CASE OF KAMPER AND OTHERS v. RUSSIA (European Court of Human Rights) 46043/08 and 3 others

Last Updated on February 9, 2023 by LawEuro

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

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THIRD SECTION
CASE OF KAMPER AND OTHERS v. RUSSIA
(Applications nos. 46043/08 and 3 others – see appended list)
JUDGMENT
STRASBOURG
9 February 2023

This judgment is final but it may be subject to editorial revision.

In the case of Kamper and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Ioannis Ktistakis,
Andreas Zünd, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 19 January 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 the right to examine witnesses.

THE LAW

I. 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.

II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) of the Convention

6. The applicants complained of the unfair trial in view of restrictions on the right to examine witnesses. Mr Nikishin (application no. 71770/17) further alleged that he had not had access to legal advice after the initial deprivation of liberty, that the time to prepare for the trial had been insufficient and that he had been unable to contest adverse evidence They relied, expressly or in substance, on Article 6 §§ 1 and 3 (b) – (d) of the Convention.

7. The general principles concerning the right of an accused to examine witnesses against him and obtain the attendance and examination of witnesses on his or her behalf are well established in the Court’s case-law (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-31, ECHR 2015, and Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 150-68).

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 prosecution witnesses, it considers that the fact that the applicants were not provided with an opportunity to cross-examine those witnesses, some of whom had been anonymized, 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 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.

9. These complaints are therefore admissible and disclose a breach of Article 6 §§ 1 and 3 (d) of the Convention.

10. In view of the above finding, the Court does not consider it necessary to examine the remainder of the allegations made by Mr Nikishin (application no. 71770/17).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

11. 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.”

12. 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,

1. Decides to join the applications;

2. 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 application no. 71770/17;

3. 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;

4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction.

Done in English, and notified in writing on 9 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                    Darian Pavli
Acting Deputy Registrar                  President

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APPENDIX
List of applications raising complaints under Articles 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
1.	46043/08 29/08/2008	Mark Aleksandrovich KAMPER 1980	Yefremova Yekaterina Viktorovna Moscow	Supreme Court of Russia 30/07/2008 drug trafficking	M. anonymous witness a person employed by the applicant and other members of the criminal group to sell drugs	could not be located	none
2.	42410/12 04/06/2012	Sergey Vsevolodovich STRASHNOV 1982		Gatchina Town Court of the Leningrad Region 24/10/2011 (final judgment of the Leningrad Regional Court on 06/06/2012) possessing and selling drugs	K. and Kos. anonymous witnesses buyers of drugs in two test purchases	“extraordinary circumstances”	none
3.	41623/14 07/05/2014	Maksim Nikolayevich KOROLEV 1980	Meybullayeva Natalya Vladimirovna Chernyakhovsk	Kaliningrad Regional Court 19/11/2013 attempted sale of drugs	T. anonymous witness buyer in a test drug purchase	death	–
4.	71770/17 27/09/2017	Aleksandr Vadimovich NIKISHIN 1988	Galtseva Margarita Valeryevna Saratov	Saratov Regional Court 29/03/2017 refusal to comply with a lawful police order, article 19.3 § 1 of CAO	M., K., I., Kash., G. and R. Eyewitnesses	the applicant had not indicated those persons as witnesses on his behalf when the police instituted administrative proceedings against him	the court refused the applicant’s motion to summon the witnesses