Information Note on the Court’s case-law 189

October 2015

Shumeyev and Others v. Russia (dec.) - 29474/07, 8669/09, 55413/10 et al.

Decision 22.9.2015 [Section I]

Article 6

Article 6-3-d

Examination of witnesses

Use in evidence of statements by attesting witnesses who did not appear at the trial: inadmissible

Facts – On the basis of information implicating the applicants in drug-dealing, the police deci ded to carry out an undercover operation in the form of a simulated purchase of drugs from the applicants by undercover agents. They invited two randomly chosen attesting witnesses to observe the progress of each operation. In their pre-trial depositions t he attesting witnesses confirmed that the undercover agents had been searched prior to the staged purchase and had bought substances from the applicants with marked banknotes. They also stated that the police had subsequently searched the applicants or the ir premises, and seized and sealed controlled substances and other relevant evidence. Since they failed to appear in court for various reasons, the attesting witnesses’ pre-trial statements regarding the investigative measures were read out in court and ad mitted in evidence, despite the applicants’ objections.

Law – Article 6 §§ 1 and 3 (d): Russian criminal law contained separate provisions on material witnesses and attesting witnesses and designated the latter without using the Russian word for “witness”. Attesting witnesses were expected to have no knowledge of the case and did not testify about the circumstances of the case or the defendants’ guilt or innocence. They thus did not formally hold witness status under Russian law. In the applicants’ cases, t hey were chosen at random and invited by the investigator to observe an investigative measure, without having any knowledge of the criminal cases in question. They confirmed in their depositions that the investigative measures had actually been carried out and attested to their substance, progress and results. In essence, the statements of the attesting witnesses duplicated the contents of the corresponding police records and contained no new relevant information.

The criminal proceedings against all four a pplicants were generally fair. They had been able to avail themselves of existing procedural safeguards against possible police abuse in the course of both the investigation and the trial. In particular, they could seek the amendment and clarification of t he pertinent records, bring motions before the investigator and the court, question the undercover agents and police officers, raise objections and ask the courts to exclude any illegally obtained evidence. Considering the repetitive nature of the depositi ons made by the attesting witnesses and the remedies available to the applicants against possible procedural irregularities, the contribution by the attesting witnesses to the proceedings was limited. Their depositions had not served to a material degree a s a basis for their convictions and were, in essence, redundant evidence which did not require the appearance of the attesting witnesses in court.

Conclusion : inadmissible (manifestly ill-founded).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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