The ECHR found a violation of the use of secret witness testimony against three members of Hizb ut-Tahrir

The Strasbourg court found a violation in the fact that three residents of Chuvashia were convicted under Art. 282 of the Criminal Code only on the basis of the testimony of anonymous witnesses.

On September 22, 2020, the European Court of Human Rights (ECHR) ruled in the case of Vasiliev and Others v. Russia and partially satisfied the complaint of members of the radical Islamic party Hizb ut-Tahrir, which is recognized as a terrorist organization in Russia.

of Art Five residents of Chuvashia, convicted in 2007 under Part 2 . 282.2 of the Criminal Code (participation in the activities of a prohibited organization) and paragraph "c" part 2 of Art. 282 of the Criminal Code (inciting hatred committed by an organized group). Their statements about the violation by Russian justice of a number of provisions of the European Convention on Human Rights - Art. 9 (freedom of conscience), 10 (freedom of expression), 11 (freedom of assembly and association) alone and in combination with art. 14 (prohibition of discrimination) – ECtHR refused to consider. Back in 2013, as part of the consideration of the complaint " Kasymakhunov and Saibatalov v. Russia ", the ECHR came to the conclusion that the activities of "Hizb ut-Tahrir" are contrary to Art. 17 of the Convention, as it is aimed at the abolition of the very rights and freedoms recognized by the Convention.

However, the arguments of the applicants about the violation of the right to a fair trial (Article 6 of the Convention) were examined by the ECtHR. The applicants' complaint that the Russian court had refused to allow them to conduct an alternative expert examination of the literature confiscated from them at home was dismissed. The ECtHR noted that a request for such an examination may be granted or rejected, depending on whether the court finds it necessary. In the present case, however, the applicants did not provide grounds for conducting a new expert examination, and their requests were rejected, given that the expert examination commissioned by the prosecutor's office, from the point of view of the Russian court, was carried out by competent independent experts and was trustworthy. The ECtHR did not see any violations here, pointing out that the assessment of evidence is the prerogative of the national court. From the point of view of the ECtHR, the most important question is whether the very right to defense was violated, in particular, whether the defense had the opportunity to challenge the reliability of evidence and oppose its use. However, the applicants did not allege in their complaint that they were in any way restricted in their right to participate in the expert examination carried out during the investigation, for example, that they could not involve alternative or additional experts and put questions to them. Nor did they complain about the impossibility of cross-examination of experts from the prosecutor's office, the impossibility of attaching alternative expert opinions to the case, and any other obstacles in challenging the competence and conclusions of experts. Consequently, the ECHR decided, arguing that the refusal to conduct an additional examination put them at a disadvantage and violated the principle of equality of arms in the trial, the applicants did not substantiate their position.

Complaints about the groundlessness of the decisions of the Russian court on the admissibility of evidence in the case and the intimidation of witnesses by the ECtHR also did not accept, noting that it did not see in the case materials at its disposal signs of a violation of the rights and freedoms protected by the Convention.

Convicts Andreev, Salimzyanov and Valiullov also complained that anonymous witnesses testified against them in court, claiming that they were distributing Hizb ut-Tahrir literature near the mosque. The ECtHR noted, firstly, that the identities of the witnesses were classified on the grounds that they feared for their safety. However, subjective fear, the ECHR emphasizes, is not a sufficient basis for such a measure: the national court must find out whether there are objective grounds for classifying and whether they are supported by evidence. In the present case, the Russian court did not establish whether there were objective grounds for such fears. In addition, the defendants were not accused of violent crimes, and none of the other witnesses in the case complained of threats or pressure from them. Secondly, the ECHR noted that the testimony of classified witnesses became the only evidence in the prosecution of Andreev, Salimzyanov and Valiullov under Art. 282 of the Criminal Code. In such circumstances, it would be especially important to apply strong procedural guarantees that would ensure a fair and proper assessment of the reliability of this evidence, the ECtHR believes. However, there were no such procedural mechanisms in practice: not only the accused, but also the lawyers and the judge did not see the witnesses and did not hear their voices in an undistorted form, which means that they did not see their demeanor and did not hear intonations. Moreover, although the defendants and lawyers could ask questions of the witnesses, the fact that they knew nothing about the identities of the witnesses made it difficult to cross-examine and suggest that the witnesses were lying. Finally, the ECtHR did not find any evidence in the judgment that the judge knew that the testimony of anonymous witnesses should be treated with caution and that they have less force over others. The judge also did not indicate why he considers this testimony to be credible.

Thus, taking into account the absence of compelling reasons for classifying witnesses and substantiating the importance of their testimony, from the point of view of the ECtHR, when considering the case, the Russian court did not provide sufficient balancing conditions that would prevent the restriction of the applicants' right to defense, incompatible with Art. 6 of the Convention. The very fact of establishing this violation, the ECtHR considered sufficient to satisfy the moral damage suffered by Andreev, Salimzyanov and Valiullov. On account of legal costs, Russia will have to pay them a thousand euros.

Sources

• CASE OF VASILYEV AND OTHERS v. RUSSIA. (Application no. 38891/08). JUDGMENT // ECHR. 2020. 22 September.