Lexploria

THIRD SECTION

DECISION

Application no. 27870/12 Tatyana Borisovna MIKHAYLOVA against Russia and 9 other applications (see appended table )

The European Court of Human Rights (Third Section), sitting on 19 March 2019 as a Committee composed of:

Alena Poláčková , President, Dmitry Dedov , Jolien Schukking , judges, and Fatoş Aracı , 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 the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are Russian nationals, except for Mr Khashimov who is Azerbaijani, living in various regions of the Russian Federation. Their personal details appear in the appended table.

2. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin , the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin .

3. The facts of the cases, as submitted by the parties, may be summarised as follows.

4. On various dates between 2008 and 2014 the applicants were criminally prosecuted and convicted of various offences.

5. The applicants ’ convictions were based among other evidence on the statements of one or more witnesses for prosecution, which were made during pre-trial stages of the proceedings and read out in open court while those witnesses were absent.

6. Allowing the witnesses ’ pre-trial statements as evidence the trial courts in their judgments relied on the impossibility to locate them, and/or their refusal to appear at court, and/or remoteness of their place of residence as well as engagements existing at the material time and/or their poor state of health that made impossible for them to appear before the court.

7. The convictions were based on a multiplicity of evidence, including statements by the applicants made at the pre-trial stage and at trial in the presence of their lawyers, trial statements by the police officers, other witnesses for prosecution, material and documentary evidence. The domestic courts analysed the witnesses ’ pre-trial statements and established their coherence and consistency with other evidence.

8. The judgments of the trial courts were upheld on appeal, except for in application no. 22877/13 Seleverstov v. Russia where the applicant failed to lodge an appeal against the trial court ’ s judgment .

COMPLAINTS

9. The applicants complained under Article 6 §§ 1 and 3 (d) of the Convention that the domestic courts had not provided good reasons for reading-out of the pre-trial statements of the witnesses for prosecution and thus the applicants had been unable to have those witnesses examined at the trial.

10. The applicants, except for Mr Seleverstov and Mr Borsov (applications nos. 22877/13 and 39177/13 respectively), also complained under Article 6 § 1 of the Convention about the outcome of the proceedings, assessment of evidence and refusal to admit certain materials into evidence.

11. Ms Mikhaylova and Ms Gorbaneva (applications nos. 27870/12 and 50665/12 respectively ) complained in addition under Article 6 §§ 1 and 3 (d) of the Convention about the domestic courts ’ refusals to summon and question the witnesses for defence .

12. Mr Ananenko (application no. 2935/13) further complained under Articles 3 and 5 §§ 1 and 3 of the Convention.

THE LAW

13. The Court first considers that in accordance with Rule 42 § 1 of the Rules of Court, the applications listed in the appended table should be joined, given their common legal background.

14. The respondent Government in their observations argued that the applicants had had a fair hearing in the determination of the criminal charges against them in accordance with Article 6 § 1 of the Convention. They argued that the applicants ’ convictions were based on other abundant evidence. Referring to the provisions of the Code of Criminal Procedure of the Russian Federation, as well as the relevant interpretative guidelines and practice of the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation, the Government contended that the Russian legal system had afforded the applicants sufficient procedural safeguards aimed at securing their right to examine witnesses testifying against them and guarantees of a fair trial. In respect of Mr Seleverstov (application no. 22877/13) the Government also argued that the applicant did not appeal against his conviction.

15. Certain applicants disagreed, while the others did not provide specific arguments.

16. The Court has carefully examined the applications listed in the appended table and concluded that, in the light of the Court ’ s primary concern under Article 6 § 1 to evaluate the overall fairness of the criminal proceedings (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10, § 101, ECHR 2015), the presumption that in principle the Russian legal system offers robust procedural guarantees securing the right of an accused to examine witnesses testifying against him, ensuring that the reading out of absent witnesses ’ testimony is possible only as an exception (see Zadumov v. Russia , no. 2257/12, § 63, 12 December 2017, recently reiterated in Kiba and Others ( dec. ), nos. 38047/08 and 2 others, § 16, 17 April 2018), the material in its possession, and in so far as the matters complained of are within its competence, the applications are manifestly ill-founded, except for application no. 22877/13 Seleverstov v. Russia which is out on non-exhaustion of domestic remedies, as well as the accessory complaints of all the applicants except for Mr Seleverstov and Mr Borsov (applications nos. 22877/13 and 39177/13 respectively) under Article 6 § 1 of the Convention, complaints of Ms Mikhaylova and Ms Gorbaneva (applications nos. 27870/12 and 50665/12 respectively) under Article 6 §§ 1 and 3 (d) of the Convention and complaints of Mr Ananenko (application no. 2935/13 ) under Articles 3 and 5 §§ 1 and 3 of the Convention, which were not communicated to the Government, and thus must be rejected in accordance with Article 35 §§ 1, 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 11 April 2019 .

Fatoş Aracı Alena Poláčková Deputy Registrar President

APPENDIX

No.

Application

no.

Date of introduction

Applicant name

Date of birth

Place of residence

Represented by

Date of the trial and appeal/cassation courts ’ judgments

Witness absent from trial

27870/12

12/04/2012

Tatyana Borisovna

MIKHAYLOVA

25/01/1959

Moscow

Aleksandr Valeryevich

Tregubov

Perovskiy District Court of Moscow

26/08/2011

Moscow City Court

21/11/2011

Convicted of swindling with use of an official position on a large scale in excess of official powers

Ms S.,

Ms L.,

Ms K.,

Ms Sav .,

Mr K.,

Ms D.,

Ms R.,

Ms Z.,

Ms Zel .,

Ms Sem.,

Ms B.,

Ms A.,

Ms Sam.,

Mr Kuz .

50665/12

01/08/2012

Tatyana Yevgenyevna

GORBANEVA

18/08/1966

Seversk ,

Tomsk Region

Lyubov Germanovna

Golysheva

Justice of the Peace of Circuit no. 1 of the Sovetskiy District of Tomsk

24/10/2011

Tomsk Regional Court

09/02/2012

Convicted of illegal transfer of inventoried and seized property by a person entrusted with this property

Mr B.

2935/13

04/12/2012

Aleksandr Anatolyevich

ANANENKO

01/04/1957

Abinsk , Krasnodar Region

Yelena Vladimirovna

Korneva

Abinsk District Court of the Krasnodar Region

16/09/2008

Krasnodar Regional Court

06/06/2012

Convicted of evasion of corporate tax payment on a large scale by non ‑ submitting tax declarations or other documents and by including fraudulent data in tax declarations,

concealment of monetary funds payable as tax exaction on a large scale,

attempted fraud on especially large scale

Ms N.,

Mr R.,

Mr K.,

Mr L.

22877/13

13/02/2013

Valeriy Alekseyevich

SELEVERSTOV

05/11/1983

Lepley , Republic of Mordovia

Pavel Vasilyevich

Astakhov

Lyublinsky District Court of Moscow

22/05/2014

Convicted of abduction by a group of persons in preliminary collusion

Mr Kh .

29884/13

10/09/2013

Andrey Aleksandrovich

PYSTOGOV

13/08/1989

Nizhniy Tagil , Sverdlovsk Region

Inna Valeryevna

Zhuravleva

Gayinskiy District Court of the Perm Region

23/11/2012

Perm Regional Court

12/03/2013

Convicted of illegal deprivation of liberty by a group of persons in preliminary collusion, battery, robbery with the use of violence endangering life and health and with the use of objects used as weapon,

unlawful entry into a home

Ms I.,

Ms K.

31216/13

16/04/2013

Namig Shakhin Ogly KHASHIMOV

07/06/1986

Belaya Gora, Tula Region

Igor Vladimirovich

Kostritsa

Dorogomilovskiy District Court of Moscow

29/08/2012

Moscow City Court

17/10/2012

Convicted of robbery committed with the threat of using violence which threatened human life and health, with the use of objects used as weapons, with illegal entry into a home in an especially large scale

Ms A.

39177/13

06/04/2013

Mikhail Alekseyevich

BORSOV

18/11/1991

Moscow

Lyubertsy Town Court of the Moscow Region

14/08/2012

Moscow Region Court

25/12/2012

Convicted of theft by a group of persons in preliminary collusion on especially large scale,

and of involvement of an under-age individual in committing a grave offence by threats and with use of violence and threats of violence

Mr G.

60378/13

02/09/2013

Igor Vladimirovich

ZAGOSKIN

27/02/1986

Perm

Oleg Vyacheslavovich

Pakhomov

Gayinskiy District Court of the Perm Region

23/11/2012

Perm Regional Court

12/03/2013

Convicted of intentional infliction of a grave injury hazardous for human life which involved the death of the victim by negligence, illegal deprivation of liberty by a group of persons in preliminary collusion, battery, unlawful entry into a home

Ms I.

73272/13

26/10/2013

Alisher Mukhtarzhanovich

SABITALIYEV

03/11/1975

Yaroslavl

Yuriy Aleksandrovich

Melnikov

Taganskiy District Court of Moscow

22/04/2013

Moscow City Court

08/10/2013

Convicted of robbery by a group of persons in preliminary collusion with the use of violence not endangering life and health

Mr P.

76629/13

20/11/2013

Sergey Ilyich

LIDYAYEV

10/08/1987

Lesnoy , Kirov Region

Oleg Olegovich

Anishchik

Butyrskiy District Court of Moscow

19/02/2013

Moscow City Court

22/05/2013

Convicted of robbery by a group of persons in preliminary collusion with the use of violence endangering life and health

Mr M.

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MIKHAYLOVA AND OTHERS v. RUSSIA

MIKHAYLOVA AND OTHERS v. RUSSIA

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