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SHAMAYEV AND OTHERS v. RUSSIA

Doc ref: 10250/06;25257/06;42318/06;33221/08;1691/09;53831/10;14472/18;22495/18;24503/18;31123/18;36315/19 • ECHR ID: 001-214512

Document date: November 25, 2021

Inbound citations: 2
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Cited paragraphs: 0
•
Outbound citations: 4

SHAMAYEV AND OTHERS v. RUSSIA

Doc ref: 10250/06;25257/06;42318/06;33221/08;1691/09;53831/10;14472/18;22495/18;24503/18;31123/18;36315/19 • ECHR ID: 001-214512

Document date: November 25, 2021

Cited paragraphs only

THIRD SECTION

DECISION

Application no. 10250/06 Abdul-Vakhab Akhmetovich SHAMAYEV against Russia and 10 other applications

(see appended table)

The European Court of Human Rights (Third Section), sitting on 25 November 2021 as a Committee composed of:

Peeter Roosma, President, Dmitry Dedov, Andreas Zünd, judges,

and Viktoriya Maradudina, Acting 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 some of the applicants,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The list of applicants is set out in the appended table.

The applicants’ complaints under Article 6 §§ 1 and 3 (d) of the Convention concerning the unfair trial in view of restrictions on the right to examine witnesses were communicated to the Russian Government (“the Government”). In some of the applications, complaints based on the same facts were also communicated under other provisions of the Convention.

THE LAW

Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

In the present applications, having examined all the material before it, the Court considers that the applicants’ complaints about the courts having held the criminal trials against them in the absence of certain prosecution witnesses are inadmissible.

In particular, the Court notes that in the light of the principles established in the case-law under Article 6 §§ 1 and 3 (d) of the Convention (see notably Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118-47, ECHR 2011, Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-31, ECHR 2015, and Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 117-27, 18 December 2018) the applicants’ criminal trials had complied with overall fairness requirement.

In view of the above, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In applications nos. 42318/06 and 1691/09 the applicants also raised other complaints under various articles of the Convention.

The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the abovementioned applications must be rejected in accordance with Article 35 § 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 16 December 2021.

{signature_p_2}

Viktoriya Maradudina Peeter Roosma Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 6 §§ 1 and 3 (d) of the Convention

(unfair trial in view of restrictions on the right to examine witnesses)

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Final domestic decision

Charges convicted of

Witness absent from trial (indicated by initials)

Summary of the nature of the witness evidence

Reasons for absence

Steps taken to compensate for the witnesses’ absence; counterbalancing factors

10250/06

07/02/2006

Abdul-Vakhab Akhmetovich SHAMAYEV

1975Timishev Ilyas Yakubovich

Nalchik

Supreme Court of the Russian Federation

09/11/2005

banditry, illegal possession of weapons and attempted murder of an official

A. and Sh.

identified the applicant on photos

held in custody

no objection on behalf of the parties to the reading out of the written statements made by the witnesses;

considerable body of other evidence on which the applicant’s conviction was based

25257/06

11/05/2006

Aydin Aydinovich ABLAYEV

1957Nagiyev Ruslan Orudzhevich

Kazan

Supreme Court of the Republic of Tatarstan

10/02/2006

drug trafficking

received drugs from the applicant for re-sale

serving sentence in a remote penal facility and her breastfeeding an infant

significant body of evidence on which the applicant’s conviction of several episodes of drug trafficking was based;

evidence examined, cross-referenced, and verified against the statements of the absent witness K.

42318/06

12/09/2006

Andrey Nikolayevich SOCHAN

1969Supreme Court of the Russian Federation

17/11/2009

aggravated murders and illegal possession of weapons

victim O., prosecution witness Ar.

victim of a failed assassination attempt and the witness to whom the applicant confessed

serious medical condition, refused to testify

summons and orders of enforced appearance were issued; evidence is neither sole nor decisive;

ample body of direct evidence supporting the applicant’s conviction; the written statements by the absent witnesses carefully examined and cross ‑ reference and verified against other evidence

33221/08

15/05/2008

Dmitriy Aleksandrovich LEONTYEV

1972Sadovskaya Olga Aleksandrovna

Nizhniy Novgorod

Supreme Court of the Russian Federation

12/03/2008

banditry and multiple armed robberies

a co-accused, participated in the criminal group

medical reasons

order for enforced appearance;

conviction is based on a considerable body of evidence, including video recordings

1691/09

12/12/2008

Maksim Igorevich VASILYEV

1968Ovchinnikov Oleksandr

Strasbourg

Moscow City Court

20/08/2009

fraud in conspiracy with others

prosecution witnesses S., Kh., P., M.G., M.A., Ch. Ye., Ch. O., A., B. and M.

various elements of the fraudulent scheme

could not be located, distant region/other country, medical reasons

repeated summons and orders for enforced appearance; conviction was based on a large body of evidence, including open-court testimony of victims/witnesses and documentary evidence; lengthy, elaborated, and detailed assessment of the whole body of evidence by the courts

53831/10

24/08/2010

Aleksandr Aleksandrovich GORYAINOV

1977Topolskova Mayya Daniyalovna

Artem

Primorye Regional Court

24/02/2010

sexual assault and aggravated robbery in conspiracy

victim A. and witness L.

victim of armed robbery and an accomplice in robbery

could not be located, serving sentence (witness)

summons and orders of enforced appearance; no objection made by the parties against the reading out in court of the written statements by witness L.; whereabouts of victim A. could not be established, despite measures taken; not a sole or decisive evidence; amble body of evidence available for the trial court to convict the applicant

14472/18

13/03/2018

Aleksandr Aleksandrovich MOISEYEV

1966Krasnoyarsk Regional Court

14/09/2017

large-scale fraud, multiple episodes

multiple witnesses (71 persons whose statements had been read out in court), including the co-accused B. and K., witness D.

direct witnesses of the criminal offence; co-accused persons B. and K., who had been already convicted

could not be located, refusal to appear

motion to summon witnesses for the hearing; the courts considered records of multiple investigative actions, multiple documentary expert assessments demonstrating the fact of fraud, statements of more than 100 different witnesses including the victims of the crimes, persons, who participated and/or had been indirectly involved in the fraud scheme (questioned during the hearings), pre-trial statements of co-defendants and the confrontation records between the applicant and them, as well as testimony given during the hearings

22495/18

01/05/2018

Magomed Sultanovich TIMAYEV

1979Tolstykh Andrey Borisovich

Moscow

Moscow City Court

01/11/2017

robbery

M. G., A. S.

victims of a robbery

distant region/other country, could not be located

repeated summons of the victims, adjournments of the hearings and searches of the victims; defence was provided with a possibility to question these witnesses during pre-trial confrontation interviews; their written statements had been confirmed by a considerable body of other evidence.

24503/18

06/05/2018

Arshak Garikovich TATOSOV

1984Sepikhanov Mansur Muradisovich

Moscow

Moscow City Court

14/11/2017

rape

S. G.

victim

could not be located

repeatedly adjourned hearings to locate the victim; the applicant had a possibility to confront the victim at the pre-trial stage during a confrontation interview; the defence had not insisted on questioning the absent victim at the trial

31123/18

16/06/2018

Igor Mikhaylovich SKAKUNOV

1971Suindykov Talgat Temirgaliyevich

Dzerzhinskiy

Supreme Court of the Russian Federation

19/12/2017

aiding and abetting in abuse of office

R., S.

various elements of the abuse of power (threats of misuse of authority, contractual agreements under duress etc.)

distant region/other country, refusal to appear

summons sent, but attendance could not be obtained; ample body of evidence serving as the basis for the applicant’s conviction;

the applicant failed to demonstrate which specific points of the absent witnesses’ testimony the defence was prevented from challenging; their statements were not sole and decisive evidence

36315/19

24/06/2019

Aleksey Nikolayevich MATYUKHIN

1978Supreme Court of the Kareliya Republic

16/05/2019

drug purchase and drug trafficking

witness Yu.

received information about the applicant dealing drugs and participated in the undercover purchase

distant region/other country; witness unable to attend

summons sent;

neither sole nor decisive evidence, carrying no significant weight; statement of the absent witness was essentially repetitive and similar to the statements by two other prosecution witnesses heard in open court.

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