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SMIRNOV AND OTHERS v. RUSSIA

Doc ref: 58303/09;64141/11;78599/11;78905/12;3260/14;43978/16 • ECHR ID: 001-222544

Document date: December 8, 2022

Inbound citations: 1
•
Cited paragraphs: 0
•
Outbound citations: 4

SMIRNOV AND OTHERS v. RUSSIA

Doc ref: 58303/09;64141/11;78599/11;78905/12;3260/14;43978/16 • ECHR ID: 001-222544

Document date: December 8, 2022

Cited paragraphs only

THIRD SECTION

DECISION

Application no. 58303/09 Sergey Igorevich SMIRNOV against Russia and 5 other applications

(see appended table)

The European Court of Human Rights (Third Section), sitting on 8 December 2022 as a Committee composed of:

Darian Pavli , President , Ioannis Ktistakis, 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 the applicant,

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”).

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 concerning their right to examine witnesses in the course of the criminal proceedings against them 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.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 12 January 2023.

Viktoriya Maradudina Darian Pavli 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/anonymity/courts’ refusal to obtain attendance

Counterbalancing factors

58303/09

19/08/2009

Sergey Igorevich SMIRNOV

1973Yeremeyev Valeriy Valentinovich

Arkhangelsk

Arkhangelsk Regional Court

28/04/2009

manslaughter

Eyewitness of the crime

The witness asked for anonymity for fear of retaliation

The witness was placed in a separate room and was questioned by parties to the proceedings; I.’s statement was not sole or decisive evidence.

64141/11

04/10/2011

Viktor Aleksandrovich LUKOVENKO

1985Vasilyev Aleksandr Vitalyevich

Zvenigorod

Moscow City Court

23/05/2011

manslaughter

defence witness T.

eyewitness of the crime

distant region/other country, refusal to appear

Domestic courts assessed the relevance of the witness’s statement and sufficiency of the reasons advanced by the defence; the applicant was represented and was able to present his defence effectively

78599/11

18/11/2011

Pavel Vyacheslavovich YELKIN

1985Smetskoy Andrey Alekseyevich

Kursk

Supreme Court of the Russian Federation

31/05/2011

murder of two persons combined with rape and inciting others to commit murder

defence witnesses Z, Y, C, B, T, D, K, A, Ch

the applicant sought to rely on the witnesses’ statement to confirm his alibi

their testimonies were considered by the trial court irrelevant to the factual circumstances to be established by the jury members

Domestic courts assessed the relevance of the witnesses’ statements and sufficiency of the reasons advanced by the defence; the applicant was represented and was able to present his defence effectively

78905/12

03/12/2012

Vyacheslav Vladimirovich ZABEGALOV

1961Mylnikov Yegor Nikolayevich

Velikiy Novgorod

Supreme Court of the Russian Federation

14/06/2012

large-scale extortion with the threat of violence and organisation of several murders

defence witness F.

eyewitness of the murder

could not be located

The applicant was represented and was able to conduct his defence effectively (adducing evidence and presenting his account of the events).

3260/14

23/12/2013

Sergey Aleksandrovich SHKALYAR

1984Rassokhin Artem Aleksandrovich

St Petersburg

St Petersburg City Court

02/07/2013

illegal possession of a large quantity of psychotropic substances

K. and O.

defence witnesses who were present in the course of the applicant’s apprehension

K. could not be located and refused to appear when contacted by phone,

No request from the applicant to obtain O.’s attendance”

The applicant was represented and was able to conduct his defence effectively (adducing evidence and presenting his account of the events).

43978/16

29/06/2016

Aleksandr Gennadyevich SERGEYEV

1973Dashuk Natalya Vadimovna

Kabitsyno

Kaluga Regional Court

04/03/2016

Drug dealings

Purchaser of the drugs

The witness asked for anonymity for fear of retaliation or pressure the applicant might put on him or his relatives

The applicant, who was represented, was able to question the witness and to conduct his defence effectively

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