BOYKO AND OTHERS v. RUSSIA (European Court of Human Rights) Application no. 21891/12

THIRD SECTION
DECISION

Application no. 21891/12
Igor Ivanovich BOYKO against Russia
and 8 other applications
(see list appended)

The European Court of Human Rights (Third Section), sitting on 5 March 2019 as a Committee composed of:

Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1.  The applicants are Russian nationals, living in various regions of the Russian Federation. Their personal details appear in the appended table.

2.  The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  The facts of the cases, as submitted by the parties, may be summarised as follows.

4.  On various dates between 2006 and 2013 the applicants were criminally prosecuted and convicted of various offences.

5.  The applicants’ convictions were based among other evidence on the statements of one or more witnesses for prosecution, which were made during pre-trial stages of the proceedings and read out in open court while those witnesses were absent.

6.  Allowing the witnesses’ pre-trial statements as evidence the trial courts in their judgments relied on the impossibility to locate them, and/or their refusal to appear at court, and/or remoteness of their place of residence as well as engagements existing at the material time and/or their poor state of health that made impossible for them to appear before the court, and/or the death of the witnesses before the trial.

7.  The convictions were based on a multiplicity of evidence, including statements by the applicants made at the pre-trial stage and at trial in the presence of their lawyers, trial statements by the police officers, other witnesses for prosecution, material and documentary evidence. The domestic courts analysed the witnesses’ pre-trial statements and established their coherence and consistency with other evidence.

8.  The judgments of the trial courts were upheld on appeal.

COMPLAINTS

9.  The applicants complained under Article 6 §§ 1 and 3 (d) of the Convention that the domestic courts had not provided good reasons for reading-out of the pre-trial statements of the witnesses for prosecution and thus the applicants had been unable to have those witnesses examined at the trial.

10.  The applicants, except for Ms Bashirova and Mr Krasnov(applications nos. 50072/12 and 73008/12 respectively), also complained under Article 6 § 1 of the Convention about the outcome of the proceedings, assessment of evidence and refusal to admit certain materials into evidence.

11.  Mr Boyko (application no. 21891/12) complained in addition under Articles 13 and 18 of the Convention.

12.  Ms Ilyicheva (application no. 60261/12) further complained under Article 3 of the Convention.

THE LAW

13.  The Court first considers that in accordance with Rule 42 § 1 of the Rules of Court, the applications listed in the appended table should be joined, given their common legal background.

14.  The respondent Government in their observations argued that applicants had had a fair hearing in the determination of the criminal charges against them in accordance with Article 6 § 1 of the Convention. They argued that the applicants’ convictions were based on other abundant evidence. Referring to the provisions of the Code of Criminal Procedure of the Russian Federation, as well as the relevant interpretative guidelines and practice of the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation, the Government contended that the Russian legal system had afforded the applicants sufficient procedural safeguards aimed at securing their right to examine witnesses testifying against them and guarantees of a fair trial.

15.  Certain applicants disagreed, while the others did not provide specific arguments.

16.  The Court has carefully examined the applications listed in the appended table and concluded that, in the light of the Court’s primary concern under Article 6 § 1 to evaluate the overall fairness of the criminal proceedings (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10, § 101, ECHR 2015), the presumption that in principle the Russian legal system offers robust procedural guarantees securing the right of an accused to examine witnesses testifying against him, ensuring that the reading out of absent witnesses’ testimony is possible only as an exception (see Zadumov v. Russia, no. 2257/12, § 63, 12 December 2017, recently reiterated in Kiba and Others (dec.), nos. 38047/08 and 2 others, § 16, 17 April 2018), the material in its possession, and in so far as the matters complained of are within its competence, the applications are manifestly ill-founded, as well as the accessory complaints of all the applicants except for Ms Bashirova and Mr Krasnov(applications nos. 50072/12 and 73008/12 respectively) under Article 6 § 1 of the Convention, complaints of Mr Boyko (application no. 21891/12) under Articles 13 and 18 of the Convention and complaint of Ms Ilyicheva (application no. 60261/12) under Article 3 of the Convention, which were not communicated to the Government, and thus must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 28 March 2019.

Fatoş Aracı                                                     Alena Poláčková
Deputy Registrar                                                      President

__________

APPENDIX

No. Application no.

Date of introduction

Applicant name

Date of birth

Place of residence

Represented by

Date of the trial and

appeal/cassation courts’ judgments

Witness absent from trial
1. 21891/12

10/04/2012

Igor Ivanovich

BOYKO

 26/03/1964

Magadan  

Magadan Town Court of the Magadan Region

09/08/2011

Magadan Regional Court

26/10/2011

Convicted of stealing firearms by a group of persons on preliminary collusion, using official position

Mr F.,

Mr Shch.,

Mr G.,

Mr M.,

Mr Kh.,

Mr Zh.

2. 26138/12

03/09/2012

Nikolay Gennadyevich

BESPALOV

28/06/1978

Omsk

Self-representation

Kaliniskiy District Court of Chelyabinsk

27/12/2011

Chelyabink Regional Court

23/03/2012

Convicted of attempted drug dealing in large quantities, preparation for dealing of psychotropic substances in especially large quantities

Mr Ts.
3. 30730/12

28/09/2006

Vitaliy Vladimirovich

OCHIROV

 16/08/1964

Ulan-Ude, Buryatia Republic

Yekaterina Viktorovna Yefremova

Gusinoozersk Town Court of the Buryatia Republic

23/06/2006

Supreme Court of the Buryatia Republic 07/09/2006

Convicted of murder

Mr K.
4. 50072/12

07/08/2012

Ruzaliya Gennadyevna

BASHIROVA

19/11/1988

Narimanov, Astrakhan Region

Aleksandr Anatolyevich Anokhin

Leninskiy District Court of Astrakhan

16/07/2012

Astrakhan Regional Court

06/09/2012

Convicted of attempted drug dealing

Mr I.,

Mr A.

5. 56948/12

12/07/2012

Valeriy Ivanovich

KHONIN

22/07/1963

Kamyshin, Volgograd Region

Aleksandr Viktorovich Shestakov

Kamyshin Town Court of the Volgograd Region

19/04/2012

Volgograd Regional Court

25/06/2012

Convicted of attempted drug dealing in large quantities

by an organised group

Mr B.,

Ms K.,

Mr Po.,

Mr Pet.,

Mr Pi.,

Mr S.,

Ms B.,

Ms Sh.,

Mr Pekh., “Zakupshchik”

6. 56982/12

10/08/2012

Marina Dmitriyevna

PYAZHEVA

23/07/1978

Kamyshin,

Volgograd Region 

Kamyshin Town Court of the Volgograd Region

19/04/2012

Volgograd Regional Court

25/06/2012

Convicted of attempted drug dealing in large quantities

by an organised group

Mr B.,

Ms K.,

Mr Po.,

Mr Pet.,

Mr Pi.,

Mr S.,

Ms B.,

Ms Sh.,

Mr Pekh., “Zakupshchik”

7. 60261/12

17/08/2012

Inna Viktorovna

ILYICHEVA 

31/08/1976

Gornoye, Primorskiy Region 

Leninskiy District Court of Vladivostok, Primorsk Region

03/08/2012

Primorsk Regional Court

31/01/2013

Convicted of inter alia drug dealing in large quantities by a group of persons on preliminary collusion

Ms K.
8. 63826/12

26/09/2012

Vladimir Stanislavovich

BABUSHKIN 

25/07/1961

Khabarovsk

Sergey Yuryevich Popov

Tsentralniy District Court of Khabarovsk

13/06/2012

Khabarovsk Regional Court

30/08/2012

Convicted of illegal enterprise connected with deriving profits on a large scale

Mr K.,

Ms K.,

Mr A.,

Mr L.,

Mr T.

9. 73008/12

16/10/2012

Yevgeniy Mikhaylovich

KRASNOV 

03/02/1973

Uptar, Magadan Region 

Aleksandr Svyatoslavovich Osokin

Leninskiy District Court of Cheboksary, Republic of Chuvashiya

23/11/2011

Supreme Court of the Republic of Chuvashiya

17/04/2012

Supreme Court of the Republic of Chuvashiya

21/09/2012

Convicted of inter alia nineteen counts of extortion by an organized group, fraud with infliction of significant damage to a citizen by an organized group

 “Kharitonov”, “Sidorov”, “Yefremov”,

Ms M.,

Mr Sh.,

Mr Kur.,

Mr Kon.,

Mr May.,

Mr Ye.,

Ms Kh.,

Ms S.,

Mr A.V.,

Ms K.,

Ms B.,

Mr G.,

Mr T.,

Mr Maks.,

Mr Mikh.,

Mr Maku.,

Mr I.Yu.,

Mr Mid.,

Ms G.,

Mr D.

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