Volltextveröffentlichung

• Europäischer Gerichtshof für Menschenrechte

  POLUFAKIN AND CHERNYSHEV v. RUSSIA

  (englisch)

Wird zitiert von ... (19)Zitiert selbst (28)

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• EGMR, 22.04.1992 - 12351/86

  Auszug aus EGMR, 25.09.2008 - 30997/02

  Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused's behalf: its essential aim, as indicated by the words "under the same conditions", is a full "equality of arms" in the matter (see Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, § 89 and Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, § 33).

  The task of the Court is to ascertain whether the proceedings at issue, considered as a whole, were fair as required by paragraph 1 (see, among other authorities, Delta v. France, judgment of 19 December 1990, Series A no. 191, p. 15, § 35, and Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, § 33).

• EGMR, 13.07.2006 - 26853/04

  POPOV v. RUSSIA

  Auszug aus EGMR, 25.09.2008 - 30997/02

  Further, the Court cannot speculate as to what the outcome of the criminal proceedings against the applicants might have been if the violation of the Convention had not occurred (see, among other authorities, Popov v. Russia, no. 26853/04, § 260, 13 July 2006; Schmautzer v. Austria, judgment of 23 October 1995, Series A no. 328-A, § 44; and Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, § 85).

  Inasmuch as the applicants" claim relates to the finding of violations of Article 6 § 3 (d) in conjunction with Article 6 § 1, the Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as 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 trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV; and Popov v. Russia, no. 26853/04, § 263, 13 July 2006).

• EGMR, 26.10.2000 - 30210/96

  Ableitung einer allgemeinen Verpflichtung zur Entlassung eines …

  Auszug aus EGMR, 25.09.2008 - 30997/02

  The Court further reiterates that the domestic remedies must be "effective" in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see Kudla v. Poland [GC], no. 30210/96, § 158, ECHR-XI).

  The State must ensure that given the practical demands of imprisonment, the health and well-being of a detainee are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudla v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI; see also Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp.

• EGMR, 10.05.2007 - 106/02

  BENEDIKTOV v. RUSSIA

  Auszug aus EGMR, 25.09.2008 - 30997/02

  The Court further points out that it has already established that no effective domestic remedy existed in the Russian legal system in relation to complaints concerning the general conditions of detention in remand prisons, in particular with regard to the structural problem of overcrowding (see Benediktov v. Russia, no. 106/02, § 29, 10 May 2007).

  A distinction must be drawn between the above mentioned cases concerning conditions of detention in remand prisons and the present application as the Court has not yet found that conditions of detention in correctional facilities could disclose a structural problem from the standpoint of Article 3 of the Convention (see, a contrario, Benediktov v. Russia, no. 106/02, § 29, 10 May 2007).

• EGMR, 07.06.2007 - 30138/02

  NURMAGOMEDOV v. RUSSIA

  Auszug aus EGMR, 25.09.2008 - 30997/02

  As regards the complaints about the temporary detention centre and remand prison of Cheboksary, the first applicant's detention in these facilities ended on 18 December 2000 and 24 January 2002 respectively, which is more than six months prior to the date of introduction of the complaint (see, for example, Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004).

  m. of personal space and did not allege that he had no individual bed (see Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004).

• EGMR, 17.02.2004 - 6214/02

  KRANZ v. POLAND

  Auszug aus EGMR, 25.09.2008 - 30997/02

  In the absence of such evidence and having regard to the above-mentioned principles, the Court finds that the Government have not substantiated their claim that the remedies that the first applicant had allegedly failed to exhaust in relation to his complaints concerning the conditions of transportation by rail and the conditions of his detention in the correctional facility were effective (see, among other authorities, Kranz v. Poland, no. 6214/02, § 23, 17 February 2004, and Skawinska v. Poland (dec.), no. 42096/98, 4 March 2003).

  In such circumstances, and having regard to the above-mentioned principles, the Court finds that, although the Government raised the plea of non-exhaustion, they did not substantiate their claim that the remedies the second applicant had allegedly failed to exhaust were effective (see, among other authorities, Kranz v. Poland, no. 6214/02, § 23, 17 February 2004, and Skawinska v. Poland (dec.), no. 42096/98, 4 March 2003).

• EGMR, 15.06.1992 - 12433/86

  Auszug aus EGMR, 25.09.2008 - 30997/02

  As a general rule, the accused must be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage (see Van Mechelen and Others v. the Netherlands, cited above, § 51, and Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, § 49).
• EGMR, 26.04.1991 - 12398/86

  Auszug aus EGMR, 25.09.2008 - 30997/02

  As the guarantees of paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of this Article, the Court will consider the complaint concerning the failure to examine prosecution and defence witnesses at the trial hearing under the two provisions taken together (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 25).
• EGMR, 28.01.1994 - 17549/90

  Auszug aus EGMR, 25.09.2008 - 30997/02

  The State must ensure that given the practical demands of imprisonment, the health and well-being of a detainee are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudla v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI; see also Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp.
• EGMR, 09.10.2008 - 62936/00

  MOISEYEV v. RUSSIA

  Auszug aus EGMR, 25.09.2008 - 30997/02

  It has also established that the problems arising from the conditions of the detention in Russian remand prisons were of a structural nature (see Mamedova v. Russia, no. 7064/05, § 57, 1 June 2006; and Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004).
• EGMR, 27.09.1990 - 12489/86

  Windisch ./. Österreich
• EGMR, 19.12.1990 - 11444/85

  DELTA c. FRANCE
• EGMR, 20.01.2005 - 63378/00

  MAYZIT v. RUSSIA
• EGMR, 24.07.2008 - 41461/02

  VLADIMIR ROMANOV v. RUSSIA
• EGMR, 08.11.2005 - 6847/02

  KHOUDOÏOROV c. RUSSIE
• EGMR, 02.06.2005 - 66460/01

  NOVOSELOV v. RUSSIA
• EGMR, 01.06.2006 - 7064/05

  MAMEDOVA v. RUSSIA
• EGMR, 07.06.2001 - 64666/01

  PAPON v. FRANCE (No. 1)
• EGMR, 16.06.2005 - 62208/00

  LABZOV v. RUSSIA
• EKMR, 15.07.1986 - 9938/82

  BRICMONT v. BELGIUM
• EGMR, 27.09.2007 - 76114/01

  SOLOVYEV v. RUSSIA
• EKMR, 13.10.1986 - 9303/81

  B. and D. c. ROYAUME-UNI
• EGMR, 03.06.2004 - 69688/01

  BERNADOTTE v. SWEDEN
• EGMR, 28.07.1999 - 25803/94

  Einstufung des in französischer Haft zugefügten Übels als Folter - Verpflichtung …
• EGMR, 06.04.2000 - 26772/95

  LABITA c. ITALIE
• EGMR, 24.07.2001 - 44558/98

  VALASINAS v. LITHUANIA
• EGMR, 11.09.2002 - 57220/00

  MIFSUD contre la FRANCE
• EGMR, 02.07.2002 - 76573/01

  DENNIS AND OTHERS v. THE UNITED KINGDOM

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• EGMR, 27.11.2008 - 36391/02

  Wirksamkeitsverpflichtete Konventionsauslegung; Recht auf konkreten und wirksamen …

  We would, however, have liked the reasoning set out in paragraph 72 of the judgment, on account of its importance, to have been included in the operative provisions as well, for reasons which have already been explained to a certain extent in the joint concurring opinion of Judges Spielmann and Malinverni in Vladimir Romanov v. Russia, (no. 41461/02, judgment of 24 July 2008) as well as the concurring opinion of Judge Spielmann in Polufakin and Chernyshev v. Russia, (no. 30997/02, judgment of 25 September 2008), and are now repeated here.
• EGMR, 18.12.2018 - 36658/05

  MURTAZALIYEVA v. RUSSIA

  However, once the domestic courts have accepted, at least in principle, that the examination of a witness for the defence was relevant, they have an obligation to take "effective" measures to ensure the witness' presence at the hearing by way of, at the very least, issuing a summons (see Polufakin and Chernyshev v. Russia, no. 30997/02, § 207, 25 September 2008) or by ordering the police to compel a witness to appear in court (see Pello, cited above, § 34).

  With regard to prosecution witnesses, Delta v. France, no. 11444/85, Series 1 No. 191-A, § 37, and Pello v. Estonia, no. 11423/03, §§ 34 and 35, 12 April 2007; with regard to witnesses on behalf of the defence, Polufakin and Chernyshev v. Russia, no. 30997/02, § 207, 25 September 2008.

• EGMR, 14.01.2020 - 51111/07

  Prozess gegen Kreml-Kritiker Chodorkowski war "unfair"

  The Court reiterates that, where the trial court grants a request to hear defence witnesses, it is under an obligation to take effective measures to ensure their presence at the hearing by way of, at the very least, issuing summonses (see Polufakin and Chernyshev v. Russia, no. 30997/02, § 207, 25 September 2008).

• EGMR, 04.12.2008 - 1111/02

  TROFIMOV v. RUSSIA

  In these circumstances, the Court should have reiterated - as it has done in other cases - that when an applicant has been convicted despite an infringement of his rights under Article 6 of the Convention, he should, as far as possible, be put in the position that he would have been in had the requirements of the provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV; Popov v. Russia, no. 26853/04, § 264, 13 July 2006; Vladimir Romanov v. Russia, no. 41461/02, § 118, 24 July 2008; and Polufakin and Chernyshev v. Russia, no. 30997/02, § 219, 25 September 2008).

  On account of its importance, such reasoning should then have been included in the operative provisions as well, for reasons which I have already explained to a certain extent in other separate opinions (see for example, the joint concurring opinion I appended with Judge Malinverni to the Vladimir Romanov v. Russia judgment (no. 41461/02, 24 July 2008) as well as my concurring opinion in Polufakin and Chernyshev v. Russia (no. 30997/02, 25 September 2008).

• EGMR, 11.12.2008 - 4268/04

  PANOVITS c. CHYPRE

  Nous aurions toutefois préféré que, compte tenu de son importance, le raisonnement exposé au paragraphe 103 de l'arrêt figure lui aussi dans le dispositif, et ce pour des raisons qui ont déjà été expliquées, en partie, dans l'opinion concordante commune aux juges Spielmann et Malinverni jointe à l'arrêt Vladimir Romanov c. Russi, (no 41461/02, 24 juillet 2008), dans l'opinion concordante du juge Spielmann jointe à l'arrêt Poloufakine et Tchernychev c. Russie (no 30997/02, 25 septembre 2008) et surtout dans l'opinion concordante des juges Rozakis, Spielmann, Ziemele et Lazarova Trajovska jointe à l'arrêt Salduz c. Turquie ([GC], no 36391/02, 27 novembre 2008), raisons qui sont réitérées ci-après.
• EGMR, 14.03.2013 - 16133/08

  [ENG]

  In similar situations the Court has considered, for example, written statements by fellow inmates provided by applicants in support of their allegations (see Khudobin v. Russia, no. 59696/00, § 87, ECHR 2006-XII (extracts); Seleznev v. Russia, no. 15591/03, §§ 14 and 42, 26 June 2008; and Polufakin and Chernyshev v. Russia, no. 30997/02, § 152, 25 September 2008).
• EGMR, 10.01.2012 - 28370/05

  [ENG]

  Having examined the available materials, including the applicant's medical record for 2005 and the expert reports issued in 2004, 2009 and 2010 (see paragraphs 17, 20 and 28 above), and in the absence of any alternative evidence, the Court considers that no violation of Article 3 of the Convention has been convincingly established on that account (see, for comparison, Polufakin and Chernyshev v. Russia, no. 30997/02, § 169, 25 September 2008).
• EGMR, 30.07.2009 - 34393/03

  [ENG]

  At the same time, the absence of an individual sleeping place combined with a deficiency of private space (2.04 sq. m of personal space in the dormitory) was found by the Court to have amounted to inhuman and degrading treatment (see Polufakin and Chernyshev v. Russia, no. 30997/02, §§ 149-159, 25 September 2008).
• EGMR, 22.11.2016 - 44292/09

  GVINIASHVILI v. RUSSIA

  In the circumstances, and considering the inevitable difficulties the trial court would have faced in identifying certain defence witnesses and establishing their whereabouts if it had agreed to summon them, the Court finds that the refusal to find and summon them did not restrict the applicant's defence rights to an impermissible extent (see Polufakin and Chernyshev v. Russia, no. 30997/02, § 209, 25 September 2008, and Dorokhov v. Russia, no. 66802/01, § 74, 14 February 2008).
• EGMR, 15.06.2010 - 34334/04

  ASHOT HARUTYUNYAN v. ARMENIA

  However, the applicant's detention in that facility ended on 13 August 2004, which is more than six months before the date of introduction of this complaint (see, for example, Polufakin and Chernyshev v. Russia, no. 30997/02, § 146, 25 September 2008).
• EGMR, 20.04.2010 - 12315/04

  LASKA AND LIKA v. ALBANIA
• EGMR, 08.12.2009 - 44023/02

  CAKA v. ALBANIA
• EGMR, 02.03.2017 - 5187/07

  MOROZ v. UKRAINE
• EGMR, 20.05.2010 - 32362/02

  VISLOGUZOV v. UKRAINE
• EGMR, 09.07.2009 - 24325/03

  GENERALOV v. RUSSIA
• EGMR, 28.01.2010 - 8258/06

  [ENG]
• EGMR, 30.04.2009 - 25109/07

  TSOTSOS c. GRECE
• EGMR, 09.07.2024 - 15972/20

  DE SILVIO v. ITALY
• EGMR - 12913/07

  CHEMOLTYNOV v. RUSSIA