MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-28

13 June 2024

1501st meeting, 11-13 June 2024 (DH) Human rights   H46-28 Blokhin (Application No. 47152/06), Fudin (Application No. 66637/12), Matytsina group (Application No. 58428/10), Vasylev and Kovtun group (Application No. 13703/04), Atyukov group (Application No. 74467/10) and Karelin group (Application No. 926/08) v. Russian Federation Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2018)1250, DH-DD(2017)143

 

Application	Case	Judgment of	Final on	Indicator for the classification
47152/06	BLOKHIN (List of cases CM/Notes/1501/H46-28-app)	23/03/2016	23/03/2016	CM decision - RUS
66637/12	FUDIN	21/01/2020	21/01/2020	CM decision - RUS
MATYTSINA GROUP
58428/10	MATYTSINA	27/03/2014	27/06/2014	CM decision - RUS
VASILYEV AND KOVTUN GROUP
13703/04	VASILYEV AND KOVTUN	13/12/2011	13/03/2012	CM decision - RUS
KARELIN GROUP
926/08	KARELIN	20/09/2016	03/06/2017	CM decision - RUS
ATYUKOV GROUP
74467/10	ATYUKOV	09/07/2019	09/07/2019	CM decision - RUS

Case description

These cases and groups of cases concern several violations of the right to a fair trial in criminal proceedings (Article 6), stemming from to numerous procedural defects in the legislation.

In particular, the Blokhin case concerns the denial of certain fundamental procedural rights to the applicant, a minor, in the proceedings that were considered by the European Court to be criminal, within the meaning of Article 6, including his right to legal assistance and to obtain the attendance and examination of witnesses, on the ground that he was below the age of criminal responsibility and therefore fell outside the protection of the procedural guarantees of the Code of Criminal Procedure.[1]

The Fudin case concerns the legal impossibility of receiving the prosecutor's objection to the applicant's appeal, while the appeal court relied heavily on this objection in its reasoning.

The Matytsina group of cases concerns the impossibility for the defence, under domestic law and practice, to challenge the prosecution's expert evidence. The defence can only directly obtain the evidence of "specialists", whose status is lower than that of "experts".

The Vasilyev and Kovtun group of cases concerns the violation of the applicants' right of access to court as a result of a blanket legal prohibition on considering any claims for damages suffered as a result of an unlawful judicial decision, in the absence of a criminal conviction of the judge who issued it.[2]

The Karelin group of cases concerns violation of the applicants’ right to fair trial on account of partiality of the courts due to the lack of a prosecuting party in administrative offence proceedings, both at the trial and appeal stage. In Karelin, under Article 46, the Court indicated that the authorities must change law and practice to ensure a prosecuting authority participation where there is an oral hearing (§ 96 of the judgment).

The Atyukov group of cases concerns violation of the applicants’ right to fair trial on account of absence in law of several defence rights in the administrative (minor) offences proceedings, including to cross-examine witnesses, to have legal assistance, and to be duly notified about appeal proceedings.

Status of execution

Before the Russian Federation’s expulsion from the Council of Europe, the authorities provided information in some of these cases, in particular, Blokhin (DH-DD(2017)143), Matytsina (DH-DD(2015)415), Vasilyev and Kovtun (DH-DD(2014)1000), and Karelin (DH-DD(2018)1250). No information has been provided since 2018.

Some additional information on some of the cases is available in the Russian government’s public Annual reports on execution of judgments of the European Court.[3]

Individual measures

Just satisfaction was paid in the cases of Blokhin, Matytsina, Vasilyev and Kovtun, Karelin, Atyukov, Mamolina, Yegorov and Others. No just satisfaction was awarded by the Court in the cases of Yevstratyev, Kartoyev and Others, Kadadov and Pereverzev. No information on payment of just satisfaction has been received in respect of the other cases.

In Blokhin, the applicant was released from a temporary detention centre for juvenile offenders. In Matytsina and Yevstratyev, the domestic proceedings have been reopened and the cases have been sent for a fresh consideration. In Vasilyev and Kovtun and Karelin, the applicants lodged no claims following the judgment of the Court, including with regard to reopening.

General measures

In the previous action plans, the authorities informed the Committee that the leading judgments have been translated and disseminated among the relevant bodies. Other available information can be summarised as follows.

Blokhin: According to the public annual reports of the Russian government, on 30 May 2019 the State Duma adopted in the first reading some amendments concerning the detention of minors (draft laws Nos. 618614-7, 618625-7), which were apparently adopted on 26 October 2022.[4] At the same time, according to the 2020 annual report, in addition to these amendments, the relevant state bodies continued to work on granting more procedural rights to minors during criminal proceedings.

Matytsina: The authorities reported in 2017 that the relevant violations were isolated incidents. According to the authorities, while it is true that the defence can only order an alternative expert opinion through an investigator or a judge, any refusal to grant such a request of the defence should be well-founded. Moreover, the defence has the right to obtain itself an opinion of a specialist: although the specialist is not an expert, such an opinion cannot be said to be inferior to the expert's opinion, as no evidence has a predetermined value according to the letter of domestic law.

Vasilyev and Kovtun: In their 2014 action plan, the authorities stated that the issue had been resolved by the Constitutional Court (decision of 25 January 2001 No 1-P), but that consultations were ongoing on the need to amend the relevant legislation to ensure compliance with the rulings of the European and Constitutional Courts. According to the above-mentioned annual reports of the Russian government, in 2019-2021 they were still considering which amendments would be necessary to improve the relevant legislation.

Karelin: In their 2018 action plan, the authorities informed the Committee that different bodies had different opinions on the matter. Therefore, it was decided to conduct additional research on the issue and the deadline set was October 2019. According to the above-mentioned 2019-2021 annual reports of the Russian authorities, the draft of the new Code of Administrative Procedure, which was under preparation, contained provisions aimed at filling the legislative gap in question.

Rule 9 submissions

On 30 May 2023, a Rule 9.1 submission was made by a representative of the applicant with regard to the application Kalinin (No. 13327/21) which is part of the Rogatykh and Others (No. 49297/18) judgment examined under the Karelin group of cases (DH-DD(2023)852). She complained about the refusal of the authorities to pay just satisfaction on the basis of the fact that, under domestic law, only judgments of the European Court that became final before 15 March 2022 were enforceable in the Russian Federation.

On 24 April 2024, a Rule 9.2 submission was made by Centre de la protection internationale
(DH-DD(2024)) in respect of the cases considered at the present meeting. The NGO assessed the causes of the violations and described in detail the specific legislative changes needed to address them, as well as other measures to ensure the Convention-compliant application of the amended law. In particular, the NGO referred to the importance of awareness-raising activities among the relevant officials, of institutional changes where necessary, and compliance monitoring.

Analysis of the Secretariat

It is recalled that although the Russian Federation ceased to be a member of the Council of Europe as from 16 March 2022 (CM/Res(2022)2), and a Party to the European Convention on Human Rights as from 16 September 2022, the Committee continues to supervise the execution of the judgments and friendly settlements concerned and the Russian Federation is required to implement them (§ 7, CM/Res(2022)3). It is deeply deplored that no information was provided by the authorities for the present meeting. In this context, Rule 9 submission of an NGO can be welcomed: it is a vital source of information in the absence of communication from the authorities.

Individual measures

In all cases, the authorities should pay the just satisfaction ordered by the Court. It is an unconditional obligation under the Convention.

In those cases where this has not yet been done, the authorities should consider reopening the domestic administrative proceedings upon request. In the cases of Matytsina and Yevstratyev, there is no information as to whether the shortcomings identified by the Court have been properly addressed following the reopening of the cases.

General measures

There are a number of key areas where measures are required to ensure fair trials in the Russian Federation. For example, the Committee has recently highlighted the paramount importance of reforms in the area of the independence of the judiciary.[5] The assessment[6] of the Russian authorities' obligations under the Convention has identified a number of other key fair trial areas where reforms are also needed, including some where the shortcomings are so serious as to require legislative changes. Such relevant cases have been selected for this meeting so that the Committee can urge the authorities to change the law in these areas.

Blokhin: Criminal proceedings must be so organised as to respect the principle of the “best interests of the child” (§ 219). The authorities should establish safeguards for minors under the age of criminal responsibility in all stages of proceedings which are criminal within the meaning of Article 6, including legal assistance and the presence of a tutor. According to public sources, some changes were adopted in this respect in October 2022 (see above). However, there is no information on how these have addressed the shortcomings identified by the Court.

Fudin: The authorities should introduce into the Code of Criminal Procedure the right to receive, upon request, a copy of the prosecution’s objections to the appeal.

Matytsina: The authorities argued in their action report that the defence does not need a right to directly obtain an alternative expert examination, considering that it is sufficient to ask an investigator or a judge to order it because any refusal should be motivated. However, the Court has already identified[7] a vicious circle here: to persuade a judge to grant the defence's request for an alternative expert opinion, the defence has to prove that the existing expert opinion of the prosecution is inadequate - and in practice, the only way to do this is through another expert opinion, which the defence cannot obtain without a judge's order. Moreover, the Court has already rejected the authorities' claim that it is sufficient for the defence to have the right to order the opinions of "specialists": contrary to the opinion of the authorities, the Court considers that the status of "specialist" is lower than that of "expert" (§§ 189, 194). It is therefore necessary to adopt legislative changes to ensure equal opportunities for the defence to present its own fully-fledged expert evidence.

Vasilyev and Kovtun: The authorities should abolish the obligation to obtain a criminal conviction of a judge as a precondition for bringing a claim against the judiciary for compensation for damage caused by an unfair trial. Alternatively, the authorities should demonstrate that the Constitutional Court Decision No. 1-P of 25 January 2001, which allegedly abolished this obligation, is applied in accordance with the requirements of the Convention, in particular bearing in mind that the European Court has already criticised its application in a manner non-complaint with the Convention requirements, in this case in 2003 (§ 52).

Karelin and Atyukov: These cases concern administrative proceedings for minor offences, which have a separate legal framework (mainly the Code of Administrative Procedure).[8] The Court considers these administrative proceedings to fall within the criminal limb of Article 6 (see Karelin, § 42, with further references) and therefore domestic law should provide the relevant safeguards, including that it is not for a judge but for the prosecuting authority to prosecute and that the defence has the right to cross-examine witnesses, the right to legal assistance and the right to be duly informed of the appeal proceedings.

All of these legislative changes should be complemented by guidance from the Supreme Court, coherent developments in the judicial practice, practice of the prosecutorial authorities, as well as awareness raising activities for the judiciary as well as for the human rights defenders.

Financing assured: YES