BOYKO AND OTHERS v. RUSSIA

 
 
THIRD SECTION
DECISION
Application no. 21891/12
Igor Ivanovich BOYKO against Russia
and 8 other applications
(see list appended)
 
The European Court of Human Rights (Third Section), sitting on 5 March 2019 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, 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, 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 2006 and 2013 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, and/or the death of the witnesses before the trial.
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 Ms Bashirova and Mr Krasnov (applications nos. 50072/12 and 73008/12 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. Mr Boyko (application no. 21891/12) complained in addition under Articles 13 and 18 of the Convention.
12. Ms Ilyicheva (application no. 60261/12) further complained under Article 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 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.
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, as well as the accessory complaints of all the applicants except for Ms Bashirova and Mr Krasnov (applications nos. 50072/12 and 73008/12 respectively) under Article 6 § 1 of the Convention, complaints of Mr Boyko (application no. 21891/12) under Articles 13 and 18 of the Convention and complaint of Ms Ilyicheva (application no. 60261/12) under Article 3 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 28 March 2019.
Fatoş AracıAlena Poláčková
Deputy RegistrarPresident

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   
21891/12
10/04/2012
Igor Ivanovich
BOYKO
 
26/03/1964
Magadan
 
 
Magadan Town Court of the Magadan Region
09/08/2011
 
Magadan Regional Court
26/10/2011
 
Convicted of stealing firearms by a group of persons on preliminary collusion, using official position
Mr F.,
Mr Shch.,
Mr G.,
Mr M.,
Mr Kh.,
Mr Zh.    
26138/12
03/09/2012
Nikolay Gennadyevich
BESPALOV
 
28/06/1978
Omsk
 
Self-representation
Kaliniskiy District Court of Chelyabinsk
27/12/2011
 
Chelyabink Regional Court
23/03/2012
 
Convicted of attempted drug dealing in large quantities, preparation for dealing of psychotropic substances in especially large quantities
Mr Ts.   
30730/12
28/09/2006
Vitaliy Vladimirovich
OCHIROV
 
16/08/1964
Ulan-Ude, Buryatia Republic
 
Yekaterina Viktorovna Yefremova
Gusinoozersk Town Court of the Buryatia Republic
23/06/2006
 
Supreme Court of the Buryatia Republic 07/09/2006
 
Convicted of murder

Mr K.   
50072/12
07/08/2012
Ruzaliya Gennadyevna
BASHIROVA
 
19/11/1988
Narimanov, Astrakhan Region
 
Aleksandr Anatolyevich Anokhin
Leninskiy District Court of Astrakhan
16/07/2012
 
Astrakhan Regional Court
06/09/2012
 
Convicted of attempted drug dealing
Mr I.,
Mr A.   
56948/12
12/07/2012
Valeriy Ivanovich
KHONIN
 
22/07/1963
Kamyshin, Volgograd Region
 
Aleksandr Viktorovich Shestakov
Kamyshin Town Court of the Volgograd Region
19/04/2012
 
Volgograd Regional Court
25/06/2012
 
Convicted of attempted drug dealing in large quantities
by an organised group
 
 
Mr B.,
Ms K.,
Mr Po.,
Mr Pet.,
Mr Pi.,
Mr S.,
Ms B.,
Ms Sh.,
Mr Pekh., “Zakupshchik”   
56982/12
10/08/2012
Marina Dmitriyevna
PYAZHEVA
 
23/07/1978
Kamyshin,
Volgograd Region
 
 
 
Kamyshin Town Court of the Volgograd Region
19/04/2012
 
Volgograd Regional Court
25/06/2012
 
Convicted of attempted drug dealing in large quantities
by an organised group
 
 
Mr B.,
Ms K.,
Mr Po.,
Mr Pet.,
Mr Pi.,
Mr S.,
Ms B.,
Ms Sh.,
Mr Pekh., “Zakupshchik”   
60261/12
17/08/2012
Inna Viktorovna
ILYICHEVA
 
31/08/1976
Gornoye, Primorskiy Region
 
Leninskiy District Court of Vladivostok, Primorsk Region
03/08/2012
 
Primorsk Regional Court
31/01/2013
 
Convicted of inter alia drug dealing in large quantities by a group of persons on preliminary collusion
Ms K.   
63826/12
26/09/2012
Vladimir Stanislavovich
BABUSHKIN
 
25/07/1961
Khabarovsk
 
Sergey Yuryevich Popov
Tsentralniy District Court of Khabarovsk
13/06/2012
 
Khabarovsk Regional Court
30/08/2012
 
Convicted of illegal enterprise connected with deriving profits on a large scale
Mr K.,
Ms K.,
Mr A.,
Mr L.,
Mr T.   
73008/12
16/10/2012
Yevgeniy Mikhaylovich
KRASNOV
 
03/02/1973
Uptar, Magadan Region
 
Aleksandr Svyatoslavovich Osokin
Leninskiy District Court of Cheboksary, Republic of Chuvashiya
23/11/2011
 
Supreme Court of the Republic of Chuvashiya
17/04/2012
 
Supreme Court of the Republic of Chuvashiya
21/09/2012
 
Convicted of inter alia nineteen counts of extortion by an organized group, fraud with infliction of significant damage to a citizen by an organized group
“Kharitonov”, “Sidorov”, “Yefremov”,
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.
 
 

Full & Egal Universal Law Academy