CHELBAYEV v. RUSSIA
Inadmissible
Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
The applicant, Mr Anatoliy Anatolyevich Chelbayev, is a Russian national who was born in 1977 and lives in Bataysk in the Rostov Region. He is currently serving his sentence in the correctional colony UCh 398/15 in the town of Bataysk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 January 2003 the applicant was arrested on suspicion of murder and detained in a temporary confinement cell of a local police station. According to the applicant, from 13 to 16 January 2003 he was held in custody without food or water. On an unspecified date but apparently immediately after his arrest, he was interrogated and beaten up by police officers and was forced to sign unspecified documents. According to the trial court and appeal judgments (see below), on 13 January 2003 the applicant was questioned by the investigator of the local prosecutor’s office and not by the police officers. The interrogation of 13 Janaury 2003 took place in the presence of a lawyer, apparently appointed as a legal-aid counsel, who subsequently represented the applicant throughout the domestic proceedings. The applicant pleaded guilty during the interrogation. On 14 January 2003, when questioned by the investigator in the presence of counsel, the applicant repeated his confession statements. During the trial the applicant pleaded not guilty claiming that his confession had been obtained as a result of coercion. When questioned by the trial court, he was unable to cite the names of the police officers who had allegedly ill-treated him, to provide a detailed account of the events or to outline the basic facts his allegations had been based upon. On 19 August 2003 the Zheleznodorozhny District Court of Rostov-on-Don of the Rostov Region convicted the applicant as charged and sentenced him to ten years’ imprisonment. The court found that the applicant had intentionally killed Mr T., having struck the latter no fewer than thirteen times. The crime had been committed in the flat of Mr S., a friend of the applicant. The court based the conviction, in particular, on the testimony of Mrs Ta., which she had given during the pre-trial investigation, claiming to have been an eyewitness to the crime. According to her statements, the applicant had demanded money from the victim and had then kicked him continuously for 10 to 15 minutes. Mrs Ta. failed to attend the trial. The applicant objected to the reading out of her testimony at the trial. The court rejected his objection. It held, in particular, as follows: “The court made all necessary efforts to secure the witness Mrs Ta.’s presence; however there is no information about her whereabouts... It follows from the submissions of investigator L. and witness S. that witness Mrs Ta. does not have a permanent place of abode, was temporarily registered at victim Mr T.’s address, but did not live there even before the latter’ s death... The case file contains information that Mrs Ta. previously lived with her relatives; however the court’s officer visited this address and found out that she had not lived there for a long time. Nobody among those who knew her has information about her current whereabouts.” The court also relied on: - the testimony of Mr S., whom Mrs Ta. told that the applicant had killed Mr T.; - testimonies of police officers and investigators who knew from Mrs Ta. and Mr S. that the applicant had killed Mr T. and who also asserted that, after being arrested, the applicant had confessed to the murder; - a forensic expert’s conclusion that the blood found on the applicant’s shoes belonged to the victim; - a pathologist’s conclusion that the death of Mr T. had resulted from severe bodily harm caused by repeated kicking; - the corpse inspection record and several other documents. As regards the allegation of duress, the court established that on the date of his arrest the applicant had only been questioned by the investigator of the local prosecutor’s office. No police officers had interrogated the applicant either on the date of his arrest or later. The interviews of 13 and 14 January 2003 took place in the presence of the lawyer. The court rejected the applicant’s allegations of ill-treatment by the police officers as unsubstantiated. In his grounds of appeal the applicant complained, inter alia, that the trial court had not secured the attendance of Mrs Ta., who had been the only eyewitness, that he had not been able to examine this witness in court, that his confession had been obtained under duress and that his lawyer had failed to represent him effectively at the trial. He admitted having beaten the victim on the date of his death, but denied intending to kill him. On 27 April 2004 the Rostov-on-Don Regional Court upheld the judgment. As regards the applicant’s complaints, it found as follows: “The appellant’s arguments that Mrs Ta.’s statements were vitiated are baseless, as these statements do not contradict other evidence... The fact that this testimony was taken from Mrs Ta. during the pre-trial investigation does not invalidate their significance as evidence. [...] The allegations of a considerable discrepancy between Mrs.Ta.’s statements and the facts revealed by the corpse inspection record, pathologist’s report and forensic expert’s conclusion, are unsubstantiated.” The appeal court rejected, as unfounded, the complaint about the lawyer’s ineffectiveness, having observed, in particular, that the applicant had not objected to the lawyer’s participation in the trial at earlier stages of the proceedings, had not requested another lawyer to represent him and had not complained to the trial court about any particular actions or omissions of the lawyer. On 8 August 2008 the deputy Prosecutor General lodged an application for supervisory review with the Presidium of the Rostov Regional Court. He submitted that the Zheleznodorozhny District Court and the Rostov Regional Court had infringed the applicant’s right to examine witness Mrs Ta. He claimed that a reference to Mrs Ta.’s testimony be excluded from the judgments. On 4 September 2008 the Presidium of the Supreme Court granted the prosecutor’s application. It found that the appeal court had read out the testimony by Mrs Ta. despite the applicant’s objection, and thus had violated domestic law as regards court procedure in a criminal case. The court observed that at no stage of the proceedings had the applicant been given an opportunity to examine Mrs Ta. and concluded that his right to examine a prosecution witness had indeed been violated. The Presidium accordingly found that Mrs Ta.’s testimony was not to be taken into account and modified the judgments of 19 August 2003 and 27 April 2004 by excluding the reference to her witness statements. The Presidium examined in detail the other items of evidence in the criminal case, reduced the applicant’s sentence to seven years’ imprisonment on the ground that he was in charge of a minor and upheld the remainder of the lower courts’ findings. According to the applicant, the officers of the correctional colony Uch 398/15 had returned the applicant’s letter to the Court dated 25 September 2008 four times and had only posted it on 31 October 2008. According to the expedition note by the colony, the correspondence was sent to the recipient on 22 October 2008. The Court received the above letter on 16 December 2008.