FIRST SECTION
CASE OF IVCHENKO AND OTHERS v. RUSSIA
(Applications nos. 49853/10 and 9 others –
see appended list)
JUDGMENT
STRASBOURG
18 January 2024
This judgment is final but it may be subject to editorial revision.
In the case of Ivchenko and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President,
Gilberto Felici,
Raffaele Sabato, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 14 December 2023,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table
2. The Russian Government (“the Government”) were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the unfair trial in view of restrictions on their right to examine witnesses. Some applicants also raised other complaints under the provisions of the Convention.
THE LAW
JOINDER OF THE APPLICATIONS5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
JURISDICTION6. The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68‑73, 17 January 2023).
THE GOVERNMENT’S REQUEST TO STRIKE OUT APPLICATION No. 59292/18 UNDER ARTICLE 37 § 1 OF THE CONVENTION7. The Government submitted a unilateral declaration in respect of application no. 59292/18 which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the application out and will accordingly pursue its examination of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003 VI).
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) of the Convention8. The applicants complained principally of the unfair trial in view of restrictions on the right to examine witnesses. They relied, expressly or in substance, on Article 6 §§ 1 and 3 (d) of the Convention.
9. The general principles concerning the right of an accused to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf are well established in the Court’s case-law (see Al‑Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011, Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015, and Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 150-68, 18 December 2018).
10. 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. It considers that the fact that the applicants were not provided with an opportunity to cross-examine those witnesses, some of whom had been anonymised, weighs heavily in the balance in the examination of the overall fairness of the criminal proceedings against them. Nor were the applicants able to obtain attendance of witnesses on their behalf, even though their relevant requests were sufficiently reasoned. The Court takes into account that there is nothing in the materials in its possession to suggest that the national judicial authorities made use of sufficient counterbalancing measures to compensate for the difficulties experienced by the applicants.
11. These complaints are therefore admissible and disclose a breach of Article 6 §§ 1 and 3 (d) of the Convention.
12. In view of the above finding, the Court does not consider it necessary to examine the remainder of the allegations made by the applicants in applications nos. 54235/12, 49901/13, 3437/14 and 74480/14.
APPLICATION OF ARTICLE 41 OF THE CONVENTION13. 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 sufficient just satisfaction in the present cases.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Holds that it has jurisdiction to deal with the applicants’ complaints as they relate to facts that took place before 16 September 2022;Rejects the Government’s request to strike application no. 59292/18 out of its list of cases under Article 37 § 1 of the Convention on the basis of the unilateral declaration which they submitted;Declares the complaints concerning the unfair trial in view of restrictions on the right to examine witnesses admissible and holds that there is no need to examine the remainder of applications nos. 54235/12, 49901/13, 3437/14 and 74480/14;Holds that these complaints disclose 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 witnesses;Holds that the finding of a violation constitutes in itself sufficient just satisfaction.Done in English, and notified in writing on 18 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Péter Paczolay
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 6 §§ 1 and 3 (d) of the Convention
(unfair trial in view of restrictions on the right to examine witnesses)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Final domestic decision
Charges convicted of
Witness (indicated by initials)
Absent and/or anonymous
Evidence type
Reasons for absence and/or anonymity
Counterbalancing factors/overall fairness
49853/10
09/08/2010
Lyubov Timofeyevna IVCHENKO
1950
Niyazova Munavar Abdrashitovna
Astrakhan
Astrakhan Regional Court
11/02/2010
involuntary manslaughter
“Secret”
absent and anonymous
statements decisive
“Ivanov”
Anonymous;
statements having significant weight
could not be located
no reasons for anonymity
Insufficient:
no assessment of the necessity to anonymise the witnesses;
no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witnesses;
lack of reasonable efforts to secure the absent witness’s attendance
46922/12
11/07/2012
Aleksandr Anatolyevich PAVLOV
1978
Supreme Court of Russia
28/03/2012
murder, attempted murder and unlawful possession of weapons
“Gavrilov”, “Borisov”, “Galkin”, “Chernov”, “Aleksandrov”, “Klevtsov”, “Ivanov”, “Antonov”, “Isayev”, “Artemov”, “Frolov”, “Olghina”, “Palkin”, “Ivanov Ivan Ivanovich”
Anonymous witnesses and all their statements were decisive;
Mr G.,
absent witness and his statements were decisive;
Mr Ud.
absent witness with the statements having
significant weight
fear
Insufficient:
no assessment of the reasonableness of the personal fear of the witnesses and of
the necessity to anonymise them;
no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witnesses;
lack of reasonable efforts to secure the absent witnesses’ attendance
54235/12
13/08/2012
Andrey Leonardovich MARKOV
1967
Poruchayev Vladimir Viktorovich
Novosibirsk
Novosibirsk Regional Court
28/04/2012
drug trafficking
“Petrov”, “Vasilyev” anonymous
fear
Insufficient:
no assessment of the reasonableness of the personal fear of the witnesses and of
the necessity to anonymise them;
no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witnesses
49901/13
08/07/2013
Vladimir Viktorovich KARMANOV
1980
Preobrazhenskaya Oksana Vladimirovna
Moscow
Kovrov District Court
04/02/2013
drug trafficking
“Ms Volkova”, “Ms Moiseyeva”
absent and anonymous
decisive
safety
could not be located
Insufficient:
no assessment of the necessity to anonymise the witnesses;
no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witnesses;
lack of reasonable efforts to secure the absent witnesses’ attendance
13437/14
05/02/2014
Vladimir Nikolayevich GRECHUKHIN
1988
Smolensk Regional Court
22/08/2013
drug trafficking
“Struchev”
anonymous
decisive
fear
Insufficient:
no assessment of the necessity to anonymise the witness;
no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witness
61973/14
02/09/2014
Pavel Vladimirovich YASTREBOV
1996
Abramova Antonina Viktorovna
Moscow
Moscow City Court
03/03/2014
assault on a police officer
Mr S.,
absent
significant weight;
Mr G.
absent
significant weight
unavailable
could not be located
Insufficient:
lack of reasonable efforts to secure the absent witnesses’ attendance
73332/14
05/11/2014
Roman Viktorovich NIKOLAYENKO
1981
Nikolayenko Yevgeniya Yuryevna
Shchepkin
Supreme Court of the Russian Federation
07/05/2014
armed robbery
Mr Ratiya
absent
defence witness
court’s refusal to call defence witness
No sufficient reasoning of the refusal to call defence witness/breach of the overall fairness of the proceedings
74480/14
15/11/2014
Ivan Ivanovich KURILYAK
1986
Artur Mansurovich ABDRAKHMANOV
1989
Vlasov Ilya Sergeyevich
Moscow
Moscow City Court
15/05/2014
drug trafficking
“Zhukov”,
absent and anonymous,
decisive (count of 06/04/2012);
Mrs Iz.
absent
and decisive (count of 08/06/2012);
could not be located/ none
could not be located
Insufficient as regards witnesses “Zhukov” and Mrs Iz.:
no assessment of the necessity to anonymise the witnesses;
no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witness;
lack of reasonable efforts to secure the absent witnesses’ attendance
49295/18
12/10/2018
Vladimir Yuryevich MATVIYENKO
1979
Matviyenko Yana Yuryevna
Rostov-on-Don
Rostov Regional Court
28/05/2018
bribery
Mr. “I.”
absent and anonymous and
decisive
could not be located/none
Insufficient:
no assessment of the necessity to anonymise the witnesses;
no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witnesses;
lack of reasonable efforts to secure the absent witness’s attendance
59292/18
03/12/2018
Aleksey Aleksandrovich KOROLEV
1993
Pleshkov Maksim Alekseyevich
Moscow
Moscow Regional Court
05/07/2018
deprivation of liberty, robbery and extortion
Mr D.V., Mrs D.K.
absent and
decisive
none
Insufficient:
lack of reasonable efforts to secure the absent witnesses’ attendance