THIRD SECTION
DECISION
Application no. 41229/04
Gasan Asilderovich MAGOMEDOV against Russia
and 22 other applications
(see list appended)
The European Court of Human Rights (Third Section), sitting on 15 December 2020 as a Committee composed of:
Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by Citizens’ Watch, which had been given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court),
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Russian nationals living in various regions of the Russian Federation. Their personal details appear in the appended table.
2. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. On various dates between 2011 and 2015 the applicants were criminally prosecuted and convicted of various offences under the Russian legislation in force. The particulars of the relevant domestic proceedings are presented in the appended table.
COMPLAINTS
4. The applicants complained under Article 6 §§ 1 and 3 (d) of the Convention that they were not provided an opportunity to examine during trial the prosecution witnesses and/or the witnesses on their behalf. They further submitted accessory complaints under Articles 3, 5, 6, 8, 13 of the Convention, as well as Article 4 of Protocol No. 7.
THE LAW
5. The Court considers that in accordance with Rule 42 § 1 of the Rules of Court, the applications listed in the appended table should be joined.
6. The respondent Government in their observations argued that applicants had had fair hearings in the determination of the criminal charges against them in accordance with Article 6 § 1 of the Convention.
7. Certain applicants disagreed, while the others did not provide specific arguments.
8. The Court has carefully examined the applications listed in the appended table and concludes in respect of the complaints under Article 6 §§ 1 and 3 (d) of the Convention that, in the light of the Court’s primary concern under Article 6 § 1 to evaluate the overall fairness of the criminal proceedings (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10, § 101, ECHR 2015), the presumption that in principle the Russian legal system offers robust procedural guarantees securing the right of an accused to examine witnesses testifying against him, ensuring that the reading out of absent witnesses’ testimony is possible only as an exception (see Zadumov v. Russia, no. 2257/12, § 63, 12 December 2017, recently reiterated in Kiba and Others v. Russia [Committee] (dec.), nos. 38047/08 and 2 others, § 16, 17 April 2018), the material in its possession, and in so far as the matters complained of are within its competence, the applications are manifestly ill‑founded, and thus must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
9. As regards the applicants’ other complaints the Court concludes in the light of all the materials that they are also inadmissible and must be rejected under Article 35 §§ 1, 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 28 January 2021.
{signature_p_2}
Olga ChernishovaDarian Pavli
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Date of introduction
Applicant name
Date of birth
Place of residence
Nationality
Represented by
Date of the trial and appeal courts’ judgments
Convicted of
Communicated complaints and reasons for inadmissibility
1
41229/04
18/11/2004
Gasan Asilderovich MAGOMEDOV
1968
Prosvet
Russian
Pavel Alekseyevich FINOGENOV
Supreme Court of the Republic of Dagestan
25/12/2003
Supreme Court of Russia
09/06/2004
Convicted of an attempt to life of the police officers, illegal possession of weapons
Article 6 §§ 1 and 3 (d) -The absent prosecution witness Mr R.T. 1) could not be located despite valid efforts, 2) was neither sole, nor decisive witness, 3) and sufficient counterbalancing factors were present.
Article 3 – alleged ill-treatment in police custody – failure to exhaust the available domestic remedies (compare, Belevitskiy v. Russia, no. 72967/01, §§ 58‑67, 1 March 2007).
2
3907/05
07/12/2004
Vladimir Ivanovich
GOROSHKO
1964
Stavropol
Russian
Oksana Valeryevna SADCHIKOVA
Stravropol Regional Court
12/03/2004
Supreme Court of Russia
09/06/2004
Convicted of murder of several people and destruction of the property
Article 6 § 3 (d) - dismissed request to call and question experts Mr Sh. and Mr K. – 1) the refusal to call the experts duly reasoned by the national courts, 2) conviction based on different evidence, 3) the applicant was able to conduct his defence effectively, present his version of events and cast doubt on the credibility of the evidence in question. Manifestly ill‑founded.
3
13888/05
31/03/2005
Aleksey Nikolayevich SMIRNOV
1978
Kostroma
Russian
Yekaterina Viktorovna YEFREMOVA
Leninskiy District Court of Kostroma
26/01/2004
Kostroma Regional Court
30/11/2004
Convicted of multiple counts of theft in conspiracy
Article 6 §§ 1 and 3 (d) – absent victim Mrs K. – 1) relatively good reason for absence in view of the counterbalancing factors, 2) decisive witness along with one of his co-accused testimony, 3) sufficient counterbalancing factors. Manifestly ill-founded.
4
6117/06
30/12/2005
Dmitriy Valeryevich MELNICHENKO
1979
Chelyabinsk
Russian
Sovetskiy District Court of Chelyabinsk of the Chelyabinsk Region
28/07/2005
Chelyabinsk Regional Court
15/11/2005
Convicted of aggravated abuse of power in conspiracy
Article 6 §§ 1 and 3 (d) - absent witnesses Mrs Zh. and Mrs Sh. – 1) could not be located despite valid efforts, 2) neither sole, nor decisive witnesses, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
5
16425/06
29/03/2006
Vadim Sergeyevich IRGALEYEV
1984
Chelyabinsk
Russian
Georgiy Viktorovich SUKHAREV
Kurchatovskiy District Court of Chelyabinsk
24/10/2007
Chelyabinsk Regional Court
10/01/2008
Convicted of sexual assault in conspiracy
Article 6 §§ 1 and 3 (d) - absent victim Mrs V. – 1) could not be located despite valid efforts, 2) decisive witness, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
6
33389/07
04/07/2007
Ivan Vasilyevich KUZNETSOV
1983
Moscow
Russian
Preobrazhenskiy District Court of Moscow
23/11/2006
Moscow City Court
21/03/2007
Convicted of aggravated assault and robbery in conspiracy, and illegal storage of firearms
Article 6 §§ 1 and 3 (d) - absent victim Mr N. – 1) could not be located despite valid efforts, 2) neither sole, nor decisive witness, 3) sufficient counterbalancing factors. Manifestly ill-founded.
7
54480/07
15/10/2007
Vladimir Gennadyevich NAGIBIN
1955
Moscow
Russian
Yelena Pavlovna ARTAMONOVA
Domodedovskiy Town Court of the Moscow Region
25/12/2006
Moscow Regional Court
17/04/2007
Convicted of threatening to use violence against a state official
Article 6 §§ 1 and 3 (d) – absent witnesses Mr R., Mr A. – 1) reading out of their statements by agreement of the defence party without any objections, 2) neither sole, nor decisive witnesses, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
8
1570/08
09/12/2007
Mikhail Aleksandrovich FIRSTOV
1971
Moscow
Russian
Dmitriy Vadimovich
AREFYEV
1963
Moscow
Russian
Oksana Vladimirovna PREOBRAZHENSKAYA
Simonovskiy District Court of Moscow
29/03/2007
Moscow City Court
13/06/2007
Convicted of fraud in conspiracy
Article 6 §§ 1 and 3 (d) – absent witness Mr K. – 1) neither sole, nor decisive, nor carrying significant weight, 2) conviction based on a multiplicity of different evidence and victims’ statements, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
9
3975/08
12/12/2007
Dmitriy Georgiyevich ALEYNIKOV
1970
Lipetsk
Russian
Oksana Vladimirovna PREOBRAZHENSKAYA
Simonovskiy District Court of Moscow
29/03/2007
Moscow City Court
13/06/2007
Convicted of fraud in conspiracy
Article 6 §§ 1 and 3 (d) – absent witness Mr K. – 1) neither sole, nor decisive, nor carrying significant weight, 2) conviction based on a multiplicity of different evidence and victims’ statements, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
10
20256/08
14/04/2008
Ibragim Asakhmatovich MSOSTOV
1970
Vladikavkaz
Russian
Leyla Abdullayevna KHAMZAYEVA
Zyuzinskiy District Court of Moscow
17/05/2007
Moscow City Court
19/11/2007
Convicted of murder and theft
Article 6 §§ 1 and 3 (d) - absent prosecution witnesses Mrs B., Mrs Ch., Mrs P. - 1) could not be located/secure the presence despite valid efforts, 2) neither sole, nor decisive witnesses, 3) sufficient counterbalancing factors. Manifestly ill-founded.
11
28773/08
22/05/2008
Oleg Igorevich KUKHARKIN
1968
Bor
Russian
Oksana Leonidovna GRUSHETSKAYA
Arkhangelsk Regional Court
24/07/2008
Supreme Court
16/10/2008
Convicted of bribe-taking by public officers in conspiracy
Article 6 §§ 1 and 3 (d) – refusal to testify at trial by witnesses Mr M. and Mr G. – 1) valid reasons for refusal, 2) neither sole, nor decisive witnesses, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
12
31311/08
30/04/2008
Nikolay Alekseyevich KHOMENKO
1970
Ussuriysk
Russian
Natalya Vasilyevna BULATOVA
Primorskiy Regional Court
09/03/2007
Supreme Court of Russia
08/11/2007
Convicted of assassination and illegal handing of firearms in conspiracy
Article 6 §§ 1 and 3 (d) – partial refusal to testify at trial by witness Mr T. – 1) valid reason for refusal, 2) neither sole, nor decisive witnesses, 3) sufficient counterbalancing factors. Manifestly ill-founded.
13
32453/08
12/05/2008
Andrey Petrovich BIKINEYEV
1972
Vostochnyy
Russian
Yelena Vladimirovna GORASH
Dimitrovgradskiy Town Court of the Ulyanovsk Region
17/07/2008
03/09/2008
Ulyanovsk Regional Court
Convicted of participation in drug dealing in conspiracy
Article 6 §§ 1 and 3 (d) - absent witnesses
Mr So., Mr St., Mr P.P., Mr P.A., Mrs P.G., Mrs K., Mr Pr., Mr Pe. – 1) relatively good reasons for their absence, 2) neither sole, nor decisive witnesses, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
Article 6 § 3 (c) - own choice of legal assistance – manifestly ill-founded – no evidence regarding inadequate legal assistance of the assigned lawyer who only temporarily replaced the applicant’s legal assistant; as to legal costs the complaint is unsubstantiated.
14
46581/08
26/06/2008
Sergey Alekseyevich KOCHERGIN
1980
Salavat
Russian
Salavatskiy Town Court
14/11/2007
Supreme Court of Bashkortostan
14/02/2008
Convicted of attempted drug dealing and illegal acquisition, storage of drugs without intent to sell
Article 6 §§ 1 and 3 (d) - absent witnesses Mr F., Mr R. - 1) could not be located despite valid efforts, 2) neither sole, nor decisive witnesses, 3) sufficient counterbalancing factors. Manifestly ill-founded.
15
48895/08
15/09/2008
Sergey Vladimirovich SLOKHOV
1966
Moscow
Russian
Tatyana Ivanovna PROTSENKO
Kuzminskiy District Court of Moscow
31/03/2008
Moscow City Court
08/08/2008
Convicted of smuggling in conspiracy
Article 6 §§ 1 and 3 (d) - absent witnesses Mrs V., Mr M., Mr K., Mr S., Mr Yud., Mr R., Mr Ul., Mr P., and Mr Akh – manifestly ill-founded – the alleged witnesses were present at several hearing and the defence had questioned them; Mr S.’s statements were excluded from the body of evidence by the appeal court.
16
54353/08
18/08/2008
Valentina Mikhaylovna URUKOVA
1961
Cheboksary
Russian
Olga Vladislavna FISENKO
Moskovskiy District Court of Cheboksary of the Chuvash Republic
16/06/2008
Supreme Court of the Chuvash Republic
28/08/2008
Convicted of numerous counts of bribery
Article 6 §§ 1 and 3 (d) – absent witnesses Mr Il., Mr B., Mr Akh., Mr Z., Mr P., Mrs M. – 1) neither sole, nor decisive, nor carrying significant weight, 2) conviction based on the trial testimonies of other numerous witnesses and documentary evidence, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
17
7710/09
15/01/2009
Aleksey Aleksandrovich TKACHEV
1982
Astrakhan
Russian
Dmitriy Arkadyevich DENISOV
Leninskiy District Court of Astrakhan
26/06/2008
Astrakhan Regional Court
14/08/2008
Convicted of attempted drug dealing
Article 6 §§ 1 and 3 (d) – absent witnesses Mr B. and Mr Kh.- 1) reading out of their statements by agreement of the defence party without any objections, 2) neither sole, nor decisive, nor carrying significant weight 3) sufficient counterbalancing factors. Manifestly ill‑founded.
18
12565/09
07/02/2009
Arkadiy Vladislavovich AKLANOV
1971
Novosibirsk
Russian
Oksana Vladimirovna PREOBRAZHENSKAYA
Oktyabrskiy District Court of Novosibirsk
28/02/2008
Novosibirsk Regional Court
11/08/2008
Convicted of attempted drug dealing in conspiracy
Article 6 §§ 1 and 3 (d) – absent witness Mr Zh. – 1) neither sole, nor decisive, nor carrying significant weight, 2) conviction based on the trial testimonies of other numerous witnesses and documentary evidence, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
19
19210/09
12/02/2009
Sergey Alekseyevich CHERNOV
1976
Arkhangelsk
Russian
Natalya Yevgenyevna MELNIKOVA
Arkhangelsk Regional Court
24/07/2008
Supreme Court
16/10/2008
Convicted of bribe-taking by public officers in conspiracy
Article 6 §§ 1 and 3 (d) – refusal to testify at trial by witnesses Mr M. and Mr G. – 1) valid reasons for refusal, 2) neither sole, nor decisive witnesses, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
20
19885/09
03/03/2009
Vasiliy Nikolayevich
SOROKIN
1976
Kotlas
Russian
Olga Vladimirovna DRUZHKOVA
Kotlasskiy Town Court of the Arkhangelsk Region
18/09/2008
Arkhangelsk Regional Court
19/12/2008
Convicted of aiding and abetting in illegal acquisition and storage of drugs without the aim of their trafficking
Article 6 §§ 1 and 3 (d) – absent witnesses Mr S. and Mrs I. – 1) could not be located/secure the presence despite valid efforts, 2) neither sole, nor decisive witnesses, 3) sufficient counterbalancing factors. Manifestly ill-founded.
21
35656/09
10/06/2009
Dmitriy Viktorovich DYAGILEV
1977
Moscow
Russian
Aleksandr Vitalyevich VASILYEV
Khoroshevskiy District Court of Moscow
13/05/2009
Moscow City Court
13/07/2009
Convicted of attempted robbery in conspiracy
Article 6 §§ 1 and 3 (d) - absent witnesses Mr Sh., Mr Akh., and Mr S.
As to absent Mr Sh. - his pre-trial testimonies were not included in the body of evidence – manifestly ill‑founded.
As to other two witnesses – 1) Mr. S could not be located /could not secure Mr Akh.’s presence despite valid effort, 2) neither sole, nor decisive witnesses, 3) sufficient counterbalancing factors. Manifestly ill‑founded.
22
36235/09
02/09/2009
Eduard Anatolyevich DYACHOK
1968
Krasnoyarsk
Russian
Leninskiy District Court of Krasnoyarsk
31/08/2009
Krasnoyarsk Regional Court
02/02/2010
Convicted of attempted drugs dealing and preparation for drug dealing
Article 6 §§ 1 and 3 (d) - absent witness Mr F. – 1) could not be located despite valid effort, 2) neither sole, nor decisive witness, 3) sufficient counterbalancing factors. Manifestly ill-founded.
23
46918/09
20/10/2009
Ivan Vladimirovich
RYS
1984
Novosibirsk
Russian
Yekaterina Viktorovna YEFREMOVA
Novosibirsk Regional Court
10/12/2008
Supreme Court of Russia
05/05/2009
Convicted of attempted murder and incitement to murder in conspiracy
Article 6 §§ 1 and 3 (d) - absent witness Mrs Sh. – 1) neither sole, nor decisive, nor carrying significant weight, 2) conviction based on pre-trial and trial testimonies of the survived victim, 3) sufficient counterbalancing factors. Manifestly ill-founded.
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