KUZNETSOV AND OTHERS v. RUSSIA
Doc ref: 33389/07, 54480/07, 1570/08, 3975/08, 10309/08, 10594/08, 18069/08, 24980/08, 30066/08, 32015/08, 33... • ECHR ID: 001-140892
Document date: January 14, 2014
- Inbound citations: 16
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- Cited paragraphs: 0
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- Outbound citations: 1
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FIRST SECTION
DECISION
Application no . 33389/07 Ivan Vasilyevich KUZNETSOV against Russia and 35 other applications (see list appended)
The European Court of Human Rights ( First Section ), sitting on 14 January 2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President, Mirjana Lazarova Trajkovska, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turković, Dmitry Dedov, judges, and Søren Nielsen , Section Registrar ,
Having regard to the above applications lodged on the dates indicated in the appendix ,
Having deliberated, decides as follows:
THE FACTS
A. The circumstances of the case
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 applicant s , may be summarised as follows.
2. On various dates between 2007 and 2012 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 the witnesses were absent from trial.
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 either did not specify the reasons for their decision or merely referred to an impossibility of the witnesses ’ attendance.
5. The applicants appealed against the judgments of convictions arguing inter alia that their convictions were unfair due to inability to examine prosecution witnesses. However the judgments of conviction were upheld on appeal and became final. The final judgments ’ particulars , the initials of the witnesses, whose statements were read out, and the reasons for their absence stated by the domestic courts are tabulated below.
B. Relevant domestic law and practice
1. Code of Criminal Procedure
6 . The Code of Criminal Procedure of the Russian Federation of 2001 (CCrP), which entered into force on 1 July 2002, provides that a victim or a witness of a crime shall normally be examined in court.
7 . Article 240 of the Code provides as follows:
“1. All the evidence should normally be presented at a court hearing ... The court should hear statements of the defendant, victim, witnesses ... and examine physical evidence ...
2. The reading of pre-trial depositions is only permitted under Articles 276 and 281 of the Code ...”
8 . Pre-trial statements of a victim or a witness, who is absent during the trial, may be read out in the court upon the motion of one of the parties or upon the own motion of the court (Article 281 § 1-2). Article 281 § 2 of the Code provides for the list of grounds for pre-trial statements to be read out. In the relevant part it reads as follows:
“2. In case of absence at the court hearing of a victim or a witness the court may upon the motion of a party or upon its own motion decide to read out the previously given statements, in case of:
1) death of a victim or a witness;
2) grave illness precluding appearance in court;
3) refusal of a victim or a witness who is a foreign citizen to appear under the summons of the court;
4) natural disaster or other exceptional circumstances precluding appearance in court.”
2. Supreme Court
9 . The Plenum of the Supreme Court of the Russian Federation has clarified that under Article 281 § 1 of the CCrP the reading out of the pre ‑ trial statements of absent witnesses is in principle possible with the consent of both prosecution and defence. However, in exceptional cases prescribed by Article 281 § 2, the statements may be read out without the consent of both parties (see Decree of the Plenum of the Supreme Court of the Russian Federation of 5 March 2004 No. 1).
3. Constitutional Court
10 . In its admissibility decision of 27 October 2000 (no. 233 ‑ O), the Constitutional Court held that the reading out of pre-trial depositions should be considered as an exception to the court ’ s own assessment of evidence and should not upset the procedural balance between the interests of the prosecution and those of the defence. If a party insists on calling a witness whose testimony may be important to the case, the court should take all available measures to ensure the presence of the witness in court. When that witness is available for questioning, the reading out of his or her deposition should be considered inadmissible evidence and should not be relied upon. However, when the witness is not available for questioning, the defence should still be provided with appropriate procedural safeguards such as a challenge to the read-out deposition, a request for challenge by way of examining further evidence, as well as pre-trial face-to-face confrontation between that witness and the defendant when the latter was given an opportunity to put questions to the former (see also the admissibility decision of 7 December 2006 (no. 548-O)).
COMPLAINT S
11. 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, since they were unable to obtain the attendance of the witnesses testifying against them and to examine them in court .
12. The applicants further submit a number of accessory complaints concerning various aspects of the criminal proceedings against them under Articles 3, 5, 6, 7, 8, 13, 14, 17 of the Convention and Article 2 of Protocol No. 7 .
THE LAW
A. Alleged violation of Article 6 of the Convention
13. The applicants relied on Article 6 of the Convention , which, in its relevant parts, provides as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ...
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 .. .”
14. The applicants complain that contrary to Article 6 § 3 (d) of the Convention they were unable to obtain the attendance of the witnesses testifying against them and to examine them in court. They point out that the national authorities and courts failed to take proper measures to secure attendance of the witnesses, but allowed reading out of their pre-trial statements during trials without good reasons. The applicants allege that their convictions were based solely or to a decisive degree on the basis of statements of absent witnesses. Therefore the applicants consider that they did not have an overall fair hearing within the meaning of Article 6 § 1 of the Convention.
15 . The Court considers that it cannot, on the basis of the case file, determine the admissibility of th e s e complaint s and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application s to the respondent Government.
B. Other complaints
16. The applicants further submit a number of accessory complaints under Articles 3, 5, 6, 7, 8, 13, 14, 17 of the Convention and Article 2 of Protocol No. 7 concerning alleged ill-treatment by police, conditions of detention, lack of medical treatment, lack of reasons and length of pre-trial detention, length of criminal proceedings, assessment of evidence, bias of the judges, police entrapment, inability to obtain reconsideration of their convictions, defects of legal assistance and other aspects of the criminal proceedings against them .
17. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
18. It follows that these part s of the application s are manifestly ill ‑ founded and must be rejected in accordan ce with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants ’ complaints under Article 6 § 1 and Article 6 § 3 (d) of the Convention concerning inability to obtain the attendance of the witnesses testifying against them and to examine them in court ;
Declares the remainder of the applications inadmissible.
Søren Nielsen Isabelle Berro-Lefèvre Registrar President
Appendix
No.
Application
no.
Lodged on
Applicant name
date of birth
Represented by
Final judgment
Witness(es) absent from trial
33389/07
04/07/2007
Ivan Vasilyevich KUZNETSOV
05/06/1983
Moscow City Court,
21 March 2007
victim Mr N.
54480/07
15/10/2007
Vladimir Gennadyevich NAGIBIN
07/07/1955
Yelena Pavlovna ARTAMONOVA
Moscow Regional Court,
17 April 2007
victim Mr R. and prosecution witness Mr Aks.
1570/08
09/12/2007
Mikhail Aleksandrovich FIRSTOV
03/07/1971
Dmitriy Vadimovich AREFYEV
24/04/1963
Moscow City Court,
13 June 2007
prosecution witness Mr K.
3975/08
12/12/2007
Dmitriy Grigoryevich ALEYNIKOV
27/11/1970
Moscow City Court,
13 June 2007
prosecution witness Mr K.
10309/08
22/01/2008
Sergey Anatolyevich KURBANOV
01/02/1982
Supreme Court of Khakasiya,
3 October 2007
victim Mr Ch.
10594/08
09/02/2008
Vladimir Yuryevich POSTOVALOV
08/12/1956
Rostov Regional Court,
18 September 2007
prosecution witness Mr F.
18069/08
27/01/2008
Maksim Romanovich ZLOBIN
10/09/1985
Chelyabinsk Regional Court,
27 July 2007
victim Mr N., prosecution witnesses Mr G. and Mr B.
24980/08
17/04/2008
Andrey Mikhaylovich PANCHENKO
09/09/1976
Supreme Court of Bashkortostan,
23 October 2007
prosecution witnesses Mr A., Mr Sh. and Mr Sl.
30066/08
29/05/2008
Sergey Lvovich SANAYEV
11/02/1978
Tula Regional Court,
20 February 2008
prosecution witnesses Mr G. and Mrs Kr.
32015/08
03/06/2008
Roman Yevgenyevich VLASOV
11/09/1979
Chelyabinsk Regional Court,
9 January 2008
prosecution witness Mr K.
33965/08
04/06/2008
Sergey Gennadyevich SAVENKOV
12/10/1981
Radik Rashitovich RAKHMATULLIN
Supreme Court of Bashkortostan,
6 December 2007
prosecution witness Mr T.
40306/08
09/06/2008
Lyubov Vasilyevna AKHTERYAKOVA
22/05/1981
Astrakhan Regional Court,
13 December 2007
prosecution witness Mrs Kaz.
46581/08
26/06/2008
Sergey Alekseyevich KOCHERGIN
01/06/1980
Supreme Court of Bashkortostan,
14 February 2008
prosecution witnesses Mr F. and Mr R.
47599/08
08/08/2008
Yuriy Valeryevich VYDRIN
05/03/1966
Krasnodar Regional Court,
27 February 2008
prosecution witnesses Mr S. and Mr Kos.
48895/08
15/09/2008
Sergey Vladimirovich SLOKHOV
25/06/1966
Tatyana Ivanovna PROTSENKO
Moscow City Court,
8 August 2008
prosecution witnesses Mrs V., Mr M., Mr K., Mr S., Mr Yud., Mr R., Mr Ul., Mr P., Mr Akh.
48905/08
15/09/2008
Gleb Aleksandrovich PAKULO
31/01/1968
Aleksey Mikhaylovich SURIN
Moscow City Court,
8 August 2008
prosecution witnesses Mrs V., Mr M., Mr K., Mr S., Mr Yud., Mr R., Mr Ul., Mr P., Mr Akh.
52304/08
25/09/2008
Aleksandr Eduardovich BLYUMIN
17/11/1964
Aleksandr Vyacheslavovich KOROLEV
Moscow Regional Court,
26 August 2008
victim Mrs Yer.
54353/08
18/08/2008
Valentina Mikhaylovna URUKOVA
06/06/1961
Supreme Court of Chuvashiya,
28 August 2008
prosecution witnesses Mr Il., Mr B., Mr Akh., Mr Z., Mr P., Mrs M.
7710/09
15/01/2009
Aleksey Aleksandrovich TKACHEV
05/10/1982
Astrakhan Regional Court,
14 August 2008
prosecution witnesses Mr B. and Mr Kh.
10781/09
05/11/2008
Igor Vladimirovich FEDYAYEV
29/07/1968
Aleksandr Petrovich POPOV
Kursk Regional Court,
3 July 2008
prosecution witness Mrs Sh.
11068/09
10/09/2008
Aleksey Nikolayevich KHVALNOV
10/03/1979
Tambov Regional Court,
18 March 2008
prosecution witness Mrs Sem.
12565/09
07/02/2009
Arkadiy Vladislavovich AKLANOV
25/03/1971
Novosibirsk Regional Court,
11 August 2008
prosecution witness Mr Zh.
14252/09
03/02/2009
Ivan Borisovich TELEGIN
27/02/1978
Larisa Nikolayevna YEREMICHEVA
Saint Petersburg City Court,
5 August 2008
victim Mr N.
35051/09
28/05/2009
Valeriy Nikolayevich KANAICHEV
05/04/1964
Moscow City Court,
18 March 2009
prosecution witnesses Mr R., Mr K., Mr F., Mr P., Mr Bozh, Mr Bryz.
35656/09
10/06/2009
Dmitriy Viktorovich DYAGILEV
08/12/1977
Aleksandr Vitalyevich VASILYEV
Moscow City Court,
13 July 2009
prosecution witnesses Mr Sh. and Mr Akh., victim Mr S.
36235/09
02/09/2009
Eduard Anatolyevich DYACHOK
23/10/1968
Krasnoyarsk Regional Court,
2 February 2010
prosecution witness Mr F.
46918/09
20/10/2009
Ivan Vladimirovich RYS
27/09/1984
Supreme Court of the Russian Federation,
5 May 2009
prosecution witness Mrs Sh.
6752/12
26/03/2012
Dinmukhamed Mustapayevich YSAKOV
27/09/1982
Supreme Court of the Russian Federation,
20 October 2011
prosecution witness Mr L.
66754/12
28/09/2012
Aleksandr Aleksandrovich NIKONOV
24/02/1979
Moscow City Court,
14 June 2012
prosecution witness Mr T.
68848/12
12/09/2012
Ruslan Rusamovich GALIYEV
13/02/1979
Supreme Court of Chuvashiya,
7 June 2012
victims Mrs S. and Mrs G.
892/13
12/12/2012
Vitaliy Vladimirovich DASHKOV
27/02/1976
Aleksey Vyacheslavovich SUSHKOV
Supreme Court of the Russian Federation,
27 June 2012
victim Mr T.
5987/13
17/01/2013
Yevgeniy Vladimirovich BELYAEV
04/10/1976
Sverdlovsk Regional Court,
3 August 2012
prosecution witness Mr M.
13105/13
18/02/2013
Zakhar Sergeyevich BERESTOVOY
10/08/1986
Lina Fedorovna MOTCHENKO
Moscow City Court,
20 August 2012
prosecution witnesses Mrs P., Mr M., Mr N., Mr S., Mrs Av.
13686/13
28/01/2013
Gennadiy Nikolayevich DOROSHCHENKO
07/03/1975
Krasnoyarsk Regional Court,
22 January 2013
victim Mr Er. and prosecution witness Mrs Ver.
14360/13
09/01/2013
Dmitriy Vladislavovich GLAZYRIN
03/10/1970
Supreme Court of the Russian Federation,
18 July 2012
victim Mrs M.
18635/13
25/12/2012
Boymukhamad Saidovich KODIROV
27/07/1967
Supreme Court of Chuvashiya,
28 June 2012
prosecution witness Mr B.