Communicated on 21 September 2015
FIRST SECTION
Application no. 9172/09
Aleksey Aleksandrovich CHERNOV against Russia
and 9 other applications
(see list appended)
1. The applicants are Russian nationals living in various regions of the Russian Federation. Their names and dates of birth are tabulated below. The facts of the cases, as submitted by the applicants, may be summarised as follows.
2. On various dates between 2008 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 statements of one or more prosecution witnesses, which were made during pre-trial stages of the proceedings and read out in open court while those witnesses were absent from trials.
4. The national courts allowed the pre-trial statements to be read out and admitted these statements as evidence without examination of the witnesses during trials. In doing so the courts relied on the impossibility of the witnesses’ attendance due to them being missing, evading justice or being on wanted persons lists.
5. The applicants appealed against the judgments of conviction arguing inter alia that their convictions were unfair due to inability to examine those witnesses. However, the judgments of conviction were upheld on appeal and became final. The final judgments’ particulars and the initials of the witnesses, whose statements were read out, are tabulated below.
COMPLAINT
6. The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that they did not have a fair trial in criminal proceedings against them, since they were unable to obtain the attendance of the witnesses testifying against them and to examine them in court.
QUESTIONS TO THE PARTIES
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 against them as required by Article 6 § 3 (d) of the Convention?
2. Were there good reasons for their absence at trials (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 120‑25, ECHR 2011)?
(a) If yes, did the national authorities make reasonable effort to secure the presence of the witnesses during trials as requested by the applicant?
(b) Were these reasons and efforts duly reviewed by the domestic courts? What proof had been used by the domestic courts in the course of such review?
(c) What were the grounds in the Russian law and practice on which the national courts relied in reading out of the pre-trial statements made by the witnesses absent at trials? What was the nature of the grounds hindering the witnesses’ presence at the trial hearing?
3. Were the applicants’ convictions based solely or to a decisive degree on the statements of the witnesses absent from trials (see Lucà v. Italy, no. 33354/96, § 40, ECHR 2001‑II, and Al-Khawaja and Tahery, cited above, §§ 126-28)?
4. Having regard to the reading out of the absent witnesses’ pre-trial statements, was the overall fairness of the proceedings ensured by the domestic courts as prescribed by Article 6 § 1 of the Convention (see Al Khawaja and Tahery, cited above, §§ 144-47)? In addressing this issue the parties are invited to address each of the following questions:
(a) Did the applicants waive the right to cross-examine the absent witnesses?
(b) Did the competent national courts assess the impact of the absence of the witnesses on the overall fairness of the proceedings?
(c) Did the national courts ensure the overall fairness of the proceedings as prescribed by Article 6 § 1 of the Convention by relying on the good reasons for reading out of the witnesses’ pre-trial statements and duly reflecting these reasons in the judgments?
(d) 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 such evidence (see Al‑Khawaja and Tahery, cited above, § 147)? Were 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?
(e) What was the weight of the read-out testimony of the non-cross-examined witnesses in the trial court’s judgment?
(f) 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 examine the witnesses absent at trials during the pre-trial proceedings? In particular,
(i) What was the kind of public authority before which the witnesses’ prior testimony was given?
(ii) Were the applicants able to put questions to these witnesses and to submit their objections?
(iii) Was the defence lawyer present at any hearing of the witness prior to the trial? Were the applicants assisted by defence lawyers in examining the witnesses against them during the pre-trial proceedings?
(iv) Did the confrontation procedure conducted by the State officials, if any, meet the requirements of independence and impartiality (see Melnikov v. Russia, no. 23610/03, § 80, 14 January 2010)?
APPENDIX
No.
Application no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Final judgment
Absent prosecution witness(es)
9172/09*
23/01/2009
Aleksey Aleksandrovich CHERNOV
27/06/1976
Astrakhan
Astrakhan Regional Court, 24 July 2008
Mrs A. and Mr A.
10355/09*
15/01/2009
Pavel Igorevich LOBAREV
04/01/1979
Novosibirsk
Novosibirsk Regional Court, 1 October 2008
Mr Chur.
19885/09*
03/03/2009
Vasiliy Nikolayevich SOROKIN
21/10/1976
Kotlas
Arkhangelsk Regional Court, 19 December 2008
Mr S. and Mrs I.
68303/10*
27/10/2010
Aleksey Alekseyevich TELKOV
11/01/1980
Mikun
Supreme Court of Komi Republic, 14 May 2010
Mr B.
14358/11*
14/02/2011
Dmitriy Anatolyevich DUMLER
01/07/1965
Volgograd
Volgograd Regional Court, 11 April 2011
Mr K.
12934/12*
16/02/2012
Stanislav Vitalyevich SHKARIN
10/02/1980
Moscow
Moscow City Court, 19 December 2011
Mr P.
76458/12*
06/11/2012
Roman Yuryevich KAZAKOVSKIY
27/12/1985
Lesnoy
Vladimir Aleksandrovich ROMANOV
Supreme Court of Chuvashiya Republic, 9 October 2012
Mrs G.
25684/13*
27/03/2013
Valeriy Petrovich KOSOV
06/11/1979
Reutov
Andrey Vladimirovich KLYKOV
Moscow City Court, 1 November 2012
Mr N.
42424/14
31/05/2014
Pavel Viktorovich ANISIMOV
27/08/1981
Murmansk
Aleksandr Yuryevich DERIYEV
Murmansk Regional Court, 22 April 2014
Mr K.
49429/14*
30/10/2014
Vadim Olegovich NOVGORODOV
12/02/1970
Velikiy Novgorod
Novgorod Regional Court, 7 October 2014
Mr G.
Full & Egal Universal Law Academy