THIRD SECTION

CASE OF IVANNIKOV v. RUSSIA

(Application no. 36040/07)

JUDGMENT

STRASBOURG

25 October 2016

This judgment is final but it may be subject to editorial revision. 
In the case of Ivannikov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Helen Keller, President,
	Pere Pastor Vilanova,
	Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 October 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 36040/07) 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 Leonid Alekseyevich Ivannikov (“the applicant”), on 25 July 2007.
2.  The applicant was represented by Mr R. Karpinskiy, a lawyer practising in Moscow. 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 26 October 2012 the application was communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1985 and lives in the Tula Region.
5.  In the late evening of 28 October 2005 the applicant paid a visit to his friend Ch. who worked as a guard at a parking lot. On 29 October 2005 at 3 a.m. Ch., while making a round of the parking lot, discovered N. who was severely beaten up and was lying on the ground. Ch. called the police and the ambulance. The ambulance doctor K., when arrived, pronounced N. dead.
6.  On 2 November 2005 the prosecutor’s office opened an investigation into N.’s death. On several occasions it was suspended due to the investigator’s failure to identify the perpetrator. Both the applicant and Ch. were questioned as witnesses.
7.  On 29 June 2006 the investigator questioned Kuv. who submitted that in December 2005 Ch. had told him about the events of 28-29 October 2006 implicating the applicant in N.’s death. According to Kuv., the applicant’s family had put pressure on him in order to make him recant. He was then granted anonymity and referred to in the case-files materials as S.N.
8.  On 25 July 2006 the prosecutor questioned Ch. granting him anonymity. According to Ch., on 29 October 2005 N. showed up at the guard’s shack. He wanted to take a shortcut through the parking lot. Ch. refused to open the gate. The applicant swore at N. saying that he would show N. the way out and would beat him up. The applicant left together with N. Then he returned and told Ch. that he had beaten N. on the stairs and that N. had fallen down. According to the applicant, he had overdone with the beatings. Ch. went to look at N. who was still alive. It took Ch. some time to call the ambulance. The applicant asked him to keep the incident secret.
9.  On the same day the applicant was arrested on suspicion of manslaughter. He remained in custody pending investigation. On an unspecified date he was charged with murder
10.  On 31 August 2006 the Proletarskiy District Court of Tula opened the trial. The applicant pleaded not guilty. The trial judge questioned the applicant’s mother S. who submitted that Ch. had told her that policemen had threatened him to make him testify against the applicant. Ch.’s anonymity was lifted and he also testified in court. He confirmed that he had falsely accused the applicant due to the pressure put on him by policemen.
11.  On 11 September 2006 the prosecutor asked the court to question S.N. in the conditions excluding visual observation of the witness to the parties to the proceedings. He further explained that the decision to grant anonymity to the said witness had been taken in the course of the preliminary investigation of the case in order to ensure his safety and security of person. The trial judge left the courtroom and questioned S.N. in the presence of the trial secretary in a separate room. S.N. reiterated his earlier statement made to the police which was similar with Ch.’s testimony. Then the judge and the secretary returned to the courtroom where the judge read out S.N.’s testimony. The prosecutor, the applicant and his lawyer were allowed to put questions to the witness through the trial secretary. In response to the questions put by the applicant’s lawyer, S.N. explained he had fear of the applicant’s relatives who put pressure on him.
12.  On 29 September 2006 the court heard I., a friend of the applicant and Ch. She submitted that she had been in the guard’s shack with Ch. on 28 October 2005. When N. had showed up, the applicant had not been there yet.
13.  The trial judge also heard, upon the applicant’s request, L. and Naz., the applicant’s relatives, and D., Ch.’s mother, who claimed that Ch. had told them about the police putting pressure on him.
14.  The other witnesses who testified during the trial were (1) R., Sv. and Z., who had seen N. on 28 October 2005 and confirmed that he had been in an inebriated state on that day, (2) K., the ambulance doctor who had pronounced N. dead and (3) police officer Yu., who had questioned Ch. in the course of investigation. The court also reviewed the crime scene investigation report and the forensic medical report which indicated that N.’s death resulted from a cranio-cerebral injury.
15.  On 31 January 2007 the District Court found the applicant guilty of manslaughter and sentenced him to six years’ imprisonment. The court based its findings on Ch.’s testimony given by him as an anonymous witness in the course of the investigation. As regards Ch.’s testimony during the trial, the court considered it unreliable, in view of Ch.’s friendship with the applicant. The court took also into account the fact that the inquiry conducted by the prosecutor’s office in this connection found no case to answer against the policemen who had allegedly put pressure on Ch. It further relied on N.S.’s testimony. The court did not consider D., I., L., Naz. and S. as credible witnesses due to them being the applicant’s relatives or friends.
16.  On 30 May 2007 the Tula Regional Court upheld the applicant’s conviction on appeal.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
17.  The applicant complained that he had been denied the opportunity to examine an anonymous witness S.N., whose testimony 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 ...”
18.  The Government contested that argument. They considered it crucial in the present case that the trial judge who had decided on the applicant’s guilt had been able to see and hear the witness S.N. The fact that neither the applicant nor other parties to the proceedings had been unable to see the said witness was of no relevance. It was the judge who was to deliver the judgment in the applicant’s case. The witness’s testimony had been read out in the courtroom and the applicant had an opportunity to put questions to him and to know the witness’s answers and, if necessary, to put additional questions to the witness. There was nothing in the materials in the case file to suggest that the applicant’s defence had been put to any disadvantage vis-à-vis the prosecution. Furthermore, S.N.’s testimony had not been either sole or decisive evidence against the applicant. S.N. had not been an eye-witness to the crime. He had learnt about it from witness Ch. The purpose of questioning of S.N. had been to assess Ch.’s statements. During the trial Ch. had recanted his original statement given by him to the police officers. Lastly, the Government argued that there had been strict procedural safeguards in place. The judge assessed evidence in accordance with law and his conscience. It was incumbent on the judge to determine the relevance, admissibility and authenticity of each piece of evidence. The parties to the proceedings could question the anonymous witness and/or to challenge the statements made by such witness. It should be noted that neither the applicant nor his lawyer objected to questioning of anonymous witness S.N. by the trial judge outside the courtroom. They had raised this point only in the statement of appeal which had been duly reviewed by the appeal court and rejected.
19.  The applicant maintained his complaint. In his opinion, S.N.’s statement was decisive for his conviction. S.N. had been the only witness who testified during the trial alleging the applicant’s guilt. Furthermore, prior to S.N.’s questioning by the police, Ch. had not claimed that the applicant had murdered N. He had only admitted that he had discovered N. and called the ambulance for him. It had been only after S.N. who had made his statement, that Ch. had told the police that the applicant had admitted to having beaten up N. Lastly, the applicant considered that there had been no strong procedural safeguards in place to ensure that his trial had been fair. The trial judge had decided to question S.N. as anonymous witness without obtaining the applicant’s opinion on the issue. The applicant had been unable to observe or to hear S.N. testifying. According to the applicant, such arrangement had not been in compliance with the applicable rules of criminal procedure. He also argued that it had not been necessary for the court to grant anonymity to S.N. It could have been inferred by the parties to the proceedings that it was Kuv. Accordingly, anonymity did not ensure the witness’s safety and security. It had only prevented the applicant’s defence from challenging the veracity of Kuv.’s statement.
Section 2.01	A.  Admissibility
20.  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.
Section 2.02	B.  Merits
(a)	1.  General principles
21.  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).
22.  The Court also reiterates that the problems posed by anonymous witnesses and absent witnesses are not different in principle (see Pesukic v. Switzerland, no. 25088/07, § 45, 6 December 2012).
(b)	2.  Application of the principles to the present case
23.  Regard being had to the above, the Court’s task in the present case is to examine whether there were good reasons to permit a witness to give evidence anonymously; whether his evidence was the sole or decisive basis for the applicant’s conviction; and whether there were sufficient counterbalancing factors including strong procedural safeguards to ensure that the trial as a whole was fair within the meaning of Article 6 §§ 1 and 3 (d) (compare, (see Ellis, Simms and Martin v. the United Kingdom (dec.), no. 46099/06, § 79, 10 April 2012).
24.  As to the reason for admitting the anonymous evidence, the Court observes that the anonymity was granted to witness S.N. by a prosecutor during the criminal investigation. The witness alleged that he had been in fear of the applicant. The Court also notes that, when questioned by the judge, S.N. also expressed concerns for his safety in view of the alleged pressure put on him by the applicant’s relatives. Accordingly, the Court is prepared to accept that there were relevant reasons to keep the witness’s identity undisclosed.
25.  Turning to examine whether S.N.’s testimony was the sole or decisive evidence, the Court notes that the court relied to a certain extent on his statement in order to establish the applicant’s guilt. The trial court considered S.N.’s evidence of probative value and admitted it as corroborating Ch.’s statement that the applicant had confided in him and admitted having beaten up N. to death. The Court therefore considers that S.N.’s testimony was not the sole evidence against the applicant, but did carry considerable weight in the establishment of the applicant’s guilt.
26.  Lastly, having examined the materials before it, the Court observes that there were adequate counterbalancing factors in place. The domestic judicial authorities carried out an assessment of evidence provided by S.N and compared its content with the statements made by witness Ch. The judge conducted S.N. questioning and was able to observe the witness’s demeanour and to form a clearer impression of his credibility. The applicant had the opportunity to give his own version of the events, had the witnesses testified on his behalf and to cast doubt on the credibility of witness S.N. whose identity had been known to him, and to cross-examine witness Ch. who had given hearsay evidence against the applicant during the criminal investigation and recanted it during the trial. The applicant and his counsel were provided with an opportunity to put additional questions to the witness and the counsel availed herself of it.
27.  Having regard to the above considerations, the Court concludes that there were sufficient counterbalancing factors to ensure that the rights of the defence were not restricted to an extent incompatible with the guarantees of Article 6 §§ 1 and 3 (d) of the Convention. There has accordingly been no violation of these provisions.
Article III.	II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
28.  Lastly, the applicant complained that his conviction had been based only on the circumstantial evidence; that the national courts had ignored exculpating evidence against him; that the investigator and the prosecutor had not been impartial and that the criminal proceedings instituted against his mother 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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaints concerning the questioning of the anonymous witness admissible and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.
Done in English, and notified in writing on 25 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helen Keller
	Deputy Registrar	President