Communicated on 24 June 2015
FIRST SECTION
Application no 28773/08
Oleg Igorevich KUKHARKIN against Russia
and 5 other applications
(see list appended)
STATEMENT OF FACTS
1. The applicants are Russian nationals, their names and dates of birth are presented in the annexed table. The facts of the cases, as submitted by the applicants, may be summarised as follows.
2. On various dates between 2008 and 2013 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 testimony of the prosecution witnesses, who appeared in court, but refused to testify referring to their right not to incriminate themselves. The pre-trial statements of these witnesses were read out in open court and admitted as evidence.
4. The applicants’ conviction in the cases nos. 28773/08 and 19210/09 was further based on the pre-trial statements of Mr G., who refused to testify in court relying on the exercise of attorney-client privilege.
5. The applicant’s conviction in the case no. 24533/09 was also based on the statements of the witness Mr Yerm., whose identity was kept secret.
6. The applicants’ conviction in the cases nos. 29035/14 and 29736/14 was further based on the pre-trial statement of the witness Mr Ven. absent from the trial.
7. 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 the witnesses mentioned above. Subsequently, the judgments of conviction were upheld on appeal and became final. The final judgments’ particulars are presented in the table below.
COMPLAINTS
8. The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention about inability to effectively examine witnesses against them, because these witnesses refused to testify during trials referring to their right not to incriminate themselves, while their pre-trial statements were read out and admitted as evidence.
9. The applicants in the cases nos. 28773/08 and 19210/09 also complain under Article 6 §§ 1 and 3 (d) of the Convention about inability to effectively examine a witnesses against them, because that witnesses refused to testify during trial referring to attorney-client privilege, while his pre-trial statements were read out and admitted as evidence.
10. The applicant in the case no. 24533/09 further complains under Article 6 §§ 1 and 3 (d) of the Convention about inability to effectively examine an anonymous witness testifying against him.
11. Lastly the applicants in the cases nos. 29035/14 and 29736/14 complain under Article 6 §§ 1 and 3 (d) of the Convention about inability to effectively examine a witness against them, because he was absent during the trial and his pre-trial statements were read out and admitted as evidence.
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. Was the reliance of the respective witnesses on the right not to incriminate themselves in refusing to testify during the trials a good reason for reading out their pre-trial statements (see, mutatis mutandis, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 120-25, ECHR 2011)?
(a) Did the domestic authorities attempt to compel these witnesses to testify and be cross-examined during the trials?
(b) Did the competent national courts review the reasons for the witnesses’ refusal to testify in the light of the fact that these witnesses had given their statements regarding the same events during the pre-trial proceedings without invoking the guarantee against self-incrimination?
(c) Did the competent national courts assess the impact of the admission as evidence of the pre-trial statements by the witnesses refusing to testify with reference to the right not to incriminate themselves?
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?
6. 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 before the respective trials?
CASE SPECIFIC QUESTIONS
1. 28773/08 Kukharkiv v. Russia and 19210/09 Chernov v. Russia
1. Considering that the witness Mr G. refused to testify during trial relying on confidentiality of attorney-client communication and that his pre‑trial statements were admitted as evidence, were the applicants able to effectively examine him as required by Article 6 § 3 (d) of the Convention?
2. Was the reliance of the respective witness on the confidentiality of attorney-client communication a good reason for reading out his pre-trial statements (see, mutatis mutandis, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 120-25, ECHR 2011)?
(a) Did the competent national courts review the reasons for the witness’ refusal to testify in the light of the fact that this witness had given his statements regarding the same events during the pre-trial proceedings without invoking the confidentiality of communication?
(b) Did the competent national courts assess the impact of the admission as evidence of the pre-trial statement by the witness refusing to testify on the abovementioned grounds?
3. Were the applicants’ convictions based solely or to a decisive degree on the statements of this witness?
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 that witness’ testimony?
5. Was the overall fairness of the proceedings ensured by the domestic courts as prescribed by Article 6 § 1 of the Convention?
6. 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 witness before the trial?
2. 4533/09 Ivanov v. Russia
1. Considering that the identity of the witness Mr Yerm. had been kept secret, was the applicant able to effectively examine that witness as required by Article 6 § 3 (d) of the Convention?
2. Were there good reasons to keep secret the identity of Mr Yerm. at trial (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 that witness?
3. Was the applicant’s conviction based solely or to a decisive degree on the statements of the witness whose identity was kept secret?
4. Were there strong procedural safeguards put in place by the Russian law, practice, or specific arrangements in the applicant’s case, which would counterbalance the use of that witness’ 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 the witness 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 witness’ identity secret?
(c) Having regard to the right “to examine or have examined witnesses against him” as enshrined in Article 6 § 3 (d), was the applicant able to effectively examine the witness, whose identity was kept secret, before or during the trial?
(d) Were there any restrictions imposed on the ability of the defence to put questions to that witness? If yes, were these restrictions compatible with the rights of the applicant under Article 6 of the Convention?
3. 29035/14 Lisov v. Russia and 29736/14 Bureyev v. Russia
1. 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 witness Mr Ven. testifying against them as required by Article 6 §§ 1 and 3 (d) of the Convention?
2. Were there good reasons for the witness’ absence and reading out of his pre-trial statements?
3. Were the applicants’ convictions based solely or to a decisive degree on the statements of this witness?
4. Were there strong procedural safeguards put in place by the Russian law, practice, or specific arrangements in the applicants’ case, which would counterbalance the use of that witness’ testimony?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
nationality
Represented by
Final decision
Witness(es)
1.
28773/08*
22/05/2008
Oleg Igorevich KUKHARKIN
17/10/1968
Russian
Oksana Leonidovna GRUSHETSKAYA
Supreme Court of the Russian Federation, 16 October 2008
prosecution witnesses Mr M. and Mr G. (refused to testify)
2.
31311/08*
30/04/2008
Nikolay Alekseyevich KHOMENKO
16/05/1970
Russian
Supreme Court of the Russian Federation, 8 November 2007
prosecution witnesses former co-accused Mr T. (refused to testify)
3.
19210/09*
12/02/2009
Sergey Alekseyevich CHERNOV
06/09/1976
Russian
Natalya Yevgenyevna MELNIKOVA
Supreme Court of the Russian Federation, 16 October 2008
prosecution witnesses Mr M. and Mr G. (refused to testify)
4.
24533/09*
20/03/2009
Yevgeniy Viktorovich IVANOV
27/05/1988
Russian
Supreme Court of the Russian Federation, 15 December 2008
prosecution witness Mr N. (refused to testify), prosecution witness Mr Yerm. (anonymous)
5.
29035/14
26/03/2014
Aleksandr Aleksandrovich LISOV
16/07/1977
Russian
Vladimir Vyacheslavovich STARINSKIY
Ulyanovsk Regional Court, 27 September 2013
prosecution witness Mr Grish. (refused to testify), prosecution witness Mr Ven. (absent)
6.
29736/14
26/03/2014
Aleksey Gennadyevich BUREYEV
18/06/1977
Russian
Vladimir Vyacheslavovich STARINSKIY
Ulyanovsk Regional Court, 27 September 2013
prosecution witness Mr Grish. (refused to testify), prosecution witness Mr Ven. (absent)
Full & Egal Universal Law Academy