Anonymous witnesses. The lack of objective grounds for granting anonymity to witnesses violated the right to a fair trial of the accused
Vasilyev and others v. Russia 22.09.2020 (application no. 38891/08)
Anonymous witnesses in a criminal trial. Conviction of the applicants for incitement to hatred and participation in an organization banned due to extremist activity. The applicants alleged that their right to a fair trial had been violated because the national courts had rejected their request for the identity of the prosecution witnesses to be revealed.
The Court observed that in the present case, not only the applicants but also their lawyers and the judge himself could not see the witnesses in court or hear their distorted voices. Therefore, they were not able to observe the behavior of the witnesses or hear the tone of their voice in order to make an assessment of their sincerity. In addition, although the applicants and their lawyers were able to question the witnesses, the fact that they were not given substantial details about their personalities and backgrounds undermined their ability to conduct an effective cross-examination. Finally, with regard to this offense of incitement to hatred, the testimony of anonymous witnesses was the decisive basis for the conviction of all three applicants.
Unfounded reasons for granting anonymity to these witnesses. Violation of Article 6 §§ 1 and 3 (d) of the ECHR (right to a fair trial).
Hizb ut-Tahrir al-Islami (The Party of Islamic Liberation – hereinafter “Hizb ut-Tahrir”) is an international Islamic organisation with branches in many parts of the world, including the Middle East and Europe. It advocates the overthrow of governments and their replacement by an Islamic State in the form of a recreated Caliphate. Hizb ut-Tahrir first emerged among Palestinians in Jordan in the early 1950s. It has achieved a small, but highly committed following in a number of Middle Eastern states and has also gained in popularity among Muslims in western Europe and Indonesia. It began working in Central Asia in the mid-1990s and has developed a committed following inside Uzbekistan, and to a lesser extent in neighbouring Kyrgyzstan, Tajikistan and Kazakhstan.
On 14 February 2003 the Supreme Court of the Russian Federation found fifteen organisations, including Hizb ut-Tahrir, to be terrorist organisations and prohibited their activity in the territory of Russia. It held a hearing in camera which was attended by a representative of the Prosecutor General’s office, but not the organisations’ representatives.
On 28 July 2006 a list of organisations declared to be terrorist organisations by the Russian courts was for the first time published in the official periodical Rossiyskaya Gazeta. The list included, among others, the organisations declared to be terrorist organisations by the Supreme Court’s decision of 14 February 2003, such as Hizb ut-Tahrir.
B. Criminal proceedings against the applicants
On 6 December 2006 the Russian Federal Security Service instituted criminal proceedings against the applicants on suspicion of their membership of Hizb ut-Tahrir. They were subsequently charged with inciting hatred or enmity and humiliation of human dignity committed by an organised group (an offence under Articles 282 § 2 (c) of the Criminal Code) and membership of an organisation banned by the final court decision on account of its extremist activity (an offence under Article 282.2 § 2 of the Criminal Code).
During the trial before the Leninskiy District Court of Cheboksary the applicants pleaded not guilty and denied being members of Hizb ut-Tahrir.
The District Court called and examined more than thirty witnesses both on behalf of the prosecution and defence. A number of the witnesses confirmed that the applicants had held regular secret meetings in which those witnesses had participated. During the meetings the applicants had said that they were members of Hizb ut-Tahrir, had explained Hizb ut‑Tahrir’s aims and methods of achieving those aims and supplied the participants with Hizb ut-Tahrir literature. In particular, the applicants had told the witnesses that it was necessary to create the Caliphate in Russia by destroying the Constitution and adopting a life on the basis of Koran and Sharia laws. To achieve that aim it would be necessary to sow disunity between the people and the State, and to lead jihad against those who would not accept the Caliphate. The witnesses also stated that the applicants had invited them to try to persuade others to share ideas of Hizb ut-Tahrir. At the same time, they had warned the witnesses that Hizb ut-Tahrir was banned in Russia and that they should not show anyone the literature provided to them by the applicants.
Several witnesses also stated to the District Court that the applicants had given them Hizb ut-Tahrir leaflets near a mosque. In particular, three witnesses stated that they had been given leaflets by the first and the third applicants. Two other witnesses stated that they had seen the second, fourth and fifth applicants to distribute leaflets. Those two latter witnesses requested, and were granted, anonymity because they feared for their safety. They were nicknamed “Makarov” and “Medvedev” and were cross‑examined at the hearing while unseen by the applicants, their lawyers and other participants to the hearing. Their voices were also mechanically distorted by special equipment. The second applicant’s lawyer then requested the trial court to order that the identity of witnesses “Makarov” and “Medvedev” be disclosed, as he doubted the accuracy of their statements. The District Court rejected that request stating that the lawyer had not advanced any convincing arguments for disclosure of those witnesses’ identity and that it had no grounds to question the accuracy of their statements made at the hearing.
The District Court then examined audio and video records of the meetings of the applicants among themselves and with a number of witnesses in their case, during which they had discussed questions related to Hizb ut-Tahrir’s activities.
The District Court also had regard to a number of expert reports by specialists in political sciences submitted by the prosecution. The expert reports stated that the literature, including leaflets, found as a result of searches at the applicants’ flats contained aggressive Islamist propaganda combined with intolerance towards other religions and declared the organisation’s aim to sow discord in the society. They were aimed at inciting hatred and enmity, humiliation of the dignity of a person, people, country, a group of countries on the grounds of ethnicity, religion, ethno‑religious and political-ideological self-identification and origin; they called the Muslims to violence and physical extermination of people, to disobedience to the laws of the existing States, including Russia, and to a breach of the territorial integrity of Russia.
During the hearing the third applicant requested the District Court to order another expert examination of the found material. The prosecuting party objected stating that, when studying the reports on the expert examinations carried out at the pre-trial stage, neither the applicants nor their lawyers had challenged the expert conclusions or requested additional expert examinations. The District Court then rejected the third applicant’s request.
On 19 September 2007 the Leninskiy District Court convicted the applicants as charged. It relied on the evidence described above and found that it was admissible, coherent and convincing. In particular, the court found that it had no grounds to question the findings of the expert examinations, as they had been carried out by competent specialists who had thoroughly studied the material in question and reached founded and reasoned conclusions.
The trial court found it established that, despite being aware that Hizb ut-Tahrir was banned in Russia, each of the applicants had joined that organisation and had been its active member from 2004 to 2006. In particular, they had kept at home literature relating to Hizb ut-Tahrir, had secretly met with each other and the witnesses in the case in order to study that literature and to promote that extremist organisation’s ideas. Thereby, in the trial court’s opinion, the applicants had imposed those extremist ideas on the witnesses and instigated them to search for new followers. The trial court found that those actions amounted to membership of an organisation banned by the final court decision on account of its extremist activity, an offence under Article 282.2 § 2 of the Criminal Code.
The court further fount it established that each of the applicants had also distributed Hizb ut-Tahrir’s leaflets near or inside mosques, that is at places with high concentration of people. Those leaflets incited hatred and enmity, humiliation of the dignity or a person and a group of persons on the grounds of their attitude towards religion. It held that the distribution by the applicants, who had acted as an organised group, of Hizb ut-Tahrir’s leaflets had constituted a separate offence of inciting hatred and enmity and humiliating the dignity of a person or a group of persons on the grounds of their attitude towards religion committed publicly by an organised group, an offence punishable under Articles 282 § 2 (c) of the Russian Criminal Code.
The District Court imposed a separate sentence in respect of the two offences on each of the applicants and then combined them to arrive to a cumulative sentence ranging between four years and three months’ imprisonment and four years and four years and six months’ imprisonment.
On 28 December 2007 the Supreme Court of the Chuvash Republic upheld the conviction on appeal. It rejected the applicants’ lawyers’ complaint that the identity of witnesses nicknamed “Makarov” and “Medvedev” had not been disclosed at the trial hearing and that during their cross-examination they had remained unseen by the other participants to the criminal proceedings. The appellate court stated that such an arrangement had been necessary to secure those two witnesses’ safety and that the trial court had provided detailed reasons for its decision to that end. It also stated that the expert examinations of the literature found at the applicants’ domicile had been carried out by competent experts who had thoroughly examined the adduced materials. In such circumstances, the appellate court stated that it had no reasons to doubt the expert conclusions and that there had been no need to carry out any additional expert examinations, as was suggested by the applicants.
THE DECISION OF THE COURT…
The Court refers to its general principles on anonymous witnesses as recently stated in detail in the case of Asani v. the former Yugoslav Republic of Macedonia (no. 27962/10, §§ 32-37, 1 February 2018). Based on these general principles, the Court must examine, firstly, whether there were good reasons to keep secret the identity of the anonymous witnesses “Makarov” and “Medvedev”. Secondly, the Court must consider whether the evidence of those witnesses was the sole or decisive basis of the conviction. Thirdly, it must ascertain whether there were sufficient counterbalancing factors, including the existence of strong procedural safeguards, to permit a fair and proper assessment of the reliability of that evidence to take place.
Firstly, the Court observes that anonymity was granted to witnesses “Makarov” and “Medvedev” because they feared for their safety. The Court reiterates in this connection that any subjective fear by the witness will not suffice and the courts must conduct appropriate enquiries to determine, firstly, whether or not there are objective grounds for that fear, and, secondly, whether those objective grounds are supported by evidence (see Asani, cited above, § 39, and Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 124, ECHR 2011). There is however no evidence in the case file that the trial court verified whether the witnesses’ fears were objectively justified. It is significant that the applicants were not accused of any violent acts and that none of the other witnesses who testified against them and whose identity they knew feared for his safety or complained about any threats or pressure from the applicants. It follows that the trial court did not advance good reasons for its decision to grant anonymity to witnesses “Makarov” and “Medvedev”.
Although the absence of good reason cannot, of itself, be conclusive of the lack of fairness of a trial, it is a very important factor to be weighed in the balance when assessing the overall fairness, and one which may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d) (see Seton v. the United Kingdom, no. 55287/10, § 59, 31 March 2016).
Secondly, the Court notes that although the trial court heard many prosecution witnesses who testified of the applicants’ membership of Hizb ut-Tahrir, punishable under Article 282.2 § 2 of the Criminal Code, “Makarov”‘s and “Medvedev”‘s statements were the only evidence that Mr Andreyev, Mr Salimzyanov and Mr Valiullov had distributed Hizb ut‑Tahrir’s leaflets near a mosque (see paragraph 11 above). It is important to note that the fact of public distribution of leaflets was found to constitute a separate offence under Articles 282 § 2 (c) of the Criminal Code (see paragraph 17 above) which resulted in a separate sentence (see paragraph 18 above). Statements by anonymous witnesses were therefore the decisive basis for those three applicants’ conviction under Articles 282 § 2 (c) of the Criminal Code.
Given the importance of the evidence by anonymous witnesses in the present case, the Court must subject the proceedings to the most searching scrutiny in order to be satisfied that there were sufficient counterbalancing factors, including the existence of strong procedural safeguards, to permit a fair and proper assessment of the reliability of that evidence to take place (see Ellis and Simms v. the United Kingdom (dec.), nos. 46099/06 and 46699/06, § 78, 10 April 2012).
42. The Court observes that in the present case not only the applicants themselves but also their lawyers and the judge could not see the witnesses give evidence in court or hear their undistorted voices. They were therefore unable to observe the witnesses’ demeanour or hear their intonations in order to make an assessment of the veracity of the account being given by them. Furthermore, although the applicants and their lawyers were able to put questions to the witnesses, the fact that they were given virtually no details about the witnesses’ personality or background undermined their ability to engage an effective cross-examination and, in particular, advance any reasons which the witness may have for lying and thereby question the credibility and reliability of their statements. Lastly, there is no indication in the judgment that the judge was alive to the need to approach the anonymous evidence with caution. In particular, he did not show that he was aware that the statements by anonymous witnesses carried less weight and did not provide detailed reasoning as to why he considered that evidence to be reliable, while having regard also to the other evidence available (see, by contrast, Ellis and Simms, cited above, §§ 82-88).
Given the absence of good reasons for granting anonymity to the witnesses in question and, especially, to the importance of the evidence given by them, the Court concludes that there were insufficient counterbalancing factors to ensure that the rights of the defence were not restricted to an extent incompatible with the guarantees of Article 6 §§ 1 and 3 (d) of the Convention.
There has been therefore a violation of that provision in respect of Mr Andreyev, Mr Salimzyanov and Mr Valiullov.