ECHR ruling of June 07, 2018 in the case of Dimitrov and Momin (Dimitrov and Momin) v. Bulgaria (application N 35132/08).
In 2008, complainants were assisted in preparing a application. Subsequently, the application was communicated to Bulgaria.
The case was successfully considered a application against the conviction, based mainly on the testimony of the victim who died later, which the defendants could not interrogate. The case was a violation of Article 6 of the Convention.
THE CIRCUMSTANCES OF THE CASE
In 1998, a woman filed a complaint with the police that the day before two applicants had abducted her, kept her locked up and used violent acts of a sexual nature. She then repeatedly refused her testimony, tried to withdraw her complaint and to get the case closed.
In December 2000, during an interrogation with a judge, she repeated her original version of events.
In April 2001, both applicants were charged. In May 2001, their lawyer requested that each of the applicants be confronted with a victim. In July 2001, the prosecutor rejected the petition. In June 2001, the victim, who suffered from cancer, died.
In 2007, both applicants were found guilty of kidnapping and holding the victim, threats to kill her, and sexual assault against her.
During the conventional proceedings, the applicants complained that they had been convicted on the basis of the testimony given by the victim during the preliminary investigation, and that they had no opportunity to question her at any stage of the proceedings.
QUESTIONS OF LAW
Concerning the observance of clause 1 and clause 3 (d) of Article 6 of the Convention. (a) Whether there was a “good reason” for not holding a confrontation between the applicants and the victim. The death of the victim was a "good reason" to justify why she could not testify during the trial, and to get her testimony given before her death.
The first applicant was not present during the interrogation of the victim by the judge in December 2000, despite the fact that he was notified of the date of the interrogation. However, the absence of the victim did not constitute his refusal to interrogate her at a later stage of the proceedings, since the first applicant did not have a lawyer who would explain to him the importance of the interrogation for the subsequent consideration of the case. As for the second applicant, although he could have been considered a person who had been “charged with a criminal offense” within the meaning of Article 6 of the Convention, he was not required to notify him about the interrogation of witnesses, given that at that time he was not officially under investigation. Thus, the fact that both applicants were not present during the interrogation did not in itself constitute a violation of clause 1 and sub-clause d of clause 3 of Article 6 of the Convention.
Subsequently, the applicants' lawyer petitioned for confrontations between his clients and the victim. The petition was rejected by the prosecutor on the grounds that it was an optional investigative action that was not necessary to establish the facts of the case. In addition, although the investigating authorities had known about the victim’s illness since April 2000, during the interrogation in December 2000, she stated that she felt well. Unlike the Resolution of the Grand Chamber of the European Court of Justice in the case of Shachashvili v. Germany (Schatschaschwili v. Germany) (dated December 15, 2015, complaint No. 9154/10), in the present case nothing indicated that the investigator or prosecutor knew that the victim cannot be present at the trial.
In the context of cases of sexual violence, the investigating authorities should be especially attentive to victims who are in a vulnerable psychological situation, especially with regard to giving evidence and confrontation with alleged criminals. In the present case, the victim was seriously ill and was under pressure during the investigation, as a result of which she tried to withdraw her complaint and changed her testimony. In view of these extremely special circumstances, the investigating authorities could not be accused of not conducting a confrontation between the victim and the applicants at the preliminary investigation stage.
(b) Whether the conviction in the applicants' case was based entirely or mainly on the testimony of the victim. The testimony of the victim was decisive evidence in deciding the judgment in the applicants case. However, they were not the only evidence of the applicants' guilt, because the second instance court had at its disposal the testimony of a police officer who registered the complaint to the victim, the results of medical examinations and expert opinions, as well as the record of the scene. Consequently, the judgment in the applicants' case was based on a body of evidence in the case, among which the testimony of the victim was not assessed separately from the others.
(c) Were there sufficient balancing factors that ensured the fairness of the proceedings as a whole. The court of second instance devoted part of the reasoning part of its decision to the testimony of the victim and clarified that she had no reason to accuse the applicants groundlessly. Then the court of second instance compared the testimony of the victim with other evidence in the case and decided that her testimony was supported by the rest of the case file and therefore was reliable.
The court of second instance established that the fact that the victim’s testimony was given two years after the events did not affect in any way the detailed nature of the evidence. The fact that the victim changed her testimony during the investigation was explained by the pressure put on her by the applicants and their acquaintances.
The court of second instance considered and dismissed the arguments of the applicants and their acquaintances, put forward during the interrogation in order to discredit the victim.
Therefore, the court of second instance examined the testimony of the victim carefully, objectively and completely. Thus, the court substantiated in detail its conclusion that the statements as a whole were credible, as well as its subsequent decision to add the statement to the case as the main evidence of the applicants' guilt.
In conclusion, it should be noted that the judgment in the applicants' case was based on a body of evidence, among which the testimony of the victim was not isolated data. The applicants actively participated in the examination of their case with the help of their lawyer. The court of second instance and the Supreme Court of Cassation considered and rejected the complaints of the applicants in their decisions, which were motivated in detail and were not arbitrary.
The case did not violate the requirements of Article 6 of the Convention (adopted unanimously).