Communicated on 18 December 2014
FIRST SECTION
Application no. 20256/08
Ibragim Asakhmatovich MSOSTOV against Russia
and 16 other applications
(see list appended)
A. The circumstances of the cases
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 2007 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 (including victims in certain cases), 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 various reasons.
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 appeals. The judgments’ particulars and the initials of the witnesses, whose statements were read out, are tabulated below.
B. Relevant domestic law and practice
6. The relevant domestic law and practice had been previously summarized in the decision Kuznetsov v. Russia (Kuznetsov v. Russia and 35 other applications (dec.), nos. 33389/07, 54480/07, 1570/08, 3975/08, 10309/08, 10594/08, 18069/08, 24980/08, 30066/08, 32015/08, 33965/08, 40306/08, 46581/08, 47599/08, 48895/08, 48905/08, 52304/08, 54353/08, 7710/09, 10781/09, 11068/09, 12565/09, 14252/09, 35051/09, 35656/09, 36235/09, 46918/09, 6752/12, 66754/12, 68848/12, 892/13, 5987/13, 13105/13, 13686/13, 14360/13, 18635/13, §§ 6-10, 14 January 2014).
COMPLAINTS
7. The applicants complain under Article 6 § 1 and Article 6 § 3 (d) of the Convention that they did not have a fair trial in criminal proceedings against them, in particular 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 the witnesses’ absence (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?
(d) Did the Russian courts consider the fact that the pre-trial statements of the witnesses were given before police agents?
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, ECHR 2011)?
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 competent national courts assess the impact of the absence of the witnesses on the overall fairness of the proceedings?
(b) Did the competent national courts give in their judgments to the read-out of testimonies of non-crossed-examined witnesses the same weight that they gave to crossed-examined witnesses?
(c) Did the applicants have at their disposal any alternative procedural or technical means to examine during trial the witnesses whose pre-trial statements were read out and to safeguard the defence’s right to impugn the fairness of the gathering of the pre-trial testimony, the credibility of the witness and the reliability of his or her testimony?
(d) Did the national courts ensure the overall fairness of the proceedings as prescribed by Article 6 § 1 of the Convention by relying in the good reasons for reading out of the witnesses’ pre-trial statements and duly reflecting these reasons in the judgments?
(e) 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)?
(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?
(i) Were they able to put questions to these witnesses and to submit their objections?
(ii) Were the applicants assisted by defence lawyers in examining the witnesses against them during the pre-trial proceedings or were they given that opportunity?
(iii) 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)?
(iv) Did the applicants waive the right to cross-examine absent witnesses?
5. Given the number of similar complaints originating from different Russian regions submitted to the Court over the period of many years and up until now, as well as repeated violations of Article 6 § 3 (d) in connection with Article 6 § 1 found by the Court in certain Russian cases, may it be considered that the present cases reveal an underlying problem that requires adoption of general measures in accordance with Article 46 § 1 of the Convention as interpreted in the light of Article 1 of the Convention?
6. The Government are invited to provide where available:
(a) the copies of reports on pre-trial confrontations of the applicants with the witnesses absent from trials;
(b) the copies of police reports and other relevant documents on the attempts to secure presence of these witnesses during trials;
(c) the copies of relevant documents of the absent witnesses confirming their inability to attend the respective proceedings.
APPENDIX
No.
Application no.
Lodged on
Applicant’s name, date of birth
Represented by
Judgments
Witnesses absent from trial
20256/08*
14/04/2008
Ibragim Asakhmatovich MSOSTOV
04/01/1970
Leyla Abdullayevna KHAMZAYEVA
Moscow City Court, 19 November 2007
prosecution witnesses Mrs B., Mrs Ch., Mr P.
26663/08*
24/04/2008
Oleg Anatolyevich ZLOTNIKOV
16/12/1960
Yevgeniy Sergeyevich ARKHIPOV
Supreme Court of the Russian Federation, 25 October 2007
prosecution witness Mr Akh.
27663/08*
16/04/2008
Svetlana Anatolyevna SADUAKASOVA
16/10/1966
Supreme Court of Altai Republic, 17 October 2007
prosecution witness Mr S.
52016/09*
07/09/2009
Oleg Grigoryevich KOBLOV
22/05/1970
Moscow Regional Court, 09 April 2009
prosecution witnesses Mr MN., Mr MSh.
56603/10*
07/09/2010
Vladimir Alekseyevich SHCHERBATYKH
09/10/1978
Mikhail Ivanovich TREPASHKIN
Moscow Regional Court, 6 April 2010
prosecution witness Mr Ch.
71069/10*
24/11/2010
Vladimir Petrovich LYSENKO
17/08/1950
Igor Borisovich BUSHMANOV
Moscow City Court, 26 May 2010
prosecution witness Mr G.
9683/12*
20/01/2012
Vladimir Gennadyevich FEDOTOV
18/01/1976
Valeriy Alekseyevich RACHKOV
Moscow Regional Court, 20 October 2011
prosecution witness Mr Sh.
26138/12*
03/09/2012
Nikolay Gennadyevich BESPALOV
28/06/1978
Chelyabink Regional Court, 23 March 2012
prosecution witness Mr Ts.
33047/13*
22/04/2013
Anton Vladimirovich KOLESNIKOV
20/05/1987
Altai Regional Court, 13 June 2013
prosecution witnesses Mr S., Mr G., Mr K., Mrs I., Mr V., victim Mr M.
60646/13*
22/08/2013
Aleksandr Vasilyevich BUKREYEV
16/07/1953
Kursk Regional Court, 5 June 2013
prosecution witnesses Mrs Kr. and Mrs Kor.
76629/13
20/11/2013
Sergey Ilyich LIDYAYEV
10/08/1987
Moscow City Court, 22 May 2013
prosecution witness Mr M.
25124/14*
05/03/2014
Dagir Abakarovich SOLTANOV
02/07/1983
Khalimat Shapigadzhiyevna ALIGADZHIYEVA
Supreme Court of Dagestan Republic, 19 February 2014
prosecution witness Mr R.
30124/14*
20/06/2014
Sergey Anatolyevich TOMOCHINSKIY
28/05/1987
Supreme Court of the Russian Federation, 29 April 2014
prosecution witnesses Mr I.
31903/14*
14/04/2014
Mikhail Igorevich ZISMAN
20/03/1986
Aleksandr Sergeyevich SHKUROPATSKIY
07/11/1980
Yegor Vladimirovich ZYKOV
11/06/1986
Chelyabinsk Regional Court, 19 September 2013 (judgment received on 18 October 2013)
victims Mr D., Mr G. and Mr Sh.
31933/14*
16/04/2014
Vsevolod Vladimirovich NAZAROV
06/01/1967
Igor Borisovich BUSHMANOV
Moscow City Court, 22 October 2013
prosecution witnesses Mrs Yak., Mrs Pch., Mr Kor., Mrs Va., Mrs Ag., Mrs Scher., Mrs L., Mrs N., Mrs F., Mr P., Mrs Ul., Mrs Abr., Mr Abr., Mrs M.
40898/14
12/05/2014
Boris Khaychiyevich DARMAYEV
01/02/1969
Karmen Erdniyevna PAVLOVA
Astrakhan Regional Court, 9 April 2014
victim Mr Kh., prosecution witnesses Mr Kur. and Mr An.
52996/14*
23/08/2014
Yuriy Yuryevich OVCHENKOV
12/09/1958
Moscow City Court, 24 February 2014
prosecution witnesses Mr Ya. and Mr K.
Full & Egal Universal Law Academy