Last Updated on April 27, 2019 by LawEuro
THIRD SECTION
DECISION
Application no.23686/13
Sergey Valeriyevich KOZLOV against Russia
and 10 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,
JolienSchukking, 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, except for MrShirinov who is a national of Tajikistan, 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 2012 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.
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 MrKozlov, MsShlyapkina, Mr Kufayev, Mr Chesnokov, Mr Dubinin and Mr Shcherbatykh (applications nos. 23686/13, 52635/13, 15803/14, 32501/14, 45811/14 and 56742/14 respectively), also complained under Article 6 § 1 of the Convention about the outcome of the proceedings and assessment of evidence.
11. Ms Shlyapkina (application no. 52635/13) complained in addition under Articles 7 and 13 of the Convention.
12. MrGorbatyuk and MrVinogradov (applications nos. 65765/13 and 77434/13 respectively) further complained under Article 3 of the Convention.
13. Mr Dubinin (application no. 45811/14) complained also under Article 6 § 2 of the Convention.
14. Mr Gostev (application no. 60644/14) complained under Article 7 § 2 of the Convention.
THE LAW
15. 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.
16. 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.
17. Certain applicants disagreed, while the others did not provide specific arguments.
18. 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 MrKozlov, MsShlyapkina, Mr Kufayev, Mr Chesnokov, Mr Dubinin and Mr Shcherbatykh (applications nos. 23686/13, 52635/13, 15803/14, 32501/14, 45811/14 and 56742/14 respectively) under Article 6 § 1 of the Convention, complaints of Ms Shlyapkina (application no. 52635/13) under Articles 7 and 13 of the Convention, complaints of Mr Gorbatyuk and Mr Vinogradov (applications nos. 65765/13 and 77434/13 respectively) under Article 3 of the Convention, complaint of Mr Dubinin (application no. 45811/14) under Article 6 § 2 of the Convention and that of Mr Gostev (application no. 60644/14) under Article 7 § 2 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 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. | 23686/13
12/02/2013 |
Sergey Valeriyevich
KOZLOV Potma, Republic of Mordovia 19/06/1980 AleksandrMikhaylovich Plodukhin |
Presnenskiy District Court of Moscow
18/06/2012 Moscow City Court 31/10/2012 Convicted of murder |
Mr P.,
Ms P., Mr S., Ms Yu., Ms Z., Mr R. |
| 2. | 24356/13
07/03/2013
|
NasimzhonNodirovich
SHIRINOV
31/07/1975 Startsevo, Krasnoyarsk Region
Svetlana Nikolayevna Rzhepko |
Leninskiy District Court of Krasnoyarsk
03/09/2012 Krasnoyarsk Regional Court 13/12/2012 Convicted of attempted drug dealing on large scale, attempted drug dealing, attempted drug dealing on especially large scale |
Mr “Prokhorov”,
Mr B. |
| 3. | 52635/13
01/08/2013 |
Marina Anatolyevna
SHLYAPKINA 23/10/1986 Ulyanovsk YekaterinaAlekseyevna Fetisova
|
Leninskiy District Court of Ulyanovsk, Ulyanovsk Region
29/11/2012 Ulyanovsk Regional Court 06/02/2013 Ulyanovsk Regional Court 14/02/2014 Convicted of swindling through an official position on a large scale |
Mr S. |
| 4. | 65765/13
26/09/2013 |
AleksandrFedorovich
GORBATYUK
14/02/1978 Mikhaylovka, Primorskiy Region
Aleksey SergeyevichArkhipov
|
Mikhaylovka District Court of the Primorskiy Region
05/07/2012 Primorskiy Regional Court 27/03/2013 Convicted of extortion by a group of persons in preliminary collusion (3 episodes) and of preparation for extortion by a group of persons in preliminary collusion |
Mr D.,
Mr S. |
| 5. | 77434/13
14/11/2013 |
Konstantin Konstantinovich
VINOGRADOV
12/05/1982 Armarvir, Krasnodar Region
Irina Vladimirovna Khrunova
|
Tsentralniy District Court of Sochi, Krasnodar Region
18/03/2013 Krasnodar Regional Court 15/05/2013 Convicted for attempted drug trafficking on especially large scale |
Mrs Z. |
| 6. | 15803/14
12/02/2014
|
Igor Aleksandrovich
KUFAYEV 03/07/1969 Barnaul Grigoriy Gennadyevich Akimov |
Tsentralniy District Court of Barnaul, Altay Region
23/05/2013 Altay Regional Court 20/09/2013 Convicted of swindling (2 episodes) by a group of persons on preliminary collusion on especially large scale through official position, money laundering (2 episodes) on a large scale through an official position where one of the episodes was committed by a group of persons on preliminary collusion |
Mr Ch. |
| 7. | 32501/14
07/12/2014 |
YanisAleksandrovich
CHESNOKOV
22/06/1985 Karymskoye, Zabaykalskiy Region
|
Mikhaylovskiy District Court of the Amur Region
14/08/2013
Amursk Regional Court 24/09/2014
Convicted of attempted dealing of psychotropic substances by an organized group in large quantities (3 episodes), attempted drug dealing by an organized group in large quantities (2 episodes), drug dealing in especially large quantities (2 episodes), unlawful storage of drugs without the purpose of trafficking in especially large quantities |
Mr P. |
| 8. | 33551/14
07/04/2014 |
Yuriy Sergeyevich GUROV
Moscow 02/05/1976 AleksandrStepanovich Bukharets |
Izmailovskiy District Court of Moscow
16/07/2013 Moscow City Court 07/10/2013 Convicted of attempted drug dealing by a group of persons on preliminary collusion
|
Ms K. |
| 9. | 45811/14
16/06/2014 |
Maksim Andreyevich
DUBININ 17/04/1973 Ryazan Erika Nikolayevna Barsukova |
Golovinskiy District Court of Moscow
17/09/2013 Moscow City Court 22/04/2014 Convicted of attempted drug dealing |
Mr K. |
| 10. | 56742/14
24/09/2014 |
Viktor Vasilyevich
SHCHERBATYKH
03/12/1978 Sorda, Kirov Region
|
Vyazniki Town Court of the Vladimir Region
21/10/2013 Vladimir Regional Court 27/03/2014 Convicted of murder |
Mr K. |
| 11. | 60644/14
28/07/2014 |
Anatoliy Vasilyevich GOSTEV
28/03/1985 Novocherkassk
|
Leninskiy District Court of Rostov-on-Don
27/11/2013 Rostov Regional Court 05/02/2014 Convicted of burglary with unlawful entry to premises and of burglary with unlawful entry to premises on a large scale |
Mr E. |
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