Trial in camera. The court’s denial to the accused to examine forensic experts and give full access to the case file! Conviction for multiple violations of the ECHR!
JUDGMENT
Kartoyev and others v. Russia 19.10.2021 (app. no. 9418/13)
SUMMARY
The case concerned the criminal proceedings against the applicants, nine Russian nationals who
were charged with committing two terrorist attacks in 2009. They claimed that they had not had a
trial before an independent and impartial court, that they had been deprived of their right to a
public trial (the hearings were held behind closed doors) and that the proceedings had been unfair.
The Court took the view that the exclusion of the public from their trial, on grounds of guaranteeing
the protection of national security intelligence and of ensuring the safety of the parties, had not
been justified in view of the circumstances of the case. It further noted that the Supreme Court, as it
too had heard the case in private, had not remedied the previous failure by the Regional Court to
conduct the proceedings in public.
As to the fairness of the criminal proceedings against the applicants, the Court found that there had
been a failure to ensure an equality of arms between prosecution and defence, which was one of the
fundamental aspects of the right to a fair trial.
PROVISIONS
Article 6 par. 1
Article 6 par. 3
PRINCIPAL FACTS
The nine applicants were all Russian nationals: Mr Murad Mukhazhirovich Kartoyev (born in 1981
and living in Tver), Mr Zelimkhan Yakubovich Aushev (born in 1985 and living in Ognennyy), Mr
Beslan Umatgireyevich Kartoyev (born in 1977 and living in Tver), Mr Tatarkhan Umatgireyevich
Kartoyev (born in 1973 and living in Sol-Iletsk), Mr Beslan Daudovich Kartoyev (born in 1986 and
living in Tver), Mr Idris Alikhanovich Kartoyev (born in 1976 and living in Tver), Mr Ilyas Daudovich
Kartoyev (born in 1976 and living in Tver), Mr Magomed Mussayevich Kartoyev (born in 1979 and
living in Tver) and Mr Timur Mukhazhirovich Kartoyev (born in 1977 and living in Tver).
On 27 November 2009 the “Nevski Express” train travelling between Moscow and Saint Petersburg
was bombed, killing 27 people and injuring 207. On 28 November 2009 a second bombing took place
at the scene of the investigation of the previous day’s attack. Six people at the scene, including the
director of the Federal Security Service (FSB), were slightly injured. Following a special operation in
the village of Ekajevo in the Republic of Ingushetia on 2 March 2010, the applicants were arrested on
suspicion of having committed the attacks. Biological samples were taken from them and they were
remanded in custody in a Moscow prison.
At the end of the preliminary investigation, during which various inspections, searches and forensic
assessments were carried out, all the applicants were charged with membership of an illegal armed
group, conspiracy to commit offences against individuals and legal entities, and illegal acquisition
and possession of firearms, ammunition and explosives as part of a criminal enterprise. Some of the
applicants were also charged with aggravated murder and acts of terrorism resulting in loss of life.
The criminal case was then referred to the Tver Regional Court for adjudication.
In a judgment of 22 May 2012 the Regional Court found all the applicants guilty of unlawful
acquisition and possession of firearms, ammunition and explosives as part of a criminal enterprise
and of belonging to an illegal armed group. Four applicants were also convicted of acts of terrorism
resulting in loss of life and sentenced to life imprisonment. The other five applicants were sentenced
to between seven and eight years’ imprisonment. The applicants appealed against the judgment.
On 25 February 2013 the Supreme Court of the Russian Federation, also in a private hearing,
dismissed the applicants’ appeal.
Relying on Article 6 § 1 (requirements of public trial and impartial tribunal), the applicants
complained that the examination of their case in private had infringed their right to a public hearing,
that they had not been tried by an independent and impartial tribunal and that the criminal
proceedings against them had been unfair, in particular because the principles of the equality of
arms and adversarial proceedings had been breached.
THE DECISION OF THE COURT…
Article 6 § 1
The Court observed that there was no evidence in the file before it that the applicants had expressed
any concern about the independence and impartiality of the court, owing to the alleged presence of
prosecutors in the deliberation room, or that they had challenged the record of that hearing. The
Court therefore considered that the complaint concerning the independence and impartiality of the
Regional Court was manifestly ill-founded and had to be rejected.
With regard to the decision by the Regional Court to hold the proceedings in private, the Court
reiterated that the requirement to conduct judicial proceedings in public, under Article 6 § 1 of the
Convention, protected citizens against secret justice without public scrutiny and was also one of the
means of preserving public confidence in the courts.
In the present case, while the authorities might have had a legitimate interest in preserving the
confidentiality of classified documents, the Regional Court should have limited the exclusion of the public from the proceedings to what was strictly necessary in order to achieve the aim pursued. In addition, the court had not envisaged any alternative measures to limit recourse to such exclusion,
for example by restricting access only to classified documents or by holding only certain hearings
behind closed doors.
Furthermore, the Court considered that the exclusion of the public from the proceedings against the
applicants on the pretext that not all members of the illegal armed group had been arrested at the
time of the trial could not be justified, since no factual evidence to demonstrate a real danger had
been put forward by the Regional Court.
It further noted that the Supreme Court, by also hearing the criminal case in private, had not
remedied the failure to conduct a public trial before the Regional Court
The Court thus found that there had been a violation of Article 6 § 1 of the Convention.
Article 6 §§ 1 and 3 (d)
The Court reiterated that any criminal proceedings had to be adversarial in nature and guarantee an
equality of arms between prosecution and defence, this being one of the fundamental aspects of the
right to a fair trial. In particular, both the prosecution and the defence should be able to take
cognisance of the observations or evidence produced by the other party and the authorities must
communicate to the defence all relevant evidence in their possession.
In the present case, the Court considered that, even assuming that the technical information
requested by the applicants should not have been included in the criminal file, as the Regional Court
had held, the adversarial principle required that the defence be given access to it. The Court
concluded that the equality of arms between the prosecution and the defence had not been
ensured.
As regards the Regional Court’s rejection of the applicants’ request to obtain the examination in
court of the forensic experts who had examined the substances at issue, the Court considered that
this decision ran counter to the principles of adversarial proceedings and equality of arms, since the
Regional Court had based its conclusions on the testimony of experts who had never been heard in
court. The Court also observed that the defence had attempted to prove that the reports produced
by the prosecution were deficient by submitting specialist opinion, but that the Regional Court had
refused to admit the latter in evidence, in spite of their prima facie relevance. Furthermore, the
Regional Court’s refusal to grant the applicants’ request for a specialist to be given an opportunity to
comment on the forensic reports, on the ground that the specialist in question was not legally
entitled to comment on the conclusions of a judicial expert, was incompatible with the principle of
equality of arms.
The Court concluded that the domestic courts’ approach to the admissibility of expert opinions
drawn up at the request of the defence had created an imbalance between the defence and the
prosecution, thereby breaching the principle of equality of arms.
There had thus been a violation of Articles 6 §§ 1 and 3 (d) of the Convention on account of a lack of
fairness in the criminal proceedings against the applicants.
Just satisfaction (Article 41)
The Court held that the finding of a violation in itself constituted sufficient just satisfaction for any
non-pecuniary damage sustained by the applicants and rejected the remainder of their claim.
