CASE OF IVCHENKO AND OTHERS v. RUSSIA – 49853/10 and 9 others

Last Updated on January 18, 2024 by LawEuro

The applicants complained of the unfair trial in view of restrictions on their right to examine witnesses.

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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

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. 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).

III. 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).

IV. 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.

V. 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,

1. Decides to join the applications;

2. Holds that it has jurisdiction to deal with the applicants’ complaints as they relate to facts that took place before 16 September 2022;

3. 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;

4. 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;

5. 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;

6. 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

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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
1.	49853/10 09/08/2010	Lyubov Timofeyevna IVCHENKO 1950	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
2.	46922/12 11/07/2012	Aleksandr Anatolyevich PAVLOV 1978		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
3.	54235/12 13/08/2012	Andrey Leonardovich MARKOV 1967	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
4.	49901/13 08/07/2013	Vladimir Viktorovich KARMANOV 1980	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
5.	13437/14 05/02/2014	Vladimir Nikolayevich GRECHUKHIN 1988		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
6.	61973/14 02/09/2014	Pavel Vladimirovich YASTREBOV 1996	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
7.	73332/14 05/11/2014	Roman Viktorovich NIKOLAYENKO 1981	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
8.	74480/14 15/11/2014	Ivan Ivanovich KURILYAK 1986 Artur Mansurovich ABDRAKHMANOV 1989	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
9.	49295/18 12/10/2018	Vladimir Yuryevich MATVIYENKO 1979	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
10.	59292/18 03/12/2018	Aleksey Aleksandrovich KOROLEV 1993	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