Communicated on 2 February 2018
THIRD SECTION
Application no. 74467/10
Gennadiy Nikolayevich ATYUKOV against Russia
and 11 other applications
(see the appended Table)
SUBJECT MATTER OF THE CASES
The applications concern proceedings under the federal Code of Administrative Offences (CAO) against the applicants.
COMMON QUESTION
Did each applicant have a fair hearing as required by Article 6 § 1 of the Convention (see, among others, as regards the general approach to the assessment of the overall fairness, Simeonovi v. Bulgaria [GC], no. 21980/04, § 120, ECHR 2017 (extracts); Schatschaschwili v. Germany [GC], no. 9154/10, §§ 125-31, ECHR 2015; and Frumkin v. Russia, no. 74568/12, §§ 165-66, ECHR 2016 (extracts))?
Reference is also made to each applicant’s specific allegations and safeguards under paragraph 3 of Article 6 of the Convention, as summarised in the appended Table.
ADDITIonal CASE-SPECIFIC QUESTIONS
Application no. 48122/13:
Were the principle of equality of arms and the requirement of adversarial procedure violated, inter alia, because the applicant was afforded no opportunity to examine S. at the trial or on appeal (compare Matytsina v. Russia, no. 58428/10, §§ 166-208, 27 March 2014, and Pello v. Estonia, no. 11423/03, §§ 24-35, 12 April 2007)? Did it violate the applicant’s right under Article 6 § 3 (d) of the Convention to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions? In particular:
- Were the written and oral testimonies, including by officer T., made under oath and a risk of criminal or other liability for false testimony (for instance, an offence under Article 17.9 of the CAO punishable by an administrative fine up to some 35 euros)?
- Did S. make any adverse statement, which was used for convicting the applicant? If not, should he be treated as a “witness on his behalf”? Was it convincingly established that reasonable efforts had been made to ensure his presence at the trial and that his absence was justified? Did Russian law provide for any measure to ensure a witness’s presence or liability in the event of default without a valid reason? Was any such measure used in the present case?
Application no. 54424/14:
- When was the applicant first notified of the right to legal assistance, the privilege against self-incrimination and the right to silence (Article 25.5(1) in conjunction with Article 28.1(4) of the CAO)? Was it before or after he made a self-incriminating statement on 12 August 2013 (namely, vis-à-vis the time when the first record was compiled on the spot)? Was this statement given spontaneously or following a request or questions being asked by the police?
- In view of the above considerations and also having regard to the unavailability of free legal assistance under the CAO (see Mikhaylova v. Russia, no. 46998/08, §§ 85-102, 19 November 2015, and A.V. v. Ukraine, no. 65032/09, § 59, 29 January 2015), was there a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the use made of his statement given without notification of his rights and without the benefit of legal advice (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 272-73 and 296, ECHR 2016, and Simeonovi v. Bulgaria [GC], no. 21980/04, § 111, ECHR 2017 (extracts))?
- Was the applicant afforded a reasonable opportunity to present his case and this under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent (if any)? In particular was he afforded an adequate opportunity to contest the adverse evidence and to adduce his own evidence at the trial and/or on appeal, namely, by way of examining attesting witnesses L. and Zh.?
- Was there a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the unavailability of free legal assistance for review proceedings under Article 30.12 of the CAO (compare Mikhaylova v. Russia, no. 46998/08, §§ 85-102, 19 November 2015)?
Application no. 57123/16:
When was the applicant first notified of the right to legal assistance, the privilege against self-incrimination and the right to silence (Article 25.5(1) in conjunction with Article 28.1(4) of the CAO)? Was it before or after she made a self-incriminating statement on 14 January 2016 (namely, after a case was instituted against her on 28 January 2016)? Was it given spontaneously or following a request or questions being asked by the police? In view of the above considerations and also having regard to the unavailability of free legal assistance under the CAO (see Mikhaylova v. Russia, no. 46998/08, §§ 85-102, 19 November 2015, and A.V. v. Ukraine, no. 65032/09, § 59, 29 January 2015), was there a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the use made of her statement given without notification of her rights and without the benefit of legal advice (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 272-73 and 296, ECHR 2016, and Simeonovi v. Bulgaria [GC], no. 21980/04, § 111, ECHR 2017 (extracts)) as well as on account of the refusal to adjourn the appeal hearing and the unavailability of free legal assistance for the purpose of the appeal proceedings?
APPENDIX
No.
Application
no. and date of introduction
Applicant name
date of birth
place of residence
nationality
Represented by
Final domestic decision details
Communicated issues
74467/10
09/11/2010
Gennadiy Nikolayevich ATYUKOV
05/09/1962
Zemetchino
Russian
judgment of 18/05/2010; appeal decision of 16/06/2010
Article 6§§1 and 3(d): no adequate opportunity to examine witnesses against him and on his behalf, to contest adverse written statements (Il., De.; Di.; Po., Ku., Kr., Ye.)
66355/11
07/10/2011
Ivan Aleksandrovich SEVASTYANOV
28/06/1989
Tyumen
Russian
Vladimir Borisovich SEMKIN
judgment of 28/04/2011; appeal decision of 27/05/2011
Article 6§§1 and 3(b)-(d): refusal to adjourn the trial because counsel could not attend; no adequate opportunity to contest adverse evidence (namely, by way of examining S. and P.) with the benefit of legal advice; the appeal hearing was held in the applicant’s and his lawyer’s absence
48122/13
10/06/2013
Vladimir Artemyevich FILINOV
15/03/1960
Pokrovka
Russian
judgment of 09/11/2012; appeal decision of 17/12/2012
Article 6§§1 and 3(d): opportunity to contest adverse evidence and put forward a defence, namely by way of examining attesting witness S.
54424/14
14/07/2014
Aleksey Vladimirovich STARKOV
02/08/1982
Shirokiy Buyerak
Russian
judgment of 12/11/2013; appeal decision of 20/01/2014
Article 6 §§ 1 and 3(d): opportunity to contest adverse evidence and put forward a defence, namely by way of examining attesting witnesses L. and Zh.;
Article 6§§1 and 3(c): the applicant was convicted with reference to admissions made on the spot of the traffic offence without the benefit of (free) legal assistance; no free legal asisstance for review proceedings before the Supreme Court of Russia
19813/16
29/03/2016
Ilya Viktorovich VAKHROMEYEV
21/09/1969
Kovrov
Russian
judgment of 11/09/2015; appeal decision of 11/11/2015; 1st review decision of 01/03/2016; 2nd review decision of 06/07/2016
Article 6§§1 and 3(d): no opportunity to examine B. (on behalf of the defence; refusal to issue summons for a hearing on 08/09/2015); refusal to examine minor V. and attesting witnesses M. and P. at the trial (on behalf of the defence; as to V. – « under the same conditions » as adverse witnesses such as L.)
43797/16
13/07/2016
Vladislav Anatolyevich TISHCHENKO
25/01/1972
Volsk
Russian
judgment of 26/01/2016; appeal decision of 04/03/2016; 1st review decision of 07/04/2016; 2nd review decision of 20/06/2016
Article 6§§1 and 3(d): no opportunity to examine two attesting witnesses
50781/16
16/08/2016
Aleksey Aleksandrovich PETROV
13/10/1971
Volsk
Russian
judgment of 29/02/2016; appeal decision of 23/05/2016; 1st review decision of 21/06/2016; 2nd review decision of 25/07/2016
Article 6§§1 and 3(d): the applicant was convicted with reference to the pre-trial statements by two attesting witnesses, who he had had no opportunity to examine
57123/16
16/09/2016
Svetlana Ivanovna MAMOLINA
08/04/1975
Volsk
Russian
judgment of 22/03/2016; appeal decision of 06/05/2016; 1st review decision of 16/06/2016; 2nd review decision of 28 July 2016
Article 6§§ 1 and 3: the applicant was convicted with reference to admissions made on the spot of the offence without the benefit of (free) legal assistance; refusal to adjourn an appeal hearing in view of the applicant’s final term of pregnancy and unavailiability of free legal assistance on appeal
29942/17
08/04/2017
Svetlana Viktorovna IVANOVA
03/12/1974
Petropavlovsk-Kamchatskiy
Russian
judgment of 08/07/2016; appeal decision of 18/10/2016; 1st review decision of 06/04/2017; 2nd review decision of 29/08/2017
Article 6§§1 and 3(b)-(d): the applicant received no proper notification about the trial hearing and could not attend and, by implication, to put forward a defence at an oral hearing; allegedly, appeal proceedings were also defective and put the defence at a distinct disadvantage, inter alia, on account of having no opportunity to examine officers B. and G., attesting witnesses or defence witness So., and the traffic police’s omission to comply swiftly with the court order to submit a video recording (before it was destroyed)
48909/17
01/07/2017
Aleksandr Nikolayevich NERETIN
24/04/1960
Moscow
Russian
judgment of 01/04/2016; appeal decision of 05/04/2016; review decision of 24/10/2016; fresh appeal decision of 26/01/2017
Article 6§§1 and 3(b)-(d): dismissal of the requests for free legal assistance at the trial and on appeal, to have the trial adjourned to be able to prepare the defence and, in particular, to retain counsel; refusal to hear witnesses and to assist the defence in obtaining a security-camera recording; refusal to adjourn the appeal hearing to retain counsel
66812/17
27/08/2017
Irina Ivanovna BELIKOVA
09/10/1974
Votkingsk
Russian
judgment of 05/09/2016; appeal decision of 27/02/2017; 1st review decision of 02/05/2017; 2nd review decision of 20/06/2017
Article 6§§1 and 3(d): no opportunity to examine police officers and attesting witnesses, and the resulting unfairness of the proceedings
71770/17
27/09/2017
Aleksandr Vadimovich NIKISHIN
13/02/1988
Saratov
Russian
judgment of 27/03/2017; appeal decision of 29/03/2017
Article 6§§1 and 3(b)-(c): no access to legal advice after the initial deprivation of liberty; insufficient time to prepare the trial overnight and refusal to adjourn; restriction on the defence’s ability to contest adverse evidence (inter alia, refusal to examine video recordings at the trial and refusal to hear witnesses who were present at the appeal hearing)
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