Постановление Европейского суда по правам человека от 22.04.2010 «Дело Севастьянов (sevastyanov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SEVASTYANOV v. RUSSIA
(Application No. 37024/02)
JUDGMENT*
(Strasbourg, 22.IV.2010)
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*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 Sevastyanov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren}*Nielsen, Section Registrar,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 25 March 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 37024/02) 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 Pavel Igorevich Sevastyanov ("the applicant"), on 10 September 2002.

2. The applicant, who had been granted legal aid, was represented by Mr M. Rachkovskiy, a lawyer practising in Moscow, Russia. The Russian Government ("the Government") were represented by Ms V. Milinchuk, the then Representative of the Russian Federation at the European Court of Human Rights.

3. On 2 April 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

4. 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
5. The applicant was born in 1979 and is serving a sentence of imprisonment in the Ivanovo Region.

A. Criminal proceedings against the applicant
1. The investigation
6. On 28 October 2000 victims B. and M. were killed in the latter's house. On 31 October 2000 the applicant was questioned in the Oktyabrskiy district prosecutor's office of Ivanovo in relation to the murders. Having been apprised of the privilege against self-incrimination, the applicant stated that he had spent most of the relevant day with his girlfriend Y. and his friend Ov., as well as several other persons (I., K. and V.), except for some time in the afternoon when Ov. and the applicant went to M.'s place but the latter was absent. The applicant added a note to the interview record alleging that he had been threatened with death or violence if he refused to make certain admissions. The record was also signed by a lawyer, Mr O. Immediately thereafter, the applicant signed a suspect arrest record, in which he indicated that he would like to be represented by O.

7. On the same evening, the investigator twice heard Y., who stated at the second interview around midnight that the applicant had told her that he had killed victim M. The investigator also interviewed Ov., who confirmed in substance the applicant's account of the events but added that the applicant had told him that he had killed victims M. and B. with an axe; Ov. had also heard the applicant discuss an alibi with Y.

8. On 1 November 2000 the applicant was brought for further interrogation. He was assisted by counsel and refused to testify. According to the applicant, a police officer or several officers exerted pressure on him and hit him on the head with a folder in order to force him to make self-incriminating statements. On the same day Y. gave a more detailed statement in addition to her second statement made on 31 October 2000.

9. On 2 November 2000 the applicant refused the services of O., allegedly under pressure from unnamed officers. As follows from his written statement, he declined the services of counsel O. due to "contradicting positions on the case" and sought the appointment of a Ms Z. instead. The investigator appointed Z. as counsel and she assisted the applicant during the interview on the same day. The Government referred to the interview record from which it would follow that the applicant had made admissions on that date; that he had felt well and had been willing to give an oral testimony in the presence of counsel Z.; that he had been provided with an opportunity to have a consultation with counsel before the interview; and that he had had no complaints against any police officers. Ov. was also interviewed and provided a more detailed account of the events.

10. On 3 November 2000 the applicant was examined by a medical expert. The applicant had scratches on his left elbow, bruises and scratches on his right arm and legs, several cuts and scratches on his hands, scratches below the ribs, and a scratch on his head. According to the expert, the above injuries had been sustained four to nine days before the date of the examination.

11. On 10 November 2000 the applicant expressed a wish to be represented by O. again. However, on 7 December 2000 the applicant retained the services of another counsel, Mr S., who assisted him in the subsequent pre-trial and trial proceedings.

12. On 20 December 2000 O. (instead of counsel S.) requested the investigator to order an expert report to verify if the applicant had been emotionally disturbed when, according to his version, he had seen victim B. kill victim M. in the latter's house. However, the investigator rephrased the question to the expert as whether the applicant had been emotionally disturbed when the victims had been murdered.

13. Ov. and Y. were interviewed again in 2001. The investigator also interviewed K., who stated that on 28 October 2000 he had been together with the applicant until his departure in the evening; that Ov. told him that the applicant had killed M. and B.

14. On an unspecified date, the applicant was charged with murder, robbery and destruction of property. The case was referred to the Ivanovo Regional Court for trial by a jury.

2. The trial
15. The trial judge considered that it was appropriate to accept in evidence the applicant's interview record of 2 November 2000 since the applicant's allegation of duress was unfounded. The applicant argued that he had seen victim B. kill victim M.; he admitted the arson of the house but pleaded legitimate self-defence in respect of causing injuries to victim B. during a violent fight.

16. It also appears that a number of expert reports were presented to the jury. It transpires from the available material that one of the reports concluded that certain traces of blood at the crime scene and on the clothes of the applicant "could belong" to the applicant and victim B. who had the same blood group.

17. The jury heard a number of witnesses, including witnesses K., V., I., who had seen the applicant in Ov.'s flat on the day of the murders or on the next day. The trial judge allowed the reading out of their pre-trial depositions.

18. The jury also heard Ov. and the applicant was given an opportunity to put questions to him. At the court hearing Ov. alleged that he had previously made statements against the applicant under pressure from the police. The judge examined the allegation of ill-treatment and rejected it as unfounded. The judge thus allowed the reading out of his pre-trial depositions to the jury (see also paragraph 20 below).

19. The trial judge twice summoned Y. However, the subpoenas could not be served on her and were returned to the court because she did not live at the address which she had provided to the domestic authorities during the investigation. There was no information about her whereabouts; her next of kin were not aware of her new place of residence. Having excluded Y.'s statement made on 31 October 2000, the trial judge, however, allowed the reading out of her subsequent statements (see also paragraph 21 below).

20. In her summing-up to the jury on 16 October 2001, the trial judge reiterated the charges against the applicant and the evidence referred to by the parties and declared admissible. The judge explained to the jury that she had not been presented with any evidence indicating that Ov.'s testimony had been obtained under duress or otherwise in breach of law. Considering that the defence counsel had presented a distorted summary of the victims' injuries in his final speech, the judge reiterated the conclusions of the admissible expert reports. She also indicated to the jury that it was not their remit to decide on the putative self-defence issue.

21. After several hours of deliberations, the jury returned a guilty verdict on the charges of murder, robbery and destruction of property. On 17 October 2001 the trial judge held the final hearing concerning civil claims, the sentence and other matters to be determined by the trial judge. Y. appeared before the trial judge on that day and explained that she had not received any court summons, which had been sent to her mother's home address. Her mother was unaware of her new place of residence. Having learnt about the trial the day before, she decided to come to the courthouse (see also paragraph 19 above). The trial judge allowed Y. to give her opinion concerning the applicant's personality in so far as this matter could be relevant to the sentence. On the same day, the applicant was sentenced to eighteen years' imprisonment and the confiscation of his property was ordered.

22. The applicant submitted objections to the trial verbatim record, considering inter alia that Y. had in fact explained to the trial judge that the investigator had wrongly noted her new home address as her work address. The trial judge, however, rejected those objections as untrue.

3. Appeal proceedings
23. The applicant and his counsel submitted appeals to the Supreme Court of Russia. They argued that there had been various defects in the pre-trial investigation, in particular as regards the right to legal assistance; they contested the quality of the evidence, including the expert opinions, and the trial judge's summing-up to the jury. The applicant's counsel S. asked to be notified of the date for the appeal hearing and the applicant asked to be brought to that hearing.

24. On 8 January 2002 the applicant requested the Regional Court to give him access to the case file in order to prepare his defence on appeal. On 1 February 2002 the Regional Court dismissed his request because Russian law did not vest in the accused a right to have access to the file in appeal proceedings. The applicant unsuccessfully renewed his request in February 2002.

25. On 22 February 2002 the judge rejected a request by the applicant to have the trial verbatim record amended. Having examined the trial transcript, on 18 March 2002 the applicant's counsel submitted a statement of appeal. A handwritten inscription by the trial judge contained the instruction that "all participants in the proceedings be made aware of that document".

26. On 19 April 2002 the Supreme Court granted leave to the applicant to participate in the appeal hearing and ordered that he be brought to Moscow from the Ivanovo Region. As can be seen from a telegram dated 28 May 2002, the applicant's counsel had been informed that the appeal hearing was listed for 4 June 2002 at 10 am. According to the Government, the applicant was also informed accordingly on the same date.

27. The applicant asserted that in April 2002 he had requested the Supreme Court to grant him access to the documents relating to the appeal proceedings, including the statement of appeal lodged by his lawyer and the written observations prepared by the prosecutor. He received no reply to this request.

28. On an unspecified date, the prosecutor lodged his observations in reply to the applicant's appeal. A copy of those observations was not made available to the applicant or his counsel.

29. On 31 May 2002 Moscow remand centre received a letter from the Supreme Court requiring them to make arrangements for the applicant's participation in the appeal hearing on 4 June 2002 at 10 am and for the applicant to be notified of the date of the hearing.

30. On 4 June 2002 the Supreme Court heard the applicant by way of a video link and upheld the trial judgment. During the appeal hearing the applicant was not represented by a lawyer. The prosecutor was present at the hearing.

31. The court refused to examine the applicant's arguments directed against the findings of fact made at first instance by the jury since this aspect of the case could not be challenged on appeal. It noted that the applicant had been informed of the special procedure for appeal against the verdict of a jury (see also paragraph 48 below). The appeal court examined the remaining arguments and dismissed them. Lastly, the court noted that the applicant had been given access to the case file before the trial in July - August 2001 and after the trial in December 2001 - February 2002. The applicable legislation did not require photocopying of the file.

4. Subsequent proceedings
32. In 2005 the Regional Court reconsidered the trial and appeal judgments in the light of the amended (more favourable) legislation and lifted the order for the confiscation of the applicant's property.

B. Proceedings concerning the alleged ill-treatment
33. The applicant complained to the district prosecutor that on 1 November 2000 an officer had hit him on the head with a folder; that he had been subjected to threats on 2 November 2000 and that he had been compelled to decline O.'s services. The prosecutor heard the investigator in charge of the case against the applicant and the officer who had allegedly beat him. On 6 December 2000 the district prosecutor refused to initiate criminal proceedings, noting the applicant's contradictory statements concerning the alleged threats or beating. The inquiry file was then lost. In the resumed proceedings, the district investigator heard the applicant and the investigator in charge of the case against the applicant. On 27 August 2001 the district investigator issued a new decision not to institute criminal proceedings. He referred to the medical report of 3 November 2000, which had revealed injuries sustained, according to the expert, four to nine days before the date of the examination (see paragraph 10 above). The investigator concluded that those injuries had been sustained before the applicant's arrest. He also noted that the applicant had made no