CASE OF IVANNIKOV v. RUSSIA
No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
Alena Poláčková;Helen Keller;Pere Pastor Vilanova
4. The applicant was born in 1985 and lives in the Tula Region. 5. In the late evening of 28 October 2005 the applicant paid a visit to his friend Ch. who worked as a guard at a parking lot. On 29 October 2005 at 3 a.m. Ch., while making a round of the parking lot, discovered N. who was severely beaten up and was lying on the ground. Ch. called the police and the ambulance. The ambulance doctor K., when arrived, pronounced N. dead. 6. On 2 November 2005 the prosecutor’s office opened an investigation into N.’s death. On several occasions it was suspended due to the investigator’s failure to identify the perpetrator. Both the applicant and Ch. were questioned as witnesses. 7. On 29 June 2006 the investigator questioned Kuv. who submitted that in December 2005 Ch. had told him about the events of 28-29 October 2006 implicating the applicant in N.’s death. According to Kuv., the applicant’s family had put pressure on him in order to make him recant. He was then granted anonymity and referred to in the case-files materials as S.N. 8. On 25 July 2006 the prosecutor questioned Ch. granting him anonymity. According to Ch., on 29 October 2005 N. showed up at the guard’s shack. He wanted to take a shortcut through the parking lot. Ch. refused to open the gate. The applicant swore at N. saying that he would show N. the way out and would beat him up. The applicant left together with N. Then he returned and told Ch. that he had beaten N. on the stairs and that N. had fallen down. According to the applicant, he had overdone with the beatings. Ch. went to look at N. who was still alive. It took Ch. some time to call the ambulance. The applicant asked him to keep the incident secret. 9. On the same day the applicant was arrested on suspicion of manslaughter. He remained in custody pending investigation. On an unspecified date he was charged with murder 10. On 31 August 2006 the Proletarskiy District Court of Tula opened the trial. The applicant pleaded not guilty. The trial judge questioned the applicant’s mother S. who submitted that Ch. had told her that policemen had threatened him to make him testify against the applicant. Ch.’s anonymity was lifted and he also testified in court. He confirmed that he had falsely accused the applicant due to the pressure put on him by policemen. 11. On 11 September 2006 the prosecutor asked the court to question S.N. in the conditions excluding visual observation of the witness to the parties to the proceedings. He further explained that the decision to grant anonymity to the said witness had been taken in the course of the preliminary investigation of the case in order to ensure his safety and security of person. The trial judge left the courtroom and questioned S.N. in the presence of the trial secretary in a separate room. S.N. reiterated his earlier statement made to the police which was similar with Ch.’s testimony. Then the judge and the secretary returned to the courtroom where the judge read out S.N.’s testimony. The prosecutor, the applicant and his lawyer were allowed to put questions to the witness through the trial secretary. In response to the questions put by the applicant’s lawyer, S.N. explained he had fear of the applicant’s relatives who put pressure on him. 12. On 29 September 2006 the court heard I., a friend of the applicant and Ch. She submitted that she had been in the guard’s shack with Ch. on 28 October 2005. When N. had showed up, the applicant had not been there yet. 13. The trial judge also heard, upon the applicant’s request, L. and Naz., the applicant’s relatives, and D., Ch.’s mother, who claimed that Ch. had told them about the police putting pressure on him. 14. The other witnesses who testified during the trial were (1) R., Sv. and Z., who had seen N. on 28 October 2005 and confirmed that he had been in an inebriated state on that day, (2) K., the ambulance doctor who had pronounced N. dead and (3) police officer Yu., who had questioned Ch. in the course of investigation. The court also reviewed the crime scene investigation report and the forensic medical report which indicated that N.’s death resulted from a cranio-cerebral injury. 15. On 31 January 2007 the District Court found the applicant guilty of manslaughter and sentenced him to six years’ imprisonment. The court based its findings on Ch.’s testimony given by him as an anonymous witness in the course of the investigation. As regards Ch.’s testimony during the trial, the court considered it unreliable, in view of Ch.’s friendship with the applicant. The court took also into account the fact that the inquiry conducted by the prosecutor’s office in this connection found no case to answer against the policemen who had allegedly put pressure on Ch. It further relied on N.S.’s testimony. The court did not consider D., I., L., Naz. and S. as credible witnesses due to them being the applicant’s relatives or friends. 16. On 30 May 2007 the Tula Regional Court upheld the applicant’s conviction on appeal.