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 A ppendix.

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 . T he 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 t he national courts read out the ir 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 convicti ng them, submitt ing , inter alia , that their convictions had been unfair due to their inability to examine the attesting witnesses . The judgments were , however, up held 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 b e 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 e vidence obtained in breach of the provisions of the CCP would be deemed inadmissible. It further provided that i nadmissi ble evidence would have no legal force and c ould not be relied on as grounds for criminal cha rges or for proving any of the circumstances for which evidence is r equired 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 the y had been unable to secure and whom they had not examine d in court.

23. The applicants also submitted a number of complaints concerning various aspects of the criminal proceed ings 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 procee dings . 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 con ducted 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 ).

2 9. 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 redu ndant (see Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05 , § 712, 25 July 2013 ).

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 the ir depositions were read out at the trial and were taken into account by the domestic courts , along with the testimony of material witness es 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. T he attesting persons in all four cases were not empowered to guarantee the lawfulness of a specific investigative measure or the accuracy of its manne r of recording (see paragraphs 4 , 12 and 15 above).

34. T he police officers also drew up a record of each investigative measure to confirm that it did indeed take place and to set out t he 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 th e exclusion of evidence or even criminal pro secution (see paragraphs 8 , 9 , 17 , 18 , 20 and 21 above).

35. The statements of the attesting witnesses duplicated the content s of the corresponding police records and contain ed no new relevant information (see paragraph 6 above). T he 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. A s 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 o btained 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).

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 applicant s . 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 Nielsen András Sajó Registrar President

Appendix

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Represented by

Final j udgment

Missing attesting w itnesses

29474/07

21/05/2007

Yevgeniy Pavlovich SHUMEYEV

10/06/1986

Donetsk

Vera Anatolyevna KARMANOVA

Rostov Regional Court, 21 November 2 006

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