49853/10;46922/12;54235/12;49901/13;13437/14;61973/14;73332/14;74480/14;49295/18;59292/18

FIRST SECTION CASE OF IVCHENKO AND OTHERS v. RUSSIA (Applications nos. 49853/10 and 9 others – see appended list)             JUDGMENT   STRASBOURG 18 January 2024   This judgment is final but it may be subject to editorial revision. In the case of Ivchenko and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of:  Péter Paczolay, President,  Gilberto Felici,  Raffaele Sabato, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 14 December 2023, 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 their right to examine witnesses. Some applicants also raised other complaints under the provisions of the Convention. 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. JURISDICTION 6.  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 applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68‑73, 17 January 2023). THE GOVERNMENT’S REQUEST TO STRIKE OUT APPLICATION No. 59292/18 UNDER ARTICLE 37 § 1 OF THE CONVENTION 7.  The Government submitted a unilateral declaration in respect of application no. 59292/18 which 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 the application out and will accordingly pursue its examination of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003 VI). ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) of the Convention 8.  The applicants complained principally 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. 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 applicants were not provided with an opportunity to cross-examine those witnesses, some of whom had been anonymised, weighs heavily in the balance in the examination of the overall fairness of the criminal proceedings against them. Nor were the applicants able to obtain attendance of witnesses on their behalf, even though their relevant requests were sufficiently reasoned. The Court takes into account that there is nothing in the materials in its possession to suggest that the national judicial authorities made use of sufficient counterbalancing measures to compensate for the difficulties experienced by the applicants. 11.  These complaints are therefore admissible and disclose a breach of Article 6 §§ 1 and 3 (d) of the Convention. 12.  In view of the above finding, the Court does not consider it necessary to examine the remainder of the allegations made by the applicants in applications nos. 54235/12, 49901/13, 3437/14 and 74480/14. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13.  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 sufficient just satisfaction in the present cases. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Holds that it has jurisdiction to deal with the applicants’ complaints as they relate to facts that took place before 16 September 2022; Rejects the Government’s request to strike application no. 59292/18 out of its list of cases under Article 37 § 1 of the Convention on the basis of the unilateral declaration which they submitted; Declares the complaints concerning the unfair trial in view of restrictions on the right to examine witnesses admissible and holds that there is no need to examine the remainder of applications nos. 54235/12, 49901/13, 3437/14 and 74480/14; Holds that these complaints 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 18 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Péter Paczolay  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 (indicated by initials)   Absent and/or anonymous   Evidence type Reasons for absence and/or anonymity Counterbalancing factors/overall fairness     49853/10 09/08/2010 Lyubov Timofeyevna IVCHENKO Niyazova Munavar Abdrashitovna Astrakhan Astrakhan Regional Court   11/02/2010   involuntary manslaughter “Secret” absent and anonymous statements decisive   “Ivanov” Anonymous; statements having significant weight   could not be located     no reasons for anonymity Insufficient: no assessment of the necessity to anonymise the witnesses; no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witnesses; lack of reasonable efforts to secure the absent witness’s attendance             46922/12 11/07/2012 Aleksandr Anatolyevich PAVLOV     Supreme Court of Russia   28/03/2012   murder, attempted murder and unlawful possession of weapons “Gavrilov”, “Borisov”, “Galkin”, “Chernov”, “Aleksandrov”, “Klevtsov”, “Ivanov”, “Antonov”, “Isayev”, “Artemov”, “Frolov”, “Olghina”, “Palkin”, “Ivanov Ivan Ivanovich” Anonymous witnesses and all their statements were decisive;   Mr G., absent witness and his statements were decisive;   Mr Ud. absent witness with the statements having significant weight   fear Insufficient: no assessment of the reasonableness of the personal fear of the witnesses and of the necessity to anonymise them; no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witnesses; lack of reasonable efforts to secure the absent witnesses’ attendance       54235/12 13/08/2012 Andrey Leonardovich MARKOV Poruchayev Vladimir Viktorovich Novosibirsk Novosibirsk Regional Court   28/04/2012   drug trafficking “Petrov”, “Vasilyev” anonymous     fear Insufficient: no assessment of the reasonableness of the personal fear of the witnesses and of the necessity to anonymise them; no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witnesses       49901/13 08/07/2013 Vladimir Viktorovich KARMANOV Preobrazhenskaya Oksana Vladimirovna Moscow Kovrov District Court   04/02/2013   drug trafficking “Ms Volkova”, “Ms Moiseyeva” absent and anonymous decisive safety   could not be located Insufficient: no assessment of the necessity to anonymise the witnesses; no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witnesses; lack of reasonable efforts to secure the absent witnesses’ attendance     13437/14 05/02/2014 Vladimir Nikolayevich GRECHUKHIN     Smolensk Regional Court   22/08/2013   drug trafficking “Struchev” anonymous decisive fear Insufficient: no assessment of the necessity to anonymise the witness; no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witness       61973/14 02/09/2014 Pavel Vladimirovich YASTREBOV Abramova Antonina Viktorovna Moscow Moscow City Court   03/03/2014   assault on a police officer Mr S., absent significant weight;   Mr G. absent significant weight unavailable       could not be located Insufficient: lack of reasonable efforts to secure the absent witnesses’ attendance     73332/14 05/11/2014 Roman Viktorovich NIKOLAYENKO Nikolayenko Yevgeniya Yuryevna Shchepkin Supreme Court of the Russian Federation   07/05/2014   armed robbery Mr Ratiya absent defence witness court’s refusal to call defence witness No sufficient reasoning of the refusal to call defence witness/breach of the overall fairness of the proceedings     74480/14 15/11/2014 Ivan Ivanovich KURILYAK Artur Mansurovich ABDRAKHMANOV   Vlasov Ilya Sergeyevich Moscow Moscow City Court   15/05/2014   drug trafficking “Zhukov”, absent and anonymous, decisive (count of 06/04/2012);   Mrs Iz. absent and decisive (count of 08/06/2012);     could not be located/ none       could not be located         Insufficient as regards witnesses “Zhukov” and Mrs Iz.: no assessment of the necessity to anonymise the witnesses; no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witness; lack of reasonable efforts to secure the absent witnesses’ attendance     49295/18 12/10/2018 Vladimir Yuryevich MATVIYENKO Matviyenko Yana Yuryevna Rostov-on-Don Rostov Regional Court   28/05/2018   bribery Mr. “I.” absent and anonymous and decisive could not be located/none Insufficient: no assessment of the necessity to anonymise the witnesses; no importance attached to the necessity of counterbalancing the restrictions imposed on the defence by the hearing of the anonymous witnesses; lack of reasonable efforts to secure the absent witness’s attendance   59292/18 03/12/2018 Aleksey Aleksandrovich KOROLEV Pleshkov Maksim Alekseyevich Moscow Moscow Regional Court   05/07/2018   deprivation of liberty, robbery and extortion Mr D.V., Mrs D.K. absent and decisive none Insufficient: lack of reasonable efforts to secure the absent witnesses’ attendance