Information Note on the Court’s case-law 213

December 2017

Zadumov v. Russia - 2257/12

Judgment 12.12.2017 [Section III]

Article 46

Article 46-2

Execution of judgment

General measures

Not reasonable or practical to make any pronouncement on the necessity of general measures

Article 6

Article 6-3-d

Examination of witnesses

Inability of defence to examine prosecution witness: violation

Facts – The applicant alleged, in particular, that his right to a fair trial had been violated on account of his inability to examine a prosecution witness and the use of her pre-trial testimony for his conviction for manslaughter.

Law – Article 6 §§ 1 and 3 (d ): There had been no good reason for the witness’s absence from the trial hearings and the reading out of her pre-trial statements as evidence, and that evidence had been “decisive” for the applicant’s conviction.

As to whether there had been sufficient c ounterbalancing factors to compensate for the handicaps caused to the defence, in principle the Russian legal system offered robust procedural guarantees securing the right of an accused to examine witnesses testifying against him, ensuring that the readin g out of absent witnesses’ testimony was possible only as an exception. Those procedural arrangements, which could have been otherwise considered sufficient, were incapable of remedying the difficulties faced by the defence given the unexplained decision o f the domestic court to forgo measures ensuring the witness’ attendance. Accordingly, despite the existence in the Russian legal system of robust procedural guarantees securing the right of an accused to examine witnesses testifying against him, the domest ic courts had failed to put in place sufficient safeguards. The lack of valid reasons for the witness’s absence and the lack of sufficient counterbalancing measures, despite their evident availability, as well as the superficial assessment of the reliabili ty of her testimony, weighed heavily against consideration of the trial as fair judged as a whole.

Conclusion : violation (unanimously).

Article 46: The scope of the exceptional circumstances requiring consideration of a State’s obligations under Article 46 of the Convention was necessarily narrow. The Court had to proceed with due caution in deciding whether the absence of prosecution witnesses at trial could be classified as a structural or systemic problem in Russia and whether the existing legal framewor k or practice called for an indication of any specific general measures.

In recent years over 250 applications lodged against Russia, in which a problem similar to the one in the present case was the primary issue, had been communicated to the Government. While the overall number of pending cases communicated to the Government was quite significant, it should not be overlooked that they had accumulated on the Court’s docket over the period of more than ten years. As such the above figures did not indicate t he existence in the past or in the present of a systemic or a structural problem.

At the material time the existing legislative framework for the use of absent witnesses’ testimony, as well as the interpretative guidelines provided by the Supreme Court, offered robust procedural guarantees securing the right of an accused to examine wit nesses testifying against him and ensuring that the reading out of absent witnesses’ testimony was possible only as an exception. Furthermore, without prejudice to any future assessment of the 2016 amendments to the Code of Criminal Procedure, which were n ot applicable at the time the facts in this case occurred, those amendments appeared to further strengthen the rights of the defence. In that regard, the Court considered that it would not be appropriate for it to give any indication of possible, general m easures in cases such as the present one, where the facts pre-dated the most recent legislative amendments.

At the same time the present judgment would benefit from general measures aimed at national authorities’ awareness raising and capacity building in the manner already set out in the Recommendations of the Committee of Ministers CM/Rec(2002)13 of 18 December 2002 , CM/Rec(2004)4 of 12 May 2004 and CM/Rec(2008)2 of 6 February 2008 . The Court maintained that position, taking into account also the fact that those Recommendations reflected the well-established practice of the member States in implementation of the Court’s judgments and, therefore, formed a core and habitual part of the steps taken within the execution process.

In th ose circumstances, it was not reasonable or practical to make any pronouncement on the necessity of general measures, in addition to those already undertaken by the Russian authorities, to prevent future similar violations. Any decision on the scope or suf ficiency of the general measures had to remain the responsibility of the Committee of Ministers, discharging its supervisory functions under Article 46 of the Convention.

Article 41: finding of a violation constituted sufficient just satisfaction in respec t of any non-pecuniary damage.

(See also Schatschaschwili v. Germany [GC], 9154/10, 15 December 2015, Information Note 191 )

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

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