SHUMEYEV AND OTHERS v. RUSSIA
Inadmissible
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
1. The applicants are Russian nationals living in various regions of the Russian Federation. The numbers and dates of lodging of their applications, and their full names, dates of birth and places of residence are set out in the Appendix. 2. , may be summarised as follows. 3. On various dates between 2005 and 2011 the police received information, in each of the applicants’ cases, implicating the applicants in drug-dealing. On the basis of that information, the police decided to carry out an undercover operation in the form of a test purchase of drugs from the applicants by undercover agents. 4. In all four cases, the police invited two randomly chosen attesting witnesses to observe the progress of the undercover operation. The attesting witnesses confirmed in their pre-trial depositions that the undercover agents had been searched prior to the test purchase and that they had bought controlled substances from the applicants with the banknotes marked and supplied by the police. They also attested that after the test purchase the police had searched the applicants or their premises, and seized and sealed controlled substances found on the applicants and other evidence that had been gathered. 5. The police also documented each step of the undercover operations. In particular, they drew up records of personal inspections of undercover agents, examinations of banknotes, test purchases, personal search and crime scene inspections. 6. The applicants were criminally prosecuted for drug-related offences under the Russian legislation in force. The undercover agents and police officers who had participated in test purchases of drugs testified during the trial, and as participants in the criminal proceedings, the applicants were able to question them. They were also able to submit various motions, present arguments in their defence and lodge objections. The attesting witnesses summoned by the prosecution were sought for but they failed to appear for various reasons, and the national courts read out their pre-trial statements regarding the investigative measures and admitted them as evidence despite the applicants’ objections. The procedural records drawn up by the police were also admitted as evidence by the courts. The contents of the pre-trial depositions of the attesting witnesses were identical to the relevant police records. 7. The applicants appealed against the judgments convicting them, submitting, inter alia, that their convictions had been unfair due to their inability to examine the attesting witnesses. The judgments were, however, upheld on appeal and became final. 8. Article 7 § 1 of the CCP (as in force at the material time) provided that the court, prosecution and investigators could not apply laws in breach of the provisions of the CCP. 9. Article 7 § 3 further provided that if the court, prosecution or investigators breached the provisions of the CCP in the course of criminal proceedings, evidence obtained as a result of such breach would be rendered inadmissible. 10. Chapter II of the CCP contained two different provisions governing the participation of witnesses and attesting witnesses in the criminal proceedings. 11. Article 56 provided that, “1. A witness (свидетель) is a person who may have knowledge of facts relevant to the investigation and resolution of a criminal case and who is subpoenaed to testify.” ... 7. If a witness fails to appear for no valid reason, his or her appearance may be enforced.” 12. Article 60 provided that, “An attesting witness (“понятой”) is a person disinterested in the outcome of the criminal case who is invited by an investigator to attest to an investigative measure being carried out and also to its substance, progress and results. Minors who are involved in a criminal case and their close relatives and relatives, and also investigators, cannot act as attesting witnesses.” 13. Article 164 of the CCP stipulated that body searches, searches of premises, seizure of evidence and other investigative measures had to be carried out by order of the investigators. It further required the recording of all investigative measures carried out. 14. Article 166 of the CCP established that all participants in investigative measures should receive a record thereof. They had to be informed of their right to make amendments and clarifications to the record and have them noted in it. Their remarks should be acknowledged and signed by the persons making them. 15. Article 170 of the CCP required at least two attesting witnesses to be present during, inter alia, the inspection of objects relevant to the criminal case, body searches, searches of premises and seizure of evidence. 16. Article 38 provided for admitting into evidence the records of investigative measures and trial records if they complied with the requirements of the CCP. 17. Article 75 provided that evidence obtained in breach of the provisions of the CCP would be deemed inadmissible. It further provided that inadmissible evidence would have no legal force and could not be relied on as grounds for criminal charges or for proving any of the circumstances for which evidence is required in criminal proceedings. 18. Article 89 prohibited the use of the results of a criminal investigation if they failed to satisfy the rules of evidence laid down in the CCP. 19. Article 217 and Article 219 stipulated the investigator’s obligation to examine and rule on motions submitted by the defendant after the review of materials of the criminal case, and to inform the defendant of his right to appeal against an adverse decision on his motion. 20. Article 235 provided that parties to a criminal case could request a trial court to exclude certain evidence. As a general rule, the burden of proof would be on the party which submitted a motion to exclude evidence, except where a defendant sought to exclude evidence obtained in violation of the provisions of the CCP, in which case the prosecution would have to provide evidence to the contrary. 21. Article 303 made it a crime for investigators, prosecutors and defence attorneys to forge evidence.