13175/18

THIRD SECTION CASE OF MIKHEYEV v. RUSSIA (Application no. 13175/18)             JUDGMENT   STRASBOURG 27 October 2022       This judgment is final but it may be subject to editorial revision.   In the case of Mikheyev v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:  Darian Pavli, President,  Andreas Zünd,  Frédéric Krenc, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 6 October 2022, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 February 2018. 2.  The Russian Government (“the Government”) were given notice of the application. THE FACTS 3.  The applicant’s details and information relevant to the application are set out in the appended table. 4.  The applicant complained of the unfair trial in view of restrictions on the right to examine the key prosecution witness. THE LAW the government’s request to strike out the application 5.  The Government submitted a unilateral declaration which was not accepted by the applicant. The Court notes that the unilateral declaration did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). The Court rejects the Government’s request to strike that application out and will accordingly pursue its examination (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75, ECHR 2003-VI). ALLEGED VIOLATION OF ARTICLE 6 of the Convention 6.  The applicant complained of the unfair trial in view of restrictions on the right to examine the key prosecution witness. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows: Article 6 §§ 1 and 3 (d) “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 ...” 7.  The general principles to be applied in cases where a prosecution witness did not attend the trial and his statements previously made by him were admitted as evidence are well-established in the Court’s case law (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-31, ECHR 2015). In Schatschaschwili, the Court found a violation on account of the authorities’ failure to provide the applicant with an opportunity to have the two key prosecution witnesses examined at any stage of the proceedings (ibid., §§ 161-65). 8.  Turning to the circumstances of the present case and having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Even leaving open the question as to whether there were good reasons for the non-attendance of the key witness, it considers that the fact that the applicant was not provided with an opportunity to cross-examine that witness weighs heavily in the balance in the examination of the overall fairness of the criminal proceedings against him. The Court also takes into account that there is nothing in the materials in its possession to suggest that there was any effort on the part of the national judicial authorities to make use of any counterbalancing measures to compensate for the difficulties experienced by the applicant on account of the admission of the witness’s untested statement as evidence. 9.  These complaints are therefore admissible and disclose a breach of Article 6 §§ 1 and 3 (d) of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 10.  Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 11.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Zadumov v. Russia, no. 2257/12, § 81, 12 December 2017), the Court considers that the finding of a violation constitutes a sufficient just satisfaction in the present case. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Rejects the respondent Government’s request to strike the application out of its list of cases; Declares the application admissible; Holds that this application discloses a breach of Article 6 §§ 1 and 3 (d) of the Convention concerning the unfair trial in view of restrictions on the right to examine witnesses; Holds that the finding of a violation constitutes in itself sufficient just satisfaction. Done in English, and notified in writing on 27 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Viktoriya Maradudina Darian Pavli  Acting Deputy Registrar President       APPENDIX Application raising complaints under Article 6 §§ 1 and 3 (d) of the Convention (unfair trial in view of restrictions on the right to examine witnesses) Application no. Date of introduction Applicant’s name Year of birth Place of residence 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 13175/18 14/02/2018 Dmitriy Viktorovich MIKHEYEV Bryansk Sevsk Town Court of the Bryansk Region   18/08/2017   bribery K.   The witness alleged that the applicant had extorted a bribe from him. He was the only eyewitness of the bribery. The rest of the evidence was circumstantial. His statement was decisive for the applicant’s conviction K. left for another country The applicant was able to give his version of events during his testimony at the trial.