Last Updated on April 27, 2019 by LawEuro
THIRD SECTION
DECISION
Application no.27870/12
Tatyana Borisovna MIKHAYLOVA against Russia
and 9 other applications
(see appended table)
The European Court of Human Rights (Third Section), sitting on 19 March 2019 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and FatoşAracı, 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, except for MrKhashimov who is Azerbaijani, 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 2008 and 2014 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.
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, except for in application no. 22877/13Seleverstov v. Russia where the applicant failed to lodge an appeal against the trial court’s judgment.
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 Mr Seleverstov and Mr Borsov (applications nos. 22877/13 and 39177/13 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. Ms Mikhaylova and Ms Gorbaneva (applications nos. 27870/12 and 50665/12 respectively) complained in addition under Article 6 §§ 1 and 3 (d) of the Convention about the domestic courts’ refusals to summon and question the witnesses for defence.
12. MrAnanenko (application no. 2935/13) further complained under Articles 3 and 5 §§ 1 and 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 the 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. In respect of Mr Seleverstov (application no. 22877/13) the Government also argued that the applicant did not appeal against his conviction.
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, except for application no. 22877/13Seleverstov v. Russia which is out on non-exhaustion of domestic remedies, as well as the accessory complaints of all the applicants except for Mr Seleverstov and Mr Borsov (applications nos. 22877/13 and 39177/13 respectively) under Article 6 § 1 of the Convention, complaints of Ms Mikhaylova and Ms Gorbaneva (applications nos. 27870/12 and 50665/12 respectively) under Article 6 §§ 1 and 3 (d) of the Convention and complaints of Mr Ananenko (application no. 2935/13) under Articles 3 and 5 §§ 1 and 3 of the Convention, which were not communicated to the Government, and thus must be rejected in accordance with Article 35 §§ 1, 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 11 April 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. | 27870/12
12/04/2012 |
Tatyana Borisovna
MIKHAYLOVA 25/01/1959 Moscow AleksandrValeryevich Tregubov |
Perovskiy District Court of Moscow
26/08/2011 Moscow City Court 21/11/2011 Convicted of swindling with use of an official position on a large scale in excess of official powers |
Ms S.,
Ms L., Ms K., MsSav., Mr K., Ms D., Ms R., Ms Z., MsZel., Ms Sem., Ms B., Ms A., Ms Sam., MrKuz. |
| 2. | 50665/12
01/08/2012 |
Tatyana Yevgenyevna
GORBANEVA 18/08/1966 Seversk, Tomsk Region LyubovGermanovna Golysheva |
Justice of the Peace of Circuit no. 1 of the Sovetskiy District of Tomsk
24/10/2011 Tomsk Regional Court 09/02/2012 Convicted of illegal transfer of inventoried and seized property by a person entrusted with this property |
Mr B. |
| 3. | 2935/13
04/12/2012 |
AleksandrAnatolyevich
ANANENKO 01/04/1957 Abinsk, Krasnodar Region Yelena Vladimirovna Korneva |
Abinsk District Court of the Krasnodar Region
16/09/2008 Krasnodar Regional Court 06/06/2012 Convicted of evasion of corporate tax payment on a large scale by non‑submitting tax declarations or other documents and by including fraudulent data in tax declarations, concealment of monetary funds payable as tax exaction on a large scale, attempted fraud on especially large scale |
Ms N.,
Mr R., Mr K., Mr L. |
| 4. | 22877/13
13/02/2013 |
ValeriyAlekseyevich
SELEVERSTOV 05/11/1983 Lepley, Republic of Mordovia Pavel Vasilyevich Astakhov |
Lyublinsky District Court of Moscow
22/05/2014 Convicted of abduction by a group of persons in preliminary collusion |
MrKh. |
| 5. | 29884/13
10/09/2013 |
Andrey Aleksandrovich
PYSTOGOV 13/08/1989 Nizhniy Tagil, Sverdlovsk Region Inna Valeryevna Zhuravleva |
Gayinskiy District Court of the Perm Region
23/11/2012 Perm Regional Court 12/03/2013 Convicted of illegal deprivation of liberty by a group of persons in preliminary collusion, battery, robbery with the use of violence endangering life and health and with the use of objects used as weapon, unlawful entry into a home |
Ms I.,
Ms K. |
| 6. | 31216/13
16/04/2013 |
NamigShakhinOgly KHASHIMOV
07/06/1986 Belaya Gora, Tula Region Igor Vladimirovich Kostritsa |
Dorogomilovskiy District Court of Moscow
29/08/2012 Moscow City Court 17/10/2012 Convicted of robbery committed with the threat of using violence which threatened human life and health, with the use of objects used as weapons, with illegal entry into a home in an especially large scale |
Ms A. |
| 7. | 39177/13
06/04/2013 |
Mikhail Alekseyevich
BORSOV 18/11/1991 Moscow
|
Lyubertsy Town Court of the Moscow Region
14/08/2012 Moscow Region Court 25/12/2012 Convicted of theft by a group of persons in preliminary collusion on especially large scale, and of involvement of an under-age individual in committing a grave offence by threats and with use of violence and threats of violence |
Mr G. |
| 8. | 60378/13
02/09/2013 |
Igor Vladimirovich
ZAGOSKIN 27/02/1986 Perm Oleg Vyacheslavovich Pakhomov |
Gayinskiy District Court of the Perm Region
23/11/2012 Perm Regional Court 12/03/2013 Convicted of intentional infliction of a grave injury hazardous for human life which involved the death of the victim by negligence, illegal deprivation of liberty by a group of persons in preliminary collusion, battery, unlawful entry into a home |
Ms I. |
| 9. | 73272/13
26/10/2013 |
AlisherMukhtarzhanovich
SABITALIYEV 03/11/1975 Yaroslavl YuriyAleksandrovich Melnikov |
Taganskiy District Court of Moscow
22/04/2013 Moscow City Court 08/10/2013 Convicted of robbery by a group of persons in preliminary collusion with the use of violence not endangering life and health |
Mr P.
|
| 10. | 76629/13
20/11/2013 |
Sergey Ilyich
LIDYAYEV 10/08/1987 Lesnoy, Kirov Region Oleg Olegovich Anishchik |
Butyrskiy District Court of Moscow
19/02/2013 Moscow City Court 22/05/2013 Convicted of robbery by a group of persons in preliminary collusion with the use of violence endangering life and health |
Mr M. |
Leave a Reply