European court of human rights cases with criminal law or procedure implications – Oct to Dec 2016
| DOI | 10.1177/2032284417699297 |
| Date | 01 March 2017 |
| Published date | 01 March 2017 |
| Author | Ben Wild |
| Subject Matter | ECHR cases |
ECHR cases
European court of human
rights cases with criminal law
or procedure implications –
Oct to Dec 2016
Ben Wild
UK Government Legal Department
Fair trial (Criminal proceedings)
Yaroslav Belousov v. Russia (application no. 2653/13 and 60980/14)
The case concerned the criminal proceedings brought against a protestor who had attended the
Bolotnaya Square rally on 6 May 2012. Mr Belousov had been tried and convicted for his role in
the protest, which had involved chanting slogans and throwing a small object towards the police.
He had been sentenced to 2 years and 3 months’ imprisonment.
The Courtfound in particularthat Mr Belousov had suffereddegrading treatmentwhen he had been
held in a glass cabin during part of the proceedings (though only when the glass cabin was over-
crowded). He had alsobeen subjected to degrading treatment during his transfer between prisonand
court; but notduring his pretrial detention in remandprisons, or as a result of the authorities’failure to
supply him with medical assistance. Furthermore, the glass cabins Mr Belousov had been held in
duringthe hearings had limited his abilityto participate in proceedingsand had prevented confidential
communicationwith his lawyer. That arrangementhad not been warranted by any particular security
risk and had been imposed as a matter of routine rather than on the basis of a particularneed.
Overall, the Court also noted that Mr Belousov’s role in the unrest had been insignificant, that
the response of the authorities had been grossly disproportionate and that it would have had a
chilling effect on possible future protests by both Mr Belousov and the public at large.
Outcome
Violations of Articles 3, 5, 6 and 11
Just satisfaction. The Court held that Russia was to pay Mr Belousov 12,500 euros (EUR) in
respect of non-pecuniary damage. It also stated that, in addition to that, the most appropriate form
of redress would be the reopening of the criminal proceedings, if requested by the applicant.
S
ˇmajgl v. Slovenia (no. 29187/10)
The applicant, Rudolf S
ˇmajgl, is a Slovenian national who was born in 1959 and is currently
detained in Dob prison (Slovenia).
New Journal of European Criminal Law
2017, Vol. 8(1) 81–96
ªThe Author(s) 2017
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/2032284417699297
njecl.sagepub.com
NJECL
NJECL
The applicant was engaged in a business providing online sexual services, and a dispute arose
between him and one of his Netherlands business partners. On 18 September 2001, a meeting was
arranged between them in a villa which the applicant used as a studio in Vsˇenory (the Czech
Republic). Eight people were present in the villa; however, a meeting in the bedroom took place
between only the applicant , his brother, another Slovenian na tional and the Netherlands busi ness
partner. During the meeting, the Netherlands man was shot dead. The deceased’s bodyguard later
told police that, through the open bedroom door, he had seen Mr S
ˇmajgl shoot his boss. Jurisdic-
tion for the case was transferredtoSlovenia,becauseMrS
ˇmajgl was already serving a prison
sentence there for a different offence. He was charged with murder and was duly convicted by
the Novo Mesto District Court on 17 January 2003. At trial, a written statement of the bodyguard
had been admitted as evidence; however, he did not attend the hearing. Mr S
ˇmajgl complained of
this and appealed his conviction. It was overturned by the Supreme Court on 19 May 2005, on the
grounds that he should have been given a chance to cross-examine the bodyguard and other
foreign witnesses.
A retrial was arranged. However, the Netherlands bodyguard refused to attend in person,
because he feared for his physical safety. An examination of the bodyguard and another witness
was therefore scheduled to take place prior to the hearing; though a Netherlands court refused the
applicant permission to attend the hearing himself, also on safety grounds. Mr S
ˇmajgl’s counsel
was however permitted to attend and asked the witnesses a number of questions. The bodyguard’s
evidence remained broadly consistent with his earlier statements and was supported by ballistic
and medical reports.
On 12 September 2006, the Novo Mesto District Court again convicted Mr S
ˇmajgl of murder
and sentenced him to 15 years in prison. Appeals by Mr S
ˇmajgl were dismissed by both the
Ljubljana Higher Court and the Supreme Court; the latter finding that the bodyguard’s evidence
had been reliable, credible, consistent and corroborated by other sources and that Mr S
ˇmajgl had
had a sufficient opportunity to challenge it through the assistance of his counsel. Mr S
ˇmajgl’s
appeal to the Constitutional Court was dismissed on 6 April 2010.
Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial and right to obtain attendance and
examination of witnesses), Mr S
ˇmajgl complained in particular that his conviction had been based
to a decisive extent on a statement made by a witness he had not had the opportunity to cross-
examine directly.
Outcome
No Violation of Article 6
Constantinides v. Greece (application no. 76438/12)
In this case, an individual who had been convicted in criminal proceedings complained of the
admission in evidence at his trial of a graphologist’s report prepared by an expert who did not
attend the hearings.
The Court, applying to experts the principles established in its Grand Chamber judgement in
Schatschaschwili v. Germany regarding the non-attendance of witnesses at a public trial, held
that there had been sufficient counterbalancing factors in Mr Constantinides’s case, as he had
appointed his own expert, who had submitted three reports and had testified at the hearing. The
Court also found that the Court of Cassation had given sufficient reasons for dismiss ing the
applicant’s appeal.
82 New Journal of European Criminal Law 8(1)
To continue reading
Request your trial