CASE OF ZADUMOV v. RUSSIA
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1980 and is detained in Bezhetsk, Tver Region. 6. According to the indictment, on 15 October 2010 Ms K., who had not been previously known to the applicant, invited him and Mr A. to the apartment of Mr X. In the apartment they found Mr X. lying on the floor in a state of heavy alcoholic intoxication. For reasons which the investigation failed to ascertain, the applicant demanded X.’s passport, but the latter did not react to the demand in any way. Enraged by X.’s inaction, the applicant and Mr A. started violently kicking him in the shoulder, chest, stomach and legs until he stopped breathing. The applicant told Ms K., who witnessed the attack, to “forget everything” and gave her 100 Russian roubles (RUB) (2.5 euros (EUR)). 7. On 18 October 2010 Ms K., aged twenty-four at the time, was voluntarily hospitalised for treatment of alcohol-induced psychosis and seizures after she had an epileptic seizure on the street. 8. On 21 October 2010, while undergoing treatment, Ms K. was taken to an investigator for questioning. Prior to the interview, the investigator had received permission to interview Ms K. from the head doctor of the medical facility and satisfied herself as to the witness’s ability to testify, relying on the opinion of the doctor treating her. According to a medical certificate, Ms K. was “conscious, accessible for contact, answer[ed] questions following their direction” and had “no acute psychiatric disorders”. 9. According to the interview records, Ms K. alleged that on 11 October 2014 her encounter with Mr X. had resulted in a drinking spree, which had lasted several days until 14 or 15 October 2010, when Mr X. had refused to consume any more alcohol because he could no longer stand up. On the day of the attack, she had witnessed the applicant entering the apartment with Mr A. and immediately starting to violently kick Mr X., who had been lying on the floor. After an unsuccessful search for X.’s passport, they had resumed the attack and had kicked the victim about forty times until he died. 10. On 22 October 2010 the applicant and Mr A. were arrested and detained on suspicion of manslaughter. On the same day Mr A. confessed to manslaughter committed together with the applicant. On 29 October 2010 during questioning, he stated that the applicant’s insistence on obtaining X.’s passport had been induced by the desire to coerce the latter to sell his apartment and to share the proceeds. 11. In the course of questioning on 13 and 17 December 2010 the applicant admitted his presence in X.’s apartment during the attack, but denied any involvement in it. In his opinion Mr A. had committed perjury for an unknown reason. 12. The criminal case against the applicant and Mr A. was examined by the Tsentralniy District Court of Tver (Центральный районный суд г. Твери) (hereinafter “the District Court”). 13. On 17 January 2011 during a pre-trial hearing the District Court granted applications lodged by the applicant’s defence lawyer to have the medical records of Ms K. produced in court at trial. 14. On 24 January 2011 the District Court received extracts of Ms K.’s medical history provided by a regional psychiatric hospital. According to the medical records, she suffered from long-term alcohol abuse and had a tendency of having compulsive heavy drinking episodes. In October 2010, during the sixth hospitalisation since 2008, she had been hallucinating, anxious, aggressive, rude and unaware of the current date. When discharged from hospital in November 2010, the symptoms of withdrawal syndrome had receded and there were no signs of acute psychiatric disorders. 15. On 27 January 2011 the District Court received a certificate from a regional psychoneurology clinic. According to the certificate, in 2008 Ms K. had been diagnosed with an organic mental disorder of complex origin (perinatal and alcohol induced), hallucino-paranoid syndrome with mild personality changes, and alcohol-withdrawal symptoms. 16. On 2 and 8 February 2011 the District Court heard several prosecution witnesses, mostly relatives, neighbours and acquaintances of the persons involved. The witnesses either attested to the reputation or character of the victim and the accused, or provided hearsay and circumstantial evidence on the events prior and subsequent to the alleged crime. Ms K. was duly summoned to both hearings, but did not appear and provided no reasons for her absence. 17. On 10 February 2011 at the request of the defence the District Court issued a subpoena ordering the bailiffs to ensure Ms K.’s presence at the next hearing. 18. On 17 February 2011 the bailiffs submitted to the trial court a report that the witness could not be found at her place of residence and according to her mother “might be undergoing treatment” in a psychoneurology clinic. 19. On the same day the District Court examined a prosecution witness, Ms D., an investigator during the pre-trial stages of the proceedings. She testified to the circumstances of Ms K.’s interview on 21 October 2010 and her identification of the applicant, as well as to her psychological state and ability to give answers at the time. Ms D. stated that the witness had been “rational”, had given coherent testimony, had correctly recounted the events and, according to the doctor treating her at the time, had been capable of answering questions. 20. During the hearing the trial court was notified over the phone that the applicant had been undergoing in-patient treatment for alcohol dependency since 22 January 2011. The prosecutor’s request that Ms K.’s pre-trial statements be read out in court was denied and the hearing was adjourned until further information on the witness’s health had been received from the doctors. 21. On 18 February 2011 the psychoneurology clinic sent a letter to the District Court confirming the information previously submitted and stating that Ms K. was due to be discharged in early March 2011. 22. On the same day during the hearing, the prosecutor, referring to the above-mentioned letter, repeatedly requested that Ms K.’s pre-trial statements be read out in court on account of her in-patient treatment, the fact that her presence at trial could not be ensured, and because the date of her discharge from the clinic was unclear. The applicant’s defence lawyers objected, referring to Article 281 of the Code of Criminal Procedure, which proscribed the reading out of witness statements except in cases of “grave illness”. The District Court, without providing further reasons, allowed the reading out of the testimony with reference to Article 281 of the Code. 23. Between 24 February and 6 April 2011 the District Court held at least six further hearings. During those hearings the applicant and his coaccused were examined and essentially confirmed their conflicting pre-trial statements. The District Court also heard two character witnesses called by the defence, who attested to Mr A.’s bad reputation and speculated about his involvement in illegal activities. The trial court also considered the following documentary evidence presented by the prosecution: (a) crime scene inspection records; (b) the confession of Mr A. and verification records; (c) records of identification procedures; and (d) reports of the medical examiner and forensic experts on the victim’s injuries and the cause of death. 24. On 8 April 2011 during the closing argument the applicant’s defence lawyer, Mr V., argued that the statements of Ms K., which were “the only evidence”, could not qualify as eyewitness statements due to her state of mental health. He submitted that in the absence of a forensic psychiatric examination, it was impossible to rely on the testimony of a person suffering from an organic mental disorder and alcohol dependency. Her hospitalisation in a psychiatric facility in a delusional state and her interrogation less than one week after the alleged crime had made any testimony unreliable. He further stated that in any event, the reading out of her testimony had been unlawful under Article 281 of the Code of Criminal Procedure as interpreted by the Supreme Court of the Russian Federation, and in violation of the applicant’s right to examine witnesses under Article 6 § 3 (d) of the Convention. Accordingly, her testimony could not be used as evidence in the case against the applicant. 25. On 12 April 2011 the District Court convicted the applicant and Mr A. of manslaughter and sentenced them to ten and eight years’ imprisonment respectively in a high-security correctional facility. The District Court, confronted with the conflicting positions of the two coaccused, referred several times to Ms K.’s testimony as a significant, if not decisive, factor. In respect of the reliability of the testimony and its reading out, it stated: “... The statements of Ms K. made during the pre-trial investigation were read out under Article 281 of the Code of Criminal Procedure ... The court does not accept Mr Zadumov’s argument that [according to the medical records] the mental state of Ms K. casts doubt on her ability to correctly perceive and recount the events and that [her questioning during treatment in a psychoneurology facility] also casts doubt on the veracity and reliability of her testimony ... The medical records referred to by the defence do not suggest that Ms K. has any psychiatric disorder. [Moreover, the available certificates state that she was accessible for contact, answered questions following their direction and had no acute psychiatric disorders. This fact is further confirmed by the testimony of Ms D., the investigator, given at trial.] The court also considers that Ms K.’s statements are consistent with the confession of Mr A.” 26. The applicant’s defence lawyers lodged an appeal, restating among others their arguments concerning the reading out of Ms K.’s pre-trial statements. 27. On 3 June 2011 the Tver Regional Court (Тверской областной суд) upheld the judgment on appeal. In respect of Ms K.’s statements the Regional Court stated: “... The involvement of Mr Zadumov [the applicant] in the committed crime is steadfastly confirmed by the testimony of Ms K. [The appeal court] like the trial court finds no grounds to doubt the testimony of this witness, because it is coherent, detailed, logical and authentic. [From] the information provided by Ms K. on the victim’s state before and after the infliction of bodily injuries by Mr A. and Mr Zadumov, the sequence of events is consistent with [expert evidence and the testimony of other witnesses and the co-accused]. Accordingly there are no reasons to consider that the witness could not correctly perceive or recount the events. Moreover [her] mental state received consideration during the hearing. [According to the investigator’s statements she was rational, gave coherent testimony, correctly recounted the events, and according to her doctor was capable of answering questions.] ... [Therefore] the trial court reached a correct conclusion that this evidence was admissible. [The appeal court] cannot consider justified the arguments of the defence that criminal procedure legislation had been breached by the reading out of Ms K.’s pretrial statements, [since her presence at hearings was impossible as she was undergoing treatment in a clinic].”