I incorrectly predicted that there's no violation of human rights in BURANDO HOLDING B.V. v. THE NETHERLANDS.
Information
- Judgment date: 2022-10-04
- Communication date: 2018-12-14
- Application number(s): 3124/16
- Country: NLD
- Relevant ECHR article(s): 8, 8-1, 8-2, 13
- Conclusion:
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings
Article 6-1 - Public hearing)
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings
Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial
Article 6-3-d - Examination of witnesses)
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings
Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial
Article 6-3-d - Obtain attendance of witnesses) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.638074
- Prediction: No violation
Inconsistent
Legend
Communication text used for prediction
1.
The applicant, Burando Holding B.V., is a limited liability company (besloten vennootschap met beperkte aansprakelijkheid), with its seat in Rotterdam.
It is represented before the Court by Mr M.A.D.
Bol and Mr H.A.
Bravenboer, lawyers practising in Rotterdam.
2.
The applicant company is active in the Rotterdam port region.
It is one of several companies in that area whose business includes the collection of waste liquids (or “slops”) from seagoing ships for disposal.
A.
The circumstances of the case 3.
The facts of the case, as submitted by the applicant company, may be summarised as follows.
1.
Background to the case 4.
The Information and Investigation Service (Inlichtingen- en Opsporingsdienst) of the Ministry of Housing, Spatial Planning and the Environment (Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer) began an investigation into another collector of waste liquid from ships, I., suspected of mixing polluted waste liquids with bunker oil in contravention of legislation for the protection of the environment.
5.
Between February 2007 and April 2007 telephone conversations made by the management of I. were intercepted, recorded and then either transcribed or summarised in the course of these investigations.
Among the conversations so recorded were conversations between I.’s managing director and the managing director of the company Ships Waste Oil Collector B.V. (applicant in case no.
2799/16) from which it appeared that the two companies were engaged in price-fixing.
2.
The transfer of criminal data 6.
An official record dated 21 April 2008 by an official of the Ministry of Housing, Spatial Planning and the Environment records several of these telephone conversations.
It is stated that that record is to be forwarded to the Netherlands Competition Authority (Nederlandse Mededingingsautoriteit, “NMA”) through the intervention of the public prosecutor (officier van justitie).
7.
There being indications that companies other than I. and Ships Waste Oil Collector B.V. were involved, the NMA transmitted a set of search terms to the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment with which to identify telephone conversations relevant to the investigation to be undertaken by the NMA.
8.
On 21 October 2008 the public prosecutor gave permission for the official record to be forwarded to the NMA by adding “transfer to NMA approved (akkoord verstrekking aan NMA)”, dated and signed, in handwriting.
9.
The official record was transferred to the NMA on 29 June 2009.
The NMA subsequently sent the Ministry of Housing, Spatial Planning and the Environment a request for complete sound recordings to be transferred to it.
10.
Further transcripts and recordings of intercepted telephone conversations were forwarded to the NMA on 26 November 2009, 7 July 2010 and 2 September 2010.
On each occasion the public prosecutor gave permission in summary form without reasoning for transmission to take place.
3.
The decision by the NMA to impose fines and the administrative review proceedings 11.
An NMA report of 28 December 2010 found that the applicant company, together with the company I., Port Invest B.V. and others, was accountable for an infringement of section 6(1) of the Competition Act (Mededingingswet).
This report quoted extensively from transcripts of telephone conversations.
12.
Following an exchange of arguments in writing and a hearing held on 15 April 2011, the Governors (Raad van Bestuur) of the NMA gave a decision on 16 November 2011.
As relevant to the case, they found that the transcripts and recordings had been lawfully forwarded to them by decision of the public prosecutor under the authority of the Board of Procurators General (College van procureurs-generaal).
In terms of Article 8 of the Convention, it was “in accordance with the law” in that it had a statutory basis and was foreseeable, and it met a “pressing social need”, to wit, the enforcement of competition law.
There was no suggestion that the interceptions themselves had been unlawful, or that the competing interests had been wrongly weighed by the public prosecutor.
They found the applicant company and the other companies involved in the proceedings to have violated the prohibition set out in section 6 of the Competition Act (Mededingingswet).
They imposed a collective fine on the company I., Port Invest B.V. and the applicant company in an amount of 1,861,000 euros, the applicant company being jointly and severally liable for EUR 621,000 of this.
13.
The company I., the applicant company and Port Invest B.V. lodged a joint written objection (bezwaarschrift).
They protested against the lack of any judicial control of the transfer to the NMA of the telephone interceptions in issue, arguing that the authority of the public prosecutor, even if delegated by the Board of Procurators General, could not substitute for that of an independent court.
It also protested against the apparent absence of any weighing of competing interests.
Relying on, inter alia, section 6(3) of the Competition Act, they further denied any wrongdoing.
14.
With the consent of the NMA, the objection (bezwaar) phase was bypassed and the applicant companies submitted their objection directly to the Rotterdam Regional Court (rechtbank) by way of appeal (beroep).
4.
Appeal proceedings before the Rotterdam Regional Court 15.
The NMA lodged a written defence statement.
16.
As relevant to the case before the Court, the NMA stated that the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment had intercepted telephone conversations from which it appeared that the company I. and the applicant company were engaged in illegal price fixing; summary transcripts of these were transferred to the NMA, through the intermediary of the public prosecutor.
Further summary transcripts of intercepted telephone conversations had been transferred to the NMA at its request with the permission of the public prosecutor.
These had been existing summary transcripts; the NMA had had no involvement in the criminal investigation carried out by the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment under the guidance of the public prosecution service (openbaar ministerie).
The extensive transcripts had been elaborated by the NMA itself, not by the public prosecution service at the NMA’s request.
The legal basis for such transfer was section 39f of the Judicial Information and Criminal Data Act (Wet justitiële en strafvorderlijke gegevens), which so permitted in pursuance of a “compelling general interest” – an expression which encompassed “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” as referred to in Article 8 of the Convention.
The public prosecutor was a functionary eminently suited to that responsibility.
As to the telephone interceptions themselves, there was neither information to suggest nor reason to believe that they had been unlawful; in this matter, the NMA was dependent on the public prosecution service.
As regards the substance of the case against the applicant company, the telephone conversations themselves were relied on (with other items of evidence) as proof of price-fixing.
17.
Having held a hearing, the Regional Court gave a decision on 11 July 2013 deciding the appeal of the applicant company jointly with the appeals of three other ships’ waste disposal companies (Ships Waste Oil Collector B.V., Port Invest B.V. and the company I.)
suspected of price-fixing.
As relevant to the case before the Court, its decision included the following: “13.
It follows from [the Regional Court’s own] decision of 13 June 2003 [ECLI:NL:RBROTT:2013;CA3079][1] that the transfer of criminal data requires a weighing of interests by the public prosecutor in person that is knowable and can be reviewed by the court, that has led to the conclusion that there is a need for the provision of criminal data because of a compelling public interest.
In addition, the public prosecutor must consider whether such provision is in accordance with the principles of proportionality and subsidiarity.
In this connection, the Regional Court has stressed the need to respect the requirements of Article 8 of the Convention, on the ground of which everyone has the right to respect for his or her private life.
Section 39 [the Court takes this to mean section 39f] of the Judicial Information and Criminal Records Act, which provided a statutory basis for the provision of criminal data to third parties, guarantees that these requirements are met.” Since the public prosecutor had merely granted permission for the transfer of the transcripts to the NMA, in handwriting on the official record of 28 October 2010 and on pre-printed forms without reasoning subsequently, the Regional Court found that no reviewable weighing of interests had been recorded.
From this it followed that the transcripts were to be excluded as evidence.
Since the NMA had previously had no indication of price-fixing and would not have begun an investigation without the information given by the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment, and since the NMA’s decision depended entirely on the intercepted telephone conversations and on documents handed over or statements made by persons after they had been confronted with these telephone conversations, the Regional Court quashed the NMA’s decision in its entirety.
5.
Further appeal proceedings before the Administrative High Court for Trade and Industry 18.
The Consumer and Market Authority (Autoriteit Consument en Markt, “ACM”), the successor body to the NMA by this time, lodged a further appeal (hoger beroep) with the Administrative High Court for Trade and Industry (College van Beroep voor het bedrijfsleven).
As relevant to the case before the Court, it argued that the transfer of criminal data by the public prosecution service to another entity would only be contrary to domestic law or to Article 8 of the Convention if it could not be considered necessary with a view to a compelling general interest or if it did not comply with the requirements of proportionality and subsidiarity.
That assessment fell to be made, according to the Judicial Information and Criminal Data Act, by the civil courts in the shape of an ex post facto judicial review, as had taken place in the case [leading to application no.
2800/16].
In addition, the transfer of criminal data to a third party on the basis of section 39f(1) of the Judicial Information and Criminal Data Act was a factual act, not a decision within the meaning of the General Administrative Law Act (Algemene wet bestuursrecht), and therefore not amenable to judicial review by the administrative courts.
Such a transfer by a public prosecutor required neither reasoning nor an ex ante review of its lawfulness.
According to the ACM, use in evidence of the criminal data received was admissible as there were no indications that the data had been obtained unlawfully or that, even if it that were the case, the manner of that obtainment ran counter to the proper behaviour expected of authorities to such an extent that its use could not be considered permissible under any circumstances (verkregen op een wijze die zozeer indruist tegen hetgeen van een behoorlijk handelende overheid mag worden verwacht dat het gebruik hiervan onder alle omstandigheden ontoelaatbaar moet worden geacht).
19.
The ACM’s further appeal was joined by the Board of Procurators General.
20.
Ships Waste Oil Collector B.V., Burando Holding B.V., Port Invest B.V. and the company I. lodged a cross-appeal.
In these further appeal proceedings, they presented a joint position.
They submitted that the intercepted telephone conversations fell outside the scope of the criminal investigation and therefore were not properly in the case file.
They further argued, inter alia, that data, obtained in a criminal investigation and by means of an interference with the right to private life, could not be transferred to third persons without a balancing of interests – set out in a reasoned manner – having taken place prior to any such transfer.
On the basis of a set of search terms transmitted to the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment, the NMA had listened electronically to intercepted telephone conversations, which could not be considered as the provision of data within the meaning of the Judicial Information and Criminal Data Act.
Moreover, it was for the administrative courts to examine, in proceedings against the imposition of a fine, the lawfulness of the manner in which evidence, on the basis of which that fine had been imposed, had been obtained.
21.
Ships Waste Oil Collector B.V., Burando Holding B.V., Port Invest B.V. and the company I. maintained their prior position as to the merits of the case.
22.
On 14 April 2014 the Administrative High Court for Trade and Industry gave a decision (ECLI:NL:CBB:2014:151) rejecting the appeal of the Board of Procurators General.
It found that since the merits of the case concerned not criminal law but the enforcement under administrative procedure of competition law, the Board of Procurators General had no legal interest of its own and hence no locus standi.
23.
Having held a hearing on 20 November 2014, the Administrative High Court for Trade and Industry gave its decision on 9 July 2015 (ECLI:NL:CBB:2015:192).
Holding that the appeal of the ACM was well‐founded, it quashed the decision of the Regional Court and remitted the case to it for rehearing.
It dismissed the applicant company’s cross‐appeal.
As relevant to the case before the Court, its reasoning included the following: “4.6.
The first matter to be decided in this connection is whether the provision of criminal data, consisting in the present case of intercepted telephone conversations, based on section 39f of the Judicial Information and Criminal Data Act is contrary to Article 8 of the Convention.
An interference with the right to privacy is only permitted under Article 8 § 2 of the Convention in so far as it is in accordance with the law and necessary in a democratic society in the interest of, among other things, the economic well-being of the country.
The starting point in considering this issue is that the interception of the telephone conversations from which the intercepted data were obtained took place after the investigating judge gave permission to do so.
The arguments presented by the company I., Port Invest B.V. and Burando Holding B.V. do not constitute grounds to find that the intercepted telephone conversations have not been obtained in accordance with the requirements of criminal procedure in force by the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment.
The public prosecutor’s competence to provide the intercepted telephone conversations is statutorily grounded in the Judicial Information and Criminal Data Act.
Moreover, as regards the lawfulness of this obtainment, the law provides for a judicial procedure attended by sufficient guarantees, both under civil law within the framework of the provision of the data and under administrative law within the framework of the review of the decision to impose the fine for which these data have served as a basis.
It appears from the report in these cases that the ACM has extensively reviewed the evidence, including the intercepted telephone conversations, within the framework of establishing whether there has been a transgression of section 6(1) of the Competition Act.
After the report was issued and before a decision was taken by the ACM to impose a fine, the appellants were offered the opportunity to submit their views in writing of that report, of which opportunity they have availed themselves.
Finally, the Administrative High Court for Trade and Industry finds that a sufficient case has been made out that the information about the alleged price-fixing arrangements could not in reason have been obtained by the ACM in a different, less intrusive way, since such arrangements are not, as a rule, committed to paper.
In the judgment of the Provisional Measures Judge of the Regional Court of The Hague of 26 June 2009 (ECLI:NL:RBSGR:2009:BJ0047), to which the parties also refer, the Provisional Measures Judge in a matter comparable with that here in issue gave a provisional decision on the legality of the provision of intercepted telephone conversations by the public prosecution service to the ACM and came to the same finding as regards the proportionality of such provision.
In view of the above, the Administrative High Court for Trade and Industry sees no reason to find that the provision of the intercepted telephone conversations to the ACM based on section 39f of the Judicial Information and Criminal Data Act is contrary to Article 8 of the Convention.
4.7 Within the framework of the care to be taken under section 3.2 of the General Administrative Law Act (Algemene wet bestuursrecht) in preparing a decision, the ACM is obliged to consider the lawfulness of the evidence to be used by it.
In paragraphs 180 and following of the decision imposing the fine the ACM has gone into the use of the intercepted telephone conversations in evidence.
It considered in so doing whether in obtaining the intercepted telephone conversations the principles of due process had been violated, or whether the rights of the defence had been disregarded.
In this connection the ACM stressed that the legislature limited the (active) powers of the ACM to collect data, but not the data which the ACM might receive.
The ACM came to the conclusion that there was no ground for it to find that the intercepted telephone conversations provide to the ACM by the public prosecution service should not be used in evidence.
4.8 The arguments presented by [the applicant companies] do not constitute a reason for the Administrative High Court for Trade and Industry to find that this conclusion by the ACM is wrong.
It should be stressed in this connection that the ACM was entitled to assume, based on the [Provision of Criminal Records for Purposes Other than Criminal Law Enforcement (Designation) Order (Aanwijzing verstrekking van strafvorderlijke gegevens voor buiten de strafrechtstoepassing gelegen doeleinden (aanwijzing wet justitiële en strafvorderlijke gegevens), that the evidence concerned had been provided to it lawfully.
In the present case it concerns provision to an administrative organ.
Provisions to administrative organs with a view to the exercise of supervision of compliance with legislation are considered to be standard cases of provision pursuant to chapter IV.4.c of that Order.
...
The circumstance that the ACM itself does not have the competence to intercept telephone conversations does not constitute ground for the finding that the use of the intercepted telephone conversations by the ACM should be considered unacceptable.
The Judicial Information and Criminal Data Act provides precisely for the possibility that such data, obtained using coercive measures under criminal procedure (strafvorderlijke dwangmiddelen) may be provided to, among others, administrative organs that do not themselves have the competence to make use of such coercive measures.
Contrary to the argument made by the company I., Port Invest B.V. and Burando Holding B.V., the circumstance that the ACM – in consultation with the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment – had, after having [taken cognisance of transcripts and recordings of intercepted telephone conversations], made a selection from the bulk of the data that were available and provisionally considered relevant by the Information and Investigation Service, does not, in the given situation, lead the Administrative High Court for Trade and Industry to find that the provision took place contrary to the Judicial Information and Criminal Data Act.” B.
Relevant domestic law, Council of Europe instruments and European Union law 24.
Reference is made to the statement of facts in Janssen de Jong Groep B.V. and Others v. the Netherlands, no.
2800/16, for a summary of the relevant domestic statutes, delegated legislation and case-law (the latter including the decisions given in that particular case), and the relevant Council of Europe instruments and European Union law.
COMPLAINTS 25.
The applicant company complains under Article 8 of the Convention that the exchange between authorities of information obtained by the interception of telephone conversations which was not relevant to the criminal investigation for the purpose of which those telephone conversations were intercepted was not in accordance with the law.
In particular, the applicant company complains that: (a) It was not foreseeable that the NMA was in a position to receive such information; (b) It was not foreseeable that the NMA could select the information which it wished to receive; (c) It was not foreseeable that the information could be transmitted to the NMA without any prior knowable weighing of interests; (d) It was not foreseeable that such weighing of interests could be effected ex post facto by the courts; (e) There was no provision in law for any weighing of interests by an independent authority prior to transmission (at least, not in the case of information irrelevant to the investigation for the purpose for which it was obtained).
26.
The applicant company complains under Article 13 of the Convention that there was no effective remedy available to it capable of preventing the transmission of the information in question to the NMA.
Judgment
THIRD SECTIONCASE OF KHUTSISHVILI AND OTHERS v. 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
3. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 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. 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,
(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;
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 KHUTSISHVILI1956BereznyakiRussian
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 MARTYANOV1991SukhobezvodnoyeRussian
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 GOREPYAKIN1978PlavskRussian
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 MIKHAYLOV1980ShakhtyRussian
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. THIRD SECTION
CASE OF KHUTSISHVILI AND OTHERS v. 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
3. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 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. 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,
(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;
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 KHUTSISHVILI1956BereznyakiRussian
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 MARTYANOV1991SukhobezvodnoyeRussian
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 GOREPYAKIN1978PlavskRussian
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 MIKHAYLOV1980ShakhtyRussian
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.