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FIFTH
SECTION
CASE OF POLYAKOV v. RUSSIA
(Application
no. 77018/01)
JUDGMENT
STRASBOURG
29
January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Polyakov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Anatoly Kovler,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 77018/01) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Valentin Valeryevich
Polyakov (“the applicant”), on 18 July 2001.
- The
applicant was represented by Mr A. Manov, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev, former Representative of the
Russian Federation at the European Court of Human Rights.
- On
3 June 2005 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3 of the Convention). The Government objected to the joint
examination of the admissibility and merits of the application.
Having considered the Government's objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and is serving a sentence of imprisonment
in the Tver Region.
A. The applicant's arrest and alleged ill-treatment
- 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.
- 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.
- 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.
- The
applicant also raised the ill-treatment matter at the trial (see
paragraphs 11 and 15 below).
B. Trial
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
II. RELEVANT DOMESTIC LAW
- 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).
- 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.).
- 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).
- 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been beaten up by the police on 21
October 1999, in breach of Article 3 of the Convention, which reads
as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government submitted that the applicant had unduly resisted lawful
arrest and had thus had to be handcuffed. After the initial refusal
to prosecute officers N and O in 2000, the proceedings had resumed in
2005 and were pending.
- The
applicant made no specific submissions on that matter.
- The Court reiterates that Article 3 of the Convention
prohibits in absolute terms torture and inhuman or degrading
treatment or punishment. Article 3 does not prohibit the use of force
for effecting a lawful arrest, but force may only be used if it is
indispensable and must not be excessive (see Ivan Vasilev v.
Bulgaria, no. 48130/99, § 63, 12 April 2007 with
further references; and Peleckas v. Lithuania (dec.),
no. 18293/03, 6 November 2007). Recourse to physical force which
has not been made strictly necessary by the person's own conduct
diminishes human dignity and is in principle an infringement of the
right set forth in Article 3 of the Convention. In order to fall
within the scope of Article 3, the ill-treatment must attain a
minimum level of severity, the assessment of which depends on all the
circumstances of the case, such as the duration of the treatment, its
physical or mental effects and, in some cases, the sex, age and state
of health of the victim (see, among others, Ireland v. the United
Kingdom, judgment of 18 January 1978, Series A no. 25,
p. 65, § 162). In assessing evidence, the Court has
generally applied the standard of proof “beyond reasonable
doubt”. However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Zelilof v. Greece,
no. 17060/03, § 44, 24 May 2007).
- The
parties presented different versions of the applicant's arrest. The
applicant affirmed that he had been beaten up during and immediately
after his arrest. At the trial he pleaded that the police officers
had forcibly pinned him to the ground, handcuffed him and beat him
up. As can be seen from the medical report submitted by the
applicant, after the arrest he had a bruise on his left shin and an
injury to his left shoulder (see paragraph 6 above). While the Court
does not exclude that the applicant could have sustained them during
the arrest, no sufficient and cogent elements have been provided
which could support the applicant's allegation of police brutality.
Accordingly, the Court is unable to find, beyond reasonable doubt,
that the applicant's complaint is sufficiently substantiated.
Overall, the Court has doubts as to whether in the circumstances of
the case the use of force by the police was excessive and whether the
applicant's resulting injuries reached the level of severity required
under Article 3. Finally, the Court notes that the parties made no
submissions as regards the advancement of the investigation after its
resumption in 2005. It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE
CONVENTION
- The
applicant complained under Article 6 § 3 (d) of the Convention
that the domestic courts had arbitrarily rejected his requests to
examine several witnesses whose testimony would confirm his alibi for
19 October 1999. This provision, in its relevant parts, reads as
follows:
“3. Everyone charged with a criminal
offence has the following minimum rights:
(d) ...to obtain the attendance and
examination of witnesses on his behalf under the same conditions as
witnesses against him;...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government contended that the applicant could have raised the matter
in the course of the preliminary investigation. The trial court
rejected his request for witnesses as unfounded. The applicant and
his representatives had raised no objections to concluding the trial
proceedings in their absence. The court of appeal had no power to
hear witnesses but could have remitted the case for further
investigation, if need be (see paragraph 20 above).
- The
applicant maintained his complaint.
- The
Court reiterates that the right to call witnesses is not absolute and
can be limited in the interests of the proper administration of
justice. Article 6 § 3 (d) does not require the attendance and
examination of every witness on the accused's behalf; its essential
aim, as indicated by the words “under the same conditions”,
is full equality of arms in the matter (see Vidal v. Belgium,
judgment of 25 March 1992, Series A no. 235-B, pp. 32-33,
§ 33). An applicant claiming a violation of his right to
obtain the attendance and examination of a defence witness should
show that the examination of that person was necessary for the
establishment of the truth and that the refusal to call that witness
was prejudicial to the defence rights (see Guilloury v. France,
no. 62236/00, § 55, 22 June 2006). Although it is
normally for the national courts to assess the evidence before them
as well as the relevance of the evidence which defendants seek to
adduce, there might be exceptional circumstances which could prompt
the Court to conclude that the failure to hear a person as a witness
was incompatible with Article 6 (see Destrehem v. France,
no. 56651/00, § 41, 18 May 2004, and Bricmont v.
Belgium, judgment of 7 July 1989, Series A no. 158, p. 31,
§ 89).
- Turning to the circumstances of the present case, the
Court observes at the outset that the applicant limited his argument
to witnesses B, T, S and R and made no submissions in respect of any
other persons. The Court also notes that this complaint relates to
the first episode of drug trafficking for which he was charged. Thus,
the Court will examine the applicant's complaint only in so far as it
concerns his inability to obtain the attendance and examination of
those four persons in relation to that episode.
- The
Government contended that the applicant should have made his request
for witnesses during the preliminary investigation. Without denying
the probable effectiveness of adducing an alibi defence at the stage
of a preliminary investigation, the Court observes that the Code of
Criminal Procedure, in force at the material time, required a trial
judge to determine who should be called as witnesses (see paragraph 19
above). Thus, it does not appear that the applicant was barred from
making a request for witnesses during the trial, which he actually
did on several occasions. The Court considers that the Government's
argument, as presented, to the effect that the applicant had not
objected to concluding the trial proceedings in the absence of the
witnesses is devoid of any substance. Accordingly, the Court does not
need to examine it.
- The
Court notes that, according to the prosecution, on 19 October
1999 the applicant sold heroin to Ms U. The applicant claimed that he
had not met U on that date. Thus, it appears that one of the elements
of the applicant's defence position was to prove his alibi for that
date. It has not been claimed that the applicant's request for
defence witnesses was vexatious or that he made no reasonable effort
to obtain their attendance, for instance, by omitting to provide
their full names and addresses. There is no doubt that the request
was sufficiently reasoned, relevant to the subject-matter of the
accusation and could arguably have strengthened the defence position
or even led to the applicant's acquittal (see, in this respect, Perna
v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V,
and Guilloury, cited above, § 64; Dorokhov v.
Russia, no. 66802/01, § 74, 14 February
2008). The above finding is supported by the fact that the
prosecution did not oppose the applicant's request.
- The
Court further notes that the applicant's offer to produce evidence
was rejected by the trial court, without any reasons having been
given. In that connection, it is observed that under Russian law, in
force at the material time, an application to call additional
witnesses or adduce evidence should have been granted in all cases
and a refusal to grant it should have been given in a reasoned
decision (see paragraph 19 above). It appears that no such decision
was issued. Neither did the trial judgment contain any reasoning to
that effect. Furthermore, the court of appeal did not
address the applicant's argument concerning the trial court's refusal
to call witnesses (see paragraph 16 above).
- The
Court has already found that the applicant's request was relevant to
the subject matter of the accusation. The only direct evidence
showing that the applicant had sold drugs on 19 October 1999 was
the putative purchaser's deposition made during the pre-trial
investigation, which she retracted at the trial. Thus, the Court
considers that in circumstances where the applicant's conviction was
based primarily on the assumption of his being in a particular place
at a particular time, the right to obtain the attendance and
examination of witnesses on his behalf and the principle of equality
of arms, which are specific aspects of the right to a fair trial,
imply that he should have been afforded a reasonable opportunity to
challenge the assumption effectively (see, mutatis mutandis,
Popov v. Russia, no. 26853/04, § 183, 13 July
2006).
- In
the light of the above considerations, the Court considers that there
has been a violation of Article 6 § 3 (d) of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained that his arrest had been unlawful, that
he had not been provided with legal assistance on 22 and 23 October
1999, that his complaints about the investigator's actions had not
been examined and that the trial judge was biased. The Court has
examined the remainder of the applicant's complaints as submitted by
him. However, having regard to all the material in its possession and
in so far as the matters fall within its competence, it finds that
these complaints do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 5,000 euros (EUR) in respect of pecuniary and EUR
5,000 in respect of non-pecuniary damage.
- The
Government submitted that this claim had not been substantiated and
was excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, having regard to the nature of the violation found
and making its assessment on an equitable basis, the Court awards the
applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 300 for unspecified costs and expenses
incurred before the domestic courts and EUR 3,000 for the lawyer's
eventual travel to Strasbourg.
- The
Government submitted that the applicant had not specified the nature
of the above costs and expenses, and had not provided any proof that
these had actually been incurred.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the courts'
refusal to examine defence witnesses admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 3 (d) of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
