CASE OF POLYAKOV v. RUSSIA
Remainder inadmissible;Violation of Art. 6-3-d;Non-pecuniary damage - award
Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
4. The applicant was born in 1979 and is serving a sentence of imprisonment in the Tver Region. 5. On 21 October 1999 the applicant was apprehended by police officers N and O. According to him, they beat him up and some bystanders, who did not realise that he was being beaten up by police officers, called the police. According to a letter dated 23 May 2000, produced by the Government, the Moscow Department of the Interior informed the applicant’s representative that on 21 October 1999 there had been no call for police assistance in the area where the applicant had been apprehended. 6. After his arrest the applicant was taken to hospital where a doctor diagnosed him with “an injury; a bruise on the left shin; an injury on the left shoulder.” The applicant was then brought to a police station and stayed there for three days on suspicion of drug trafficking. 7. The applicant complained to the prosecutor about the police brutality. As follows from a copy of the decision dated 17 March 2000, submitted by the Government, the Cheremushkinskiy Prosecutor’s Office of Moscow refused to initiate criminal proceedings against officers N and O. It found that the applicant had resisted lawful arrest by swinging his hands and otherwise trying to escape. Thus, the officers had had to handcuff him. The investigator in charge of the applicant’s criminal case at the material time affirmed that the applicant had not alerted her to any unjustified recourse to force against him. Apparently, the applicant was not apprised of the decision of 17 March 2000. According to the Government, that decision was quashed in October 2005 and a further inquiry was ordered. The outcome of that inquiry remains unclear. 8. The applicant also raised the ill-treatment matter at the trial (see paragraphs 11 and 15 below). 9. The applicant was charged with drug trafficking. The prosecution case was that the applicant had committed the following offences: - on an unspecified date he had bought a large quantity of heroin and on 19 October 1999 sold it to Ms U; - on an unspecified date he had bought a large quantity of heroin and on 21 October 1999 he attempted to sell it to Ms U, but the police stopped him. 10. On 22 and 23 October 1999 the applicant was questioned in relation to the charges against him. He was not provided with a lawyer because he had previously refused legal assistance. On 24 October 1999 the applicant was released on a written undertaking not to leave the town. On an unspecified date he retained a lawyer and several lay representatives. 11. At the trial the applicant pleaded that he had spent the whole day on 19 October 1999 at home. On 20 October Ms U had called him, but being short of time he had arranged to meet her the next day. It appears that the police monitored that conversation on the second handset. According to the applicant, on 21 October 1999 in the course of his meeting with Ms U, he was approached by police officers who forcibly pinned him to the ground, handcuffed him and beat him up. 12. On 12 October 2000 the applicant asked the trial court to call Ms B, Mr S and Mr R, who could, he alleged, confirm that “he had been at home all day on 19 October 1999 and that he had not met Ms U on that day”. The court rejected that application as premature. The applicant reiterated the request at a hearing on 25 October 2000 and also asked to call Mrs T, his aunt, who had allegedly been at home with him on 19 October 1999. The court rejected both applications as “premature and unfounded”. At the hearing on 16 November 2000 the applicant’s lay representative again requested to call Ms B, Mr S and another unspecified person (apparently Mr R), and a Ms P. As can be seen from the hearing record, the court decided that “it was unnecessary to examine those persons”. Thereafter, the applicant unsuccessfully asked to have included in the file written statements made by Ms B, Mr S and a Ms Y confirming the applicant’s alibi for 19 October 1999. The prosecution did not object to the above applications made by the defence. 13. The applicant also asked to have examined Ms Ta., who had been present during the arrest of Ms U and who could have testified that Ms U had never claimed that the applicant had sold her drugs. The request was dismissed by the trial court. According to the Government, Ms Ta. was mentioned in the list of persons to be called to testify at the trial but she did not appear at the trial. 14. By a judgment of 20 November 2000, the Cheremushkinskiy District Court of Moscow found the applicant guilty of unlawfully procuring and being in possession of drugs with the intention of selling them and of selling a large supply of drugs. The trial court sentenced him to nine years’ imprisonment. It based its judgment on the following evidence: i) the statements by the officers who arrested the applicant on 21 October 1999. They stated that on 19 October 1999 they had arrested Ms U, performed a search on her person and seized a large quantity of drugs. Ms U claimed that she had just bought the drugs from the applicant and offered to assist the officers in the applicant’s arrest. She called the applicant on the telephone and asked for drugs. The applicant agreed and fixed a meeting for 21 October 1999. The police arrested the applicant at that meeting, performed a search on his person and seized a large quantity of drugs; ii) the deposition by Ms U made during the pre-trial investigation in which she confirmed the statements made by the officers. In her oral testimony at the trial Ms U retracted her earlier deposition; iii) the statements by eyewitnesses who were present during the applicant’s arrest and search on 21 October 1999 and who testified that a large quantity of drugs had been seized from the applicant; iv) the depositions by an attesting witness, Ms S, who was present at the arrest of Ms U on 19 October 1999. In her depositions made during the pre-trial investigation Ms S confirmed the statements by the police officers. However, at the trial she partly retracted them, claiming that she had not heard Ms U mention the applicant’s name and that she had signed a blank sheet of paper which was later filled in by the police; v) the reports on the applicant’s and Ms U’s arrest and search; vi) the expert reports confirming that the substances seized from the applicant and Ms U were heroin; vii) the report on the medical examination of the applicant, according to which the applicant was in a state of drug intoxication. 15. The trial court rejected the applicant’s allegation of ill-treatment with reference to the statements by the police officers and the prosecutor’s decision not to open a criminal case against them. 16. The applicant appealed against the trial judgment arguing inter alia in his additional statement of appeal as follows: “[T]he court arbitrarily refused the defence’s application to examine as witnesses Ms Y, Ms R, Ms B and three other persons who could confirm [the applicant’s] alibi, namely the fact of his presence at home between noon and 3 p.m. on 19 October 1999. That refutes his involvement in the offences of which he has been charged by the prosecution on the basis of Ms U’s pre-trial statement made under duress...No other evidence of the applicant’s guilt has been adduced...” On 21 February 2001 the Moscow City Court upheld the trial judgment. It did not address the trial court’s refusal to hear witnesses on the applicant’s behalf. 17. On 6 February 2003 the Presidium of the City Court, sitting as a supervisory-review court, reduced the applicant’s sentence to seven years’ imprisonment. On 22 April 2004 the Supreme Court of the Russian Federation examined an application by the applicant for supervisory review. It found that no conclusive evidence had been adduced confirming that the applicant had intended to sell heroin to Ms U on 21 October 1999. The Supreme Court upheld the applicant’s conviction for procurement and possession of heroin on 21 October 1999 and his conviction in relation to the episode on 19 October 1999. The Supreme Court reduced the applicant’s prison sentence to four years and six months. 18. According to the RSFSR Code of Criminal Procedure (CCrP), in force at the material time, the bill of indictment should be accompanied by a list of persons who should, in the prosecutor’s opinion, be called at the trial (Article 206). 19. When deciding to schedule a court hearing a judge shall examine all applications and decide, inter alia, who shall be called as witnesses (Articles 223 and 228 CCrP). If refused, such applications may be renewed at the hearing; applications to call additional witnesses or adduce evidence shall be granted in all cases (Article 223). At the hearing, the judge shall ask the parties whether they want to call further witnesses or adduce further evidence (Article 276). A party making such an application shall specify the circumstances they intend to determine on the basis of such further evidence; having considered the application, the judge shall either grant it or issue a reasoned decision refusing it (ibid.). 20. A court of appeal is competent to review the lawfulness and reasonableness of the judgment made by the court below on the basis of the case file and any additional materials available to it (Article 332 CCrP). Such review can extend beyond the issues raised by the prosecution or defence in their points of appeal (ibid.). The latter may be supported by additional materials adduced either before or during the appeal hearing, but prior to the prosecution’s statement (Article 337). 21. The Code of Criminal Procedure, in force since 2002, provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights (Article 413).