CEDH · CASELAW;COMMUNICATEDCASES;ENG — 24 juin 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s29100277 { font-family:Arial; font-weight:bold } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA284A115 { width:11.79pt; text-indent:0pt; display:inline-block } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s6DB91820 { text-align:center } .s25B97BCD { margin-right:auto; margin-left:auto; border:0.75pt solid #808080; border-collapse:collapse } .sF5C9E8B1 { height:46.3pt } .sD1CDDC62 { border-right:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#e0e0e0 } .sDF237D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:8pt } .s2490CDBC { border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#e0e0e0 } .s8DB21C27 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:8pt } .s26ADB50A { border-left:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#e0e0e0 } .sFD306575 { height:35.55pt } .s2F4AF114 { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s6CF83D49 { margin-left:11.67pt; padding-left:6.18pt; font-family:Arial; font-size:8pt; font-weight:bold } .s898DAE93 { border:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sB217F55D { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:8pt } .sA0B2759 { margin-top:0pt; margin-left:0.45pt; margin-bottom:0pt; text-indent:-0.45pt; text-align:justify; font-size:8pt } .sB71F2881 { border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sBCA334AF { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sFD82DC6 { margin-left:16.12pt; padding-left:1.73pt; font-family:Arial; font-size:8pt; font-weight:bold } .s7CB6920E { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s62945D10 { border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top }   Communicated on 24 June 2015   FIRST SECTION Application no. 10384/12 Vladimir Vladimirovich AVZHIYAN against Russia and 9 other applications (see list appended) 1.     The applicants’ names, dates of birth, and nationalities are presented in the annexed table. The facts of the cases, as submitted by the applicants, may be summarised as follows. 2.     On various dates between 2011 and 2014 the applicants were criminally prosecuted and convicted for various offences under the Russian legislation in force. 3.     The applicants’ convictions were based among other evidence on the testimony of one or more prosecution witnesses, whose identity was kept secret, and in certain cases on the statements of prosecution witnesses which were made during pre-trial stages of the proceedings and read out in open court while these witnesses were absent from trials. 4.     The applicants objected to the use of such evidence in the criminal proceedings against them, but despite these objections the national courts convicted them relying inter alia on the testimony of anonymous and/or absent witnesses. Subsequently, the judgments of conviction were upheld on appeal and became final. The final judgments’ particulars are presented in the table below. COMPLAINTS 5.     The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention about inability to effectively examine anonymous witnesses testifying against them. 6.     The applicants in the cases 10384/12, 42410/12, 46922/12, 52893/12, 24356/13, 49901/13, 74480/14, 74812/14 further complain under Article   6 §§   1 and 3 (d) of the Convention about absence of certain witnesses (including certain anonymous witnesses) from trial.   COMMON QUESTIONS 1.     Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? Specifically, were the applicants able to examine the witnesses testifying against them as required by Article 6 § 3 (d) of the Convention?   2.     Were there good reasons to keep secret the identity of the respective witnesses at trials (see Pesukic v. Switzerland , no. 25088/07, §   45, 6   December 2012 and Scholer v. Germany , no. 14212/10, §§   50-51, 18   December 2014)? (a)     If yes, what were these reasons and were these reasons duly reviewed by the domestic courts? (b)     What were the grounds in the Russian law and practice on which the national courts relied in keeping secret the identity of these witnesses?   3.     Were the applicants’ convictions based solely or to a decisive degree on the statements of the witnesses whose identities were kept secret?   4.     Were there strong procedural safeguards put in place by the Russian law, practice, or specific arrangements in the applicants’ cases, which would counterbalance the use of these witnesses’ testimony?   5.     Was the overall fairness of the proceedings ensured by the domestic courts as prescribed by Article   6   §   1 of the Convention? In addressing this issue the parties are invited to address each of the following questions: (a)     Did the competent national courts assess the impact of keeping secret the identity of certain witnesses on the overall fairness of the proceedings? (b)     Did the national courts ensure the overall fairness of the proceedings as prescribed by Article 6 § 1 of the Convention by reflecting in the judgments, where appropriate, the reasons for keeping the witnesses identities secret? (c)     Having regard to the right “to examine or have examined witnesses against him” as enshrined in Article 6 § 3 (d), were the applicants able to effectively examine the witnesses, whose identities were kept secret, before or during the trials? (d)     Were there any restrictions imposed on the ability of the defence to put questions to these witnesses? If yes, were these restrictions compatible with the rights of the applicants under Article 6 of the Convention?   Case-specific Questions 1.   10384/12, 42410/12, 46922/12, 52893/12, 24356/13, 49901/13, 74480/14, 74812/14   1.     Having regard to the Court’s judgment in the case Al-Khawaja and   Tahery v. the United Kingdom [GC] (nos.   26766/05 and 22228/06, ECHR   2011) was there a violation of the applicants right to examine the witnesses testifying against them as required by Article 6 §§ 1 and 3 (d) of the Convention? (a)     Did the Russian law or judicial practice put in place any restrictions on the use of testimony of the absent witnesses whose identity was kept secret? If yes, what are these restrictions? (b)     In the applicants’ cases what were the reasons advanced by the domestic courts allowing them to admit testimony of the absent witnesses whose identity was also kept secret? Did the domestic courts regard admission of such evidence as a handicap to the defence? (c)     Did the domestic courts consider it necessary to afford the defence strong procedural safeguards put in place by the Russian law and practice in order to counterbalance the absence of witnesses whose identity was kept secret? If yes, what were the specific arrangements in the applicants’ cases?   2.     What was the nature of the ground hindering the witness’s presence at the trial hearing?   3.     What was the kind of public authority before which the witness’s prior testimony was given?   4.     Was the defence lawyer present at any hearing of the witness prior to the trial?   5.     Where there mechanisms to safeguard the defence’s right to impugn the fairness of the gathering of testimony, the credibility of the witness and the reliability of his or her testimony?   6.     What was the weight of the read-out testimony of the non-cross-examined witness in the trial court’s judgment?   7.     Did the defendant waive the right to cross-examine the absent witness?   APPENDIX No. Application no. Lodged on Applicant name date of birth nationality Represented by Final decision Wintess(es)   10384/12* 05/04/2012 Vladimir Vladimirovich AVZHIYAN 23/04/1989 Russian     Krasnodar Regional Court, 16   November 2011 prosecution witnesses "James" and "Bond": anonymous and absent   42410/12* 15/10/2012 Sergey Vsevolodovich STRASHNOV 07/12/1982 Russian     Leningrad Regional Court, 6 June 2012 prosecution witnesses “Kurbatov” and “Kosin”: anonymous and absent     46922/12 11/07/2012 Aleksandr Anatolyevich PAVLOV 30/05/1978 Russian   Sergey Semenovich SHALUKHIN Supreme Court of the Russian Federation, 28 March 2012 prosecution witnesses “Gavrilov”, “Borisov”, “Galkin”, “Aleksandrov”, “Antonov”, “Ivanov”, “Isayev”, “Palkin”, “Ivanov Ivan Ivanovich”: anonymous and absent prosecution witnesses “Klevtsov”, “Chernov”, “Artyomov”, “Olgina”, “Sergeyev”, “Frolov”,: anonymous prosecution witnesses Mr G. and Mr Ud.: absent     52893/12* 26/07/2012 Vladimir Aleksandrovich TYURIN 11/05/1982 Russian   Saint Petersburg City Court, 29   May 2012 prosecution witnesses “Bashirov” and “Shevchenko”: anonymous and absent   54235/12* 13/08/2012 Andrey Leonardovich MARKOV 07/03/1967 Russian   Vladimir Viktorovich PORUCHAYEV Novosibirsk Regional Court, 28 April 2012 prosecution witnesses “Petrov” and “Vasilyev”: anonymous   24356/13* 07/03/2013 Nasimzhon Nodirovich SHIRINOV 31/07/1975 Tajik     Krasnoyarsk Regional Court, 13   December 2012 prosecution witness “Prokhorov”: anonymous and absent prosecution witness Mr B.: absent   49901/13* 08/07/2013 Vladimir Viktorovich KARMANOV 16/10/1980 Russian     Vladimir Regional Court, 6 May 2013 prosecution witnesses “Volkova” and “Moiseyeva”: anonymous and absent   13437/14* 05/02/2014 Vladimir Nikolayevich GRECHUKHIN 30/12/1988 Russian     Smolensk Regional Court, 15   November 2013 prosecution witness “Struchev”: anonymous   74480/14 15/11/2014 Ivan Ivanovich KURILYAK 11/06/1986 Ukrainian Artur Mansurovich ABDRAKHMANOV 10/06/1989 Russian   Ilya Sergeyevich VLASOV Moscow City Court, 15 May 2014 prosecution witness “Zhukov”: anonymous and absent prosecution witnesses Mr D., Mrs K., Mrs Iz., Mr S., Mr K., Mrs Khl., Mrs St., Mr Kul., Mrs Khaf.: absent     74812/14* 19/11/2014 Dzhamalutdin Arsenovich EBUYEV 16/12/1991 Russian   Rafik Afdandil Ogly ALLAKHVERDIYEV Volgograd Regional Court, 30   June 2014 prosecution witness “Purchaser”: anonymous and absent