THIRD SECTION

CASE OF ADAYEV v. RUSSIA

(Application no. 10746/08)

JUDGMENT

STRASBOURG

8 November 2016

This judgment is final but it may be subject to editorial revision.

In the case of Adayev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Helena Jäderblom, President,
	Dmitry Dedov,
	Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 11 October 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 10746/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Isa Akhmetovich Adayev (“the applicant”), on 13 February 2008.
2.  The applicant was represented by Mr D. Itslayev, a lawyer practising in Grozny. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3.  On 8 November 2012 the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1976 and lives in Achkhoy-Martan, Chechen Republic.
A.  Abduction of two soldiers
5.  On 13 January 2001 two soldiers of the Russian federal forces M. and P. came to the applicant’s house to buy drugs. After the applicant sold heroin to them, unknown persons attacked the soldiers, put them in a car and took them to a hide-out where they were kept for five days. The kidnappers also took M.’s automatic gun. The soldiers were released by law-enforcement officers on 18 January 2001. The gun was never found.
B.  Criminal proceedings against the applicant
6.  On an unspecified date the authorities opened a criminal investigation into the soldiers’ abduction. The applicant was the only suspect. Other perpetrators had not been identified.
7.  According to the applicant, on 4 April 2007 at approximately 7 p.m. he was arrested on suspicion of having participated in abduction of M. and P. According to the arrest record, the applicant was arrested on 5 April 2007 at 10:40 a.m.
8.  On 6 April 2007 the Achkhoy-Martan District Court of the Chechen Republic authorised the applicant’s detention pending the criminal proceedings against him.
9.  On an unspecified date the investigator questioned M. and P. Both of them submitted that they had been abducted from the inner yard adjacent to the applicant’s house. They had come to the applicant’s house to buy drugs. The applicant had asked them to enter to help him move the car that had been parked inside. After they had been done with the car, they had been attacked by four persons. M. had cried out to the applicant for help, but the applicant had done nothing. After that they had been blindfolded, put in a car and taken to another place.
10.  On 26 June 2007 the District Court found the applicant guilty of abduction and theft of firearms and sentenced him to seven years’ imprisonment. The court relied on the statements of M. and P. given during the questioning by the investigator, the written statements made by their parents to whom M. and P. had told about their abduction, the written statements made by other soldiers who confirmed that M. and P. had been missing in 2001. Investigator Mir. testified in court as regards his questioning of M. and P. The court also heard a number of the applicant’s relatives and neighbours who testified as to the applicant’s character and the curfew introduced in the village in 2001 and studied the materials from the case-file prepared by the investigator. As regards the use of M. and P.’s written statements, the court noted as follows:
“... According to [the rules of criminal procedure], if the victim of the crime fails to appear in court, the court, if requested by a party to the proceedings or of its own motion, may decide to have the [victim’s] earlier statement read out in the event of a natural calamity or other extraordinary circumstances preventing the [victim’s] appearance in court. The court considers that the victims were prevented from appearing in court for the following reasons: their psychological state, i.e, their lack of desire to reminisce about the circumstances of the abduction coupled with deprivation of liberty and, possibly, with the life threat, and to live through this again; lack of safety during the trip to Chechen Republic where the political situation is still troublesome, especially ... for ethnic Russians who are not locals; a risk that the [applicant’s] relatives might put pressure on them; and the fact that they live far away and do not have means to pay for the trip to attend the court hearing. The court considers such circumstances to be extraordinary and preventing the victims from appearing in court.”
11.  On 15 August 2007 the Supreme Court of the Chechen Republic upheld the applicant’s conviction on appeal.
12.  On 26 December 2011 the applicant was released.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
13.  The applicant complained that the criminal proceedings against him had been unfair. In particular, he alleged that he had been unable to confront witnesses M. and P., whose testimonies had been decisive for his conviction. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:
“1.  In the determination of ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3.  Everyone charged with a criminal offence has the following minimum rights:
...
(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”
14.  The Government contested that argument. They considered that the criminal proceedings against the applicant had been fair. In particular, the court had taken sufficient effort to obtain the attendance of witnesses M. and P. On 21 May and 14 June 2007 the court had summonsed them to appear. However, when the witnesses failed to appear, the court had decided to read out their earlier statements given that the witnesses had lived far away from the Chechen Republic where the trial had been held; that the situation in the Republic had not been safe and that the applicant’s relatives might put pressure on them. They further submitted that the applicant’s guilt had been established on the basis on the evidence other than the statements made by M. and P. Such evidence included witness statements, crime scene investigation reports, audio recording of the questioning of M. and P., etc.
15.  The applicant maintained his complaint. He argued that, when deciding to read out the statements made by M. and P., the trial court had failed to verify whether those witnesses had in fact been notified of the trial and their need to appear to testify. In his view, the evidence obtained from M. and P. had been sole and decisive for his conviction. There had been no other witnesses or evidence that would implicate the applicant in the crime he had been charged with. The statements made by M. and P. read out during the trial had been contradictory. The applicant had been unable to confront or question them.
A.  Admissibility
16.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
17.  The general principles to be applied in cases where a prosecution witness did not attend the trial and his statements previously made by him were admitted as evidence are well-established in the Court’s case law and have been recently summarised and refined in the judgment of the Grand Chamber in Schatschaschwili (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-31, ECHR 2015).
18.  In Schatschaschwili, where the Court established that there were good reasons for non-attendance of two only eye-witnesses, whose evidence was “decisive” for the applicant’s conviction, it considered that the failure on the part of domestic authorities to afford the defendant an opportunity to have a key prosecution witness questioned at least during the pre-trial stage of the proceedings weighed heavily in the balance in the examination of the overall fairness of the criminal proceedings against him. The Court considered that, in such situation, the counterbalancing measures taken by the authorities had been insufficient to permit a fair and proper assessment of the reliability of the untested evidence and found a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the authorities’ failure to provide the applicant with an opportunity to have the two key witnesses examined at any stage of the proceedings (see, Schatschaschwili, cited above, §§ 161-65).
19.  Turning to the circumstances of the present case, the Court sees no reason to hold otherwise. Even though the Court is prepared to accept that there were good reasons for the non-attendance of witnesses M. and P. (see paragraph 10 above), it considers that there were no counterbalancing factors in place to compensate for the witnesses’ absence at the trial and for the difficulties caused to the defence by the admission of their untested statements as evidence.
20.  The Court considers that the statements of M. and P. were, if not sole, then at least the decisive evidence against the applicant and without it the chances of a conviction would have significantly receded. Apart from M. and P., none of the witnesses examined in the course of the criminal proceedings against the applicant provided any information that would directly link the latter to their abduction. Nor did any of the documents admitted as evidence implicate the applicant in the commission of the crime.
21.  The fact that the applicant was not provided with an opportunity to cross-examine those witnesses at least during the pre-trial stage weighs heavily in the balance in the examination of the overall fairness of the criminal proceedings against him. The absence of such opportunity, in view of the importance of the statements of the only eyewitnesses to the offence of which the applicant was convicted, has rendered the trial as a whole unfair.
22.  There has been, accordingly, a violation of Article 6 §§ 1 and 3 (d) of the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
23.  Lastly, the applicant complained under Articles 5 and 13 of the Convention that his detention on 4-5 April 2007 had been unlawful. The Court has examined those complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
24.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
25.  The applicant claimed 2,404,080 Russian roubles (RUB) in respect of pecuniary damage (lost income). He further claimed non-pecuniary damage leaving the amount of the compensation to the Court’s discretion.
26.  The Government considered the applicant’s claim in respect of pecuniary damage to be unsubstantiated. They further submitted that the finding of a violation would constitute a sufficient just satisfaction and that no compensation in respect of non-pecuniary damage should be awarded.
27.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As regards his claim for non-pecuniary damage, the Court does not consider it necessary to make an award under this head in the circumstances of this case (compare Ibrahim and Others v. the United Kingdom, nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 315, 16 December 2014). It further refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005‑IV, and Popov v. Russia, no. 26853/04, § 263, 13 July 2006). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides the basis for the reopening of the proceedings if the Court finds a violation of the Convention.
B.  Costs and expenses
28.  The applicant also claimed EUR 4,534 for the costs and expenses incurred before the Court. In particular, he claimed EUR 4,232 in respect of the services provided by his representative who spent 26.45 hours working on the case, EUR 40 in respect of administrative costs and expenses (fax, copying, stationery, telephone, preparation of the documents to be sent to the Court, etc.) and EUR 232 for the translation services. He asked the Court that the latter amount be paid directly to the bank account of Mr D. Itslayev, a lawyer who represented him in the proceedings before the Court.
29.  The Government considered the applicant’s claims excessive. In their opinion, being the subject of the Court’s well-established case-law, the application should not have generated the amount of work hours spent by the applicant’s representative on the case. As regards the applicant’s claims for reimbursement of administrative and postal expenses, he failed to submit any justification in that respect. The receipt for translation services did not permit to identify what particular documents had been translated.
30.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 850 covering costs under all heads to be paid into the bank account of Mr D. Itslayev, a lawyer who represented the applicant in the proceedings before the Court.
C.  Default interest
31.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint concerning the non-attendance of the witnesses at the trial admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;

3.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 850 (eight hundred fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of Mr D. Itslayev, a lawyer who represented the applicant in the proceedings before the Court, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helena Jäderblom
	Deputy Registrar	President