I correctly predicted that there was a violation of human rights in KRAVTSOV v. RUSSIA.

Judgment

THIRD SECTION
CASE OF KRAVTSOV v. RUSSIA
(Application no. 47050/16)

JUDGMENT

STRASBOURG
9 March 2021
This judgment is final but it may be subject to editorial revision. In the case of Kravtsov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georges Ravarani, President,Darian Pavli,Anja Seibert-Fohr, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 47050/16) 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 Gennadiy Nikolayevich Kravtsov (“the applicant”), on 3 August 2016;
the decision to give notice to the Russian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 9 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged unfairness of the criminal proceedings against the applicant and, in particular, the applicant’s ability to examine expert witnesses and to have access to the classified legal instruments underlying his conviction. THE FACTS
2. The applicant was born in 1968 and lived, prior to his conviction, in Moscow. The applicant was represented by Mr I. Pavlov, Mr M. Olenichev and Mr Ye. Smirnov, lawyers practising in St Petersburg. 3. The Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 21 October 2010 the applicant, a retired military intelligence officer, posted a job application on the website of the radio technical centre of the Swedish armed forces. 6. On an unspecified date in February 2013 the applicant posted a similar application on the website of the Ministry of Defence of the Republic of Belarus. 7. On an unspecified date in July 2013 the police subjected the applicant to polygraph testing in connection with his contacts with the Belarusian Ministry of Defence. 8. On 26 May 2014 the Federal Security Service instituted a criminal investigation against the applicant on the charge of treason. 9. On 27 May 2014 the applicant was arrested. He remained in custody pending investigation and trial. 10. On 18 March 2015 the investigator commissioned a forensic expert examination of the information disclosed by the applicant to the Swedish army. The experts confirmed that the information in question contained State secrets. 11. On 28 April 2015 the investigator notified the applicant of the results of the forensic expert examination. 12. On 30 April 2015 the investigator questioned one of the forensic experts who had prepared the report. The applicant and his counsel were not present during the questioning. Their requests to participate in the questioning were dismissed. 13. On 21 September 2015 the Moscow City Court found the applicant guilty as charged and sentenced him to fourteen years’ imprisonment. The court questioned the applicant, his former fellow officers and the investigator in charge of the applicant’s case, and studied the documents confirming the applicant’s access to classified information. The court refused to summon the forensic experts for questioning and relied on their report, concluding that the information transmitted by the applicant to the Swedish intelligence service had constituted a State secret and that it had not lost its significance to date. The applicant maintained his innocence and argued that the information transmitted by him to the Swedish armed forces had not been classified as containing State secrets. 14. The applicant appealed against his conviction, arguing, inter alia, that (1) he had been unable to question the forensic experts on whose findings the trial court had based his conviction and that the trial court had dismissed his application for a new forensic expert examination; and (2) the trial court had refused to disclose to him the legal instruments relied upon by the forensic experts. 15. On 4 February 2016 the Supreme Court of the Russian Federation upheld, in substance, the applicant’s conviction on appeal, reducing his sentence to six years’ imprisonment. The court dismissed the applicant’s allegations that he had been unable to study the legal instruments relied upon by the forensic experts, noting that excerpts from those instruments had been included in the case file. The court concluded that the criminal proceedings against the applicant had been fair and that his defence rights had been respected. The court reduced his prison sentence, taking into account the fact that the amount of information disclosed by the applicant had not been significant, that his actions had not caused damage to the security of the Russian Federation, that the crime had been committed by the applicant approximately five years previously, and that the applicant had cooperated with the investigation. THE LAW
16. The applicant complained that the criminal proceedings against him had been unfair. In particular, (1) he had been unable to question expert witnesses and (2) the domestic courts had failed to disclose the legislation on which they had relied when finding him guilty. The applicant relied on Article 6 §§ 1 and 3 (b) and (d) of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination 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:
...
(b) to have adequate time and facilities for the preparation of his defence;
...
(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[. ]”
17. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 18. The applicant maintained his complaint. He submitted that the judicial authorities had failed to provide him with access to a complete text of the legal instruments concerning the classification of certain information as State secrets. He had been able to study only excerpts from the relevant legal instruments, and this had irretrievably impaired his defence. As a result, his conviction had not been foreseeable. He further submitted that his defence counsel had not been able to keep copies of the material from the case file and had been able to study it only in a specially assigned office of the courthouse. He contended that the domestic courts’ decision to restrict his access to the material in the case file had been arbitrary and had had a negative impact on the preparation of his defence. Both the investigator and the court had refused to provide the applicant with an opportunity to question the expert witnesses. The forensic report had been the decisive evidence against the applicant. The domestic authorities’ failure to allow the applicant to question the forensic experts in order to challenge their findings, as summed up in the report admitted into evidence, coupled with the limited access of the defence to the material in the case file, had rendered the proceedings against the applicant unfair. 19. The Government submitted that the criminal proceedings in the applicant’s case had been fair and genuinely adversarial. The limitations imposed on the proceedings in connection with the classified information had not affected the essence of the fair trial given the procedural safeguards in place. The applicant’s defence rights had been respected. He had been able to examine the classified legal instruments relied upon by the forensic experts. The courts had studied the evidence presented by the prosecution. Their findings had been substantiated, well-reasoned and in full compliance with the rules of criminal procedure. The national courts had ensured a balance between the applicant’s right to a fair trial and the State’s interests. (a) Right to confront witnesses
(i) General principles
20. The general principles concerning the right of an accused to obtain attendance of witnesses are well established in the Court’s case-law (see Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 150-68, 18 December 2018). 21. In Murtazaliyeva the Court proposed a three-pronged test as regards examination of the complaints concerning the domestic courts’ refusal to examine a witness on the applicant’s behalf:
1. whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation;
2. whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial;
3. whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings (ibid., § 158). (ii) Application of the principles in the present case
22. Turning to the circumstances of the present case, the Court observes that the applicant sought to challenge the forensic expert evidence introduced by the prosecution. For that purpose he asked the trial court to obtain the examination of the forensic experts who had prepared that report. The Court accordingly accepts that the applicant’s request to obtain the attendance of those witnesses was sufficiently reasoned. 23. The Court further observes that the domestic courts did not consider questioning the experts to be irrelevant for the determination of the criminal charges against the applicant. However, having assessed the report prepared by the experts as being objective and comprehensive, they found no need to question the experts. The Court is unable to accept such reasoning of the domestic courts as sufficient, given that the report prepared by the forensic experts played a decisive role in the applicant’s conviction, and that there was no other evidence presented by the prosecution that could confirm their argument that the information transferred by the applicant to the Swedish intelligence service had contained State secrets. 24. Lastly, the Court discerns no effort on the part of the national authorities to make use of any counterbalancing measures to compensate for the difficulties experienced by the applicant on account of the domestic courts’ refusal to obtain the attendance of the expert witnesses. Admittedly, the applicant, assisted by counsel, was able to present his account of the events, question the prosecution witnesses and present his own evidence. However, those means did not compensate for the lack of an opportunity to challenge the key forensic evidence. The expert report submitted by the prosecution to the trial court was obtained without any participation by the defence. The applicant was unable to formulate questions for the experts, challenge the experts or propose his own experts for inclusion on the panel. Nor was the applicant able to question the forensic experts during the trial or the appeal proceedings. 25. Regard being had to the above, the Court concludes that the failure on the part of the national judicial authorities to obtain the attendance of the expert witnesses, as requested by the applicant, undermined the overall fairness of the proceedings. There has therefore been a violation of Article 6 §§ 1 and 3 (d) of the Convention. 26. In view of this finding, the Court considers it unnecessary to examine separately whether the domestic courts’ failure to question the police officers had an impact on the fairness of the proceedings in the applicant’s case (compare, for example, Vladimir Romanov v. Russia, no. 41461/02, § 107, 24 July 2008). (b) Disclosure of legal instruments on State secrets
27. In view of the above finding, the Court considers it unnecessary to examine the remainder of the applicant’s grievances under Article 6 §§ 1 and 3 (b) of the Convention concerning the national courts’ failure to disclose the content of the legal instruments on State secrets to the applicant. 28. 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.”
29. The applicant claimed 40,000 euros (EUR) in respect of non‐pecuniary damage. 30. The Government considered that, should the Court find a violation of the applicant’s rights, a just satisfaction award could be made in accordance with the Court’s case-law. 31. 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 and 3 others, § 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 domestic proceedings if the Court finds a violation of the Convention. It therefore considers that its finding of a violation constitutes sufficient just satisfaction and makes no award under this head. 32. The applicant claimed 500,000 Russian roubles (RUB) and EUR 6,600 in respect of costs and expenses incurred in the domestic proceedings and in the proceedings before the Court respectively. As regards the costs and expenses incurred in the proceedings before the domestic courts, he asked that RUB 250,000 be paid directly into the bank accounts of his representatives Mr I. Pavlov and Mr Ye. Smirnov. As to the amount claimed in respect of the proceedings before the Court, the applicant asked that it should be paid directly into the bank account of his representative Mr I. Pavlov. 33. The Government submitted that the award, if any, should be made in accordance with the Court’s case-law. 34. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000, covering costs and expenses under all heads, plus any tax that may be chargeable to him. Of this sum, EUR 625 is to be paid directly to the applicant and EUR 1,375 into the bank account of Mr I. Pavlov, a lawyer who represented him in the proceedings before the Court. 35. 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,
(a) that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; EUR 625 (six hundred and twenty-five euros) of this sum is to be paid directly to the applicant and EUR 1,375 (one thousand three hundred and twenty-five euros) into the bank account of Mr I. Pavlov, a lawyer who represented him in the proceedings before the Court;
(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;
Done in English, and notified in writing on 9 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Georges RavaraniDeputy RegistrarPresident