CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 janvier 2017

.s800EAC49 { font-size:12pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .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 } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .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 } .sE24C0691 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:10pt } .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 } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s598389F7 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt } .s7BE5FA79 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:10pt } .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 } .s83AFB95E { text-indent:14.2pt; font-family:Arial; font-size:10pt; font-weight:bold; list-style-position:inside } .s38F34D94 { width:22.66pt; font:7pt 'Times New Roman'; display:inline-block } .s898DAE93 { border:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s8E8B00CF { margin-top:0pt; margin-left:0.45pt; margin-bottom:0pt; text-indent:-0.45pt; text-align:justify; font-size:10pt } .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 } .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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } Communicated on 5 January 2017   THIRD SECTION Application no. 49853/10 Lyubov Timofeyevna IVCHENKO against Russia and 4 other applications (see list appended) STATEMENT OF FACTS   1.     The applicants’ names, dates of birth, and nationalities are set out in the Appendix. The facts of the cases, as submitted by them, may be summarised as follows. 2.     On various dates between 2010 and 2015 the applicants were prosecuted on criminal charges and convicted of various offences under the Russian legislation in force. 3.     Their convictions were based, among other evidence, on the testimony of one or more prosecution witnesses, whose identities were kept secret, and in certain cases on the statements of prosecution witnesses which were made during the pre-trial stages of the proceedings and read out in open court while the witnesses in question were absent from trial. 4.     The applicants objected to the use of such evidence in the criminal proceedings against them, but despite these objections the domestic courts convicted them using the testimony of anonymous and/or absent witnesses. Subsequently, the convictions were upheld on appeal and became final. The details of those judgments are set out in the Appendix. COMPLAINTS 5.     The applicants in cases nos. 49853/10, 32711/15 and 10968/16 complain under Article 6 §§ 1 and 3 (d) of the Convention that they were unable to effectively examine anonymous witnesses testifying against them. 6.     The applicants in cases nos. 49853/10, 73008/12, 21137/15 and 10968/16 complain under Article   6 §§   1 and 3 (d) of the Convention that certain witnesses (including certain anonymous witnesses) were absent from trial.     COMMON QUESTIONs   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 they able to examine the witnesses testifying against them, as required by Article 6 § 3 (d) of the Convention? Case-specific Questions Applications nos. 49853/10 (witness “Ivanov”), 32711/15 (witness “Sadykov”) and 10968/16 (witness “Laptev”)   1.     Were there good reasons to keep the identities of the respective witnesses at trial secret (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 they duly reviewed by the domestic courts? (b)     What were the grounds in Russian law and practice relied on by the domestic courts for keeping the identities of these witnesses secret?   2.     Were the applicants’ convictions based solely or to a decisive degree on the statements of the witnesses whose identities were kept secret?   3.     Were there strong procedural safeguards put in place by Russian law and practice or specific arrangements in the applicants’ cases which would counterbalance the use of these witnesses’ testimony?   4.     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 answer the following questions: (a)     Did the competent domestic courts assess the impact of keeping the identities of certain witnesses secret on the overall fairness of the proceedings? (b)     Did the domestic courts ensure the overall fairness of the proceedings as prescribed by Article 6 § 1 of the Convention by giving 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 [them]” as enshrined in Article 6 § 3 (d), were the applicants able to effectively examine the witnesses whose identities were kept secret before or during trial? (d)     Were there any restrictions imposed on the ability of the defence to put questions to these witnesses? If yes, were they compatible with the rights of the applicants under Article 6 of the Convention?   Applications nos. 49853/10 (witness “Secret”), 73008/12 (witnesses “Kharitonov”, “Sidorov” and “Yefremov”), 21137/15 (witness “Petrov”), 32711/15 (witness “Sadykov”) and 10968/16 (witness “Laptev”)   1.     Does Russian law or practice provide for any restrictions on the use of testimony of absent witnesses whose identities are kept secret? If yes, what are those restrictions?   2.     In the applicants’ cases, what were the reasons given by the domestic courts allowing them to admit the testimony of the absent witnesses whose identities were also kept secret? Did the domestic courts regard the admission of such evidence as a handicap to the defence?   3.     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 identities were kept secret? If yes, what were the specific arrangements in the applicants’ cases? APPENDIX No. Application number Lodged on Applicant name, date of birth, place of residence Represented by Final decision Witness(es) – nature of complaint                   49853/10 09/08/2010 Lyubov Timofeyevna IVCHENKO 24/03/1950 Astrakhan     Astrakhan Regional Court, 11   February   2010     anonymous prosecution witness “Secret” – absent;   prosecution witness “Ivanov” – anonymous                     73008/12 16/10/2012 Yevgeniy Mikhaylivich KRASNOV 03/02/1973 Cheboksary   Aleksandr Svyatoslavovich OSOKIN Supreme Court of the Republic of Chuvashiya, 17   April 2012 anonymous prosecution witnesses “Kharitonov”, “Sidorov” and “Yefremov” – absent; prosecution witnesses Ms M., Mr Sh., Mr Kur., Mr Kon., Mr May., Mr Ye., Ms Kh., Ms S., Mr A.V., Ms K., Ms B., Mr G., Mr T., Mr Maks., Mr Mikh., Mr Maku., Mr I.Yu., Mr Mid., Ms G., Mr D. - absent                     21137/15 14/04/2015 Teymuraz Guramovich PAPIDZE 22/04/1980 Meleuz (Republic of Bashkortostan)   Yevgeniy Yuryevich SYSOYEV Supreme Court of the Russian Federation, 16   October 2014         anonymous prosecution witness “Petrov” – absent;   prosecution witnesses Mr Sh., Ms K., Mr S.I., Mr R.I., Ms B.E. – absent                     32711/15 10/06/2015 Zikrullokhon Fayzullokhodzhayevich RAKHMONKHODZHAYEV 02/10/1975 Moscow Bunyamin Eldarovich GADZHIYEV Supreme Court of the Russian Federation, 11   December   2014 prosecution witnesses "Guseynov", "Krasnov", "Djurayev" and "Kurbonov" – anonymous; anonymous prosecution witness "Sadykov" – absent                   10968/16 02/02/2016 Maksim Vladimirovich LAPTEV 28/09/1979 Berdsk (Novosibirsk region)   Svetlana Valentinovna BORISENKO Novosibirsk Regional Court, 6   August 2015     prosecution witness “Ivanov” – anonymous and absent