JOVANOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant , Mr Dimče Jovanov , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the public prosecutor requested an investigating judge of ORG ( “ the trial court ” ) to open investigations against Mr T.A. , PERSON , Mr GPE , Mr PERSON and the applicant on account of having been in possession of weapons and explosives ( недозволено држење на оружје и распрскувачки материјали ) . He also requested that the accused be examined and remanded in custody .

On DATE , the investigating judge examined the accused .

The applicant stated , inter alia :

“ ... DATE , while I was walking through the city , I met with NORP [ the first name of PERSON . , as established in the course of the domestic proceedings , later referred to as Mr R.Dz . ] , an acquaintance of mine , last name and address I do n’t know , who told me that he needed explosives to kill fish . I told him that I knew a person , PERSON , who knew a third person who could provide explosives . NORP suggested me that that person could bring the explosives firstly to the ORG petrol station and then in the village of PERSON ... I hired a taxi and went to meet Mr A.P. ... I told him about the potential buyer , without specifying the quantity and price of the required explosives . It was something for him to agree upon with PERSON accepted ... I called Mr PERSON to ask him , if possible , to come in his car ... I stayed in the village of PERSON in order to meet with NORP whom I met at the petrol station . We stayed there for TIME , until Mr GPE and Mr PERSON arrived . We had a coffee ... when Mr PERSON and Mr PERSON arrived , I got into the car and continued towards PERSON . There , we were stopped by police . They also stopped the car , which NORP had got into at the petrol station , but they let it go on straight away . They searched our car and found the explosives ... ”

Mr PERSON stated , inter alia :

“ ... We ( the applicant and I ) are former schoolmates ... we often see each other ... DATE at TIME [ the applicant ] came to my house in a taxi and told me that he had found a customer for the explosives ... He called Mr PERSON from my phone asking him to come in his car ... [ The applicant ] did not want to come with us to GPE , but said that he would wait at the GPE petrol station where he would meet the buyers ... When we arrived at the petrol station , [ the applicant ] joined us and told us to follow a car ... [ The applicant ] promised me MONEY ( ORG ) as a reward for my part ... ”

Mr PERSON stated , inter alia :

“ ... At CARDINAL am . on DATE , [ the applicant ] came into my shop asking for a favour , namely to transfer him to a place , without specifying where and for what purpose . He left and at TIME . he called me again . I told him to call back in TIME ... [ The applicant ] called me on my mobile phone ... it was TIME when [ the applicant ] called me again . I took my car and went in the village of PERSON . There , [ the applicant ] and .... PERSON waited for me . While he was driving [ the applicant ] said that something had come up , that I would have to leave him in the village of PERSON , but that I would have to take PERSON on to PERSON and that he would pay me for the petrol ... When we arrived at the petrol station , [ the applicant ] was waiting for us in the restaurant alone . He joined us in the car . I immediately started to argue with him , asking why he had not told me about the matter . With a smile on his face he told me : ‘ do n’t worry mate , I ’m with you . I just want to ask for one more favour : to take us with the explosives to PERSON . PERSON and I will go on and you ’ll go back and we ’ll pay for the petrol ... ”

On DATE the public prosecutor filed an indictment with the trial court against Mr T.A. , PERSON , Mr GPE , Mr PERSON and the applicant . The applicant was charged with acting as an accomplice in concert with Mr GPE and Mr PERSON and with obtaining explosives with the intention of selling them to an unknown buyer .

According to depositions taken on DATE in the pre - trial proceedings , the applicant , who was assisted by counsel , confirmed his statement of CARDINAL DATE .

At a hearing of DATE , the trial court examined all the co - accused , including the applicant .

Mr PERSON stated , inter alia :

“ ... [ the applicant ] engaged Mr PERSON [ The applicant ] knew that Mr PERSON and I would buy explosives from PERSON . [ The applicant ] knew who the buyers were , but I did not ... ”

The applicant confirmed his statements given in the pre - trial proceedings . Asked by his representative , he stated that he would not have taken part in any of the activities had it not been for NORP , who had incited him to find explosives . In his concluding remarks , the applicant ’s representative stated that NORP , acting as an agent provocateur , had instigated the offence . He further argued that the prosecution had failed to secure NORP ’s attendance at the trial so that evidence could be taken from him .

On DATE the trial court found the applicant guilty and sentenced him to DATE imprisonment . It established that Mr T.A. had taken explosives in DATE from a mine where he had worked . On TIME of DATE , the applicant had agreed with Mr GPE and Mr PERSON to sell the explosives to NORP The transaction was supposed to take place in the village of FAC . DATE , Mr GPE and Mr PERSON went to Mr T.A. ’s house and obtained the explosives from the latter ’s wife , PERSON They put the explosives in their car and drove towards Stip . The applicant joined them in the car at the ORG petrol station near Stip . They were stopped by police on their way to the village of FAC , where the sales transaction , which had earlier been agreed between the applicant and NORP , should have taken place . Mr PERSON was driving the car and the explosives were found behind the right - hand front seat . The police issued Mr GPE with a receipt for temporarily seized objects ( потврда за привремено одземени предмети ) .

The trial court stated that evidence of the alleged crime was provided by the statements of Mr T.A. , Mr GPE and the applicant and by the actual actions taken by each of them . The court also referred to documentary evidence , namely CARDINAL expert reports , several search reports , photo evidence and the explosives and detonators found . The trial court rejected the applicant ’s allegations of being entrapped by an agent provocateur as “ ill - founded ” and “ irrelevant ” .

On DATE the applicant , through his representative , complained that , inter alia , the trial court had not provided reasons for rejecting his request to examine the key witness on his behalf , namely the agent provocateur . He argued that there was considerable evidence that he had been incited by a police informer to uncover the person who was able to obtain explosives , even though the police had already known about the latter . He further alleged that the whole series of events had been planned in advance and monitored by the police . He considered it crucial for the court to establish whether it was the applicant who had approached the police informer of his own accord or whether it was the agent provocateur who had taken the initiative . He regarded it as inhuman for the investigating authorities to have taken advantage of his poor standard of living to ensure a successful police operation . He therefore concluded that the trial court had erred in rejecting his request to examine the buyer whose identity , in fact , he did know . That person was Mr R.Dz . The applicant also provided his address and requested ORG to examine him regarding the circumstances surrounding the applicant ’s involvement in the crime .

At a session ( седница ) held on DATE , ORG allowed the applicant ’s appeal in part and reduced his sentence to a term of CARDINAL months’ imprisonment . It upheld the remainder of the trial court ’s decision . At the session , the applicant requested acquittal and stated that he would not have had any involvement in the crime had it not been for the agent provocateur . ORG established that the fact that no items had been confiscated from the applicant did not rule out his guilt . It further found that evidence adduced by the trial court , namely the statements given by the applicant , Mr PERSON and Mr GPE , together with other evidence , corroborated the contention that the applicant , before arriving at the petrol station , had instructed the other CARDINAL accused to obtain the explosives with the intention of selling them to the buyer Mr PERSON . , with whom he had arranged the transaction . It concluded , therefore , that the applicant ’s defence rights had not been violated .

The court further rejected the applicant ’s allegations that he had been incited to commit the offence by an agent provocateur , on the grounds that the applicant himself had stated in the pre - trial proceedings that , having been asked by his acquaintance , Mr PERSON . , whether he knew anyone selling explosives , he had offered the latter explosives , which he had said he would secure through another person . The applicant had then agreed to bring the explosives to the petrol station and take them to the village of PERSON afterwards . The court further relied on Mr GPE ’s statement , according to which the applicant had promised him a reward of DEM CARDINAL , to be deducted from the selling price of the explosives after the transaction . Finally , the court concluded that the trial court had established all facts relevant to the case and that accordingly , examination of Mr PERSON . , the alleged agent provocateur , was not necessary .

On DATE the applicant lodged with ORG an appeal on points of law ( барање за вонредно преиспитување на правосилна пресуда ) . He complained that the lower courts had erred in rejecting his request for examination of the alleged agent provocateur as irrelevant . Relying on DATE , the applicant complained that the lower courts had failed to consider the arguments in his defence .

On DATE ORG dismissed the applicant ’s appeal on points of law . It found that the lower courts had adduced sufficient evidence to establish the truth and that the applicant ’s arguments had not been such as to undermine their credibility . It further stated that the applicant ’s conviction had not been based , as he alleged , on inadmissible evidence . The applicant ’s allegations had been examined by ORG , which had provided sufficient reasons to satisfy ORG . As to the applicant ’s allegations that there had been a violation of LAW as his conviction had been based on evidence which could not serve that purpose , namely the evidence of an agent provocateur , ORG stated :

“ ... the court does not accept this allegation ... given that , in order for there to have been a violation of LAW concerning the right to a fair trial , the lower courts’ decisions must have been based solely on evidence provided by a socalled agent provocateur . The lower courts’ decisions were not based on any such evidence ... On the contrary , the defence insisted that evidence should be heard from such a witness . The witness in question was not examined and the courts’ decisions were in no way based on statements made by him . The lower courts adduced sufficient evidence and provided sufficient reasons in relation to all the defence arguments . There has , accordingly , been no violation of LAW . ”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on CARDINAL DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not entitled to the benefits at issue because his wife had died before DATE . On an unspecified date the applicant made another claim for widows’ benefits . On DATE the applicant ’s claim was disallowed .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV ; and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


CASE OF SOLAKOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

No violation of Art. 6-1;No violation of Art. 6-3-d

The applicant , who had lived for a while in GPE , was suspected of drug trafficking and a warrant for his arrest was issued by GPE police in DATE .

Following the request of GPE authorities , on DATE the public prosecutor asked ORG to institute a preliminary investigation against the applicant on charges that DATE and DATE he had smuggled QUANTITY of drugs from GPE and the Former GPE to GPE and that for that purpose had set up a drug - trafficking network involving also his son , who lives in GPE . The prosecution ’s request set out the names of the persons involved and against whom criminal proceedings were pending or completed in GPE and asked for their questioning .

On DATE the investigating judge opened a criminal investigation against the applicant , decided to hear the witnesses proposed by the prosecution and detained the applicant on remand .

On DATE the investigating judge asked ORG to contact the GPE government and to request their assistance in the hearing of some witnesses in their country . On DATE ORG addressed the request to GPE embassy .

On DATE the GPE embassy was informed by the investigating judge of the investigation pending against the applicant . The notice contained the names of the witnesses to be examined in GPE and a list of CARDINAL questions to be put to them .

On DATE the applicant ’s lawyer was informed that the investigating judge would go to GPE DATE and was summoned to the hearing .

On DATE the lawyer was denied a visa for GPE on the ground that he had not produced all the relevant documents required . The GPE embassy informed him that it would review his application for a visa provided that he submitted a certificate of his working position , income , and seniority and evidence that he owned real estate and had family ties in the Former GPE . The lawyer never reapplied for a visa . On DATE the applicant withdrew his power of attorney .

On DATE the applicant appointed another lawyer , who , on DATE , was summoned to attend the hearing of witnesses in GPE , scheduled for DATE . On the summons , the lawyer placed his signature in the space provided for the bailiff ’s signature and the bailiff placed his signature in the space provided for the lawyer ’s signature .

On DATE the applicant was questioned . He stated that he had been informed by the investigating judge that witnesses would be heard in GPE . He had contacted his second lawyer and left to him the decision whether or not to attend the hearing . He further stated that the expenses for the trip would not be a problem as he had sufficient funds to cover them .

On DATE the investigating judge informed the GPE embassy in the Former GPE that on DATE the applicant ’s first lawyer had been summoned to attend the questioning of the witnesses in GPE and that the applicant ’s second lawyer had declared that there was no need to attend the questioning and that he had insufficient funds to meet the travel expenses .

On DATE and DATE , CARDINAL witnesses were heard by the investigating judge in the presence of the public prosecutor and the court interpreter . Their testimonies were recorded . The witnesses were involved in the drug - trafficking network organised by the applicant , and they were all serving prison sentences in GPE for drug trafficking .

According to the witnesses , who were under oath and were heard separately , it was the applicant who had set up the entire network and who had organised the smuggling into GPE and the re - sale there of QUANTITY of drugs . The applicant had contacts in GPE , from where he would smuggle the drugs into the Former GPE . He would then arrange for them to be smuggled into GPE . Some of the witnesses stated that they had smuggled the drugs in a plaster - cast which the applicant would wrap around one of their legs , as though it were broken . On their arrival in GPE they would hand over the drugs to the applicant ’s son in return for payment . Some of the witnesses stated that they had had an agreement with the applicant and his son for drug dealing and had been supplied with the drugs in the applicant ’s and his son ’s house .

Two of the witnesses who had travelled to GPE on separate occasions gave evidence that they had been taken into Mr PERSON flat in GPE , where Mr PERSON and the applicant had wrapped plasters with drugs around one of the ORG legs . None of the witnesses made any statement regarding Mr PERSON

On DATE the public prosecutor indicted the applicant with drug trafficking from GPE and the Former GPE to GPE and with setting up an international network for that purpose . The ORG statements were included in the indictment .

On DATE the applicant was released .

On DATE the applicant made a submission to ORG that there was no case to answer as there was no convincing evidence against him . In particular , the indictment was predominantly based on the testimonies of the witnesses who were serving prison sentences in GPE and who had not been cross - examined by the defence . The applicant argued that the witnesses had a deal with GPE authorities to have their sentences reduced in exchange for their cooperation . On the one hand , since they had already been convicted in GPE , the witnesses were aware that they would not risk anything if they gave false evidence , as they could not be prosecuted for drug trafficking under the law of the Former GPE . On the other hand , if they modified their testimonies , they ran the risk of losing all the benefits which had been agreed upon by the authorities .

On DATE the court held that on the basis of all the evidence in the case there was a reasonable suspicion that the applicant might have committed the offence with which he had been charged and refused to terminate the criminal proceedings against him .

On DATE a hearing was held before ORG . On DATE a second hearing was held . The applicant claimed to be innocent and stated that he had not travelled to GPE because he knew that it might be dangerous for him .

Photographs showing the plaster - cast , belonging to a person involved in the drug dealing with the applicant , in which drugs had been found , photographs of the witnesses , reports on the search of the applicant ’s son ’s and another witness ’s flat where some drugs had been found and the reports on the investigation in connection with the applicant ’s son and his pre - trial detention were , inter alia , examined .

The applicant complained that he had been unable to cross - examine the witnesses . He also objected to their statements being read out in open court .

The court decided to read out in open court the statements of the witnesses examined in GPE , because “ to secure the attendance of the witnesses is extremely difficult and there are also other important reasons ” .

The applicant challenged the ORG statements without pointing out concretely why they should not be considered trustworthy , or specifying the questions that he would have liked to be put to the witnesses .

At the hearing of CARDINAL DATE the applicant requested that CARDINAL additional witnesses for the defence be examined . The record of the hearing states as follows :

“ ... the applicant ’s lawyer asked the court to gather information about Mr PERSON , in particular regarding his place of residence , whether Mr PERSON was charged with being one of the co - organisers [ of the drug trafficking ] with the accused , [ and if so ] to obtain his case file , and to call him as a witness .

He also called the witness , Mr PERSON , from the village of GPE , GPE , to give evidence on whether he knew the accused and Mr PERSON , whether he had ever been in Mr PERSON ’s flat with the accused , whether he knew if the accused had been supplied with drugs ( amphetamines ) , whether he knew some of the prosecution witnesses , etc . ... ”

ORG refused the motion on the ground that “ the court [ had ] sufficient evidence before it to reach its verdict ” .

On DATE the municipal court found the applicant guilty of drug trafficking within the meaning of LAW of LAW and sentenced him to DATE imprisonment . The court dismissed the applicant ’s objection that there had been a breach of his right of defence in that he had been unable to cross - examine the witnesses , on the ground that it had been impossible to summon them . It considered the ORG statements reliable , since they had had no opportunity to make a deal with the public prosecutor of the Former GPE to have their sentences in GPE reduced in exchange for giving evidence against the applicant . The court further observed that all the witnesses had recognised the applicant on a photo and that , although each of them had been heard separately by the investigating judge in the presence of the public prosecutor , their statements were consistent and precise . The court also had regard to the applicant ’s testimony .

On DATE the public prosecutor submitted an appeal to ORG суд ) requesting an increase of the sentence in view of the nature of the offence committed , the degree of danger to the public , the fact that it concerned organised crime at international level and the fact that the applicant was a habitual offender .

On DATE the applicant also filed an appeal with ORG , complaining , inter alia , that the lower court had infringed LAW , as it had reached its verdict only on the basis of the statements of witnesses whom he had not cross - examined . The applicant further complained about the court ’s refusal to hear CARDINAL additional witnesses on his behalf .

On DATE ORG dismissed the applicant ’s appeal on the ground that ORG had acted in accordance with LAW , which stated that witnesses might be heard in the absence of the accused or his lawyer if there was a valid reason making it impossible or extremely difficult to do otherwise ( see “ Relevant domestic law and practice ” below ) .

The court found that the lower court had given a reasoned explanation why it was extremely difficult to cross - examine those witnesses at the public hearing . They had been heard only by the investigating judge and the public prosecutor , but the legal representatives of the applicant had been duly summoned for the examination of the witnesses and , therefore , had had a sufficient opportunity to attend the ORG questioning .

It held that the statements were consistent and logical and were corroborated by each other and by other evidence such as the reports from the searches carried out in the flat of the applicant ’s son and of another witness . It also held that the CARDINAL witnesses called by the defence were not relevant as they would not have contributed much to the establishment of the truth .

The court granted the public prosecutor ’s appeal and increased the applicant ’s sentence to DATE imprisonment .

On DATE the applicant filed an appeal on points of law ( Барање за вонредно преиспитување на правосилна одлука ) with ORG ( Врховен суд ) .

On DATE ORG dismissed the appeal on points of law on the grounds that the investigating judge had acted within his competence when he decided to interrogate the witnesses in GPE and that the applicant and his lawyers had been given an opportunity to attend the hearing . Furthermore , ORG held that it would have been impossible to have the witnesses heard at the public hearing , as they were serving a prison sentence abroad . Consequently , in accordance with the rules of LAW there were sufficient reasons to justify the statements being read out at the public hearing .

On DATE the applicant ’s son declared before a notary that his father had had nothing to do with drug trafficking . Another person also declared before a public notary that the applicant had been engaged in trade with spare parts for motor vehicles .

On DATE the applicant applied to ORG to have his case reopened on the basis of those declarations . His application was dismissed on DATE . On DATE that decision was upheld by ORG .

Article CARDINAL § CARDINAL , inter alia , provides that a bench of CARDINAL judges of the first - instance court shall decide on appeals lodged against the decisions of the investigating judge .

Article CARDINAL § CARDINAL , inter alia , provides that a person shall have the right to appeal against the decisions of the investigating judge .

Article CARDINAL § § CARDINAL and CARDINAL provides that the president of the court may officially appoint a lawyer for a person who is detained pending trial .

Under Articles CARDINAL and CARDINAL a lawyer has the right to consult all the documents in the case file from DATE the prosecution authorities request the investigating judge to open a preliminary investigation . A defendant enjoys that right from DATE he has been questioned by the investigating judge .

Article CARDINAL provides that the parties may ask the investigating judge to undertake different actions in the course of the investigation .

LAW , DATE and CARDINAL reads as follows :

“ CARDINAL . NORP The prosecution , the defendant and the defendant ’s lawyer shall have the right to be present when an investigating judge is examining a witness who will not be heard at a public hearing ...

When the prosecution , the defendant and the defendant ’s lawyer are entitled to be present ... at an interrogation of a witness by an investigating judge , they shall be informed of the time and place of ... the interrogation . If the defendant has been represented by a lawyer the investigating judge shall only inform the lawyer .

Persons present at the interrogation of a witness may ask the investigating judge to put questions to him ... ”

Article QUANTITY , CARDINAL and CARDINAL reads as follows :

“ CARDINAL . When an allegation is based on a statement of a person , that person shall be heard at a public hearing . The right to cross - examine him shall not be lost because the transcript of his statement is read out , or because he has already given a written statement .

As an exception ... a bench of judges may decide to read out the transcript of the witness ’s statement ... if :

( i ) the person concerned has died , is mentally ill , can not be found , or if his attendance is impossible because of old age , illness or any other important reason .

In the records of the public hearing , the court shall state the reasons why the transcript of the witness ’s statement is read out and whether the witness ... took an oath . ”

As a matter of court practice , the fact that a witness is abroad has been considered as an “ important reason ” within the meaning of LAW ( i ) of the LAW , as the court may have no effective means of securing his attendance at the public hearing .

Article CARDINAL provides that where necessary the court may , at its own discretion , decide to hear a tape - recording of the witness ’s statement instead of relying solely on the transcript .

Article CARDINAL § § CARDINAL and CARDINAL reads as follows :

“ CARDINAL . The parties shall have the right to call a witness ... or other evidence at the hearing even after the case is listed for a hearing .

NORP If the President of the ORG dismisses the request to call fresh evidence , the parties shall have the right to call the evidence at the public hearing . ”

Article CARDINAL provides that criminal proceedings may be reopened if , inter alia , a new fact or new evidence is adduced or called before the court , which may prove the convicted person ’s innocence or militate for the reduction of his sentence .

Article CARDINAL § CARDINAL reads as follows :

“ A defendant who has been convicted and sentenced to imprisonment or to youth custody by a binding judgment shall have the right to lodge an appeal on points of law in the cases set forth in this Code . ”

Article CARDINAL reads as follows :

“ ORG shall have jurisdiction to deal with such appeals . ”

Article CARDINAL taken in conjunction with Articles CARDINAL and CARDINAL lays down that such appeals may be lodged on the ground that the courts have erred in law .

Article CARDINAL taken in conjunction with Article CARDINAL provides that when the ORG grants the appeal on points of law it may substitute its own verdict or quash the decisions of the lower courts and remit the case to them , or declare that the lower courts erred in law .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and is currently serving a prison sentence in correctional colony GPE , GPE .

On TIME the applicant ’s father , an important businessman , was kidnapped from his car in GPE . The abduction was organised by Mr PERSON and Mr Berkadze , known within the NORP criminal milieu , with a view to receiving a ransom for his life .

Mr PERSON , the personal driver of the applicant ’s father , managed to escape from the kidnappers . He contacted the police and the applicant ’s relatives and told them what had happened . The police immediately started an investigation .

On TIME , having received the information about his father ’s abduction , the applicant flew from GPE to GPE . As regards the following events , the parties’ accounts differ .

According to the applicant , once he arrived in GPE he went to his office , where he met his brother and a group of his employees . In the presence of an unidentified police officer , the applicant ’s brother assured the applicant that the best policemen had been deployed to find and release his father .

On TIME the applicant was contacted by PERSON ( an accomplice to the kidnappers ) , who offered his services to locate the applicant ’s father . On the following morning PERSON called Ms ORG from the applicant ’s office and asked her to assist in finding the applicant ’s father . In exchange , PERSON offered to facilitate the release of her friends , Mr PERSON , PERSON PERSON and PERSON , who had been arrested by the police TIME . The applicant spoke to PERSON by telephone as well . He asked for help in finding his father .

On TIME the applicant ’s father was released by his abductors .

According to the prosecution authorities’ account , on arrival in GPE the applicant , acting through his bodyguards ( namely Mr PERSON and several others ) , ordered several unidentified individuals to go to Ms ORG ’s flat on the basis that she had allegedly been involved in the abduction of the applicant ’s father , and to kidnap members of her family , in order to exchange them for his father . The information that Ms ORG might have been implicated in the abduction of the applicant ’s father had been received DATE from the police officers in charge of the official investigation into the event .

Early in the morning of CARDINAL DATE the applicant ’s men , posing as uniformed police officers , broke into PERSON flat , kidnapped PERSON and PERSON and took them to the applicant ’s office . Ms ORG and her minor son remained in the flat under the surveillance of CARDINAL “ policemen ” . Since PERSON and PERSON were unable to indicate the whereabouts of the applicant ’s father , the applicant ordered the kidnapping of another person , PERSON , who allegedly knew where the applicant ’s father was detained .

In the applicant ’s office , PERSON , PERSON and PERSON PERSON were questioned and beaten by CARDINAL of the applicant ’s employees , including Mr PERSON , the applicant ’s chief bodyguard . It appears that the applicant and his brother took part in their questioning and that the applicant hit PERSON in the face at least once . The applicant invited his father ’s driver , Mr PERSON , to his office and showed him PERSON , PERSON PERSON , and PERSON . However , the driver stated that none of those people had taken part in the abduction of the applicant ’s father .

In TIME CARDINAL DATE the applicant called Ms ORG and threatened her and her son with death if she did not tell him who had been behind the abduction of his father . Fearing for her life and the lives of those detained by the applicant , PERSON , via her friend PERSON , contacted PERSON , the abductor of the applicant ’s father , and informed him of the developments . The latter called the applicant and they agreed to “ exchange hostages ” .

In TIME CARDINAL DATE Mr PERSON released the applicant ’s father , and the applicant ordered the release of PERSON , PERSON and her son .

As to PERSON and PERSON , they had been so badly beaten by the applicant ’s men that he ordered that they be killed . PERSON and PERSON PERSON were suffocated and their bodies were dismembered and buried in an empty water cistern situated on the premises of a service station ( garage ) belonging to a certain PERSON .

In DATE PERSON , the leader of the criminal group which had abducted the applicant ’s father , left GPE . He moved to GPE , where he was arrested on suspicion of having killed a policeman and was later charged with other crimes , not related to the events of CARDINAL and CARDINAL DATE .

On an unspecified date in DATE the NORP police opened a criminal investigation into the abduction of the applicant ’s father . However , the investigation was later closed on the ground that PERSON and his group had voluntarily released the applicant ’s father . In DATE that decision was quashed by the Vyborgskiy District Court of GPE and the proceedings against Mr PERSON were reopened . There is no information available about the results of that investigation .

On DATE ( before the events described above ) , in connection with an unrelated inquiry carried out by the St GPE police , the President of GPE ordered that the telephone lines at the flats of PERSON and Ms ORG be tapped . As a result , the police recorded all telephone calls to and from these flats . CARDINAL of the voices recorded by the police belonged to an unknown man , calling on DATE from the applicant ’s office , who threatened Ms ORG with death in connection with the disappearance of the applicant ’s father .

On DATE Mr PERSON , a cousin of the deceased PERSON PERSON , informed the police of the latter ’s disappearance . The prosecutor ’s office opened an official investigation into the disappearance of PERSON .

On DATE PERSON was questioned by the investigator . During the questioning he showed the police the place where he had been taken in TIME CARDINAL August CARDINAL . It happened to be one of the office buildings belonging to the firms owned by the applicant . Mr PERSON told the police that in that building he had been questioned by several persons in connection with the disappearance of the applicant ’s father . PERSON had described one of those persons as a NORP of DATE of age who was “ a son of Mr PERSON - senior ” ( for more details see the summary of PERSON PERSON ’s deposition in paragraph CARDINAL below ) .

On DATE the prosecutor ’s office received CARDINAL audiotapes from the police containing recordings of telephone conversations made as part of a surveillance operation at the flats of PERSON and PERSON . These audiotapes contained no recording of the period between TIME on DATE and TIME on DATE . In DATE the investigator in charge of the case requested that the police produce the missing recordings , but the police informed him that this part of the recording “ had been lost for technical reasons ” .

NORP Over DATE the investigator questioned a number of other persons , including PERSON and PERSON . Their written testimonies were added to the case file relating to the disappearance of PERSON PERSON .

On an unspecified date PERSON left GPE and settled in GPE , GPE . PERSON also moved to GPE . In DATE PERSON was questioned by the NORP prosecution authorities in connection with the investigation into the disappearance of PERSON , at the request of the NORP prosecution authorities . On DATE the NORP prosecution authorities also questioned Ms ORG within the same criminal proceedings . Both witnesses confirmed the depositions they had made earlier in GPE .

In DATE Mr PERSON transmitted to the investigative authorities CARDINAL audiotapes , alleging that they contained a recording of a conversation between him and PERSON , made without the latter ’s knowledge , on DATE . The conversation concerned the events of CARDINAL and CARDINAL August CARDINAL . During the conversation PERSON confirmed , at least in substance , that those who had abducted PERSON , PERSON PERSON and himself had been acting on the applicant ’s orders .

On DATE the applicant was arrested and placed in custody . He denied his involvement in the abduction and murder of the persons concerned . The applicant requested a confrontation with the witnesses against him , in particular PERSON , PERSON and PERSON PERSON , but the investigative authorities rejected that request .

On DATE the applicant was formally charged with ordering the abduction of PERSON and PERSON .

On DATE the bodies of PERSON and PERSON PERSON were discovered on the premises of the service station . On DATE the investigation ordered the forensic examination of their bodies .

On DATE , in order to identify the voice of a man who had telephoned PERSON flat on DATE , the investigator commissioned a phonological analysis of the audiotapes made by the police as part of the surveillance operation . A team of CARDINAL experts was employed for this purpose . The experts were provided with test audiotapes containing samples of the applicant ’s voice .

On DATE PERSON was questioned by the NORP prosecution authorities . On DATE he was questioned again . He testified that the applicant was behind the abduction of PERSON , PERSON PERSON and PERSON .

On DATE the expert team submitted a report on the audio recordings . CARDINAL LANGUAGE - speaking experts , PERSON PERSON and PERSON PERSON , confirmed that the voice on the audiotapes belonged to the applicant . Ms PERSON , a NORP - speaking expert , came to the opposite conclusion ( the conversation between the man and PERSON PERSON was conducted in NORP , whereas on the “ sample ” audiotapes the applicant was speaking in NORP ) .

On DATE and DATE the applicant was charged with ordering the murder of PERSON and PERSON , abducting a third person , PERSON PERSON , and threatening Ms PERSON and her child with death . Several other persons were also charged as part of the same criminal investigation , including PERSON PERSON , the applicant ’s bodyguard , and Mr PERSON , who , according to the prosecution authorities , had helped to hide the bodies of PERSON and PERSON .

On DATE the applicant , referring to LAW ( d ) of the LAW , requested a face - to - face confrontation with the witnesses for the prosecution . In a letter of DATE the investigator in charge of his case replied that the applicant would have an opportunity to confront witnesses during the trial .

In DATE Mr PERSON wrote a letter to the prosecution authorities in GPE and GPE . In this letter he withdrew his earlier statements concerning the applicant ’s involvement in his abduction ( see paragraphs CARDINAL and CARDINAL above ) . On an unspecified date a Deputy City Prosecutor of GPE requested that the NORP authorities re - examine Mr PERSON , in order to elucidate discrepancies in his earlier testimony to the NORP and NORP investigative authorities .

On DATE the prosecution reformulated the charges against the applicant and informed him about that decision .

According to the Government , on DATE the preliminary investigation was completed . On DATE the applicant and his lawyers obtained access to the case file .

On an unspecified date the applicant complained to ORG of GPE about the refusal of the investigative authorities to carry out face - to - face confrontation with PERSON and PERSON . On DATE the court dismissed that complaint . It held that under LAW the investigator was free to decide whether a face - to - face confrontation of a witness with the accused was necessary . It also held that PERSON and PERSON , as victims of the alleged crimes , were not bound to testify . According to the court , PERSON refused to participate in the face - to - face confrontation with the applicant , whereas PERSON had left GPE out of fear of reprisals from unidentified persons . In such circumstances the decision of the investigator not to hold face - to - face confrontations with the applicant was justified . The defence appealed against that decision . There is no information about the outcome of the appeal .

On DATE PERSON was questioned by the NORP authorities ( see paragraph CARDINAL above ) . PERSON testified that he had falsely accused the applicant under threats from Mr PERSON and a relative of the deceased PERSON PERSON . PERSON was shown a photo of the applicant ; after having examined that photo he explained that it was not the men who had questioned and slapped him on TIME of the events . His written submissions were transmitted by the NORP authorities to the NORP prosecution authorities . According to the applicant , those documents were not added to the case file .

On DATE the defence informed the prosecution that they had finished studying the material in the case file . On DATE ORG approved the bill of indictment ; a copy of that bill was handed to the applicant .

According to the indictment , the prosecution charged the applicant with having organised , through his bodyguards , the abduction of PERSON , PERSON and PERSON , the illegal detention of Ms ORG and her minor son , and the murder of PERSON PERSON and PERSON PERSON .

Mr PERSON and several other people who had previously worked for the applicant were also brought to trial as his accomplices . According to the prosecution , on CARDINAL August CARDINAL the applicant had ordered Mr PERSON and CARDINAL other co - accused ( Mr PERSON , PERSON , PERSON PERSON , PERSON PERSON and Mr PERSON ) to find his father ’s abductors and bring them to him . In turn , PERSON PERSON and his colleagues had delegated that task to a group of men who remained unidentified by the investigation . Those men , acting as police officers , had kidnapped PERSON , PERSON PERSON and PERSON PERSON and brought them to the applicant ’s office . Acting on the applicant ’s orders , those unidentified men had also murdered PERSON and PERSON .

In addition to the charges relating directly to the events of CARDINAL and CARDINAL August CARDINAL , a number of auxiliary charges were also brought by the prosecution against the applicant ’s co - accused . Thus , PERSON PERSON , one of the applicant ’s employees , was charged with illegal possession of ammunition for a firearm . PERSON , who owned the service station where the bodies of Mr PERSON and PERSON PERSON had been discovered , was charged with concealing a crime .

In support of the charges against the applicant , the prosecution authorities referred to the written statements obtained from Ms ORG , PERSON PERSON , Mr PERSON , PERSON and PERSON PERSON in DATE and DATE during the official investigation . Their depositions are summarised below .

Ms ORG testified that on TIME CARDINAL DATE a group of men who introduced themselves as police officers had broken into her house and abducted PERSON and PERSON . She was left in her house under the surveillance of CARDINAL intruders . Some time later , on TIME , the applicant had telephoned her and threatened her and her son with death if she did not say where his father was . The applicant allowed her to speak on the telephone to PERSON and PERSON , who were being held in the applicant ’s office . PERSON and PERSON PERSON told her that the applicant had threatened them with death if his father was not found safe and unharmed .

On DATE PERSON contacted PERSON , her friend , and informed her of the events of QUANTITY August CARDINAL . She asked her to find Mr PERSON , who had organised the abduction of the applicant ’s father , and to describe the situation to him .

On TIME PERSON was released by the applicant . The applicant then called PERSON and offered an apology for the offensive language he had used the previous night . He also informed her that PERSON and PERSON had been released . However , they never returned home .

According to PERSON statement , on TIME he was abducted by a group of men who claimed to be police officers . He was taken to a building which he later identified as the applicant ’s office . There , he was questioned by several people , including , allegedly , the applicant ( PERSON was not sure of that person ’s identity , since he had never met the applicant and only identified him from a photo ) . They beat him up and threatened him with death if he did not indicate the whereabouts of the applicant ’s father . One of the men forced him to call Ms PERSON and tell her that she should contact the alleged abductors of the applicant ’s father in order to save his life and that of PERSON . On TIME , after the applicant ’s father had been set free , Mr PERSON was released . Before he left , CARDINAL of the men from the applicant ’s office gave him documents belonging to PERSON and PERSON PERSON . Later PERSON returned the documents to Mr PERSON , the cousin of PERSON .

Mr PERSON confirmed that on DATE his employees , CARDINAL of whom had been disguised in police uniform , had kidnapped the applicant ’s father for the purpose of obtaining a ransom . The applicant ’s father was kept in a flat which had been rented for that purpose . On DATE Mr PERSON was approached by PERSON , who informed him about the abduction of PERSON , PERSON and PERSON PERSON , and about the threats to PERSON and her son . PERSON then called the applicant and agreed to release his father if the applicant released the CARDINAL men . During that conversation PERSON , who had also been involved in abducting the applicant ’s father and was at that point in the applicant ’s office , confirmed to PERSON that all the hostages taken by the applicant were alive . The applicant also threatened to kill the hostages if his father was not returned safely .

Ms GPE , PERSON wife , testified that early on TIME CARDINAL DATE several “ policemen ” had taken her husband away . In TIME he had returned home ; he was seriously injured and she had provided him with elementary medical assistance . He did not tell her what had happened to him ; he simply explained that he had been beaten up by the police .

The prosecution further referred to a verbatim record of the conversation between PERSON and Mr PERSON on DATE ( see paragraph CARDINAL above ) , and a verbatim record of CARDINAL audiotapes made by the police as part of the surveillance operation ( see paragraphs CARDINAL and DATE above ) .

NORP The prosecution also relied on the reports by Mr PERSON and PERSON PERSON , who had identified the applicant ’s voice on the audiotapes ( see paragraph CARDINAL above ) . A considerable amount of circumstantial evidence and hearsay witness testimony was also referred to in the indictment .

As Mr Sidler , CARDINAL of the co - accused , was a serving military officer , the case was examined by a military court . On DATE the military court held a preparatory hearing . The applicant was present at the hearing ; he was assisted by several lawyers . Those lawyers represented him throughout the subsequent proceedings .

The trial commenced on DATE . The court was composed of PERSON , the professional judge , and CARDINAL lay judges .

The applicant and the other co - accused pleaded not guilty . According to the applicant , the abductions in question had been carried out by real policemen , together with PERSON , who had then decided to shift the blame onto the applicant and his men after PERSON and PERSON PERSON had disappeared .

On DATE the applicant ’s lawyers questioned Mr PERSON and PERSON in GPE , in the presence of their lawyers , and through an interpreter . On an unspecified date in DATE the lawyers also questioned Mr PERSON . A verbatim recording of those questioning was made . The lawyers further obtained written statements by PERSON PERSON , Ms PERSON , PERSON and PERSON PERSON concerning the events of CARDINAL and CARDINAL DATE . Those statements were addressed to the NORP authorities , to ORG , and to the applicant ’s lawyers . In DATE the defence lawyers submitted the above written testimonies and statements to ORG ; they were added to the case file .

All of the above witnesses withdrew their previous testimony to the police , which had incriminated the applicant . In particular , Ms ORG explained in her statement of CARDINAL DATE that , although she did not speak LANGUAGE , she had signed written depositions drafted in NORP by the prosecution authorities . She explained that the “ policemen ” who had abducted PERSON and PERSON from her flat had been led by Mr Berkadze , one of those who had kidnapped the applicant ’s father . Ms ORG testified that the man who had called and threatened her in TIME CARDINAL DATE was not the applicant but PERSON .

In his written submissions of CARDINAL DATE PERSON indicated that the person who had questioned and beaten him in the applicant ’s office had introduced himself as “ a son of the kidnapped businessman ” , but that it had not been the applicant , and that he had not seen the applicant at all on DATE .

In his written deposition of CARDINAL DATE PERSON declared that everything he had said to the prosecution authorities about the applicant was a lie ( cf . paragraph CARDINAL above ) .

The defence lawyers also questioned the applicant ’s brother , who lives in GPE and who confirmed the applicant ’s account of events . The transcript of that interview was also produced to the court .

The defence commissioned an expert analysis of the recording of the telephone conversations at Ms Margvelashvili ’s flat . The phonological analysis of the audiotapes submitted by the defence concluded that the recording of the telephone conversations on CARDINAL and CARDINAL DATE did not contain the applicant ’s voice . This report was admitted by the court as evidence .

The court examined CARDINAL out of the CARDINAL audiotapes made by the police in the flats of PERSON and PERSON ( audiotapes nos . DATE and DATE ) , and examined the verbatim records of the remaining DATE audiotapes made by the police . The defence requested access to all thirteen audiotapes in order to be able to compare them with the verbatim record , but the court rejected that request .

The defence also requested the court to obtain from the prosecution the recordings made TIME on DATE and TIME on DATE . The defence stressed that during that period the applicant had had a telephone conversation with PERSON . In its submission , the disclosure of the content of that conversation could have proved his innocence .

The defence lawyers asked the court to disclose the materials authorising the telephone tapping of PERSON flat and , in particular , the court decision authorising that surveillance . At the hearing of CARDINAL DATE Judge PERSON , after having examined briefly a file produced by the ORG prosecutor , dismissed the request “ on the grounds of secrecy ” . He explained that he was satisfied with the explanation provided by the prosecution as to the lawfulness of the telephone tapping . It appears that the lay judges did not see the materials submitted by the prosecutor to the presiding judge .

On DATE the defence repeated their request for the disclosure of the materials authorising the wiretapping . In particular , they sought the disclosure of the request for the wiretapping by the police and the court ’s order of DATE authorising the wiretapping ( see paragraph CARDINAL above ) . In an interim decision of the same date the court , composed of Judge PERSON and the CARDINAL lay judges , dismissed that request on the ground that the materials at issue , relating to the operational and search activities of the police , contained ORG secrets , and therefore could not be shown to the defence . The court referred to subsection CARDINAL of section CARDINAL of the DATE Operational and Search Activities Act ( see “ Relevant domestic law ” below ) , which did not provide for the disclosure of the information on such activities of the police to the lawyers .

The court questioned a number of policemen involved in the wiretapping of telephone conversations at Ms ORG ’s flat . They submitted that the police had been keeping an eye on PERSON and persons around him , including Ms ORG , since DATE . Ms ORG ’s flat had been under surveillance since DATE , and when the applicant ’s father was kidnapped the police had known that Ms ORG ’s friends or relatives might be involved in some way . The witness explained that all telephone conversations within that period had been recorded . However , the recording covering the period TIME on DATE and CARDINAL p.m. on DATE had been lost “ for technical reasons ” ( see paragraph CARDINAL above ) .

DATE . On DATE the court started the examination of the expert report of DATE by PERSON and Mr GPE . The applicant insisted that the conclusions of the above - mentioned CARDINAL experts were wrong , and that the man ’s voice on the audiotapes did not belong to him . Further , he claimed that the translation from NORP was inaccurate .

On DATE the court questioned the experts who had prepared the report , PERSON and Mr PERSON . They testified that at the request of the investigator they had analysed CARDINAL audiotapes . They had not detected any traces of editing on those audiotapes . In their view , the voice on CARDINAL recordings belonged to the applicant .

The presiding judge asked PERSON whether he had worked with the NORP language before . PERSON replied that , for the purposes of a phonological analysis , knowledge of a particular language was not necessary . He also confirmed that , although the conversation recorded on the audiotapes was in NORP , he and his colleague only had samples of the voice of the applicant speaking NORP . However , in his opinion that did not make much difference .

On DATE the applicant asked the court to order an new expert examination of the voices on the audiotapes . The defence submitted that the voice on the audiotape was not the applicant ’s but that of another person , allegedly PERSON .

In order to rebut the findings of the expert report relied on by the prosecution , the defence lawyer asked the court to call CARDINAL phonologists , Ms GPE and Ms LOC . They were summoned to court and on CARDINAL DATE they testified that the methods of phonological analysis employed by PERSON and Mr GPE were questionable and that their conclusions were unreliable . In their submission , Mr PERSON and PERSON PERSON had not used State - approved methods of voice recognition but had relied on their own method , which was unreliable . They produced to the court a report criticising the findings of PERSON and Mr PERSON ; that report was added by the court to the case file .

On DATE , in view of the contradictory nature of the conclusions reached by PERSON , Mr GPE and PERSON , the court ordered an additional analysis of the audiotapes . The defence lawyers asked the court to include PERSON in the expert team , but the court rejected that request on the ground that she had already given her opinion on the subject in the capacity of a “ specialist ” ( специалист ) . The court assigned CARDINAL experts , including Mr PERSON , the same expert who had drafted the first report , proposed by the prosecution , and Mr Serdyukov , proposed by the defence . CARDINAL experts were appointed on the court ’s initiative : Mr GPE and PERSON ( the latter had also taken part in the first analysis ) .

The defence contested the appointment of PERSON and PERSON PERSON . The defence cast doubt on the impartiality of these experts , in that Mr PERSON ’s wife had previously worked for the applicant and had been fired by him , and PERSON was a member of the NORP security service .

On DATE the court heard evidence from the experts Mr PERSON , PERSON Serdyukov and Ms T. S. Kikalishvili . The court also heard CARDINAL witnesses , namely PERSON PERSON and PERSON . Mr PERSON confirmed that he had known Mr PERSON and his wife since DATE . She had worked at the reception desk at a casino owned by the applicant . In DATE she had been fired on the direct orders of the applicant . Mr PERSON had then called Mr PERSON and explained that her dismissal had not been his decision , but that of the applicant . Mr PERSON confirmed the statement by PERSON PERSON about Mr PERSON ’s wife and her dismissal from the casino .

DATE . The court refused to discharge PERSON and PERSON . As a result of the new analysis , PERSON and PERSON found that the voice on the audiotape belonged to the applicant . The CARDINAL other experts came to the opposite conclusion .

On DATE , at the prosecutor ’s request , the court ordered a third expert analysis of the audiotapes , with a view to eliminating discrepancies in the earlier findings . The analysis was entrusted to Mr PERSON , PERSON PERSON and PERSON , who had participated in the previous examination , and CARDINAL new experts : Mr NORP , a NORP - speaking expert , proposed by the defence , and an anonymous expert , proposed by the prosecution , whose name was given only as “ A. P. Ivanova ” . The defence asked the court to disclose the identity of “ A. P. Ivanova ” or to dismiss her from the expert team , because in such circumstances it was unable to challenge her credentials .

The next hearing was held on DATE . The court and the parties questioned several witnesses , namely the experts Mr NORP , PERSON PERSON and “ PERSON ” . The latter was questioned through a system of audio teleconferencing . The applicant was present at that hearing and was able to put questions to the witnesses . The defence challenged Mr PERSON , alleging that he was biased , but the court refused to grant their request .

On DATE the court decided to discontinue the phonological examination of the audiotapes . The court noted that since Mr NORP was a NORP national he could not be held legally responsible for false testimony and could not therefore act as an expert in the proceedings . The court also observed that the defence lawyers could not ascertain the personal credentials and professional competence of “ A. P. Ivanova ” .

On DATE the court declared that the examination of evidence was over and asked the parties how much time they needed to prepare their final submissions . The defence requested DATE ; the prosecution requested DATE . The court decided to start hearing the final submissions on TIME DATE .

On DATE at TIME the prosecutor submitted an additional phonological analysis of the audiotapes prepared by the same anonymous expert , “ A. PERSON ” . Despite the objections raised by the defence , the court admitted the report in evidence and included it in the case file . However , the court refused to reopen the examination of evidence . The report of “ A. P. Ivanova ” was added to the case file without examination by the parties . The court rejected a request by the applicant ’s lawyers to disclose the contents of the report . At TIME the court discontinued the examination of evidence and proceeded to hear the parties’ final submissions .

The court also heard the audio recording of a conversation between Mr PERSON and Mr PERSON , made by the latter ( see paragraph CARDINAL above ) . The court had ordered an expert examination of the recording in order to identify the voices on the audiotapes , but it later cancelled the examination .

Several witnesses for the prosecution , including Ms ORG , PERSON PERSON , PERSON and PERSON , did not appear at the hearing . At the beginning of the trial the court asked the parties whether the proceedings should continue in the absence of the above witnesses . The prosecutor supported the idea of continuing the proceedings in the absence of those witnesses . The applicant ’s counsel , PERSON ORG , did not oppose the commencement of the proceedings , but asked the court that the witnesses be summoned through the channels of international judicial cooperation .

On DATE ORG sent a letter rogatory to the NORP authorities asking them to assist in summoning several witnesses , namely PERSON , Ms ORG , PERSON , PERSON and PERSON . On DATE the Deputy Minister of Justice of GPE informed the President of ORG that PERSON , Ms ORG and PERSON were not able to go to GPE to appear before the court . The Deputy Minister also explained that they had all retracted the statements they had previously given to the NORP prosecution authorities .

At the hearing of DATE the prosecutor requested leave to read out written depositions by PERSON , PERSON , PERSON PERSON and PERSON , made to the investigator at the pre - trial stage ( see paragraphs DATE CARDINAL above ) . The defence objected , referring , inter alia , to LAW . They submitted that the applicant had been deprived of his right to cross - examine witnesses against him . The defence stressed that they had asked the investigator to carry out face - to - face questioning of these witnesses but that the investigator had refused . In those circumstances , the written depositions by those witnesses should have been declared inadmissible . Despite that objection , on DATE the court decided to admit the written depositions and to read them out at the trial .

In the course of the trial the court questioned several other witnesses , in particular Mr PERSON , PERSON and Mr PERSON . Their testimony can be summarised as follows .

According to Mr PERSON , on CARDINAL DATE PERSON called him and informed him of the abduction of PERSON , PERSON and PERSON , which , in her opinion , was related to the kidnapping of the applicant ’s father DATE .

On DATE Mr PERSON met PERSON , who gave him more details of what had happened to him and to others . Mr PERSON handed over to Mr PERSON documents belonging to Mr PERSON and PERSON PERSON , explaining that he had received them in the applicant ’s office on CARDINAL DATE . These documents were later seized by the police .

On DATE Mr PERSON met PERSON again and suggested that he file a complaint with the police about the events of CARDINAL and CARDINAL DATE . PERSON refused , allegedly for fear of reprisals by the applicant and his family . Knowing that PERSON might refuse to tell the police the true story of his abduction , Mr PERSON recorded their conversation on CARDINAL audiotapes using a dictaphone . In DATE Mr PERSON gave those tapes to the police ( see paragraph DATE above ) .

Ms ORG testified that on DATE her friend Ms ORG had called her , explained the situation and asked her to find Mr PERSON . PERSON met PERSON and relayed the information . During their conversation PERSON confirmed that he had masterminded the abduction of the applicant ’s father . He then called the applicant and they agreed to exchange the applicant ’s father for the hostages taken by the applicant , namely PERSON , PERSON , PERSON , PERSON and her son .

Mr PERSON , the applicant ’s father ’s driver , who had been present at the time of the latter ’s abduction by PERSON and PERSON men testified that the applicant ’s father had been kidnapped from his car on TIME CARDINAL August CARDINAL . In TIME the driver was invited to the applicant ’s office , where he was shown “ CARDINAL NORP men ” and asked whether he recognised any of the men who had abducted the applicant ’s father . He replied that he did not .

PERSON , a former girl - friend of PERSON , and her mother , testified that they had heard from other relatives that PERSON and PERSON PERSON had been abducted on the applicant ’s orders . A statement in similar terms was given by PERSON , a relative of Mr PERSON .

Mr PERSON senior , the father of the applicant , testified before the court . He described the circumstances of his kidnapping by PERSON PERSON . He also confirmed that PERSON had spoken to his son , the applicant , by telephone .

The court heard evidence from a number of policemen who had visited the applicant ’s office on CARDINAL and CARDINAL DATE . The court was told that during TIME CARDINAL August CARDINAL the applicant had spoken on the telephone with the deputy chief investigator of the Vyborgskiy District of GPE . On TIME that police officer , together with a colleague , had arrived at the applicant ’s office . However , the policemen denied that they had been involved in the abduction of PERSON and others .

The court questioned CARDINAL of the applicant ’s employees , who , according to the prosecution , had assisted him in the abduction and murder and had found the men who had abducted PERSON , PERSON and PERSON PERSON . The applicant ’s employees testified that on DATE the police had provided them with certain information about the progress of the official investigation . The applicant ’s employees also submitted that they had been in permanent contact with the police officers in charge of the investigation throughout CARDINAL and DATE . However , they all denied that they had been involved in the abduction , beating and murder of the victims . They submitted that they had never instructed anyone to abduct PERSON , PERSON and PERSON , or to detain PERSON and her son , and had never received any such instructions from the applicant . They also denied that they had seen the victims in the applicant ’s office .

The court questioned several other indirect witnesses . However , their statements were not used against the applicant .

On DATE ORG of ORG gave judgment in the applicant ’s case .

The court started by describing the applicant ’s own account of the events at issue . However , in the court ’s opinion , that account was rebutted by other evidence . In support of that conclusion it referred , firstly , to the statements by Ms ORG , PERSON PERSON , PERSON PERSON and Ms GPE obtained by the investigator and read out at the trial ( see paragraphs DATE CARDINAL above ) . In the court ’s opinion , those statements confirmed the applicant ’s guilt .

As to the written statements by Ms ORG , PERSON PERSON and PERSON PERSON , submitted by the defence ( see paragraphs DATE above ) , the court declared that evidence inadmissible as having been obtained in breach of the domestic legislation . The court noted that those persons had already been questioned by the investigator as witnesses . In the court ’s view , their subsequent examination by the defence lawyers could not therefore be recognised as “ lawful collection of evidence ” within the meaning of the domestic legislation . Consequently , the court declared those statements inadmissible . The court further noted that the statement by the applicant ’s brother had been obtained by his defence lawyers in accordance with the law . However , the court noted that the veracity of the statement could not be confirmed in accordance with LAW , namely at an oral hearing before the court . On that basis the court declared this evidence inadmissible .

Secondly , the judgment referred to the testimonies of Ms PERSON and Mr PERSON , the relatives of PERSON Kakushadze . They testified about what PERSON had told them about the events of DATE and CARDINAL DATE . Thirdly , the court referred to the recordings of the conversation between PERSON PERSON and Mr PERSON , made by the latter in DATE . Fourthly , the judgment referred to the testimony of Ms GPE , the former girl - friend of PERSON . She testified before the court about what Mr PERSON had told her about the events . Fifthly , the court analysed the testimony of PERSON , who had heard the telephone conversation between the applicant and PERSON , and who had spoken to Ms ORG and PERSON about the applicant ’s involvement in the abduction of PERSON , PERSON and PERSON PERSON .

Finally , the court referred to the phone calls recorded at Ms ORG ’s flat on CARDINAL and CARDINAL DATE , The court accepted the conclusions of the experts for the prosecution ( PERSON , Mr PERSON and Mr GPE ) , who identified the voice on the audiotape as belonging to the applicant , and rejected the findings of the other experts . In particular , the court discounted the arguments of PERSON , PERSON , Ms PERSON and Mr Serdyukov as unreliable . The judgment contained no reference to the findings of the anonymous expert “ PERSON ” .

The judgment also contained references to various other items of hearsay and circumstantial evidence , such as the testimonies of the police officers and reports of the examination of the personal belongings of CARDINAL of the victims .

As a result , ORG found the applicant guilty of unlawful entry into a house and the abduction and illegal detention of Mr PERSON , PERSON and PERSON , and sentenced him to DATE imprisonment . The applicant was acquitted on other counts , including the charges of murder . The court fully acquitted the applicant ’s co - defendants , including PERSON and PERSON . Mr PERSON was found guilty of illegal possession of firearms .

On DATE the applicant ’s lawyers lodged an appeal against the judgment of CARDINAL DATE . On DATE and DATE they filed additional written observations with the appeal court . Their grounds of appeal may be summarised as follows .

The defence lawyers indicated that the court had misinterpreted or even distorted the testimony of many witnesses , as well as the content of the telephone conversations recorded by the police . Nothing in Mr PERSON ’s and PERSON testimony indicated that the applicant had organised the abduction of PERSON , PERSON and PERSON PERSON . On the contrary , PERSON and PERSON had on many occasions in their testimony referred to “ coppers ” and “ the nick ” , which suggested that the police had been involved in the case . Both Ms PERSON and PERSON mentioned that the “ cops ” had arrived at PERSON flat in the company of PERSON , and that it was PERSON who had called and threatened PERSON with death . The defence also pointed to certain logical discrepancies in the testimony of various witnesses and challenged their credibility .

The defence complained that the court had failed to summon Mr PERSON , PERSON , PERSON and Ms PERSON . At the same time the court declared inadmissible written statements by those witnesses , obtained by the defence , in which they had retracted their previous statements to the investigative authorities . The defence also indicated that the court had refused to obtain from the prosecutor ’s office the results of the questioning of PERSON , which had been carried out by the NORP authorities at the request of the NORP prosecution authorities on DATE . That information had been added to the case file by the prosecution during the trial , without the defence having been informed ( see paragraph CARDINAL above ) .

As regards the evidence obtained as a result of wiretapping , the defence complained that they had had no opportunity to challenge its admissibility , because the court had refused to give them access to the materials authorising the wiretapping . The defence further indicated that the prosecution had produced only a selective record of the relevant telephone conversations . Firstly , the defence had had access to CARDINAL out of the CARDINAL audiotapes made by the police , whereas the prosecution had submitted the verbatim record of all QUANTITY tapes . Secondly , a period of TIME of wiretapping ( TIME DATE and CARDINAL p.m. on DATE ) was missing , whereas the police had recorded all the conversations which had taken place within that period . In its decision the court had not mentioned the testimony of the police officers involved in the wiretapping operation , which was of crucial importance for the case .

The defence also contested the court ’s findings as to the identity of the man who had threatened PERSON and her son with death in the telephone conversation of CARDINAL DATE . The court concluded that the voice on the tape belonged to the applicant . That conclusion was based on the findings by the NORP experts PERSON , Mr GPE and Mr GPE . The defence pointed out that those experts did not speak NORP and had had at their disposal only samples of the applicant ’s voice when speaking in NORP ; moreover , the impartiality of those experts was open to doubt for the reasons adduced by the defence before the court . The defence further complained that the court had disregarded the opinion of those experts proposed by the defence , had refused to entrust the analysis of the audiotapes to Ms LOC and had discharged Mr NORP . In their opinion , the court ’s assessment of the contradicting expert opinions was significantly affected by a report by an anonymous expert , “ A. P. Ivanova ” , to which the defence had had no access during the trial .

With regard to the audiotapes recorded by Mr PERSON in DATE , the defence lawyers indicated that the court had failed to establish whether the recorded voice actually belonged to PERSON . No analysis had ever been carried out to that effect . Moreover , PERSON PERSON could not explain to the court why he had handed over to the investigative authorities only copies of the audiotapes , and not the original records . In those circumstances the court ought to have disregarded the contents of those tapes .

In addition to the grounds of appeal submitted by the applicant ’s lawyers , PERSON , as a victim , lodged a separate appeal against the judgment . PERSON submitted that he had never seen the applicant or spoken to him . According to PERSON , he had spent some time in the applicant ’s office on DATE , but he had not seen Mr PERSON or PERSON PERSON there . The man who had hit him in the applicant ’s office was not the applicant . He submitted that the story he had told Mr PERSON , as recorded on the audiotape , was untrue and that he had recounted it under serious pressure from Mr PERSON , a cousin of the deceased PERSON PERSON , and his relatives . He had been instructed what to say by PERSON PERSON and by the investigators .

Ms Margvelashvili , as a victim , lodged a similar appeal . She indicated that her initial statements , referred to by the trial court as evidence incriminating the applicant , had been given under duress . She explained that PERSON and PERSON had been arrested at her flat by police officers who were led by PERSON . TIME a police officer in uniform had come to her flat and taken documents belonging to PERSON and PERSON PERSON . On TIME she had spoken to Mr Berkadze by telephone , not the applicant . No one had ever mentioned the applicant ’s name in connection with the abduction of PERSON and PERSON Kakushadze . She had given testimony against the applicant because she had been persuaded by the investigators that the applicant had ordered the killing of Mr PERSON and PERSON , but she now understood that the applicant was innocent .

On DATE ORG of GPE upheld the conviction in the main , excluding several aspects on formal grounds ( in particular , the episode concerning the abduction of PERSON PERSON , and the illegal entry into PERSON house ) . As a result , the sentence was reduced to DATE imprisonment .

Ms Margvelashvili appeared before the appeal court as a victim of the crimes of which the applicant was accused . She repeated the arguments stated in her grounds of appeal . However , the appeal court upheld the findings of the first - instance court , referring again to the written depositions given by PERSON , PERSON and PERSON at the pre - trial stage , the recording of the telephone conversation of DATE between PERSON and the applicant , the recording of the conversation between Mr PERSON and PERSON , written and oral submissions by PERSON and Mr PERSON and certain pieces of circumstantial evidence produced by the prosecution . The court of appeal noted that the wiretapping of the telephone line of Ms ORG ’s flat had been lawfully authorised by the President of GPE for the period DATE . As regards the depositions submitted by the defence , which were declared inadmissible by the trial court , the appeal court noted that “ the trial court [ had made ] the correct legal assessment ” and declared them inadmissible . Further , the appeal court dismissed the complaint regarding the trial court ’s failure to summon PERSON and its discharge of Mr NORP . The appeal court further noted that the first - instance court had not referred to the report prepared by the anonymous expert “ A. P. Ivanova ” and had not breached any procedural rules by accepting her report . It also noted that the report had been admitted to the case file before the end of the trial . As to the grounds of appeal by PERSON and PERSON , the court of appeal held that “ their arguments ... were untenable , since their testimony had been thoroughly examined by the [ first instance ] court , it analysed them in its judgment , the findings of the [ first instance ] court are duly reasoned ” .

The Federal Operational and Search Activities Act of DATE sets down the rules for “ operational and search activities ” ( “ OSAs ” – such as collecting information , infiltrating the criminal milieu , conducting undercover surveillance and intercepting correspondence ) by the law - enforcement bodies , in particular the police . One of the permitted forms of ORG is the wiretapping of telephone conversations .

Section CARDINAL of the CARDINAL Act is entitled “ Protection of information concerning the bodies involved in the OSA ” . The first subsection of that section provides that information about , inter alia , undercover operations , their methods and agents who infiltrate criminal groups is a ORG secret . Disclosure of such information can only be authorised by the head of the law - enforcement body involved in the ORG .

The second subsection of section CARDINAL provides that information about undercover agents and informants can be disclosed only with their written consent and in cases defined in federal law .

The third subsection of section CARDINAL provides that a court decision authorising an ORG , as well as other materials in support of that decision , are to be kept by the body conducting the ORG .

The fourth subsection of that section provides that documents containing information about the results of the ORG may be submitted to the judge , to the prosecutor supervising the legality of the ORG , to the investigative authority in charge of a criminal case , to other law - enforcement bodies , and in other cases set out in LAW and in accordance with established procedure .

LAW ( “ the old CCrP ” ) , in force until DATE , provided that unlawfully obtained evidence had no legal force and could not be used during a trial .

Article CARDINAL of the Code of Criminal Procedure of CARDINAL ( “ the new CCrP ” ) provides that evidence obtained in breach of the provisions of the Code is inadmissible .

The old CCrP provided that the duty to obtain evidence fell to the investigative bodies ; however , the defence had the right to produce evidence to the investigative authorities and the courts ( Article CARDINAL ) . Article CARDINAL of the new CCrP formulated the rules on collecting evidence as follows :

“ CARDINAL . In the course of the criminal proceedings evidence shall be collected by ... the investigator , the prosecutor and the court by means of investigative measures .

NORP [ 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 :

( CARDINAL ) obtaining objects , documents and other information ;

( CARDINAL ) NORP questioning persons with their consent ; or

( CARDINAL ) NORP requesting ... documents from the authorities ... and other organisations which are obliged to produce such documents or their copies . ”

Article CARDINAL of the old CCrP provided that the results of the ORG should not be used as evidence if they had been obtained in breach of the LAW .

Article CARDINAL of the new CCrP ( applicable at the time of the appeal proceedings in the present case ) provides that the court of appeal should examine the case within the scope of the grounds of appeal .

As a rule , the court of appeal does not examine evidence directly . However , under LAW , the court of appeal may examine evidence , at the request of one of the parties .

Under LAW , the parties may submit “ additional materials ” to the court of appeal . However , those “ materials ” can not be obtained by means of an investigative measure .

In its ruling of CARDINAL March CARDINAL the ORG of ORG of GPE ( the highest judicial authority ) held that the court of appeal could directly examine only the evidence from the case file – that is , the evidence which had been already assessed by the first - instance court . As examples of such evidence ORG referred to the records of questioning of witnesses and to expert reports . It also cited several examples of “ additional materials ” which could be examined by the court of appeal , such as : personal characteristics , certificates concerning governmental decorations , disability certificates and copies of other court decisions that had taken effect . ORG also explained that there was no need to keep records of hearings before the courts of appeal .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant tried to smuggle alcohol to his friends , who were detained in prison . When police officers PERSON and PERSON tried to arrest him he apparently resisted the arrest . Subsequently , the applicant was accused of assaulting officer S.

NORP In DATE the applicant was charged with violence against a public official . The investigator in the NORP district prosecutor 's office of ORG noted in his decision that the applicant had committed an administrative offence of smuggling prohibited goods to detainees ; he had resisted lawful arrest during the commission of that offence ; the latter act constituted a criminal offence punishable under LAW . The investigator 's decision also contained a list of procedural rights under LAW ( see paragraph CARDINAL below ) . It appears that the applicant was given a copy of the above decision .

During the preliminary investigation , officer PERSON explained that on DATE when together with officer PERSON he was patrolling in the vicinity of the prison they had noticed the applicant and CARDINAL other persons throwing certain objects over the prison wall . When they had attempted to arrest them , the applicant and others had assaulted them and tried to escape . Officer A confirmed his fellow officer 's statement .

The applicant disagreed with their version of the events and claimed in essence that the police officers had been drunk and had beaten him up and shot his friend .

At the trial , on DATE the applicant made a written statement declining the services of his counsel . He declared that this waiver was not based on any “ financial considerations ” and that he would continue to ensure his own defence . The hearing was adjourned because certain witnesses , including officers PERSON , had not answered the court summons .

Thereafter , the trial court received a note of a telephone conversation between the court registry and ORG 's grandmother . The latter explained that PERSON had resettled to GPE for permanent residence ; that she had informed him on DATE about the court summons and that he had asked her to inform the court that he maintained his earlier statement and could not attend the trial because his wife was about to be admitted to a maternity hospital .

On DATE the trial judge received a note of a telephone conversation between the court registry and investigator PERSON , who informed the judge that PERSON had reportedly moved to LOC without giving his new address ; PERSON was still an officer and was living at the same address .

On DATE , noting the officers ' absence , the trial judge enquired with the parties as to the admission in evidence of the officers ' pre - trial statements . As can be seen from the trial verbatim record , both the prosecutor and the applicant consented to the reading out of the officers ' pre - trial statements .

The court also referred to the statements from the prison guard PERSON , who had been on duty DATE and had seen several persons throwing certain objects over the prison wall . The court also heard guard PERSON , who had been patrolling at the territory of the prison and had seen the bottles being thrown over the prison wall . According to CARDINAL medical reports , PERSON were sober on DATE and PERSON had various injuries on his body . During a pre - trial identification , he had pointed to the applicant as his assailant .

The court rejected as unreliable the applicant 's version of the events , which was supported by CARDINAL witnesses on his behalf . The court also dismissed the fourth witness 's allegation that CARDINAL of the officers had been drunk on DATE .

By a judgment of DATE , the ORG of ORG convicted the applicant as charged and sentenced him to DATE and DATE imprisonment .

The applicant appealed contending that the court had not given a proper weight to the fact that despite the summons PERSON had not appeared before the trial court and thus had not been examined at the trial .

On DATE ORG upheld the judgment in the following terms :

“ The court rightly founded the judgment on the testimonies by DATE because those testrroborated by other evidence presented in the judgment , such as the medical report indicating that PERSON had [ injuries ] , PERSON 's statement ... , PERSON 's statement ... The reference to the failure of ORG to appear before the court on the summons is not a valid reason for annulment of the judgment because the court obtained the parties ' opinion on the possibility of reading out their depositions in view of their absence from the trial ; [ the applicant ] did not object to the reading out ... ”

In DATE ORG dismissed the applicant 's request for supervisory review of the above judgments . In DATE the Prosecutor of the LOC applied for supervisory review , considering that there was no corpus delicti and that there was no case to answer against the applicant . On DATE the Acting President of ORG dismissed the prosecutor 's application and refused leave to supervisory review .

Under LAW § CARDINAL of the ORG , a defendant has a right to adequate time and facilities for the preparation of his defence . LAW contains a list of procedural rights , including a right to legal assistance and to free legal representation in certain circumstances , a right to participate in hearings before first - instance and higher courts , to have access to the trial record and to lodge comments on it . During the first interview the defendant should be informed of the above procedural rights ( LAW ) .

All evidence should normally be presented at a court hearing during which the court should hear statements from the defendant , victim , witnesses and so on and examine physical evidence ( LAW ) . The reading of pre - trial depositions should only be allowable under ORG CARDINAL or CARDINAL of the Code ( ibid ) .

Under LAW , in its version before DATE , the reading out of earlier statements made by the victim or witness was allowable if the parties gave their consent to it and if ( i ) there were substantial contradictions between the earlier and the later statements , or ( ii ) the victim or witness had not appeared before the trial court .

Sitting as a court of appeal in a criminal case examined by the first - instance court in DATE , ORG interpreted Article CARDINAL as requiring consent from both parties only when it was the intention of the trial court ex officio to read out a pre - trial statement rather than a request from CARDINAL of the parties ( Appeal decision no . CARDINAL of DATE ) .

NORP In its admissibility decision of DATE ( no . CARDINAL-O ) , ORG held that the reading out of pre - trial depositions should be considered as an exception to the court 's own assessment of evidence and should not upset the procedural balance between the interests of the prosecution and those of the defence . If a party insists on calling a witness whose testimony may be important to the case , the court should take all available measures to ensure this witness 's presence in court . When that witness is available for questioning , the reading out of his or her deposition should be considered inadmissible evidence and should not be relied upon . However , when the witness is not available for questioning , the defence should still be provided with appropriate procedural safeguards such as challenge to the read - out deposition , a request for challenge by way of examining further evidence , as well as pre - trial face - to - face confrontation between that witness and the defendant when the latter was given an opportunity to put questions to the former ( see also the admissibility decision of DATE ( no . CARDINAL-O ) ) .