42046/19;42107/19;2961/20

THIRD SECTION CASE OF SHKURDIN AND OTHERS v. RUSSIA (Applications nos. 42046/19 and 2 others – see appended list)             JUDGMENT   STRASBOURG 27 October 2022   This judgment is final but it may be subject to editorial revision. In the case of Shkurdin and Others 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 applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table 2.  The Russian Government (“the Government”) were given notice of the applications. THE FACTS 3.  The list of applicants and the relevant details of the applications are set out in the appended table. 4.  The applicants complained of the unfair trial in view of restrictions on the right to examine witnesses. THE LAW JOINDER OF THE APPLICATIONS 5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 6 of the Convention 6.  The applicants complained of the unfair trial in view of restrictions on the right to examine witnesses. They relied, expressly or in substance, on Article 6 §§ 1 and 3 (d) of the Convention, which reads, in so far as relevant, as follows: “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 key witnesses’ non-attendance, it considers that the fact that the applicants were 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 applicants on account of the admission of the witnesses’ untested statements 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, Decides to join the applications; Declares the applications admissible; Holds that these applications disclose 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 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 Steps taken to compensate for the witnesses’ absence     42046/19 15/07/2019 Dmitriy Nikolayevich SHKURDIN Natalya Viktorovna Sokolova Omsk Omsk Regional Court   17/01/2019   Aggravated rape V.   Victim’s V. testimony about the sexual crime Unknown reasons for absence none     42107/19 21/07/2019 Vladimir Vladimirovich DOLGUSHEV     Supreme Court of Russia   22/01/2019   sexual abuse of a minor D.   Victim stated that the applicant had not committed any crime against her minor age, victim of a sex crime, absence of a teacher/psychologist for questioning the victim in court       2961/20 28/12/2019 Mikhail Aleksandrovich KISLOV Sotnikov Dmitriy Valeryevich Balashikha Krasnodar Regional Court   17/07/2019   Article 132 of the Criminal Code (sexual abuse of a minor) V.V.   V.V. described two episodes of abuse; his testimony was the only direct evidence against the applicant   The applicant complains that he was never able to put questions before the victim; he also claims that the courts failed to counterbalance the limitations to his defence rights (see, in particular, D. v. Finland, no. 30542/04, §§ 50-52, 7 July 2009 (with further references)) minor age, victim of a sex crime V.V. was questioned at the pre-trial stage by the investigator in the presence of his guardian and a psychologist, the video recording of his questioning was viewed in the courtroom