refer to ex post facto administrative provisions, which were not only applied retroactively, but were in addition themselves prone to conflicting interpretations. In short, by labelling the practices of the association and the defendant as «medical services» requiring licensing, the courts extended the scope of the existing criminal offence of the Russian Criminal Code to acts which previously had not been criminal offences. For the reasons stated above, the applicant could not reasonably have foreseen that her acts would constitute the criminal offence of «Engaging in Illegal Private Medical Practice or Private Pharmaceutical Activity» under the Criminal Code as supplemented by the administrative provisions in force at the material time <*>. Thus, the finding reached by the first-instance court in its judgment of 27 July 2007 was entirely correct: there was simply no legal basis for the applicant’s conviction.


<*> See, mutatis mutandis, Liivik v. Estonia, cited above, §§ 100 — 104.


The waiver of the statute of limitations in criminal law


  1. To aggravate the lack of clarity of the criminal law framework, the prosecution was time-barred but the applicant was nevertheless convicted and sentenced. Article 27 § 2 of the Russian Code of Criminal Procedure provides that, if the defendant objects to the termination of the proceedings owing to the expiry of the statutory time-limits set out in Article 24 §§ 1 — 3 of the Code of Criminal Procedure, the proceedings must continue and the court must decide the case on the merits. The legal interpretation of Article 27 § 2, of the Code of Criminal Procedure is unclear as to whether the courts may impose a criminal sentence, besides finding the person guilty. The most important commentaries on the Code of Criminal Procedure are not unanimous on this point: if the person is found guilty of the prescribed offence, some commentators say that courts cannot in any case impose any penalties on the convicted person, whereas others say that the judge has a choice to impose or not to impose a sentence, thereby granting judges unlimited discretion, which is unacceptable under the principle of legality. The case-law in this respect is not uniform either. Owing to the lack of clarity in the law and the unfettered discretion granted to judges in applying such law, the applicant did not have an advance fair warning, as required by the principle of legality, as to what consequences the waiver of the statute of limitations would entail for her and it was thus impossible for her to make a proper informed decision related to a waiver of her right. Although she might have had some understanding of the risk she was taking by waiving the statute of limitations, the degree of risk was completely unforeseeable. The principles of advance notice and limitation of official discretion, as embodied in the principle of legality guaranteed under Article 7 § 1, of the Convention, should be considered the minimum requirement for the rule of law to be upheld.
  2. Moreover, the solution set out in Article 27 § 2 of the Russian Code of Criminal Procedure is in itself censurable from a human rights perspective. The waiver by the defendant of his or her legal right to terminate time-barred criminal proceedings is a voluntary submission to a trial court, which can take place at any time in the future, regardless of the applicable law on the statute of limitations. The practical result is that any person may agree to be tried, and ultimately punished, for any crime, even minor offences, committed a long time ago, where criminal prosecution and conviction no longer serve any legitimate purpose, no penological needs justify punishment and the evidence may have already vanished. In our view, such a waiver is per se incompatible with the Convention, since it defeats both the remedial purpose and the mixed — both substantive and procedural — nature of the statute of limitations.
  3. The statute of limitations consists in the extinction of an offence which deprives the State of jurisdiction to prosecute, try, convict and sentence the alleged offender. Statutes of limitation in criminal law are not only designed to bar prosecutions based on facts that have become obscured by the passage of time, but also specify a time-limit beyond which an irrebuttable presumption arises that no further danger to society results from the criminal act and a defendant’s right to a fair trial would be prejudiced. Hence, its assessment is a substantive prerequisite of the State’s right to prosecute offenders and punish criminal conduct. This prerequisite goes to the heart of the State’s sovereign power to punish and thus relates to the substance of the case, not merely its admissibility.
  4. The Court’s initial approach to the issue of the nature of the statute of limitations was hesitant. In and Others v. Belgium <*>, the question whether Article 7 of the Convention would be breached where a law lengthened a limitation period after it had expired was left open, although the Court did accept the legitimacy of a law that lengthened the limitation period if it entered into force before the limitation period had expired. In Previti v. Italy <**> the Court interpreted this passage of and Others as if it had stated that the statute of limitations had an exclusively procedural nature and was not under the guarantees of Article 7. But this approach was rightly abandoned in K.-H.W. v. Germany [GC] and Kononov v. Latvia [GC] <***>. The Court’s present approach is clear and unambiguous. It can be summed up as follows: the statute of limitations sits alongside, with equal force, the conditions of the existence of a criminal offence and therefore shares the substantive nature of the constituent elements of the offence, with the logical consequence of the full applicability of Article 7, including the prohibition of the retroactive application of criminal laws with harsher statute of limitations provisions to the detriment of the defendant. Thus, {the statute of limitations has, in the light of the Convention, a mixed nature, being both procedural and substantive at the same time}.


<*>  and Others v. Belgium, Nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, §§ 149 — 150, ECHR 2000 VII.

<**> Previti v. Italy (dec.), No. 1845/08, §§ 80 — 85, 12 February 2013.

<***> K.-H.W. v. Germany [GC], No. 37201/97, §§ 107 — 112, 22 March 2001, and Kononov v. Latvia [GC], No. 36376/04, §§ 228 — 233, 17 May 2010.


  1. The aforementioned understanding of the statute of limitations has various legal consequences. {Firstly, courts are empowered, and even obliged, to decide upon the applicability of the statute of limitations of their own motion, in view of the paramount public policy reasons for the enactment of statutes of limitation. Secondly, since the statute of limitations relates to the State’s right to prosecute, try, convict and sentence citizens, the principle of legality fully applies to its regime. The grounds for limitation, suspension or interruption of the effect of the lapse of time, and any exceptions to or extensions of the statute of limitations, are a legislative responsibility, and can neither be determined by courts nor manipulated by the defendant. Thirdly, the statute of limitations cannot be waived: the running of the statute of limitations extinguishes the court’s power to try the case and punish the defendant, and no waiver by the defendant can supply the requisite jurisdiction. In a State governed by the rule of law and human rights, criminal jurisdiction cannot be conferred upon the court by a unilateral act of the defendant. Any punishment for a time-barred act or omission, even when he or she expressed his or her wish to be tried, is not only irrevocably disproportionate, but furthermore contrary to the requirements of the principle of legality. The statute of limitations is not a mere waivable defence, but a substantive guarantee of a rational use of State power to enforce criminal law.}




  1. In sum, we believe that the applicant was not only deprived of her right to contest the expert evidence and was therefore unfairly convicted, but she was also sentenced under an uncertain and retrospective legal framework. Justice would have required laying a stone over this procedure, and not leaving the door open for the continuation of these totally groundless criminal proceedings. Accordingly, we conclude that there has been a flagrant violation of Article 7 of the Convention, and consequently dissent on the decision not to assess this complaint.




  1. In addition to the violation of Article 6 § 1 of the Convention, I find that there has also been a violation of Article 6 § 3 (d) of the European Convention on Human Rights («the Convention») owing to the unfair handling of the testimonial evidence in the criminal proceedings in question. The unfairness of the handling of the expert evidence was compounded by the additional lack of cross-examination of the alleged victim during both the first and the second trial.
  2. The alleged victim was never heard by a court, as her testimony was read out in open court in the first and second trials. Since she informed the court before the second trial that she had already been «reconciled» with the accused persons and even withdrew her complaint, no psychological or physical danger could be feared in the event of her being confronted with the defendant during the court hearing. Whilst the two medical certificates issued on 19 January 2006 and 22 March 2007, stating that her appearance in court was not recommended since it might cause a «relapse», could possibly have justified her absence at the first trial, they could certainly not ground the decision of the court not to call Ms S.D. to testify at the second trial in June 2009, more than two years later, when new relevant information on her state of mind and her relationship with the defendant had been made known to the court. The mention of undetermined sources of information, such as «information received» (paragraph 88) by the trial court is the crowning touch of arbitrariness in a decision already lacking any plausible factual and legal grounds.
  3. Furthermore, the alleged victim’s cross-examination was crucial in view of the fact that the imputed offence referred to a negligent result of harm caused to the victims of illegal private medical practice or private pharmaceutical activity. The trial court had to assess whether the alleged victim had suffered any psychological or physical harm during the material time from April to June 2002 and, if so, whether that harm was caused by the applicant’s practices. Both the criminal harm and the link of causality could and should have been ascertained on the basis of the alleged victim’s direct testimony before the court. Neither the domestic courts nor the sole expert (Dr Iv.), whose report was used by the domestic courts to ground the conviction, ever saw, let alone questioned, the victim or evaluated whether she had suffered any harm caused by the applicant’s practices. Thus, the alleged victim’s testimony was capable of enlightening the court as to essential points of fact which were disputed by the defence.
  4. The decision of the defence not to object to the reading-out of Ms S.D.’s previous testimony in the proceedings conducted before the first trial court cannot be interpreted as an unequivocal waiver of its right to examine her in person. The same applies to the reading-out of the testimony of other witnesses submitted by the prosecution. The irrefutable fact is that, at the hearing before the second trial court on 2 July 2009, the defence objected explicitly to the reading-out of statements from Ms S.D. and from other witnesses for the prosecution that had been obtained during the previous stages of the proceedings. The position of the defence was clear, and moreover justified: they wanted to question the witnesses about the facts of the case in view of the new evidence, such as the history of mental problems among members of the alleged victim’s family, together with the «reconciliation» and the withdrawal of the complaint by the alleged victim. The defence had the right to assess what was in its best interest and its judgment should have been respected by the court for the sake of the fairness of the trial, including the basic right to examine or have examined witnesses for the prosecution. The trial court simply assumed that the defence’s input to the trial was pointless — a form of conduct not much different from the police investigator’s conduct at the investigation stage of the proceedings.
  5. No counter-balancing measures whatsoever were taken by the public prosecutor or the court for the benefit of the defendant when the alleged victim was questioned during the pre-trial stage of the proceedings, in order to allow for some procedural safeguards to ensure the fairness of the proceedings and the reliability of the evidence. For example, the defence lawyer was not allowed to be present at the police questioning of the witness.
  6. The argument that the alleged victim’s testimony was not the sole and decisive evidence against the defendant is not convincing. In addition to the expert opinion of Dr Iv and some documentary evidence, including the medical history of Ms S.D., the charter of incorporation of the association, its brochures and leaflets, the second trial court based its factual findings on the records of the testimony of the alleged victim Ms S.D., given on 24 March 2003 and 22 April 2004, and the testimony of Ms N.D. (the sister of the alleged victim) given on 9 September 2003, all three statements having been taken during the pre-trial investigation by the police, the testimony of Ms Z.D. (the mother of the alleged victim) and Mr E.D. (the brother of the alleged victim) given at the first trial, together with the records of the testimony of Ms E.K., Ms O.L., Ms E.B., Ms I.G. and others, given either to the police investigator during the investigation stage of the proceedings or at the first trial. The whole case against the defendant was based on untested evidence given by the victim, corroborated by one sole expert who had never seen the victim and who was never cross-examined in a court hearing, as well as other witnesses whose testimony was not cross-examined before the second trial court either. In straightforward words, the core of the prosecution’s case was not weak. It simply did not exist. Any court of law would have thrown out the prosecution’s case on the grounds of a lack of reliable evidence. As the first trial court rightly did.
  7. The facts described above call for some reflections of a general nature. The principle of the fair trial and the principle of cross-examination of the evidence require that testimonial evidence be produced before the judge who is responsible for returning the verdict. The assessment of the reliability of that evidence depends on the judge’s immediate perception of it. {The immediacy of the relationship between the judge and the testimony (or the Unmittelbarkeitsprinzip, as the German doctrine calls it) is a constituent element of the adversarial proceedings inherent in the concept of fair trial. Thus, as a matter of principle, the trial court may not base a criminal conviction on testimonial evidence produced prior to the trial, even where the evidence has been produced in a previous trial before the same or other court and its judgment has subsequently been quashed and the case remitted for a fresh trial, and regardless of whether or not the composition of the first and second trial courts is different.} A fortiori, this conclusion applies also to testimonial evidence that was produced at the pre-trial stage of the criminal proceedings. The obvious consequence of this principle is that only exceptionally may the testimonial evidence produced at the pre-trial stage of criminal proceedings or at the trial stage, in the event of remittal for a fresh trial, be considered admissible and used as a ground in the judgment.
  8. In order to comply fully with the principle of a fair trial and the principle of cross-examination of the evidence, there must be an exhaustive legal catalogue of grounds for the reading-out of an absent witness’s testimony in open court, such as death, physical or mental incapability, disappearance, travel abroad and need to protect the life, safety or health of the witness. Furthermore, the catalogue of these grounds must distinguish between the evidence produced before the judge, the public prosecutor or the police. {For the purposes of an adversarial and fair examination of the evidence, the evidence produced before the police or the prosecutor cannot be equated with the evidence produced before the judge at the pre-trial stage. The catalogue of the grounds for reading out the absent witness’s testimony in open court must be more expansive when a judicial authority collects the evidence and less expansive when it is collected by a non-judicial authority.} For the same purposes, when deciding whether the absent witness’s testimony should be read out, courts must take into consideration the presence or absence of the defence lawyer at the witness’s hearing. Experience shows that the intervention of the defence lawyer at a later stage is often too late, and may not suffice to remedy the shortcomings of a previous non-adversarial hearing of the witness. {The catalogue of the grounds for reading out the absent witness’s testimony in open court must be more expansive when the defence lawyer participated, or had the opportunity to participate, in the pre-trial hearing of the witness, and less expansive when he or she did not have such opportunity.}
  9. Accordingly, {the legal standard of the Court, which was set out most recently in Al-Khawaja and Tahery v. the United Kingdom [GC], Nos. 26766/05 and 22228/06, ECHR 2011, must be further refined, based on the joint assessment of the following criteria: (1) the nature of the ground hindering the witness’s presence at the trial hearing; (2) the kind of public authority before which the witness’s prior testimony was given; (3) the presence or absence of the defence lawyer at that specific hearing; (4) the existence of other mechanisms to safeguard the defence’s right to impugn the fairness of the gathering of testimony, the credibility of the witness and the reliability of his or her testimony; (5) the weight of the read-out testimony of the non-cross-examined witness in the trial court’s judgment; and (6) the waiving of the right to cross-examine the absent witness.}

10. To sum up, by repeatedly denying the defence any possibility of challenging the prosecution evidence and subsequently relying on the reading-out of testimonial and expert evidence gathered at the pre-trial stage of the proceedings or during the first trial, in spite of the firm opposition of the defence, the second trial court emptied the principle of cross-examination of any practical meaning and ultimately turned the judgment into a farce, where the defendant’s conviction seemed from the very start of the trial like a self-fulfilling prophecy, confirmed by each new interim decision taken against the interests of the defence and the final predictable conviction of the defendant. No remedy for this blatant unfairness was provided by the appellate court.

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