THIRD SECTION
CASE OF FOROSTYAN v. RUSSIA
(Application no. 58501/18)
JUDGMENT
STRASBOURG
27 October 2022
This judgment is final but it may be subject to editorial revision.
In the case of Forostyan v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Andreas Zünd,
Frédéric Krenc, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 6 October 2022,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 November 2018.
2. The applicant was represented by Mr Y. Pyatitskiy, a lawyer practising in Rostov-on-Don.
3. The Russian Government (“the Government”) were given notice of the application.
THE FACTS
4. The applicant’s details and information relevant to the application are set out in the appended table.
5. The applicant complained of the unfair trial in view of restrictions on the right to examine a witness.
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) of the Convention6. The applicant complained of the unfair trial in view of restrictions on the right to examine an anonymous witness for prosecution. He relied, expressly or in substance, on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:
Article 6 §§ 1 and 3 (d)
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights ...
...
(d) to examine or have examined witnesses against him ...”
7. The general principles to be applied in cases where a prosecution witness did not attend the trial and his statements previously made by him were admitted as evidence are well-established in the Court’s case law (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-31, ECHR 2015). In Schatschaschwili, the Court found a violation on account of the authorities’ failure to provide the applicant with an opportunity to have the two key prosecution witnesses examined at any stage of the proceedings (ibid., §§ 161-65).
8. Turning to the circumstances of the present case and having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Even leaving open the question as to whether there were good reasons for the non-attendance of the key witness, it considers that the fact that the applicant was not provided with an opportunity to cross-examine the witness, who had also been anonymised, weighs heavily in the balance in the examination of the overall fairness of the criminal proceedings against him. The Court also takes into account that there is nothing in the materials in its possession to suggest that there was any effort on the part of the national judicial authorities to make use of any counterbalancing measures to compensate for the difficulties experienced by the applicant on account of the admission of the untested statements by the witness as evidence.
9. These complaints are therefore admissible and disclose a breach of Article 6 §§ 1 and 3 (d) of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION10. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
11. Regard being had to the documents in its possession and to its case‑law (see, in particular, Zadumov v. Russia, no. 2257/12, § 81, 12 December 2017), the Court considers that the finding of a violation constitutes a sufficient just satisfaction in the present case.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that this application discloses a breach of Article 6 §§ 1 and 3 (d) of the Convention concerning the unfair trial in view of restrictions on the right to examine an anonymous witness;Holds that the finding of a violation constitutes in itself sufficient just satisfactionDone in English, and notified in writing on 27 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Darian Pavli
Acting Deputy Registrar President
APPENDIX
Application raising complaints under Article 6 §§ 1 and 3 (d) of the Convention
(unfair trial in view of restrictions on the right to examine witnesses)
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Final domestic decision
Charges convicted of
Witness absent from trial (indicated by initials)
Summary of the nature of the witness evidence
Reasons for absence
Steps taken to compensate for the witnesses’ absence
58501/18
28/11/2018
Andrey Gennadyevich FOROSTYAN
1988
Yevgeniy Fedorovich Pyatitskiy
Rostov-on-Don
Rostov Regional Court
29/08/2018
drug selling
I.Y.
prosecution witness - anonymous purchaser – the only eyewitness of the office
Could not be located
None