THIRD SECTION
DECISION
Application no. 10250/06
Abdul-Vakhab Akhmetovich SHAMAYEV against Russia
and 10 other applications
(see appended table)
The European Court of Human Rights (Third Section), sitting on 25 November 2021 as a Committee composed of:
Peeter Roosma, President,
Dmitry Dedov,
Andreas Zünd, judges,
and Viktoriya Maradudina, Acting 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 some of the applicants,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The list of applicants is set out in the appended table.
The applicants’ complaints under Article 6 §§ 1 and 3 (d) of the Convention concerning the unfair trial in view of restrictions on the right to examine witnesses were communicated to the Russian Government (“the Government”). In some of the applications, complaints based on the same facts were also communicated under other provisions of the Convention.
THE LAW
Joinder of the applicationsHaving regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
Complaints under Article 6 §§ 1 and 3 (d) of the Convention (unfair trial in view of restrictions on the right to examine witnesses)In the present applications, having examined all the material before it, the Court considers that the applicants’ complaints about the courts having held the criminal trials against them in the absence of certain prosecution witnesses are inadmissible.
In particular, the Court notes that in the light of the principles established in the case-law under Article 6 §§ 1 and 3 (d) of the Convention (see notably Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118-47, ECHR 2011, Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-31, ECHR 2015, and Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 117-27, 18 December 2018) the applicants’ criminal trials had complied with overall fairness requirement.
In view of the above, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Remaining complaintsIn applications nos. 42318/06 and 1691/09 the applicants also raised other complaints under various articles of the Convention.
The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
It follows that this part of the abovementioned applications must be rejected in accordance with Article 35 § 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 16 December 2021.
{signature_p_2}
Viktoriya Maradudina Peeter Roosma
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 6 §§ 1 and 3 (d) of the Convention
(unfair trial in view of restrictions on the right to examine witnesses)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Final domestic decision
Charges convicted of
Witness absent from trial (indicated by initials)
Summary of the nature of the witness evidence
Reasons for absence
Steps taken to compensate for the witnesses’ absence; counterbalancing factors
10250/06
07/02/2006
Abdul-Vakhab Akhmetovich SHAMAYEV
1975
Timishev Ilyas Yakubovich
Nalchik
Supreme Court of the Russian Federation
09/11/2005
banditry, illegal possession of weapons and attempted murder of an official
A. and Sh.
identified the applicant on photos
held in custody
no objection on behalf of the parties to the reading out of the written statements made by the witnesses;
considerable body of other evidence on which the applicant’s conviction was based
25257/06
11/05/2006
Aydin Aydinovich ABLAYEV
1957
Nagiyev Ruslan Orudzhevich
Kazan
Supreme Court of the Republic of Tatarstan
10/02/2006
drug trafficking
K.
received drugs from the applicant for re-sale
serving sentence in a remote penal facility and her breastfeeding an infant
significant body of evidence on which the applicant’s conviction of several episodes of drug trafficking was based;
evidence examined, cross-referenced, and verified against the statements of the absent witness K.
42318/06
12/09/2006
Andrey Nikolayevich SOCHAN
1969
Supreme Court of the Russian Federation
17/11/2009
aggravated murders and illegal possession of weapons
victim O., prosecution witness Ar.
victim of a failed assassination attempt and the witness to whom the applicant confessed
serious medical condition, refused to testify
summons and orders of enforced appearance were issued; evidence is neither sole nor decisive;
ample body of direct evidence supporting the applicant’s conviction; the written statements by the absent witnesses carefully examined and cross‑reference and verified against other evidence
33221/08
15/05/2008
Dmitriy Aleksandrovich LEONTYEV
1972
Sadovskaya Olga Aleksandrovna
Nizhniy Novgorod
Supreme Court of the Russian Federation
12/03/2008
banditry and multiple armed robberies
Y.
a co-accused, participated in the criminal group
medical reasons
order for enforced appearance;
conviction is based on a considerable body of evidence, including video recordings
1691/09
12/12/2008
Maksim Igorevich VASILYEV
1968
Ovchinnikov Oleksandr
Strasbourg
Moscow City Court
20/08/2009
fraud in conspiracy with others
prosecution witnesses S., Kh., P., M.G., M.A., Ch. Ye., Ch. O., A., B. and M.
various elements of the fraudulent scheme
could not be located, distant region/other country, medical reasons
repeated summons and orders for enforced appearance; conviction was based on a large body of evidence, including open-court testimony of victims/witnesses and documentary evidence; lengthy, elaborated, and detailed assessment of the whole body of evidence by the courts
53831/10
24/08/2010
Aleksandr Aleksandrovich GORYAINOV
1977
Topolskova Mayya Daniyalovna
Artem
Primorye Regional Court
24/02/2010
sexual assault and aggravated robbery in conspiracy
victim A. and witness L.
victim of armed robbery and an accomplice in robbery
could not be located, serving sentence (witness)
summons and orders of enforced appearance; no objection made by the parties against the reading out in court of the written statements by witness L.; whereabouts of victim A. could not be established, despite measures taken; not a sole or decisive evidence; amble body of evidence available for the trial court to convict the applicant
14472/18
13/03/2018
Aleksandr Aleksandrovich MOISEYEV
1966
Krasnoyarsk Regional Court
14/09/2017
large-scale fraud, multiple episodes
multiple witnesses (71 persons whose statements had been read out in court), including the co-accused B. and K., witness D.
direct witnesses of the criminal offence; co-accused persons B. and K., who had been already convicted
could not be located, refusal to appear
motion to summon witnesses for the hearing; the courts considered records of multiple investigative actions, multiple documentary expert assessments demonstrating the fact of fraud, statements of more than 100 different witnesses including the victims of the crimes, persons, who participated and/or had been indirectly involved in the fraud scheme (questioned during the hearings), pre-trial statements of co-defendants and the confrontation records between the applicant and them, as well as testimony given during the hearings
22495/18
01/05/2018
Magomed Sultanovich TIMAYEV
1979
Tolstykh Andrey Borisovich
Moscow
Moscow City Court
01/11/2017
robbery
M. G., A. S.
victims of a robbery
distant region/other country, could not be located
repeated summons of the victims, adjournments of the hearings and searches of the victims; defence was provided with a possibility to question these witnesses during pre-trial confrontation interviews; their written statements had been confirmed by a considerable body of other evidence.
24503/18
06/05/2018
Arshak Garikovich TATOSOV
1984
Sepikhanov Mansur Muradisovich
Moscow
Moscow City Court
14/11/2017
rape
S. G.
victim
could not be located
repeatedly adjourned hearings to locate the victim; the applicant had a possibility to confront the victim at the pre-trial stage during a confrontation interview; the defence had not insisted on questioning the absent victim at the trial
31123/18
16/06/2018
Igor Mikhaylovich SKAKUNOV
1971
Suindykov Talgat Temirgaliyevich
Dzerzhinskiy
Supreme Court of the Russian Federation
19/12/2017
aiding and abetting in abuse of office
R., S.
various elements of the abuse of power (threats of misuse of authority, contractual agreements under duress etc.)
distant region/other country, refusal to appear
summons sent, but attendance could not be obtained; ample body of evidence serving as the basis for the applicant’s conviction;
the applicant failed to demonstrate which specific points of the absent witnesses’ testimony the defence was prevented from challenging; their statements were not sole and decisive evidence
36315/19
24/06/2019
Aleksey Nikolayevich MATYUKHIN
1978
Supreme Court of the Kareliya Republic
16/05/2019
drug purchase and drug trafficking
witness Yu.
received information about the applicant dealing drugs and participated in the undercover purchase
distant region/other country; witness unable to attend
summons sent;
neither sole nor decisive evidence, carrying no significant weight; statement of the absent witness was essentially repetitive and similar to the statements by two other prosecution witnesses heard in open court.