Anatoliy Anatolyevich CHELBAYEV v Russia - 42052/04 [2010] ECHR 2011 (2 November 2010)

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The European Court of Human Rights (Fifth Section), sitting on 2 November 2010 as a Chamber composed of:

Peer Lorenzen, President,
Karel Jungwiert,
Rait Maruste,
Anatoly Kovler,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

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 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;

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 applicant complained under Article 3 of the Convention that he was detained in inhuman and degrading conditions for three days upon his arrest. He also complained under Article 5 §§ 1, 2 and 3 of the Convention that his pre-trial detention had been unlawful.

The applicant further complained under Article 6 §§ 1, 2, 3 (a), (b), (c) and (d) of the Convention that in the course of the criminal proceedings against him he had not received a fair trial. In particular, he complained that his lawyer had been ineffective and that the trial court had failed to secure attendance of the witness Mrs Ta., whom he had no opportunity to examine at any stage of the proceedings.

The applicant also relied on Article 8, Article 1 of Protocol No. 1, Article 2 of Protocol No. 4 and Protocol No. 12, without giving any further explanation in relation to those provisions.

Lastly, he contended, in broad terms, that the correctional labour colony officers had delayed in posting his correspondence with the Court, including the letter of 25 September 2008 and there was a possibility that they could have failed to send some of his other letters to the Court.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

As regards the allegations of ill-treatment, Court notes that the applicant did not furnish any evidence in respect of his complaint, such as, for example, medical certificates, nor did he provide a detailed account of the events. Moreover, it appears that he did not complain about the alleged beatings to a prosecutor, nor did he make use of the judicial appeal option. Instead, he preferred to raise the ill-treatment issue before the trial court which determined the criminal charge against him. When questioned by the trial court as to the details of the alleged beatings, he was unable to cite any basic information, such as the police officers’ names or other information permitting to identify the alleged perpetrators, nor had he provided any details whatsoever to the domestic courts.

In these circumstances, the Court finds that this part of the complaint under Article 3 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.

Turning to the complaint about conditions of detention, the Court notes that the period of detention in the temporary confinement cell referred to in the complaint ended on 16 January 2003, that is more than six months before the date of the applicant’s complaint to the Court.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”

The Court reiterates that, according to Article 35 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. It observes that the applicant was convicted on 19 August 2003 and that after that date his detention no longer fell within the ambit of Article 5 § 1 (c) but within the scope of Article 5 § 1 (a) of the Convention (see, for instance, Fedosov v. Russia (dec.), no. 42237/02, 25 January 2007, with further references). The applicant lodged his application before the Court on 20 October 2004, that is, more than six months after his detention on remand had ended.

It follows that the present complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”

The Government submitted that the Presidium of the Rostov Regional Court had acknowledged a violation of the applicant’s rights and modified the appeal judgment so that the reference to Mrs Ta.’s testimony was excluded. The applicant could no longer claim to be a victim. In any event, Mrs Ta.’s pre-trial testimony was not decisive and the conviction was based on numerous other items of evidence.

The applicant disagreed. He submitted that the infringement of his right to a fair trial had not been remedied, because the evidence referred to by the supervisory review succeeded in establishing the reason for the victim’s death, but had not been sufficient to prove the applicant’s guilt. The testimony by witness Mr.S. was hear-say evidence. The medical report did not unequivocally state that the blood discovered on the applicant’s shoes belonged to the victim, but only admitted, albeit with a high degree of probability, that it was highly probable.

The Court will first examine whether the modification of the judgments of 19 August 2003 and 27 April 2004 on supervisory review deprived the applicant of his status as a “victim”. It reiterates that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI, and Constantinescu v. Romania, no. 28871/95, § 40, ECHR 2000-VIII).

In the instant case, the Presidium of the Rostov Regional Court explicitly acknowledged that the applicant’s right (as a defendant) to question a prosecution witness had been infringed and therefore rectified the first instance and appeal judgments so that Mrs Ta.’s testimony was excluded from the evidence in the case. Thus, the negative consequences of the proceedings before the first instance and the appeal courts were redressed. Therefore, having regard to the contents of the Presidium’s decision of 4 September 2008, the Court finds that the national authorities did acknowledge, and then redressed the alleged breach of the Convention (see, mutatis mutandis, Ryabov v. Russia, no. 3896/04, §§ 50-52, 31 January 2008; Babunidze v. Russia (dec.), no. 3040/03, 15 May 2007; Fedosov, cited above; Davidchuk v. Russia (dec.), no. 37041/03, 1 April 2008).

Furthermore, the Court does not lose sight of the fact that the Presidium reduced the applicant’s sentence by three years. In this respect, the Court reiterates that in certain circumstances a reduction in sentence can have the effect of rendering an applicant “no longer a victim” (see, for example, Lie and Berntsen v. Norway (dec.), no. 25130/94, 16 December 1999, and Fedosov v. Russia (dec.), cited above).

Finally, the Court notes that the applicant did not allege procedural violations in the supervisory review proceedings (see, by contrast, Sharomov v. Russia, no. 8927/02, §§ 35-36, 15 January 2009).

It follows that the applicant can no longer claim to be a “victim” of the alleged violation of Article 6 § 3 (d) of the Convention within the meaning of Article 34 of the Convention and that this complaint must be rejected pursuant to Articles 34 and 35 §§ 3 and 4.

The Court further notes that the crux of the applicant’s grievance is related, in essence, to the way the Presidium had examined and assessed the evidence in the criminal case and, in particular, to the weight it had given to certain items of evidence. As regards the assessment and admissibility of the evidence, the Court recalls that while Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is held to be primarily a matter for regulation under national law (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Furthermore, the Court observes that it is not, itself, a court of appeal for the decisions of domestic courts and that, as a general rule, it is for those courts to assess the evidence before them. The Court’s task under the Convention is to ascertain whether the proceedings as a whole were fair (see García Ruiz v. Spain [GC], cited above, and also, mutatis mutandis, Doorson v. the Netherlands, 26 March 1996, § 67, Reports of Judgments and Decisions 1996 II). In the applicant’s case there is no indication, nor has it been persuasively argued, that the courts went beyond their discretion to admit or refuse evidence or that they gave inappropriate weight to certain pieces of evidence.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The Court reiterates that a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes. The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (see Daud v. Portugal, 21 April 1998, § 38, Reports of Judgments and Decisions 1998 II). Although it appears that in the present case the applicant raised, albeit in vague and general terms, the allegation of his council’s ineffectiveness in his grounds of appeal, there is nothing in the case to suggest that he had submitted a request for replacement counsel during the trial stage of the proceedings. Moreover, the applicant had not provided any details about his allegations either in his complaints to the domestic authorities or in his application to this Court. Furthermore, the materials in the Court’s possession indicate that counsel studied the case file, had meetings with the applicant, was present at the interrogations, the first instance and appeal hearing − and made oral submissions. The Court therefore concludes that failure by legal-aid counsel to provide effective representation cannot be said either to have been manifest or to have been sufficiently brought to the appeal court’s attention by the applicant.

It follows that this part of the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.

As regards the remainder of the complaint under Article 6, the Court observes that the applicant’s allegations are unsubstantiated. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

5. The applicant may further be understood as complaining under Article 34 of the Convention that the colony officials had delayed in posting his correspondence with the Court, including the letter of 25 September 2008, and that some of his letters could have been hidden by the administration of the correction facility. The relevant part of Article 34 provides:

“The Court may receive applications from any person... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

As regards the letter of 25 September 2008, the Court observes that this correspondence indeed had not been posted until 22 October 2008. However, the applicant had failed to cite any reasons given by the authorities for returning the letter, nor had he provided any other relevant information. The Court further notes that it received this correspondence on 16 December 2008, without an unusual delay. Overall, given the lack of any further details related to the complaint in the case materials, the Court is unable to conclude that the delay in posting could be regarded as amounting to an impediment to the applicant’s right to correspond with the Court.

The remainder of the applicant’s allegations about the prison colony’s interference with his correspondence are not supported by any evidence and lack essential information. Furthermore, it appears that all the letters referred to by the applicant in respect of his complaint, including his observations regarding the Government’s responses, had reached the Court without substantial delay. In sum, there is nothing in the case to suggest that the colony authorities hindered the applicant’s right of individual petition.

Accordingly, the Court does not consider it necessary to further pursue the matter.

6. Lastly, the applicant relied on Article 8 of the Convention, Article 1 of Protocol No. 1, Article 2 of Protocol No. 4 and Protocol No. 12, without giving any further explanation in relation to those provisions.

Having regard to all the material in its possession, and in so far as the matters complained of were within its competence, the Court found that they did 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 in accordance with Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Anatoliy Anatolyevich CHELBAYEV v Russia - 42052/04 [2010] ECHR 2011 (2 November 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/2011.html Cite as: [2010] ECHR 2011