CASE OF MURTAZALIYEVA v. RUSSIA
No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-b - Access to relevant files);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
5. The applicant was born in 1983 and lives in Paris. 6. The facts of the case may be summarised as follows. 7. The applicant is an ethnic Chechen. In September 2003 she arrived in Moscow from Chechnya and started working at an insurance company. In October 2003 she went to a mosque where she made the acquaintance of V. and Ku. two young Russian women who had converted to Islam. 8. In December 2003 the applicant was stopped on the street by two policemen, allegedly for an identity check. She was then taken to the police station to have her identity verified. In the meantime she was dismissed from work on the grounds of her unauthorised absence. According to the applicant, she was released from the custody of police several days later upon the intervention of certain A., who was also an ethnic Chechen and a police officer in the organised crime division of the Moscow police department. 9. In February 2004 A. helped the applicant to be reinstated at work. He also found a flat for her, where he visited her on several occasions. The applicant shared that flat with V. and Ku. The flat was located in a dormitory block which belonged to the police department. It was equipped with secret videotaping and audiotaping device. The police put the applicant under surveillance because she was suspected of affiliation with a terrorist group related to the Chechen insurgency movement. The Moscow City Court authorised the use of a secret surveillance device in the flat from 5 February until 4 March 2004. 10. On the evening of 4 March 2004 the applicant was stopped by a police patrol for an identity check as her physical appearance allegedly matched the profile of a suspect in a wanted persons notice. The applicant immediately telephoned A., who briefly spoke to the police officers who had stopped her. The applicant was then taken to the police station because the official registration of her stay in Moscow had expired, which constituted an administrative offence under Russian law. 11. At the police station, the applicant was informed that she had been apprehended (задержана). Her bag was searched by a female police officer I. in the presence of two attesting witnesses, B. and K., and her fingerprints were taken. The record of the personal search showed that the search of the applicant lasted from 8.35 p.m. until 9.03 p.m. Following the personal search, I. discovered two square packages of an unknown substance wrapped in aluminium foil inside the applicant’s bag. The substance, together with the inner lining of the applicant’s bag and the pockets of her jacket, was taken for forensic examination. The forensic examination report stated that the applicant’s fingerprints were taken at 9.30 p.m. The police did not test the applicant’s hands for residue from the substance; neither did they search for her fingerprints on the packages found in her bag. Later on the same day the applicant was arrested on charges of terrorism and questioned by the police. A criminal investigation was opened. 12. On 12 March 2004 an expert examination of the substance found in the applicant’s bag was carried out. The examination report showed that the substance contained 196 grams of Plastit-4, an industrial explosive prepared on the basis of hexogen. In the course of the examination the explosives were destroyed. The examination of the applicant’s bag and the lining of the pockets of her jacket revealed the presence of hexogen. 13. The police searched the flat where the applicant lived with V. and Ku. and seized a note handwritten by the applicant. The note criticised Russian policy in Chechnya, glorified suicide bombers, preached the way of jihad, and spoke harshly of Russians. The police also found several photographs of an escalator in the Okhotnyi Ryad shopping centre in the centre of Moscow. 14. A transcript of the conversations on the video tapes recorded at the flat showed that the applicant had been proselytising Islam to V. and Ku. discussing her hatred for Russians and the necessity of “holy war” against them, and telling them about the camps of the Chechen insurgents in the Caucasus. 15. A. was questioned by the investigator at the request of the applicant during the pre-trial stage. A. testified that at the end of December of 2003, at the order of his superiors, he had established a relationship of trust with the applicant, who had also introduced him to V. and Ku. A. further stated that with the support of the police department he had helped the applicant to find housing. She had moved into the flat in the dormitory block together with V. and Ku. On 4 March 2004 the applicant had called him because she had been stopped by the police patrol. He had advised her to obey the orders of the police officers and to follow them to the police station. 16. On 2 December 2004 the applicant received a copy of the case file for review. The applicant was charged with preparing an act of terrorism (an explosion) in the Okhotniy Ryad shopping centre and inciting V. and Ku. to commit an act of terrorism. 17. On 22 December 2004 the Moscow City Court commenced the trial of the applicant. The applicant was represented by two lawyers, U. and S. 18. At the trial the applicant pleaded not guilty to the charges against her. She testified that on 4 March 2004 after the police patrol had driven her to the police station, she had first been taken to a room where a police officer, S., had been filling in some papers. He had told her that she had been apprehended and that her fingerprints would be taken. She had left her jacket and her bag in that room. Another police officer, B., had then taken her to another room, where a further police officer, L., had taken her fingerprints using ink, after which she had gone to a bathroom to wash the ink off her hands. When she had returned to the first room, she had been informed that she would be searched in the presence of two attesting witnesses B. and K. The police officer had searched the applicant’s bag and discovered two packages wrapped in aluminium foil which had not belonged to her. The applicant stated that her fingerprints had been taken before and after the search, and that only the second episode had been recorded. 19. The applicant further stated that the police had questioned her in the absence of a lawyer, and had then decided to detain her. Furthermore, the applicant testified that she had been told to sign a record of her questioning, on pain of ill-treatment. In the following days she had been beaten by the policemen who had questioned her. However, she had continued to deny her involvement in any terrorist activity. 20. The applicant stated that the packages found in her bag had not belonged to her, that the police had planted them in her bag and that she had never incited V. and Ku. to commit a terrorist attack. When the prosecutor asked her whether she had noticed that her rather small bag had become heavier than it had been before the personal search, the applicant stated that she had not noticed anything conspicuous about her bag before her search. 21. She further stated that six photos of the escalator that had been seized from her flat had been taken by her. However, she had been taking photos of random people in the shopping centre in question and not of the escalator and she had done so for recreation. 22. The applicant admitted writing the note that had been seized from the flat but stated that she had copied its text from the Internet because she had liked it and had simply wanted to have a copy of it. The applicant’s lawyer argued that her words had been misinterpreted and that there had been nothing in them that demonstrated her link to any terrorist activity. She stated that the applicant’s bitter perception of the situation in Chechnya was absolutely natural for someone who had been living in a war zone since childhood and that her words should have been analysed more carefully. 23. V. testified at the trial that she and Ku. had first met the applicant at a mosque in October 2003. They had become friends and had started frequenting Islamist chats and surfing pro-insurgency web-sites together. After a while, they had decided to form a religious community (dzhamaat) to study Islam and live together. In their conversations the applicant had glorified terrorism and had approved of suicide bombings and the methods and targets of the Chechen insurgents. The applicant had told them about a camp in Azerbaidzhan near Baku where Muslims received training to become suicide bombers, and that she knew someone from there. She had mentioned that she herself had participated in the Chechen war on the side of the insurgents. Together they had often visited an Internet café in the Okhotniy Ryad shopping centre. The applicant had also taken photos of an escalator from different positions there. 24. On 3 March 2004 the applicant had told V. and Ku. that if something were to happen to her, they would have to remove all Islamic literature and her diary from the flat, and to call her mother in Chechnya. She had also told them that she had just received a call from a friend who had arrived in Moscow to “blow himself up”, and that she (that is to say the applicant) “was in danger” and “under suspicion” [of the authorities]. The applicant had not threatened them and had not incited them to commit a terrorist act but she had asked them if they were capable of doing it. She had constantly preached “the way of jihad” to them and had given them Islamist books and audiocassettes. Some of those books had been given to her by her acquaintance, A.. 25. V. denied having seen any explosives in the flat where they had lived. 26. At the request of the prosecutor, the trial judge allowed V.’s pre-trial testimony to be read out, as it contradicted in part statements she had made at the trial. In particular, during her pre-trial questioning, V. had testified that the applicant herself had undergone terrorist training in a camp near Baku and that she had been indoctrinating V. and Ku. in order to prepare them to become suicide bombers. When the prosecutor asked V. about her contradictory statements, V. stated that she was not sure whether the applicant had really participated in a terrorist training camp. However, she stated that the applicant had been preparing her and Ku. to become suicide bombers. 27. Ku. confirmed that she, V. and the applicant had taken photos in the Okhotniy Ryad shopping centre, at the initiative of the applicant, and that the applicant had “taken snapshots randomly”. In particular, the applicant had taken photographs of the escalator and the people on it. Ku. submitted that the applicant had disapproved of the policy of the Russian federal forces in the Caucasus. However, she had not incited Ku. to become a suicide bomber. According to Ku. they had simply wanted to live together to pray, read and live free from the control of their parents. 28. Ku. further stated that the applicant’s acquaintance, A., was a policeman and that he had paid for the flat where the three of them had lived and that he had also given them money occasionally. Once the applicant had told her that she liked A. 29. Ku. further stated that during the pre-trial questioning the investigator had misinterpreted her words concerning a suicide attack and that she had never planned to commit any such attack. She denied having given her pretrial statements under pressure. 30. The court questioned several police officers who had participated in her arrest and personal search (P., S., B., I. and Ke.). They stated that the applicant’s apprehension had occurred during a regular patrolling operation, and that they had not been aware that her bag had contained explosives. 31. P. testified that on the day of the applicant’s arrest he had decided to check the applicant’s documents because “she had been aimlessly walking to the Prospekt Vernadskogo metro station”. She had showed them her passport and the registration stamp confirming her right to stay in Moscow, which had expired. The policemen took her to a police station. At the moment of the arrest she had been nervous and aggressive. They had decided to search her bag because such an action “was compatible with the law”. P. further explained that he had stopped the applicant “because it had been unclear where she had been going to”, because she had “resembled a girl from a wanted persons’ notice”, and because she was “a person of Caucasian ethnicity [that is to say from the North Caucasus region]”. P. also stated that the expiry of her registration had been sufficient reason to apprehend the applicant. He further testified that they had been routinely searching all people with expired registration. 32. S. gave similar testimony. He added that the applicant had been walking fast and that she had started to threaten the police officers with disciplinary sanctions when they had stopped her. 33. B. testified that they had decided to stop the applicant because she had been wearing black and was of “Caucasian ethnic origin”. He added that the applicant’s appearance had matched the description of someone on their wanted persons notice. He also testified that the applicant had had her bag with her up until the moment of her undergoing a personal search at the police station. 34. The court also questioned the police officers who had been on duty at the Prospekt Vernadskogo police station on the day of the applicant’s arrest. 35. I. testified that she had searched the applicant in the presence of two attesting witnesses and had found two square yellow objects wrapped in the aluminum foil in her bag, which had been later confirmed to be explosives. The applicant’s fingerprints had been taken only once – after the objects had been discovered in her bag. 36. Ke. testified that before the search the applicant had had all her personal belongings with her and that it had taken approximately twenty minutes before the start of the search to find attesting witnesses who had been invited to observe the personal search. 37. The applicant stated that the transcripts of the video tapes recorded in the flat by the police and read out in court had not been accurate and that she had requested the tapes to be played during the hearing. The court granted her request. It does not transpire from the trial transcript that the applicant submitted any requests or complaints concerning the quality of the tapes or the manner in which the tapes had been shown. 38. The applicant’s lawyers requested the court to summon police officer A. for questioning. They did not submit any reasons for their request. However, the court refused their request because at that time A. had left Moscow for a work mission. 39. According to the applicant, the court had not tried to verify whether or not A. was indeed on a mission and whether or not it would be possible to question him upon his return. 40. As can be seen from the transcript of the hearing, the applicant and her lawyers did not object to the record of the questioning of A. at the pretrial stage being read in the hearing. 41. The applicant further requested the court to question two attesting witnesses, B. and K., who had been present while she had been searched at the police station. 42. However, the court refused to call them. As can be seen from the documents in the case file, the court decided that the attesting witnesses would in any case be unable to confirm the applicant’s allegations because the applicant herself had claimed that the explosives had been planted before the arrival of the attesting witnesses. 43. After four days of trial hearings the judge asked the parties whether they wished to close the examination of evidence and proceed to the pleadings, in the absence of those witnesses who had not appeared. The parties agreed to proceed to the pleadings. 44. During the proceedings the court admitted the following material as evidence: 45. The court examined and dismissed the applicant’s claim that the explosives had been planted on her. The court referred to the testimony of the patrol officers and the officers of the police station, who had denied those allegations, and to the fact that according to the official report the personal search of the applicant had preceded the taking of her fingerprints, and there had been no evidence that the fingerprints had been taken twice, as the applicant suggested. 46. The court further found that the applicant must have drafted the text of the handwritten note herself and that she had not copied it from Islamist websites on the Internet, as she had claimed, since the note had contained modifications and corrections. 47. On 17 January 2005 the court convicted the applicant of preparing an act of terrorism (an explosion), inciting others to commit an act of terrorism, and carrying explosives, and sentenced her to nine years’ imprisonment. 48. The applicant and her lawyers appealed against her conviction. In the statement of appeal they complained, inter alia, that only one out of sixteen surveillance videotapes had been shown in the hearing and that for “technical reasons” the applicant had not been able to point out inaccuracies between the transcripts and the recordings of conversations on the videotapes. They further complained that the court had unreasonably refused their request to be allowed to question police officer A. and that there had been no documents in the case file showing that A. had been away on a work-related mission at the time of the hearing. Moreover, the court should have called the attesting witnesses, B. and K., because they could have testified about the circumstances preceding the personal search of the applicant in the police station. 49. On 17 March 2005 the Supreme Court of Russia upheld the judgment, reducing the applicant’s sentence to eight years and six months. 50. The Supreme Court held that the videotape had been shown at the request of the defence and that no objections or complaints had been lodged with the court after the videotape had been played, including that not all of the videotapes had been shown. 51. The Supreme Court further considered that the questioning of A. had not been possible due to his absence on a work-related mission and that his pre-trial statement had been read out with the consent of the defence. As for two attesting witnesses B. and K., their personal appearance had not been necessary since the applicant claimed that the explosives had been planted in her bag before their arrival. In any event, the defence agreed to proceed to the closing arguments and had not had any objections or additional requests about the examination of the applicant’s case.