CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 4 octobre 2022

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RUSSIA (Applications nos. 54584/08 and 3 others – see appended list)             JUDGMENT   STRASBOURG 4 October 2022   This judgment is final but it may be subject to editorial revision. In the case of Khutsishvili and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: María Elósegui , President, Andreas Zünd , Frédéric Krenc , judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the applications 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 the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein; the decision to give notice of the complaints concerning the alleged breach of the right to a public hearing as regards all applications as well of the right to a fair hearing on account of the impossibility to question experts at trial (application no. 54584/08) and of the use of statements of an anonymous witness (application no. 80988/17) to the Russian Government (“the Government”) initially represented by Mr G.   Matyushkin and Mr.   M.   Galperin, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in this office, Mr   M.   Vinogradov, and to declare inadmissible the remainder of the applications; the parties’ observations; Having deliberated in private on 13 September 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The present case concerns the holding of the applicants’ trials in camera (see Appendix for the relevant details about the criminal proceedings and the grounds invoked by the domestic courts to conduct the trials in camera ). 2.     The applicants complained under Article 6   §   1 of the Convention about the lack of a public hearing. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 3.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 6   §   1 OF THE CONVENTION on account of the lack of a public hearing 4.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 5.     The general principles concerning the right to a public hearing have been summarised in Welke and Białek v. Poland (no. 15924/05, §§   73-74, 1   March 2011); Raks v. Russia (no. 20702/04, §§   43 ‑ 44, 11   October 2011); and Yam v. the United Kingdom (no. 31295/11, §§ 52-57, 16 January 2020). 6.     In the present case, having regard to the material submitted by the parties, the Court considers that the domestic courts failed to strike a proper balance between the applicants’ right to a public hearing, on the one hand, and the interests at stake invoked by the domestic courts to hold their respective trials in camera , on the other (see Appendix for the specific defects as regards the domestic courts’ reasoning in this regard). 7.     There has accordingly been a violation of Article   6   §   1 of the Convention on account of the lack of a public hearing. OTHER ALLEGED VIOLATIONS OF THE CONVENTION UNDER THE WELL-ESTABLISHED CASE-LAW 8.     In application nos. 54584/08 and 80988/17, the applicants also raised other complaints which are covered by the well ‑ established case-law of the Court. These complaints are not manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they disclose a violation of Article 6   §§   1   and   3 (d) of the Convention in the light of its findings in the following judgments (see Khodorkovskiy and Lebedev v. Russia (no. 2) , nos.   51111/07 and 42757/07, §§   473 ‑ 85, 14 January 2020, concerning the inability of the defence to cross-examine experts at trial; Asani v. the former Yugoslav Republic of Macedonia (no. 27962/10, §§ 32 ‑ 42, 1 February 2018); and, as recent example, Vasilyev and others v. Russia ([Committee], no.   38891/08, §§   37 ‑ 44, 22   September 2020), concerning the use of statements of anonymous witnesses at trial). APPLICATION OF ARTICLE 41 OF THE CONVENTION 9.     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.” 10.     The applicants claimed various amounts in compensation for the pecuniary (Mr. Khutsishvili) and non-pecuniary (all the applicants) damage suffered as well as for costs and expenses (Mr. Khutsishvili and Mr.   Gorepyakin). The Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by Mr.   Khutsishvili; it therefore rejects his claim. As regards costs and expenses, regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award Mr.   Gorepyakin 1,728 euros (EUR) plus any tax that may be chargeable to the applicant. It dismisses the remainder of the applicants’ claims for just satisfaction. 11.     The Court further 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, Decides to join the applications; Declares the applications admissible; Holds that there has been a violation of Article 6   §   1 of the Convention concerning the breach of the right to public hearing; Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants; Holds (a)   that the respondent State is to pay Mr. Gorepyakin, within three months, EUR 1,728 (one thousand seven hundred and twenty-eight euros) in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 4 October 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Olga Chernishova   María Elósegui   Deputy Registrar   President     APPENDIX List of applications raising complaints under Article 6   §   1 the Convention (lack of a public hearing): No. Application no.   Date of introduction   Applicant Year of Birth Place of Residence Nationality   Represented by Criminal proceedings, period of hearings in camera and reasons invoked by the domestic courts   Grounds for the Court’s findings as regards lack of a public hearing Other complaints under well-established case-law   1. 54584/08   28/08/2008 Vladimir Georgiyevich KHUTSISHVILI 1956 Bereznyaki Russian   Sergey Nikolayevich ZABARIN Conviction of 24/12/2007 by the Zamoskvoretskiy District Court, upheld on appeal on 02/04/2008 by the Moscow City Court; hearing in camera as from 11   April 2007 before the first instance court; safety of the trial participants (Article 241   §   2 point 4 of the Criminal Procedure Code (CPP))   General reference to safety of the trial participants without specific facts, no weighing against the importance of holding the trial in public. Art. 6   §§1 and   3   (d) – breach of the fairness of the proceedings on account of the domestic courts’ refusal to call experts F., Sh., So. et Sk. (see Khodorkovskiy and Lebedev v. Russia (no. 2) , nos.   51111/07 and 42757/07, §§   473 ‑ 85, 14 January 2020). 2. 80988/17   14/11/2017 Nikolay Vitalyevich MARTYANOV 1991 Sukhobezvodnoye Russian   Vladimir Alekseyevich LASTOCHKIN Conviction of 05/04/2017 by the Mariininsko ‑ Posadskiy District Court of the Chuvash Republic, upheld on appeal on 29/06/2017 by the Supreme Court of the Chuvash Republic; hearing in camera as from 07/03/2017 before the first instance court; safety of the trial participants (Article 241   §   2 point 4 of the CPP).   No evidence of any threat to the physical integrity of the parties to the proceedings (for insufficiency of the presence of an anonymous witness as a ground for closed hearing, see Boshkoski v. North Macedonia , no.   71034/13, §§   49 ‑ 53, 4   June 2020), no weighing against the importance of holding the trial in public.   Art. 6   §§   1 and 3 (d) - breach of the fairness of the proceedings on account of use of the statements of secret witness “Petrov”: no good reasons for keeping the witness’s identity concealed, his testimony constituted decisive evidence for the charges of the attempted sale of drugs, the domestic courts did not approach the anonymous witness’s statement with particular caution (see Vasilyev and others v. Russia [Committee], no.   38891/08, §§   37 ‑ 44, 22 September 2020). 3. 12229/18   08/03/2018 Sergey Gennadyevich GOREPYAKIN 1978 Plavsk Russian Oksana Vladimirovna PREOBRAZHENSKAYA Conviction of 20/04/2017 by the Perovskiy District Court, upheld on appeal by the Moscow City Court; hearing in camera as from 27/10/2016 before the first instance court; safety of the trial participants (Article 241   §   2 point 4 of the CPP).   No evidence of any threat to the physical integrity of the parties to the proceedings, no weighing against the importance of holding the trial in public.   4. 21579/18   25/04/2018 Demyan Vladimirovich MIKHAYLOV 1980 Shakhty Russian   Olga Sergeyevna ZORINA Conviction of 10/04/2017 by the Neklinovskiy District Court, upheld on appeal on 16/11/2017 by the Rostov Regional Court; hearings in camera before the first instance and the appeal court; safety of the trial participants (Article 241   §   2 point 4 of the CPP).   No evidence of any threat to the physical integrity of the parties to the proceedings, no weighing against the importance of holding the trial in public.