CASE OF SHILINA AND FILKOV v. ARMENIA

FIFTH SECTION

CASE OF SHILINA AND FILKOV v. ARMENIA

(Application no. 8010/05)

JUDGMENT
 

STRASBOURG

11 September 2025

This judgment is final but it may be subject to editorial revision.

In the case of Shilina and Filkov v. Armenia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 María Elósegui, President,
 Andreas Zünd,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 8010/05) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 January 2005 by two Armenian nationals, Ms Nina Shilina (“the first applicant”) and Mr Edgar Filkov (“the second applicant”), born in 1949 and 1972, respectively, and living in Tbilisi, Georgia and Yeghegnadzor, Armenia (“the applicants”). The first applicant was represented by Mr N. Koval, a lawyer practising in Kyev. The second applicant was granted leave to represent himself in the proceedings before the Court;

the decision to give notice of the application to the Armenian Government (“the Government”), represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights;

the decision to examine the merits of the application at the same time as its admissibility (Article 29 § 3);

the parties’ observations;

the decision to dismiss the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 10 July 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1.  The application concerns the criminal proceedings for high treason against the applicants, husband and wife at the material time. They raise a number of complaints under various provisions of the Convention, including under Articles 6 and 8 of the Convention.

2.  The first applicant was born in Russia. In 1988 she moved from Sumgait, Azerbaijani SSR, to the town of Jermuk, Armenian SSR. She then moved to live in Baku in 1993. The second applicant was born in Armenia.

3.  The applicants got married in 1997 and settled in Armenia  first in Yeghegnadzor, then in Artashat, and finally in Yerevan.

4.  On 27 July 2000 the first applicant, who at that time still held an old Soviet passport, applied to the Armenian authorities to receive a new passport since she had lost her old one. On 9 August 2000 she was granted an Armenian passport.

5.  On 20 June 2002 E.O., whose husband had worked for the Ministry of Defence, filed a report with the Ministry of National Security (“the MNS”) stating that the first applicant, her neighbour at the time, had been collecting information of military nature. E.O. made a detailed statement about the first applicant’s actions, including the latter’s attempts to collect information of military nature in return for good remuneration.

6.  In June 2002 the MNS obtained authorisations to conduct surveillance, including interception and recording of the applicants’ flat and telephone conversations, for a period of six months.

7.  About a month later A.Y., another neighbour, filed a report with the MNS, stating that in the summer of 2001, the first applicant had told him that, several years earlier in Tbilisi, she had been recruited by intelligence services, for whom she had subsequently been collecting information pertaining to Armenia. A.Y. later made an additional statement describing how the first applicant had been collecting information concerning a specific military unit.

8.  On 6 August 2002 the MNS instituted criminal proceedings on account of high treason. The relevant decision stated that in 1993 the applicants had been recruited by the Azerbaijani intelligence services and since then collected and provided to them both secret and other information, undermining Armenia’s sovereignty, territorial integrity, national security and defence.

9.  On the same date the applicants were arrested and legal aid lawyer G.M. was appointed to represent them. That day the applicants made detailed written statements essentially confessing to the offence. When questioned as suspects the following day, they confirmed their previous confession statements. The interrogation records, drafted in Russian, were signed by the applicants and G.M.

10.  In November 2002 an MNS investigator questioned R.K., the first applicant’s son, in Ukraine, where he lived at that time. He described certain details of his life with his mother in Baku between 1993 and 1996, which included information related to her espionage activity.

11.  On 26 January 2004 the District Court of Yerevan found the first applicant guilty of high treason and attempted sabotage on account of a failed attempt to cause an explosion in a hotel located in central Yerevan, and the second applicant guilty of high treason, sentencing them to fifteen and thirteen years’ imprisonment, respectively. Among other evidence, the District Court relied on E.O.’s report (see paragraph 5 above), and statements of fifteen witnesses, including A.Y. and R.K. The pre-trial statements of A.Y. and R.K. were read out in court since they had failed to appear, while E.O., whose report was also read out, had not been included in the witness call list. The evidence provided by the other thirteen witnesses contained general information about the applicants’ lifestyle and their trips to Tbilisi and Nagorno-Karabakh.

12.  The applicants lodged separate appeals. The first applicant argued, inter alia, that the prosecution had failed to submit any evidence corroborating the charge. None of the witnesses examined in court had made implicating statements, and those witnesses who had made such statements, had not been examined during the investigation or court proceedings. She further claimed that the District Court had failed to examine her complaints about the absence of a lawyer and an interpreter during the investigation. In his appeal, the second applicant argued that his conviction had been unsubstantiated.

13.  On 19 July 2004 the Criminal and Military Court of Appeal upheld the applicants’ convictions on the basis of the same body of evidence. It stated that the records of the applicants’ interrogations and other investigative measures showed that a lawyer, an interpreter and attesting witnesses had participated in the necessary investigative measures, as evidenced by their signatures, while the applicants had not filed any applications and motions during the investigation alleging a breach of their rights or raising any other concerns.

14.  The applicants lodged separate appeals on points of law.

The first applicant argued in her appeal on points of law that, inter alia, the charge against her had been based solely on her confession statement and the false statements of E.O., A.Y. and R.K. who had not been examined during the investigation or the court proceedings. She further claimed that the courts had not relied on the results of the secretly intercepted conversations since only the transcript of the tape recordings had been produced in court, but not the recordings themselves. Those recordings had never been disclosed to her and she had not been assisted by a lawyer or an interpreter during the investigation.

The second applicant argued in his appeal on points of law about the admission of evidence and that he had not been assisted by a lawyer or an interpreter during the investigation.

15.  In September 2004 the Court of Cassation dismissed the applicants’ appeals on points of law.

16.  The applicants complained under Article 6 §§ 1 and 3 (d) of the Convention that none of the key prosecution witnesses, including E.O., A.Y. and R.K., were examined either during the investigation or the trial. They also raised a number of complaints under Articles 5 §§ 1 (c) and 3, 6 § 1, 6 § 2, 6 §§ 1 and 3 (a), (b), (c) and (e), 7, 8, 10, 13 and 14 of the Convention and Article 1 of Protocol No. 1 in relation to their arrest, prosecution and trial.

THE COURT’S ASSESSMENT

17.  The Government argued that the applicants had failed to exhaust the available domestic remedies.

18.  The second applicant failed to raise this complaint in his appeals against his conviction (see paragraphs 12 and 14 above, and, for the relevant principles, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 75, 25 March 2014).

19.  It follows that this complaint, in so far as the second applicant is concerned, must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

20.  The Court observes that the first applicant raised this complaint in her appeals (see paragraphs 12 and 14 above). It therefore dismisses the Government’s objection as to the non-exhaustion of domestic remedies (see paragraph 17 above) as regards the first applicant.

21.  The Court notes that this complaint, in so far as the first applicant is concerned, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

22.  The relevant principles regarding the admission of untested incriminating witness evidence in criminal proceedings have been set out in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119-47, ECHR 2011) and further clarified in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-31, ECHR 2015; for a summary of the case-law, see also Seton v. the United Kingdom, no. 55287/10, §§ 57-59, 31 March 2016).

23.  The Government’s argument that E.O. and A.Y. were summoned to appear before the trial court is not supported by any evidence. Notably, E.O. was not even included in the witness call list (see paragraph 11 above). As regards the Government’s argument that R.K. was not summoned because he was not in Armenia and his location was unknown, the Court notes that R.K. had been interviewed in Ukraine in November 2002 (see paragraph 10 above). However, there is nothing to suggest that the trial court had attempted to summon R.K. at his latest known address, let alone that it had been unable to locate him. In any event, the fact that a witness was absent from the country in which the proceedings were conducted was found not to be sufficient in itself to satisfy the requirements of Article 6 § 3 (d), which require the Contracting States to take positive steps to enable the accused to examine or have witnesses against him examined (see Gabrielyan v. Armenia, no. 8088/05, § 81, 10 April 2012, and Lučić v. Croatia, no. 5699/11, § 79, 27 February 2014).

24.  Consequently, there was no good reason for E.O., A.Y. and R.K. not to have attended the trial to enable the first applicant to confront them in person.

25.  As to the role of the evidence in question, the District Court’s judgment, which was fully upheld by the Court of Appeal (see paragraphs 11 and 13 above), referred to the pre-trial statements of E.O., A.Y. and R.K. to secure the first applicant’s conviction for high treason without making any evaluation of the probative value of that evidence. The Court must therefore make its own assessment of the weight of the evidence given by the absent witnesses, having regard to the other incriminating evidence available (see Schatschaschwili, cited above, § 143).

26.  It is not in doubt that the statements of E.O., A.Y. and R.K. were not the only evidence on which the first applicant’s conviction was based. Those statements were therefore not the “sole” evidence against the first applicant. The District Court’s judgment did refer to other evidence, including the statements of thirteen other witnesses (see paragraph 11 above). However, as opposed to the evidence given by E.O., A.Y. and R.K. (see paragraphs 5, 7 and 10 above), the other witnesses’ evidence did not directly implicate the first applicant in spying activity but rather contained general information about the applicants’ lifestyle and trips (see paragraph 11 above).

27.  Considering that the domestic courts did not make any assessment of the probative value of the evidence given by E.O., A.Y. and R.K., the Court finds it unclear whether the evidence of witnesses E.O., A.Y. and R.K. was “decisive”, but it is nevertheless satisfied that it carried significant weight and its admission might have handicapped the defence. The Court should therefore review the existence of sufficient counterbalancing factors (see, Seton, cited above, § 59, and Asatryan v. Armenia, no. 3571/09, § 64, 27 April 2017).

28.  There is no indication in the domestic courts’ decisions that they approached the statements of E.O., A.Y. and R.K. with any specific caution or attached less weight to their statements (compare, for instance, Al-Khawaja and Tahery, cited above, § 157, and Bobeş v. Romania, no. 29752/05, § 46, 9 July 2013).

29.  In addition, the Government did not indicate any procedural safeguards in relation to the use by the trial court of the evidence given by the witnesses in question.

30.  Therefore, it has not been established that there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis-à-vis the untested witness evidence of E.O., A.Y. and R.K.

31.  There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the first applicant.

32.  The applicants also complained under Article 6 §§ 1 and 3 (c) and (e) of the Convention.

33.  The second applicant failed to raise those complaints in his appeal against his conviction (see paragraph 12 above). It follows that those complaints, in so far as the second applicant is concerned, must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

34.  As regards the first applicant, having regard to the facts of the case, the submissions of the parties, and its above-mentioned findings, the Court considers that it has dealt with the main legal question raised by the case and that there is no need to examine those complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

35.  The applicants also raised a number of complaints under Articles 5 §§ 1 (c) and 3, 6 §§ 1 and 3 (a), 6 § 2, 7, 8, 10, 13 and 14 of the Convention and Article 1 of Protocol No. 1. The Court has examined that part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

36.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

37.  The first applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 11 September 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller María Elósegui
 Deputy Registrar President