34287/22

THIRD SECTION CASE OF MARCHENKO v. RUSSIA (Application no. 34287/22)             JUDGMENT   STRASBOURG 30 April 2026   This judgment is final but it may be subject to editorial revision. In the case of Marchenko v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:  Úna Ní Raifeartaigh, President,  Mateja Đurović,  Vasilka Sancin, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 9 April 2026, 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 16 May 2022. 2.  The applicant was represented by Mr Y.Y. Smirnov, a lawyer practising in St Petersburg. 3.  The application was communicated to the Russian Government (“the Government”). 4.  The Ukrainian Government exercised their right to intervene in the proceedings (Article 36 § 1 of the Convention) and submitted written comments. THE FACTS 5.  The applicant’s details and information relevant to the application are set out in the appended table. 6.  The applicant complained of unfair trial in view of restrictions on his right to examine witnesses. THE LAW        Jurisdiction 7.  The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present application (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68‑73, 17 January 2023).       ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) of the convention 8.  The applicant complained of unfair criminal proceedings against him, in particular because of the absence of an opportunity to examine in court the witnesses who had testified against him. He relied on Article 6 §§ 1 and 3 (d) of the Convention. 9.  The general principles concerning the right of an accused to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf are well established in the Court’s case-law (see Al‑Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011; Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015; and Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 150-68, 18 December 2018). 10.  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. It considers that the fact that the applicant was not provided with an opportunity to cross-examine those witnesses weighs heavily in the balance in the examination of the overall fairness of the criminal proceedings against them. 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 witnesses’ untested statements as evidence. 11.  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 12.  The Court previously concluded that the reopening of the proceedings is the most appropriate form of redress for the established violation of the applicant’s rights, should he request it, given that it is capable of providing restitutio in integrum as required under Article 41 of the Convention (see Zadumov v. Russia, no. 2257/12, § 81, 12 December 2017). Accordingly, the finding of a violation constitutes sufficient just satisfaction in the present case. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Holds that it has jurisdiction to deal with this application as it relates to facts that took place before 16 September 2022; Declares the application admissible; Holds that this application discloses a breach of Article 6 §§ 1 and 3 (d) of the Convention on account of the absence of an opportunity to examine in court the witnesses, whose testimony played a significant role in securing the applicant’s conviction; Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. Done in English, and notified in writing on 30 April 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Úna Ní Raifeartaigh  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   Representative’s name and location Final domestic decision Convicted of Witness (indicated by initials) Absent and/or anonymous Evidence type Reasons for absence and/or anonymity Counterbalancing factors Overall fairness 34287/22 16/05/2022 Aleksandr Vladimirovich MARCHENKO   Smirnov Yevgeniy Yevgenyevich St Petersburg Supreme Court of the Russian Federation   16/11/2021   espionage V.F. absent decisive   experts B., M., and S. absent significant weight   authors of letters nos. 2/9-3698, 2/9‑3699, and 2/9-3810 from the FSB dated 6 and 11/06/2019, and memorandum no. 2/9-7864 from the FSB dated 28/10/2019 absent decisive     could not be located       court’s refusal to call       court’s refusal to call Insufficient: lack of reasonable efforts to secure the absent witnesses’ attendance, no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by admitting statements of absent witnesses.   Breach of overall fairness of the proceedings, domestic courts did not sufficiently compensate for the handicaps under which the defence laboured as a result of the admission of untested evidence at the trial.