APANDIYEV v. RUSSIA
Inadmissible
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
1. The applicant, Mr Apandi Magomedovich Apandiyev, is a Russian national who was born in 1978 and lives in Tadmagitli in the Republic of Dagestan. He is currently serving a prison sentence in the Sverdlovskiy Region. The Russian Government (“the Government”) were represented by their Agent, Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 11 February 2002 criminal proceedings were instituted in connection with a double murder and arson committed the previous day. 4. On the same date the applicant was questioned as a witness. He made no self-incriminating statements. In the transcript of the questioning it was noted that the applicant spoke Russian, did not need an interpreter’s assistance and wished to be interviewed in Russian. The transcript was signed by the applicant, who also made a handwritten note in Russian to the effect that the content of the transcript correctly reflected his statement. The investigator also seized a number of the applicant’s personal items, including the boots, trousers, shirt, sports jacket and leather jacket that he was wearing at the time, so as to attach them as exhibits. 5. According to the applicant, on 11 February 2002 police officers escorted him to a police station and interviewed him as a witness in the case. After they seized his clothes, he was provided only with old trousers and was not given any footwear. Thereafter the police officers and one of the attesting witnesses – who, in the applicant’s submission, was known to the police officers – started beating him with truncheons and kicking him in an attempt to extort a confession from him. Allegedly, he was beaten for several hours and then, wearing only trousers and socks, was placed in a cold cell, where he spent the next two days, during which time he was not given any food. 6. According to the Government, before the questioning on 11 February 2002 the applicant’s rights were explained to him. However, neither during the questioning nor afterwards did the applicant make any complaints concerning either his health or the actions of the police officers. 7. On 12 February 2002 the applicant was again questioned as a witness. As in the course of his questioning he confessed to the murder, he was subsequently detained as a suspect, and a record of detention was drawn up. As the applicant expressed the wish to be provided with counsel, lawyer R. from the Sverdlovsk bar association was assigned to him. After her arrival the applicant was again questioned as a suspect and confirmed his previous statement in the presence of counsel. In the transcript of the applicant’s interview as a suspect dated 12 February 2002 and signed by him it was noted that he spoke Russian, did not need an interpreter’s assistance and wished to be interviewed in Russian. The transcript also contained a handwritten note by the applicant to the effect that his statements were reflected accurately in the transcript, that he had made them without any duress, and that he confirmed them. 8. According to the applicant, in the course of the questioning on 12 February 2002 the police officers beat him again and the investigator put pressure on him, forcing him to sign the transcripts of the interviews of that day. The applicant allegedly requested the investigator to provide him with a lawyer and an interpreter, as his mother tongue was Avarian and he had a poor understanding of Russian, which meant that the contents of the transcripts were unclear to him. Allegedly, these requests were refused and, unable to resist the beatings and physiological pressure, the applicant finally signed the transcripts without reading them. 9. According to the Government, before the questioning on 12 February 2002 the applicant’s rights were again explained to him. However, as on the previous day, neither during the questioning nor afterwards did the applicant make any complaints concerning either his health or the actions of the police officers. 10. On 13 February 2002 the applicant was taken to the scene of the incident, where a reconstruction of the events was carried out in his presence and that of his lawyer and the attesting witnesses. It was video recorded. 11. Later that day the applicant was escorted from the police station to the Ekaterinburg temporary detention facility (“the IVS”). 12. Also on 13 February 2002, the applicant was seen by a doctor, who issued a certificate stating that the applicant had an abrasion on his back that he had sustained two weeks earlier. 13. According to the applicant, the IVS authorities refused to admit him without a medical certificate. The police officers then took him to city hospital no. 36 where a doctor issued him with a certificate attesting to the presence of abrasions on his back. As he had been allegedly threatened by the police officers who escorted him, the applicant did not disclose the cause of his injuries to the doctor, and the latter, upon the police officers’ advice, noted in the certificate that the injuries had been received by the applicant a fortnight before. 14. Thereafter the applicant was taken back to the IVS, where he remained until his transfer to remand prison IZ-66/1 on 15 February 2002. 15. On 15 February 2002 formal charges of aggravated murder were brought against the applicant in the presence of lawyer G., who had been assigned to represent him. On the same date the applicant confirmed in writing in the presence of his lawyer that he preferred to give evidence in Russian, and he was subsequently questioned. In the transcript of the questioning it was indicated that Russian was his mother tongue. The applicant also made a handwritten note in Russian on the transcript to the effect that he admitted his guilt in part but wished to avail himself of the right to remain silent until he had had a chance to study all the case-file materials. He also noted that he had written the note in his own hand and under no pressure. The text was followed by the signatures of the applicant’s counsel and the investigator. There is no indication that the applicant made any complaints concerning the alleged ill-treatment. 16. On 15 February 2002 the applicant was transferred from the IVS to remand prison IZ-66/1, where he remained until 6 June 2003. The applicant had no injuries when he was admitted to the remand prison and during his custody there he never requested medical treatment. 17. The applicant and his counsel studied the case-file on 2 August 2002 from 9 a.m. to 2 p.m., on 27 September 2002 from 9 a.m. to 11 a.m., and on 28 November 2002 from 9 a.m. to 12 noon. The applicant and his counsel made handwritten notes on the relevant procedural records to the effect that they had studied the case-file materials in their entirety. On 25 November 2002 the investigator also familiarised the applicant with eight forensic examination reports. 18. On 11 December 2002 a bill of indictment was served on the applicant. 19. In the proceedings before the trial court the applicant was represented by lawyer R. 20. According to the transcript of the hearing of 16 January 2003, the applicant requested the court to allow him access to the case file, the exhibits and the video recording of the reconstruction of events, stating that he had been unable to study the case file fully at the pre-trial stage. He further requested the court to call the witnesses he had previously indicated, stating that they could give oral evidence regarding the circumstances of the incident. Lastly, the applicant requested the court to provide him with an interpreter. He claimed that his understanding of legal terminology in Russian was insufficient. In reply to the court’s questions, the applicant confirmed that he understood the words “murder”, “being accused” and “[he] committed”. He went on to say that he had learned Russian at school, that he had lived in Ekaterinburg for two years before the relevant events and, that he understood everyday language well. 21. In the prosecutor’s opinion, the applicant did not need an interpreter’s assistance as he had been born and had grown up in Russia, had done his military service there and had written documents in Russian. 22. Having examined the parties’ submissions, the court rejected the applicant’s request to be provided with an interpreter, noting that he spoke and wrote Russian adequately. The court further rejected the applicant’s request concerning witnesses as premature. It also dismissed his request regarding the exhibits, stating that those items had been seized from the applicant and were therefore familiar to him. The court further ordered that the applicant be allowed additional time to study the case file and, to that end, suspended the proceedings until 20 January 2003. 23. The applicant studied the case-file on 16 January 2003 from 3 p.m. to 4 p.m. and on 17 January 2003 from 10.30 a.m. to 12.30 p.m. Thereupon the applicant made a hand-written note in the procedural record to the effect that he had studied the case-file materials. Neither the applicant nor his lawyer made any requests for additional time to study the case file. 24. During the subsequent hearings the applicant stated that he understood the charges against him and pleaded not guilty. He further gave his version of the incident, alleging that the murder had been committed by another person. The applicant repudiated his self-incriminating statements made during the preliminary investigation, stating that they had been extracted under duress and threats of ill-treatment. He stated that he had been beaten by the police officers, with the result that he had signed certain documents without reading them and had copied his “confession” rather than written it voluntarily. 25. The court called and examined a number of witnesses, including expert witness Ts. and witnesses S. and M.V. The court further noted that it had not been possible to call witness R., as she was paralysed. Her statements and those of witness Ves. made during the preliminary investigation were read out in court, after the applicant gave his consent. The applicant also stated that he no longer insisted on the examination of witness Sm. 26. The court further called and examined the investigators in charge of the case, Ye. and K.. They denied putting any pressure on the applicant or using any unlawful methods of investigation, such as beatings. Investigator K. also testified that while studying the case file the applicant had not requested an interpreter’s assistance, and that at a certain point he had refused to continue with the study of the case file, following which the materials in the file had been photocopied and given to him. Investigator K. also stated that the video record of the reconstruction of events of 13 February 2002 had been shown to the applicant. 27. By a judgment of 3 February 2003 the Regional Court convicted the applicant of aggravated murder and sentenced him to fifteen years’ imprisonment. 28. The court admitted in evidence the applicant’s confession made during the preliminary investigation, rejecting as unsubstantiated his allegation that it had been extorted under duress. In this regard the court noted that the applicant had always been questioned in the presence of a lawyer, and a lawyer had also participated in the reconstruction of events of 13 February 2002. Moreover, after being detained, the applicant had been informed on several occasions of his right not to testify against himself. The court also noted that the applicant had not objected to Ye.’s statement made in court to the effect that Ye. had not put any pressure on the applicant during the investigation. As regards the applicant’s allegation of beatings by the police officers, the court stated that the medical certificate of 13 February 2002 only attested to the presence of abrasions on his back sustained two weeks earlier and did not mention any “dark blue” bruises on the applicant’s legs and shoulders, as he had alleged in court. 29. The court further based its findings on other pieces of evidence, including statements by a number of witnesses, several expert reports, and, in particular, a forensic report on the clothes seized from the applicant on 11 February 2002 which attested to the presence on the applicant’s trousers of blood, which could have come from of one of the victims. 30. In their appeal submissions, the applicant and his lawyer complained, inter alia, that the self-incriminating statements made by the applicant during the preliminary investigation had been extorted from him as a result of ill-treatment by the police. 31. On 28 April 2003 the Supreme Court of Russia (“the Supreme Court”) granted the applicant’s request to be present at the appeal hearing. 32. On 10 June 2003 the applicant was transported from remand prison IZ-66/1 in Ekaterinburg to remand prison IZ-77/3 in Moscow. 33. On 21 June 2003 the Supreme Court notified the applicant and counsel R., who had represented him before the trial court, that the appeal hearing was scheduled for 21 July 2003. 34. The applicant requested an interpreter’s assistance for the examination of his case before the appeal court. He further requested the appeal court to allow him to study the case file, alleging that he had not been given enough time to do this at the pre-trial stage. 35. The applicant and his counsel were present at the hearing of 21 July 2003. The Supreme Court noted that during the proceedings before the trial court the applicant had demonstrated sufficient command of Russian, being well able to understand what was being said to him in Russian and to express himself clearly in that language. Nevertheless, noting that everyone had the right to use his mother tongue, the appeal court decided to grant the applicant’s request and provide him with an interpreter during the examination of his appeal. The Supreme Court accordingly postponed the hearing to 18 August 2003. 36. At the hearing of 18 August 2003 the applicant was present but his counsel did not appear. The applicant did not make any requests in this regard, such as for the postponement of the hearing. The Supreme Court refused the applicant’s request for additional time to study the case file. It referred to the case-file materials, stating that on 28 November 2002 the applicant and his lawyer had had access to and studied all the materials, including the exhibits and the video recording, and that they had not made any requests upon the completion of their study. Moreover, the first-instance court had granted the applicant additional time to study the case file, which he had done on 16 and 17 January 2003. 37. On the same date the Supreme Court, in the presence of the applicant and the prosecutor, upheld the judgment of 3 February 2003. It confirmed that the trial court had correctly assessed the evidence and applied the domestic law. It noted, in particular, that on 12 February 2002 the applicant had been interviewed as a witness and that the procedural law then in force had not provided for a lawyer’s assistance during such interviews. However, after the applicant had made self-incriminating statements during his witness interview, he had then been questioned as a suspect in the presence of a lawyer and confirmed his statement. The applicant’s defence counsel had been present at all subsequent interviews and investigative actions. 38. The court further rejected as unsubstantiated the applicant’s allegations of ill-treatment during the investigation, stating that they were not corroborated by the results of the applicant’s medical examination as recorded on the certificate of 13 February 2002. It also pointed out that the applicant had not complained about any injuries upon his arrival at the IVS, nor had he complained at the pre-trial stage about the alleged ill-treatment, although he had had the opportunity to do so, as he had always given oral evidence in the presence of his defence counsel and, during the reconstruction of events, also in the presence of the attesting witnesses. 39. The court went on to note that when his rights were being explained to him at the pre-trial stage, the applicant had stated that he understood his rights, that he spoke Russian, would give oral evidence in that language and did not need an interpreter’s assistance. Furthermore, when interviewed both as a suspect and an accused, the applicant had expressed his wish to give oral evidence in Russian and refused an interpreter’s assistance. Further, when studying the file of his criminal case, the applicant had not requested an interpreter’s assistance. The court further noted that the case file contained the applicant’s confession written in Russian, his handwritten notes made on the transcript of his interview of 15 February 2002 and other documents which confirmed that he had an adequate command of Russian. The appeal court added that the applicant had received secondary education in Russia, had learned Russian at school, had done his military service in 1995-1997 in Russia and had lived in Ekaterinburg since 2000. During the hearings before the trial court the applicant had stated that he understood everyday Russian, had testified in Russian and had actively participated in the examination of his criminal case. The appeal court therefore concluded that in such circumstances the fact that the applicant had not had an interpreter’s assistance during the preliminary investigation and before the first-instance court had not violated his rights. 40. The applicant’s attempts to have his case reopened in supervisory review proceedings were to no avail. 41. On 20 August 2009 the applicant’s sentence was reduced to thirteen years and four months’ imprisonment because of changes in the criminal law. 42. On 15 December 2002 the applicant complained in writing to the prosecutor’s office of the Sverdlovskiy Region about various irregularities in the preliminary investigation, including ill-treatment by the police and refusals of his requests to be provided with a lawyer and an interpreter, to have the case-file materials and the bill of indictment translated into his mother tongue, and to be granted access to the exhibits. 43. On 3 February 2003 the prosecutor’s office of the Kirovskiy District of Ekaterinburg refused to institute criminal proceedings in respect of the applicant’s allegations. It noted in its decision that it was clear from the medical certificate of 13 February 2002 that the applicant had sustained the abrasion on his back two weeks before the examination, that is, in late January 2002, before he was questioned and subsequently detained. Thus, there was no evidence of an offence. 44. A copy of that decision was sent to the applicant on 4 February 2003. 45. On an unspecified date the applicant resubmitted his complaint to the prosecuting authorities. 46. In a letter of 10 November 2003 the prosecutor’s office of the Sverdlovskiy Region informed the applicant that the inquiry into his allegations of ill-treatment by the police officers carried out by the prosecutor’s office of the Kirovskiy District of Ekaterinburg had been incomplete and that therefore the decision of 3 February 2003 had been quashed and the relevant materials sent back to the prosecutor’s office of the Kirovskiy District of Ekaterinburg for an additional inquiry. The letter further stated that the applicant would be apprised of the results of that inquiry. 47. On 18 November 2003 the prosecutor’s office of the Kirovskiy District of Ekaterinburg again refused to institute criminal proceedings in respect of the applicant’s allegations on the ground that following an additional inquiry they had been found to be unsubstantiated. In particular, there was no evidence that the applicant had sustained any injuries apart from an abrasion on his back that had been sustained approximately two weeks before he had been questioned and detained. A copy of the decision was sent to the applicant. 48. In the autumn of 2004 the applicant contested the decision before a higher prosecutor’s office. His complaint was dismissed by the prosecutor’s office of the Sverdlovskiy Region on 23 November 2004. 49. On 14 January 2004 the authorities of detention facility USHCH349/52 (“the prison authorities”) accepted for dispatch from the applicant an envelope addressed to the Court which contained a completed application form which, with its enclosures, totalled eighty-one pages. The next day, the applicant was informed that it had been entered in the prison correspondence register under number 225 and sent out. 50. On 27 January 2004 the prison authorities returned the envelope to the applicant. They explained that it had been returned by the postal service on the ground that the stamps placed on the envelope by the applicant, which corresponded to the postage for a standard letter, were insufficient, and that the applicant needed to pay 120 Russian roubles (RUB) in postage for the excess weight. 51. According to the applicant, on 29 January 2004 he again handed his letter to the prison authorities and requested them to take the necessary amount from his account to cover the postage. However, the authorities returned the letter to him. He allegedly resubmitted it for dispatch on 4 February 2004. 52. Between 14 January and 9 February 2004 there was no money in the applicant’s account. On the latter date the account was credited with the amount of RUB 1,000. 53. On 12 February 2004 the applicant requested the prison authorities to send a letter to the International Protection Centre, an NGO based in Moscow, and to debit his account for the amount of the postage. In the letter he asked the International Protection Centre to forward his application to the Court. 54. On 14 May 2004 the Court received a five-page letter from the applicant dated 6 April 2004, which was the first piece of correspondence it had received from him. In the letter the applicant explained that on 14 January 2004 he had tried to send an application form to the Court but it had subsequently been returned on account of insufficient postage. He went on to note that as he had then had to apply to the International Protection Centre with a request for his application to be forwarded to the Court, there might be a delay in the application reaching the Court. 55. On 27 May 2004 the Court acknowledged receipt of the applicant’s letter of 6 April 2004 and invited him to submit a duly completed application form. 56. On 8 July 2004 the Court received a four-page letter from the applicant dated 17 June 2004. In the letter the applicant again described his attempt to send the application form to the Court on 14 January 2004 and his subsequent application to the International Protection Centre. He added, however, that the International Protection Centre had refused to forward his application form to the Court and that he had being trying to send it to the Court himself. He noted, without specifying any reasons, that he was having difficulty in doing so, which might lead to the dispatch of the application form being delayed. He therefore asked the Court not to reject it on the ground of expiry of the six-month time-limit. 57. On 31 August 2004 the Court reminded the applicant that he still had to submit a duly completed application form. 58. On 1 February 2005 the Court received a two-page letter from the applicant dated 22 December 2004, in which he stated that he had been unable to send the application form to the Court because of the prison authorities’ refusal to forward it, but that he would persist in his attempts to send it. 59. On 2 March 2005 the Court received an eight-page letter from the applicant dated 23 December 2004, in which he again outlined his previous attempts to send the application form to the Court and made lengthy observations on the Court’s admissibility criteria, in particular the application of the six-month time-limit. 60. On 9 and 23 March 2005 the Court again reminded the applicant that he still had to submit a duly completed application form. 61. On 29 April 2005 the Court received a letter from the applicant dated 16 March 2005 in which he asked it to confirm receipt of the application form. 62. On 3 May 2005 the Court received a letter from the applicant dated 16 February 2005 enclosing the application form dated 14 January 2004. 63. On 9 May 2005 the Court received an additional application form sent by the applicant on 30 March 2005. The applicant once again stated that, following the return of his application form of 14 January 2004 and after his account had been credited with a sum of money, he had asked the prison authorities to send the form to the International Protection Centre on 12 February 2004. 64. On 20 May 2005 the Court confirmed receipt of both application forms. 65. Thereafter the applicant continued to send correspondence to the Court on a regular basis. The following documents, inter alia, were enclosed with the applicant’s correspondence: – An undated certificate signed and stamped by the head of detention facility USHCH-349/52 confirming that the applicant had indeed submitted an application to the Court to the prison authorities on 15 January 2004, which had been registered under the outgoing number 68/52-225 and forwarded to the post office, which had then returned it, stating that the envelope containing the applicant’s correspondence weighed more than twenty grams and therefore additional payment needed to be made. The certificate also indicated that the prison authorities had sent out the application immediately upon receipt of the necessary sum of money from the applicant. – A letter of 8 April 2005 from the Main Department for Execution of Punishments of the Sverdlovskiy Region informing the applicant that his application to the Court comprising eighty-one pages had been registered by the prison authorities on 15 January 2004 under the number 68/52-225. The letter went on to say that the post office to which the applicant’s letter had been taken had pointed out that its weight exceeded the maximum allowed and that therefore it was necessary to pay a supplement; however, at that time there had been no money in the applicant’s account and therefore his letter had been sent out later, when the necessary sum had been credited to the account. – A letter of 16 May 2005 from the head of detention facility USHCH349/52 informing the applicant that his application had been sent to the Court after 15 January 2004, when the supplement for the postage had been paid. The letter assured the applicant that 15 January 2004, the date on which his letter had been accepted for dispatch by the prison authorities, would be considered as the date of dispatch. 66. Article 91 (1) of the Penal Code states that detainees may receive and send unlimited letters, postcards and telegrams at their own expense. The correspondence sent by detainees must comply with the applicable postal requirements. After receipt of requests by detainees, the prison administration informs them of the transfer of their correspondence to the postal service for delivery to the addressee. 67. Article 125 of the Russian Code of Criminal Procedure provides for judicial review of decisions, acts or failure to act on the part of an inquirer, investigator or prosecutor which affect constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision, act or failure to act, and to grant the following forms of redress: (i) to declare the act or failure to act unlawful or unreasonable and order the relevant authority to remedy the violation; or (ii) to reject the complaint.