THIRD SECTION

DECISION

Application no. 38047/08 Andrey Vladimirovich KIBA against Russia and 2 other applications (see list appended)

The European Court of Human Rights (Third Section), sitting on 17 April 2018 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 living in various regions of the Russian Federation. Their personal details appear in the appended table.

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

3. On 6 March 2014 complaints under Article 6 §§ 1 and 3 (d) were communicated to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

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

5. On different dates between 2007 and 2012 different trial courts (see the appended table) convicted the applicants, inter alia , of sexual assault of minors ( насильственные действия сексуального характера ), and sentenced them to imprisonment. The victims of their crimes were between 4 and 8 years old at the time of the events.

6 . The convictions were based on a multiplicity of evidence, including statements by the applicants, the victims, their legal representatives, and hearsay witnesses, cross-examinations in the court room of the witnesses summoned to the hearings, psychological and psychiatric examinations of the victims, forensic examinations and documentary evidence. Mr Kiba and Mr Mironov ’ s convictions were based as well on the statements given by the educational counsellors. Mr Mironov ’ s conviction was further based on the read-out pre-trial statements of an eyewitness – a victim ’ s mother, who on several occasions witnessed sexual abuse of her daughter .

7. The victims in the cases of Mr Kiba and Mr Tikhomirov did not appear in court and their pre-trial statements were read out at the trial on the prosecutors ’ requests. Allowing the victims ’ pre-trial statements as evidence the trial courts relied in their decisions on the victims ’ age, findings of their psychological and psychiatric examinations, opinion of the victims ’ legal representatives and educational counsellors. The experts concluded that the questioning of the victim in Mr Kiba ’ s case was advisable to conduct in “sparing conditions” ( щадящие условия ) due to her young age and individual psychological traits; the victim ’ s guardian told the trial court that the victim refused to go to the court. In respect of the victim in Mr Tikhomirov ’ s case they found that the victim could not adequately perceive the circumstances important for the case and testify as her long ‑ time memory was not yet developed and that her questioning in court was not advisable “to avoid her neuroticism” ( во избежание ее невротического состояния ). The victim in Mr Mironov ’ s case attended one of the hearings accompanied by her mother and an educational counsellor. Her rights were explained to her and following her mother ’ s request she left the court room before Mr Mironov ’ s indictment was read out. When asked to return to the court room the victim refused, started crying, an ambulance was called and the victim was hospitalised with a diagnosis of acute stress reaction ( острая реакция на стресс ). The victim ’ s mother and an educational counsellor expressed their opinion that the victim should not be questioned in the court. Taking into account the victim ’ s age, state of health and hospitalisation the trial court granted the prosecutor ’ s request and read out the victim ’ s pre-trial statements. The domestic courts in all three cases were of the opinion that the mentioned circumstances justified the victims ’ absence from the trials. The domestic courts analysed the victims ’ pre-trial statements and established their coherence and consistency with other evidence. Several defence witnesses, including the applicants ’ spouses, relatives and friends, were examined at the trials .

8. The judgments of the trial courts were upheld on appeal.

COMPLAINTS

9. The applicants complained under Article 6 §§ 1 and 3 (d) of the Convention that they had been unable to have the victims examined at the trial.

THE LAW

10. The applicants complained that their right to a fair trial under Article 6 § 1 of the Convention had been violated on account of their inability to examine prosecution witnesses – victims – as guaranteed by Article 6 § 3 (d) of the Convention. The relevant Convention provisions read as follows:

“1. 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 ...”

11. In their observations the Government disagreed and argued that all three applicants had had a fair hearing in the determination of the criminal charges against them in accordance with Article 6 § 1 of the Convention. In their opinion, the authorities had had good reasons not to examine the victims at trial having regard to their very young age, state of health and/or conclusions of the experts advising against their questioning at trial due to possible adverse psychological effects. They contended that the applicants ’ convictions were based on other abundant evidence. Lastly, 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.

12. The applicants maintained their complaints. Mr Kiba and Mr Mironov argued that the domestic courts had had no valid reasons for reading out the victims ’ pre-trial statements and that the victims ’ emotional state could have only been a ground to adjourn the hearings. All three applicants pointed out that the victims ’ statements were the only direct evidence incriminating them and that all other witnesses provided only hearsay evidence. Mr Mironov and Mr Tikhomirov further argued that they were not provided with sufficient counterbalancing measures to remedy the handicap of defence.

13. The Court will examine the complaints concerning inability to examine the victims at trial having regard to the relevant principles and criteria established previously in the Grand Chamber judgments in the cases of Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 152, ECHR 2011) , and Schatschaschwili v. Germany ([GC], no. 9154/10, § 118, ECHR 2015).

15. Turning to the second step of the Al-Khawaja test, the Court notes that although the pre-trial statements of the victims clearly constituted a significant piece of evidence, the applicants ’ convictions were based on the examination of a multiplicity of other evidence, including statements by the applicants themselves, hearsay witnesses ’ cross-examinations in court, psychological and psychiatric examinations of the victims, forensic examinations and documentary evidence. Mr Kiba ’ s conviction was also based on the pre-trial statements of the eyewitness (see paragraph 6 above). Accordingly, the Court concludes that the pre-trial statements of the victims did not constitute “sole or decisive” evidence for the applicants ’ convictions.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 17 May 2018 .

FatoÅŸ 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 courts ’ judgments

Victim absent from trial

Age at the time of events

38047/08

09/06/2008

Andrey Vladimirovich

KIBA

04/05/1980

Moscow

Natalya Aleksandrovna

SHEVCHENKO

Zyuzinskiy District Court of Moscow

18/10/2007

Moscow City Court

10/12/2007

Mrs M.

4 years and 10 months old

6091/13

11/12/2012

Nikolay Dmitriyevich

MIRONOV

30/07/1976

Lesnoy

Supreme Court of the Chuvash Republic

20/04/2012

Supreme Court of the Russian Federation

20/06/2012

Mrs L.

8 year s old

37215/13

03/06/2013

Vitaliy Sergeyevich

TIKHOMIROV

04/01/1988

Belovo

Yuriy Pavlovich

VORONOVICH

Kemerovo Regional Court

04/10/2012

Supreme Court of the Russian Federation

26/12/ 2012

Mrs K.

5 years and 8 months old