CASE OF VOLKOVA v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 6 - Right to a fair trial (Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
4. The applicant was born in 1987 and lived in Voronezh prior to her arrest. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 14 July 2007 the applicant, together with B., travelled to Moscow by car. At about 3.40 a.m. the police stopped the car; two men from the narcotics unit approached the car and asked the passengers to step out and produce their identity documents and luggage for inspection. An officer opened the sports bag which, according to the applicant, her friend had asked her to take to another friend in Moscow, and found a black plastic bag. The applicant stated that she was not aware of its contents. The officers then put the black bag into the trunk of the police car and took the applicant and B. to the premises of the narcotics unit. 7. The applicant and B. were interviewed in separate rooms. In the morning the applicant was taken to another office, in which one female officer, a forensics expert and two individuals who were introduced as “attesting witnesses” (понятые) were present. The applicant was told to open the black bag and to show its contents. Four plastic bags containing yellow and green herb and cash money were found inside. At 8.15 a.m. the police drafted a report on the seizure of objects and substances. The expert later determined that the herb was marijuana having a total weight of almost three kilograms. 8. At 6 p.m. a senior investigator of the narcotics unit instituted criminal proceedings against the applicant and B. on suspicion of attempted largescale sale of drugs. 9. At 8.15 p.m. the investigator compiled the record of the applicant’s arrest. The time of arrest was given as 7.50 p.m. on 14 July 2007. 10. On 15 July 2007 the applicant was formally charged and the investigator applied to a court for a detention order. 11. The detention hearing before the Zyuzinskiy District Court in Moscow began at 7.15 p.m. on 16 July 2007. Counsel for the applicant submitted that, in view of the actual time of the applicant’s detention, the maximum statutory period of forty-eight hours had already expired. However, the court did not heed that argument and ordered that the applicant be remanded in custody because the gravity of charges against her. 12. On 19 July 2007 counsel for the applicant filed an appeal. On 25 July 2007 copies of the appeal were forwarded to the applicant and to the prosecutor for comments. The appeal hearing was initially scheduled for 22 August 2007 but subsequently adjourned for one week because one of the applicant’s representatives did not show up. 13. On 27 August 2007 the City Court rejected the appeal against the detention order in a summary fashion, noting that “the pre-trial investigation authorities did not commit any substantial breaches of the rules of criminal procedure”. 14. The case against the applicant was referred for trial to the Babushkinskiy District Court in Moscow. 15. The defence claimed that the attesting witnesses who had been present during the opening of the bag were in fact employees of the narcotics unit rather than independent observers as required by law. Both of those witnesses – Ms P. and Ms A. – did not appear before the trial court. Instead, a court bailiff submitted reports about his unsuccessful attempts to ensure their attendance. The reports contained the same text to the effect that the witnesses could not be reached on the phone, that no one opened the door at their residence and that neighbours had told the bailiff that they had not seen them for a long time. 16. Counsel for the applicant requested the court to obtain the visitors journal from the reception of the narcotics unit. Since the unit was located within a security perimeter, all civilian visitors were to be recorded in the journal. The trial court refused the motion, without giving any reasons. It further held that there existed “exceptional circumstances” for the absence of the witnesses Ms P. and Ms A. and allowed their pre-trial statements to be read out, overriding the objections from the defence. 17. The trial court also authorised the reading-out of the pre-trial statement of Mr F., the driver of the car, of which the applicant and B. had been passengers. The bailiff submitted similarly worded reports to the effect that Mr F. was unavailable on the telephone or at his residence. 18. By judgment of 8 April 2008, the District Court found the applicant and B. guilty as charged and sentenced each of them to eight years’ imprisonment in a high-security correctional colony. It held in particular that the applicant’s claim that she did not know she was carrying marijuana in her friend’s bag was refuted by the seizure report of 14 July 2007 and the statements by the witnesses Ms P. and Ms A. 19. On 28 July 2008 the Moscow City Court examined and rejected her appeal against the conviction.