ECHR issues crucial judgement against Russia over secret witnesses used to jail Crimean Tatar political prisoners
The European Court of Human Rights has found that Russia violated the right to a fair trial of three men because of the unwarranted use of ‘secret witnesses’ to convict them. The judgement is of critical importance as Russia’s FSB have developed a whole conveyor belt of repression in occupied Crimea, with Ukrainian Muslims receiving sentences of up to 20 years’ imprisonment almost entirely on the testimony of such anonymous ‘witnesses’.
The Case of Vasilyev and Others v. Russia and the judgement passed on 22 September 2020 are important for other reasons as well, not least due to huge differences in the charges laid on the basis of the same secretive Supreme Court ruling from 2003 and in the sentences passed. Judging by the Court in Strasbourg’s assessment, there seems to have been only one charge where the sole ‘evidence’ was provided by secret witnesses, which is in stark contrast to their pivotal role in virtually all the cases in occupied Crimea.
There were five applicants in this case, who were represented by lawyers from the Memorial Human Rights Centre, in consultation with lawyers from the European Human Rights Advocacy Centre [EHRAC]. It was, however, only with respect to three of the men (Mikhail Andreyev; Rustem Salimzyanov and Amir Valmullov) that the use of secret witnesses had been the sole reason for their conviction on one of the charges, with this recognized as having violated their right to a fair trial under Article 6 of the European Convention on Human Rights.
The charges were all linked with the accusation that the men were members of Hizb ut-Tahrir, a transnational Islamic organization which is legal in Ukraine and most European countries. The judgement explains that on 14 February 2003, Russia’s Supreme Court declared it and 14 other organizations to be ‘terrorist’ and prohibited their activities. The hearing was held behind closed doors, with only a representative of the Prosecutor General’s Office present. Memorial HRC has repeatedly pointed out that neither Hizb ut-Tahrir in Russia, nor human rights NGOs were informed of the ruling for up to a year, meaning that they were deprived of the right to appeal against it. A list of organizations so deemed ‘terrorist’, including Hizb ut-Tahrir, was only published for the first time in July 2006.
The applicants in this case were convicted on 19 September 2007 under Article 282 § 2 of Russia’s criminal code (incitement to enmity) and 282.2 § 2 (participation in the activities of an organization which a court has banned on the grounds of extremist activities). They were sentenced to terms of imprisonment from 4 years and 3 months to 4 years and 5 months, although all the men denied any involvement in Hizb ut-Tahrir.
It should be stressed that, since 2007, nothing at all changed in the behaviour of Hizb ut-Tahrir members, neither in Russia, nor anywhere else in the world. Yet since 2014, Russia’s FSB has been bringing charges of ‘terrorism’ under Article 205.5, with men, including Ukrainians from occupied Crimea, sentenced to 20 years and more.
In the case of the above three men, the accusation that they had circulated Hizb ut-Tahrir leaflets near a mosque was based solely on the testimony of two anonymous witnesses. The latter had asked for their identity to be concealed, claiming that they feared for their safety. The defence’s objections were rejected., and the men allowed to give testimony, with their voices distorted and from separate room.
It was the claim that the men had circulated Hizb ut-Tahrir leaflets that prompted the charge of incitement to enmity.
The men and their lawyers asserted that the use of the secret witnesses had violated their right to a fair trial, with this including being able to properly examine witnesses against them. Without knowing who the ‘witnesses’ were, the men could not adequately prepare their defence and challenge testimony for the prosecution.
The Court, in its assessment, referred to basic principles – whether there had been good reasons for keeping the anonymous witnesses’ identity secret; “whether the evidence of those witnesses was the sole or decisive basis of the conviction”; and “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.”
Subjective fears by a witness, the Court stressed, cannot suffice, and courts must ascertain that there are objective grounds, backed by evidence.
“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”.
The two ‘witnesses’’ testimony had been the sole evidence that the men had circulated leaflets. “Statements by anonymous witnesses were therefore the decisive basis for those three applicants’ conviction under Articles 282 § 2 (c) “
“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.”
“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 “
There had, therefore, been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
The Court did not award damages (aside from one thousand euros each for costs), stating that “the reopening of the proceedings is the most appropriate form of redress for the established violation of the applicants’ rights under Article 6 of the Convention, should they request it”.
It is, in fact, highly unlikely that the men would ask for the reopening of proceedings, for the very reasons that make this judgement, while welcome with respect to its findings about secret witnesses, seem so far removed from the reality of Russia’s recent ‘Hizb ut-Tahrir trials’, especially those against Crimean Tatars and other Ukrainian Muslims.
Since 2014, all Russia’s ‘Hizb ut-Tahrir cases’ have been on ‘terrorism’ charges, with this resulting in sentences of from 10 to 24 years. These sentences have, in all cases, been passed on men who are not known to have committed any act of terrorism or planned such. Memorial HRC has also repeatedly pointed out that the ‘terrorism’ qualification does not comply with the definition of terrorism in Russian legislation, and that there is no evidence of terrorism in Russia or anywhere. It therefore considers all men convicted of terrorism merely on the grounds of their alleged involvement in Hizb ut-Tahrir to be political prisoners. There is mounting concern about such Hizb ut-Tahrir cases among other human rights defenders and lawyers, with the team defending the so-called ‘Ufa 20’ group whose horrifically long sentences were upheld last week containing a large number of high-profile human rights lawyers.
Even without considering the undoubtedly crucial point that Russia is illegally using such prosecutions on occupied Ukrainian territory, against an organization that is legal in Ukraine, the cases in occupied Crimea are of particular concern. It has become increasingly evident that the FSB are targeting civic journalists and activists and are essentially using such ‘terrorism’ charges as a method to 1) silence dissidents and 2) intimidate other Crimean Tatars into leaving Crimea..
The ECHR judgement seems very far removed from the reality of cases involving Crimean Muslims for another reason. The Court appears to have been satisfied, with respect to the other charge, that evidence had been provided to back the charges. It rejected the assertion that the men’s rights had been violated because they were not allowed an independent expert assessment of material claimed to prove Hizb ut-Tahrir involvement. The Court found that the men had not explained why this was needed.
In literally all cases involving Crimean Tatars, men who have committed no crime, have been charged with ‘terrorism’ and with ‘planning to violently seize power’ purely on unproven accusations of involvement in Hizb ut-Tahrir, without any recognizable crime even impugned. The entirely prosecution’s case has hinged on highly questionable ‘expert assessments’ made by FSB-loyal individuals who lack the required professional competence and by ‘secret witnesses’. The men and their defence lawyers have, on countless occasions, demonstrated that these alleged ‘witnesses’ cannot answer the simplest questions, for example, about the physical premises where they claim to have been ‘recruited’ into Hizb ut-Tahrir. In the last ‘trial’ of eight civic journalists and activists, the identity of the two secret witnesses became clear, as did their motives for giving false testimony. All of this is simply ignored by the judges who often prevent the defendants or their lawyers from asking questions that expose the witnesses’ lies.
It is frustrating that the European Court of Human Rights seems in no hurry to address cases in occupied Crimea. This judgement from the Court in Strasbourg has, after all, demolished all justification for the anonymous witnesses whom Russian courts are conniving with Russian prosecutors to use to imprison men for decades.