FIRST SECTION
DECISION
Application no. 29474/07
Yevgeniy Pavlovich SHUMEYEV against Russia
and 3 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 22 September 2015 as a Chamber composed of:
András Sajó, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Erik Møse,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above applications,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Russian nationals living in various regions of the Russian Federation. The numbers and dates of lodging of their applications, and their full names, dates of birth and places of residence are set out in the Appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On various dates between 2005 and 2011 the police received information, in each of the applicants’ cases, implicating the applicants in drug-dealing. On the basis of that information, the police decided to carry out an undercover operation in the form of a test purchase of drugs from the applicants by undercover agents.
4. In all four cases, the police invited two randomly chosen attesting witnesses to observe the progress of the undercover operation. The attesting witnesses confirmed in their pre-trial depositions that the undercover agents had been searched prior to the test purchase and that they had bought controlled substances from the applicants with the banknotes marked and supplied by the police. They also attested that after the test purchase the police had searched the applicants or their premises, and seized and sealed controlled substances found on the applicants and other evidence that had been gathered.
5. The police also documented each step of the undercover operations. In particular, they drew up records of personal inspections of undercover agents, examinations of banknotes, test purchases, personal search and crime scene inspections.
6. The applicants were criminally prosecuted for drug-related offences under the Russian legislation in force. The undercover agents and police officers who had participated in test purchases of drugs testified during the trial, and as participants in the criminal proceedings, the applicants were able to question them. They were also able to submit various motions, present arguments in their defence and lodge objections. The attesting witnesses summoned by the prosecution were sought for but they failed to appear for various reasons, and the national courts read out their pre-trial statements regarding the investigative measures and admitted them as evidence despite the applicants’ objections. The procedural records drawn up by the police were also admitted as evidence by the courts. The contents of the pre-trial depositions of the attesting witnesses were identical to the relevant police records.
7. The applicants appealed against the judgments convicting them, submitting, inter alia, that their convictions had been unfair due to their inability to examine the attesting witnesses. The judgments were, however, upheld on appeal and became final.
B. Relevant domestic law
1. Russian Code of Criminal Procedure (CCP)
(a) General principles of criminal proceedings
8. Article 7 § 1 of the CCP (as in force at the material time) provided that the court, prosecution and investigators could not apply laws in breach of the provisions of the CCP.
9. Article 7 § 3 further provided that if the court, prosecution or investigators breached the provisions of the CCP in the course of criminal proceedings, evidence obtained as a result of such breach would be rendered inadmissible.
(b) Witnesses and attesting witnesses
10. Chapter II of the CCP contained two different provisions governing the participation of witnesses and attesting witnesses in the criminal proceedings.
11. Article 56 provided that,
“1. A witness (свидетель) is a person who may have knowledge of facts relevant to the investigation and resolution of a criminal case and who is subpoenaed to testify.”
...
7. If a witness fails to appear for no valid reason, his or her appearance may be enforced.”
12. Article 60 provided that,
“An attesting witness (“понятой”) is a person disinterested in the outcome of the criminal case who is invited by an investigator to attest to an investigative measure being carried out and also to its substance, progress and results. Minors who are involved in a criminal case and their close relatives and relatives, and also investigators, cannot act as attesting witnesses.”
(c) Investigative measures
13. Article 164 of the CCP stipulated that body searches, searches of premises, seizure of evidence and other investigative measures had to be carried out by order of the investigators. It further required the recording of all investigative measures carried out.
14. Article 166 of the CCP established that all participants in investigative measures should receive a record thereof. They had to be informed of their right to make amendments and clarifications to the record and have them noted in it. Their remarks should be acknowledged and signed by the persons making them.
15. Article 170 of the CCP required at least two attesting witnesses to be present during, inter alia, the inspection of objects relevant to the criminal case, body searches, searches of premises and seizure of evidence.
(d) Evidence
16. Article 38 provided for admitting into evidence the records of investigative measures and trial records if they complied with the requirements of the CCP.
17. Article 75 provided that evidence obtained in breach of the provisions of the CCP would be deemed inadmissible. It further provided that inadmissible evidence would have no legal force and could not be relied on as grounds for criminal charges or for proving any of the circumstances for which evidence is required in criminal proceedings.
18. Article 89 prohibited the use of the results of a criminal investigation if they failed to satisfy the rules of evidence laid down in the CCP.
(e) Motions and exclusion of evidence
19. Article 217 and Article 219 stipulated the investigator’s obligation to examine and rule on motions submitted by the defendant after the review of materials of the criminal case, and to inform the defendant of his right to appeal against an adverse decision on his motion.
20. Article 235 provided that parties to a criminal case could request a trial court to exclude certain evidence. As a general rule, the burden of proof would be on the party which submitted a motion to exclude evidence, except where a defendant sought to exclude evidence obtained in violation of the provisions of the CCP, in which case the prosecution would have to provide evidence to the contrary.
2. The Criminal Code of Russia
21. Article 303 made it a crime for investigators, prosecutors and defence attorneys to forge evidence.
COMPLAINTS
22. The applicants complained under Article 6 §§ 1 and 3 (d) of the European Convention on Human Rights (the Convention) that they had not had a fair trial in the criminal proceedings against them, since the court admitted into evidence depositions of attesting witnesses whose attendance they had been unable to secure and whom they had not examined in court.
23. The applicants also submitted a number of complaints concerning various aspects of the criminal proceedings against them under Article 5, Article 6 and Article 13 of the Convention.
THE LAW
24. In accordance with Rule 42 § 1 of the Rules of Court, the Court decided to join the applications, given their similar factual and legal background.
25. Article 6 of the Convention reads, in so far as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”
26. The Court notes at the outset that the requirements of Article 6 § 3 of the Convention are to be seen as specific aspects of the right to a fair trial guaranteed by Article 6 § 1, and therefore the applicant’s complaints under Article 6 §§ 1 and 3 should be examined together (see Vacher v. France, 17 December 1996, § 22, Reports of Judgments and Decisions 1996‑VI).
27. Furthermore, the Court has always interpreted Article 6 § 3 in the context of an overall examination of the fairness of the proceedings. Traditionally, when examining complaints under Article 6 § 1, the Court has carried out its examination of the overall fairness of the proceedings by having regard to such factors as the way in which statutory safeguards have been applied, the extent to which procedural opportunities were afforded to the defence to counter handicaps that it laboured under and the manner in which the proceedings as a whole have been conducted by the trial judge (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 143-44, ECHR 2011).
28. The Court reiterates that the term “witness” has an “autonomous meaning” in the Convention system and it considered some persons as witnesses even when the national law did not regard them as such (see Kostovski v. the Netherlands, 20 November 1989, § 40, Series A no. 166 ECHR 2001‑II).
29. In particular, the Court held that where a deposition may serve to a material degree as the basis for a conviction, then, irrespective of which participant of criminal proceedings made it, it constitutes evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention apply (see Lucà v. Italy, no. 33354/96, § 41, ECHR 2001‑II, § 41).
30. Furthermore, the Court considered that if the prosecution decides that a particular person is a relevant source of information and relies on his or her testimony at the trial and if the testimony of that witness is used by the court to support a guilty verdict it must be presumed that his or her personal appearance and questioning are necessary, unless the testimony of that witness is manifestly irrelevant or redundant (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 712, 25 July 2013).
31. Turning to the facts of the present case, the Court observes at the outset that the Russian Code of Criminal Procedure contains separate provisions on material witnesses (“свидетели”) and attesting witnesses (“понятые”) and designates the latter without using the Russian word for ‘witness’ (see paragraph 10 above). It is stipulated that material witnesses, unlike attesting witnesses, may have knowledge of the circumstances of the criminal case (see paragraph 11 above). Attesting witnesses are expected to have no knowledge of the case and they do not testify concerning the circumstances of the case or the defendants’ guilt or innocence. When they are invited by the investigator as neutral observers of an investigative measure, they are not considered to be witnesses for the prosecution or the defence (see paragraph 12 above).
32. It therefore appears that the attesting witnesses in the present case did not formally hold witness status under Russian law. However, the Court also notes that their depositions were read out at the trial and were taken into account by the domestic courts, along with the testimony of material witnesses and other evidence (see paragraph 6 above). Nevertheless, the Court is not convinced that their depositions infringed the guarantees of Article 6 §§ 1 and 3 (d) of the Convention.
33. In particular, the Court observes that the attesting witnesses in the present case were chosen at random and invited by the investigator to observe an investigative measure. They had no knowledge of the criminal cases in question. They confirmed in their depositions that the investigative measures had actually been carried out and attested to their substance, progress and results. The attesting persons in all four cases were not empowered to guarantee the lawfulness of a specific investigative measure or the accuracy of its manner of recording (see paragraphs 4, 12 and 15 above).
34. The police officers also drew up a record of each investigative measure to confirm that it did indeed take place and to set out the findings made (see paragraphs 5 and 13 above). Their records were admitted as evidence by the courts (see paragraphs 6 and 16 above). The law required police officers to conduct the measure in a lawful manner on pain of the exclusion of evidence or even criminal prosecution (see paragraphs 8, 9, 17, 18, 20 and 21 above).
35. The statements of the attesting witnesses duplicated the contents of the corresponding police records and contained no new relevant information (see paragraph 6 above). The applicants did not submit that the attesting witnesses in their cases had had knowledge over and above the information provided in the police records or that their testimony in court could otherwise influence the outcome of the criminal proceedings.
36. The Court also observes that the criminal proceedings against all four applicants were generally fair. As participants in investigative measures and in the criminal proceedings, the applicants could avail themselves of existing procedural safeguards against possible police abuse in the course of investigative measures. In particular, they could make amendments and clarifications to the pertinent records in the course of undercover operations, submit motions to the investigator and the court, question undercover agents and police officers in relation to the measures conducted and the contents of the respective procedural documents and request that the courts exclude any illegally obtained evidence (see paragraphs 14, 19 and 20 above). During the trial, they were able to put questions to the police officers and undercover agents, submit motions, present their arguments in their defence and lodge objections (see paragraph 6 above).
37. Therefore, considering the repetitive nature of the depositions made by the attesting witnesses and the remedies available to the applicants against possible procedural irregularities, it appears that the contribution by the attesting witnesses to the proceedings was limited to statements on the manner of conducting the investigative measures. Accordingly, in the present case their depositions did not serve to a material degree as a basis for the applicants’ convictions and were, in essence, redundant evidence which did not require appearance in court. In particular, it has not been demonstrated that the attesting witnesses’ statements went beyond the mere modalities of the investigative actions, were not redundant, or were relied upon by the domestic court in a substantial manner. It also was not shown that the attesting witnesses had knowledge which was over and above the information provided in the police records or that their testimony in court could otherwise influence the outcome of the criminal proceedings against the applicants.
38. Having regard to all of the above, the Court considers that the applicants’ complaints of unfair trial due to their inability to examine attesting witnesses in court are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
39. Lastly, the Court has examined the other complaints submitted by the applicants. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 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 15 October 2015.
Søren NielsenAndrás Sajó
RegistrarPresident
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Represented by
Final judgment
Missing attesting witnesses
29474/07
21/05/2007
Yevgeniy Pavlovich SHUMEYEV
10/06/1986
Donetsk
Vera Anatolyevna KARMANOVA
Rostov Regional Court, 21 November 2006
Mr K
Mr T
8669/09
22/12/2008
Vladimir Gennadyevich POLITEVICH
19/03/1971
Aleksandrovskoye
Stavropol Regional Court, 16 July 2008
Mr P
Mr A
Mr D
55413/10
29/07/2010
Aleksandr Sergeyevich KVASNIKOV
07/04/1987
Polevskoy
Sverdlovsk Regional Court, 10 February 2010
Mr M
Mr D
14408/12
02/03/2012
Aleksandr Yuryevich MITYAYEV
16/05/1981
Melekhovo
Olga Olegovna MIKHAYLOVA
Moscow City Court, 5 September 2011
Mr P
Full & Egal Universal Law Academy