Communicated on 24 June 2015
FIRST SECTION
Application no. 10384/12
Vladimir Vladimirovich AVZHIYAN against Russia
and 9 other applications
(see list appended)
1. The applicants’ names, dates of birth, and nationalities are presented in the annexed table. The facts of the cases, as submitted by the applicants, may be summarised as follows.
2. On various dates between 2011 and 2014 the applicants were criminally prosecuted and convicted for various offences under the Russian legislation in force.
3. The applicants’ convictions were based among other evidence on the testimony of one or more prosecution witnesses, whose identity was kept secret, and in certain cases on the statements of prosecution witnesses which were made during pre-trial stages of the proceedings and read out in open court while these witnesses were absent from trials.
4. The applicants objected to the use of such evidence in the criminal proceedings against them, but despite these objections the national courts convicted them relying inter alia on the testimony of anonymous and/or absent witnesses. Subsequently, the judgments of conviction were upheld on appeal and became final. The final judgments’ particulars are presented in the table below.
COMPLAINTS
5. The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention about inability to effectively examine anonymous witnesses testifying against them.
6. The applicants in the cases 10384/12, 42410/12, 46922/12, 52893/12, 24356/13, 49901/13, 74480/14, 74812/14 further complain under Article 6 §§ 1 and 3 (d) of the Convention about absence of certain witnesses (including certain anonymous witnesses) from trial.
COMMON QUESTIONS
1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? Specifically, were the applicants able to examine the witnesses testifying against them as required by Article 6 § 3 (d) of the Convention?
2. Were there good reasons to keep secret the identity of the respective witnesses at trials (see Pesukic v. Switzerland, no. 25088/07, § 45, 6 December 2012 and Scholer v. Germany, no. 14212/10, §§ 50-51, 18 December 2014)?
(a) If yes, what were these reasons and were these reasons duly reviewed by the domestic courts?
(b) What were the grounds in the Russian law and practice on which the national courts relied in keeping secret the identity of these witnesses?
3. Were the applicants’ convictions based solely or to a decisive degree on the statements of the witnesses whose identities were kept secret?
4. Were there strong procedural safeguards put in place by the Russian law, practice, or specific arrangements in the applicants’ cases, which would counterbalance the use of these witnesses’ testimony?
5. Was the overall fairness of the proceedings ensured by the domestic courts as prescribed by Article 6 § 1 of the Convention? In addressing this issue the parties are invited to address each of the following questions:
(a) Did the competent national courts assess the impact of keeping secret the identity of certain witnesses on the overall fairness of the proceedings?
(b) Did the national courts ensure the overall fairness of the proceedings as prescribed by Article 6 § 1 of the Convention by reflecting in the judgments, where appropriate, the reasons for keeping the witnesses identities secret?
(c) Having regard to the right “to examine or have examined witnesses against him” as enshrined in Article 6 § 3 (d), were the applicants able to effectively examine the witnesses, whose identities were kept secret, before or during the trials?
(d) Were there any restrictions imposed on the ability of the defence to put questions to these witnesses? If yes, were these restrictions compatible with the rights of the applicants under Article 6 of the Convention?
Case-specific Questions
1.10384/12, 42410/12, 46922/12, 52893/12, 24356/13, 49901/13, 74480/14, 74812/14
1. Having regard to the Court’s judgment in the case Al-Khawaja and Tahery v. the United Kingdom [GC] (nos. 26766/05 and 22228/06, ECHR 2011) was there a violation of the applicants right to examine the witnesses testifying against them as required by Article 6 §§ 1 and 3 (d) of the Convention?
(a) Did the Russian law or judicial practice put in place any restrictions on the use of testimony of the absent witnesses whose identity was kept secret? If yes, what are these restrictions?
(b) In the applicants’ cases what were the reasons advanced by the domestic courts allowing them to admit testimony of the absent witnesses whose identity was also kept secret? Did the domestic courts regard admission of such evidence as a handicap to the defence?
(c) Did the domestic courts consider it necessary to afford the defence strong procedural safeguards put in place by the Russian law and practice in order to counterbalance the absence of witnesses whose identity was kept secret? If yes, what were the specific arrangements in the applicants’ cases?
2. What was the nature of the ground hindering the witness’s presence at the trial hearing?
3. What was the kind of public authority before which the witness’s prior testimony was given?
4. Was the defence lawyer present at any hearing of the witness prior to the trial?
5. Where there mechanisms to safeguard the defence’s right to impugn the fairness of the gathering of testimony, the credibility of the witness and the reliability of his or her testimony?
6. What was the weight of the read-out testimony of the non-cross-examined witness in the trial court’s judgment?
7. Did the defendant waive the right to cross-examine the absent witness?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
nationality
Represented by
Final decision
Wintess(es)
10384/12*
05/04/2012
Vladimir Vladimirovich AVZHIYAN
23/04/1989
Russian
Krasnodar Regional Court, 16 November 2011
prosecution witnesses "James" and "Bond": anonymous and absent
42410/12*
15/10/2012
Sergey Vsevolodovich STRASHNOV
07/12/1982
Russian
Leningrad Regional Court, 6 June 2012
prosecution witnesses “Kurbatov” and “Kosin”: anonymous and absent
46922/12
11/07/2012
Aleksandr Anatolyevich PAVLOV
30/05/1978
Russian
Sergey Semenovich SHALUKHIN
Supreme Court of the Russian Federation, 28 March 2012
prosecution witnesses “Gavrilov”, “Borisov”, “Galkin”, “Aleksandrov”, “Antonov”, “Ivanov”, “Isayev”, “Palkin”, “Ivanov Ivan Ivanovich”: anonymous and absent
prosecution witnesses “Klevtsov”, “Chernov”, “Artyomov”, “Olgina”, “Sergeyev”, “Frolov”,: anonymous
prosecution witnesses Mr G. and Mr Ud.: absent
52893/12*
26/07/2012
Vladimir Aleksandrovich TYURIN
11/05/1982
Russian
Saint Petersburg City Court, 29 May 2012
prosecution witnesses “Bashirov” and “Shevchenko”: anonymous and absent
54235/12*
13/08/2012
Andrey Leonardovich MARKOV
07/03/1967
Russian
Vladimir Viktorovich PORUCHAYEV
Novosibirsk Regional Court, 28 April 2012
prosecution witnesses “Petrov” and “Vasilyev”: anonymous
24356/13*
07/03/2013
Nasimzhon Nodirovich SHIRINOV
31/07/1975
Tajik
Krasnoyarsk Regional Court, 13 December 2012
prosecution witness “Prokhorov”: anonymous and absent
prosecution witness Mr B.: absent
49901/13*
08/07/2013
Vladimir Viktorovich KARMANOV
16/10/1980
Russian
Vladimir Regional Court, 6 May 2013
prosecution witnesses “Volkova” and “Moiseyeva”: anonymous and absent
13437/14*
05/02/2014
Vladimir Nikolayevich GRECHUKHIN
30/12/1988
Russian
Smolensk Regional Court, 15 November 2013
prosecution witness “Struchev”: anonymous
74480/14
15/11/2014
Ivan Ivanovich KURILYAK
11/06/1986
Ukrainian
Artur Mansurovich ABDRAKHMANOV
10/06/1989
Russian
Ilya Sergeyevich VLASOV
Moscow City Court, 15 May 2014
prosecution witness “Zhukov”: anonymous and absent
prosecution witnesses Mr D., Mrs K., Mrs Iz., Mr S., Mr K., Mrs Khl., Mrs St., Mr Kul., Mrs Khaf.: absent
74812/14*
19/11/2014
Dzhamalutdin Arsenovich EBUYEV
16/12/1991
Russian
Rafik Afdandil Ogly ALLAKHVERDIYEV
Volgograd Regional Court, 30 June 2014
prosecution witness “Purchaser”: anonymous and absent
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