These statistics lead us to the following conclusions:
the procedure whereby proceedings must be automatically reopened in cases where the Court
has found a violation of Article 6 involving the use of evidence obtained under duress is not
working properly;
ECtHR applicants are not aware of the possibility to request the Russian Supreme Court to reexamine the main criminal case against the applicant;
the outcomes of domestic inquiries into torture reports continue to have a bearing on
domestic courts’ decisions.
The situation gets even more complicated when the Court finds a violation of Article 3, establishing
that torture was used to extract a confession, but does not find a separate violation of Article 6. In
such cases, if the applicant seeks a reopening of the domestic proceedings against him by filing a
request with the Russian Supreme Court, the request will be left without consideration.
On 9 June 2011, Mr Panchenko was found guilty by the Altai Regional Court and sentenced to 24 years
in prison. The verdict was based on Panchenko’s confession. On 4 February 2020, the ECtHR issued its
judgment in Panchenko v. Russia (no. 20605/11) as part of the Nigmatullin and others v. Russia group
of cases (47821/09 and 9 others). The Court found a violation of Article 3 of the Convention under its
substantive and procedural limbs in respect of all applicants. The court found that Panchenko was
tortured with a view to extracting a confession. In December 2020, the applicant appealed to the
Supreme Court seeking a reopening of the domestic proceedings against him based on the Court’s
judgment. On 21 January 2021, the Supreme Court sent back Panchenko’s request without
consideration.
In December 2021, the Council of Europe Committee of Ministers adopted a decision on
the Mikheyev group of cases, urging the Russian authorities, inter alia, to ensure that all evidence
obtained under torture is prima facie inadmissible and cannot be used by prosecutors and criminal
courts for the purposes of constructing criminal charges or convictions.
Conclusions
The above leads us to the following key conclusions:
In Russia, courts fail at their task of banning evidence obtained through torture.
Courts do not provide an effective mechanism for either responding to torture complaints or
excluding evidence obtained through torture, nor do they properly consider reports of torture
in assessing evidence in criminal trials generally.
Instead of examining evidence in this category of cases, Russian courts often base their
judgments on prejudice and assumptions rather than verifiable information.
No proper system is in place for re-examination of domestic court decisions based on new
circumstances, such as the finding by the European Court of Human Rights of violations with
respect to domestic court proceedings in criminal cases.
Regarding the fourth point, it would be useful to discuss how it works in other countries and what
needs to be done to ensure a proper system of re-examination. Also, it would be good to discuss any
further steps/strategies within the framework of implementation of the individual measures to ensure
re-examination of domestic decisions based on the finding by the European Court of Human Rights of
violations with respect to domestic court proceedings in criminal cases.
46
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