Communicated on 8 June 2015
FIRST SECTION
Application no. 41214/04
Sergey Konstantinovich GAYEVOY against Russia
and 8 other applications
(see list appended)
STATEMENT OF FACTS
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.
On various dates between 2005 and 2014 the applicants were criminally prosecuted and convicted for various offences under the Russian legislation in force.
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.
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
The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention about inability to effectively examine anonymous witnesses testifying against them.
The applicants in the cases 46043/08 and 41623/14 further complain under Article 6 §§ 1 and 3 (d) of the Convention about absence of 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
46043/08, 41623/14
(a) 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?
(b) 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?
(c) 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?
(d) 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?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
Date of birth
Nationality
Represented by
Final decision
Witness(es)
41214/04
24/10/2004
Sergey Konstantinovich GAYEVOY
14/01/1956
Russian
Supreme Court of Russia,
13 January 2005
prosecution witness “Korepanov” - anonymous
46043/08
29/08/2008
Mark Aleksandrovich KAMPER
29/02/1980
Russian
Supreme Court of Russia,
30 July 2008
prosecution witness “Mikhaylov” – anonymous and absent
3873/09
03/01/2008
Aleksandr Genrikovich GILDEYEV
29/01/1968
Russian
Ruslan Shaukatovich GARIFULLIN
Supreme Court of Tatarstan Republic,
8 July 2008
prosecution witnesses “Khamidullin”, “Gerasimov”, “Nizamiev”, “Asadullin”, “Yarullin”, “Timiryazov”, “Venediktov”, “Mubarakzyanov” - anonymous
7515/09
27/09/2008
Rukhin Arif Ogly AKBEROV
12/12/1986
Azerbaijani
Oleg Vitalyevich NESKOROMNYY
Supreme Court of Karelia Republic,
27 March 2008
prosecution witnesses “Chestniy” and “Titova” - anonymous
16349/09
16/01/2009
Anatoliy Anatolyevich TSURANOV
19/07/1980
Russian
Supreme Court of Khakasiya Republic,
13 August 2008
prosecution witness “Lykov” - anonymous
18619/09
23/03/2009
Said Irikovich BAYBURIN
20/07/1976
Kazakh
Svetlana Ivanovna AVDZHAYEVA
Supreme Court of Bashkortostan,
25 September 2008
prosecution witnesses “Usmanov”, “Soliyev”, “Gizzatullin” - anonymous
58303/09
19/08/2009
Sergey Igorevich SMIRNOV
09/06/1973
Russian
Valeriy Valentinovich YEREMEYEV
Arkhangelsk Regional Court,
28 April 2009
prosecution witness “Ivanov” - anonymous
58789/09
26/09/2009
Anatoliy Ivanovich KIRUSHEV
05/04/1971
Russian
Supreme Court of Komi Republic,
16 February 2010
prosecution witnesses “Ivanov”, “Sidorov” and “Petrov” - anonymous
41623/14
07/05/2014
Maksim Nikolayevich KOROLEV
30/05/1980
Russian
Natalya Vladimirovna MEYBULLAYEVA
Kaliningrad Regional Court,
28 March 2014
prosecution witness “Titov” – anonymous and absent
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