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FIRST SECTION

Application no. 13888/05
Aleksey Nikolayevich SMIRNOV
against Russia
lodged on 31 March 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Aleksey Nikolayevich Smirnov, is a Russian national who was born in 1978 and lives in Kostroma. He is currently serving a sentence of imprisonment.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A.  Preliminary investigation

On 28 January 2002 the applicant was arrested on suspicion of his involvement in several episodes of aggravated robbery in the period between November 2001 and January 2002 in respect of which criminal proceedings were instituted.

On 31 January 2002 his detention on remand was ordered.

On 4 February and 4 June 2002 formal charges were brought against the applicant.

It appears that at some point during the preliminary investigation, the victim of one of the episodes of robbery imputed to the applicant, Ms K., made statements incriminating him during her witness interview. She then identified the applicant during an identification parade as the person involved in the robbery that had taken place in her flat on 4 December 2001.

It also appears that a face-to-face confrontation was organised between the applicant and Ms K., with the participation of the applicant’s lawyer. During the confrontation Ms K. again confirmed her statements incriminating the applicant.

During another witness interview which took place on 13 June 2002, Ms K. repudiated her previous statements and requested the investigating authorities to regard the results of all previous investigative actions with her participation as invalid. She explained, in particular, that during those investigative actions she had felt unwell as it had been the first trimester of her pregnancy, and that therefore she had been unable adequately to assess the situation. She also added that recently she had seen in a bus a man who had in fact robbed her on 4 December 2001. In reply to a question by the investigator in charge, whether any pressure had been put on her on the part of the applicant since she had reported about the robbery to the police, Ms K. stated that on one occasion in March 2002 some people had come to her place in an attempt to request her to discuss her statements and withdraw her complaint about the robbery, but she had not met them in person, as it was her husband who had spoke to them.

On 26 June 2002 the applicant was informed of the completion of the preliminary investigation.

On 1 October 2002 the applicant started studying the materials of his criminal case.

On 20 January 2003 the Kostroma Regional Court (“the Regional Court”) ordered that the applicant and a number of other co-accused should remain in pre-trial detention until they completed studying the case file.

On 27 March 2003 the Supreme Court of Russia dismissed the applicant’s appeal against the decision of 20 January 2003 and upheld that decision on appeal.

On 24 December 2003 the Leninskiy District Court of Kostroma (“the District Court”) further extended the period of the applicant’s detention on remand until 30 March 2004.

B.  Court proceedings

1.  Proceedings before a trial court

On 26 January 2004 the District Court convicted the applicant and twelve other defendants of several counts of aggravated robbery. In particular, the applicant was convicted of five episodes of aggravated robbery and sentenced to eleven years’ imprisonment. The applicant admitted his guilt in one of the episodes incriminated to him and partially admitted his guilt as regards one more episode imputed to him. He, however, pleaded non-guilty as regards the remaining three episodes.

(a)  Episode of robbery of Ms K.

The trial court considered the applicant’s guilt in all the episodes imputed to him proven. In particular, in respect of the robbery at Ms K.’s place, the court based its relevant findings on the pieces of evidence obtained during the preliminary investigation, including the witness statements incriminating the applicant given by Ms K. at the beginning of the preliminary investigation; a report on identification by Ms K. of the applicant as the person who had robbed her, and a report on the results of a face-to-face confrontation between Ms K. and the applicant.

The applicant insisted that he was innocent and that Ms K. had been mistaken when having identified him as the perpetrator. The trial court critically assessed that argument; it further examined and rejected Ms K.’s statement given during the preliminary investigation in which she had repudiated her statements and the results of other investigative actions incriminating the applicant, with reference to her poor health condition at the time. In the District Court’s opinion, Ms K. had made that latter statement under duress exercised by the applicant’s supporters. It noted that in the course of the investigation in February and March 2002 Ms K. had never complained of her physical condition, and it was not before June 2002 that she had mentioned it for the first time. The court also stressed that the confrontation between Ms K. and the applicant had taken place in the presence of the applicant’s lawyer. It further stated that Ms K.’s witness statements, which she had later repudiated, had been coherent, consistent and detailed, and corresponded to witness statements given by one of the other co-accused.

Ms K. was not examined at the trial; the court noted that she failed to appear because she had a baby and was on maternity leave, which was a valid reason. The applicant objected to the court reading out Ms K.’s statements made during the preliminary investigation, but the court rejected this objection.

(b)  Episode of robbery of Ms Ch. and Mr Sh.

The District Court also found the applicant guilty of having robbed Ms Ch. and Mr Sh. at their flat. It based this conclusion Ms Ch.’s complaint to the police about the robbery; her and Mr Sh.’s witness statements, a report on the inspection of the scene of the incident, documents concerning the results of other investigative steps and statements of several witnesses.

In particular, the trial court relied on statements of witness T., the victims’ granddaughter, given by her during the preliminary investigation. She had stated, inter alia, that she was a close friend of certain Z., who had visited her at her grandparents’ place on numerous occasions and had known where they kept the money. In her pre-trial statements Ms T. had also indicated that Z. was the applicant’s acquaintance. Ms T. was not examined at the trial; the District Court stated that she could not appear because she lived in Moscow, and that this was a valid reason. It does not appear that the applicant objected to the court reading out Ms T.’s statements given during the preliminary investigation.

The trial court also read out statements by certain Mr S. to the effect that he had purchased from the applicant an object stolen from Ms Ch. and Mr Sh. Mr S. attended the court hearing but stated that in August 2003 he had had a serious craniocerebral injury and had partially lost his memory; therefore he had been unable to give any oral evidence before the court. It does not appear that the applicant objected to the court reading out Mr S.’s pre-trial statements.

The District Court further examined a number of other witnesses, including a defence witness. It rejected this latter witness’s statements in the applicant’s support as unreliable, stating that the witness was the applicant’s sister and was trying to help him avoid the responsibility for the imputed offence.

(c)  Episode of robbery of Mr G.

The trial court further considered proven the applicant’s involvement in the robbery of and infliction of bodily injuries on Mr G. In this respect, the court referred to statements of Mr G. and another victim of that offence, various documentary evidence, including a report on the inspection of the scene of the incident and a medical report on injuries sustained by Mr G., and statements of other witnesses, including two witnesses on the applicant’s behalf. The applicant pleaded innocent and referred to witness statements confirming his alibi; the court rejected this argument stating that the applicant’s alibi was false and pursued an aim of helping him to avoid the responsibility.

2.  Proceedings before an appellate court

The applicant and his lawyer appealed against the judgment of 26 January 2004. The applicant complained, in particular, despite a clear conflict in pre-trial statements made by Ms K., the District Court had failed to call and examine her at the trial to resolve that conflict, with a mere reference that she had a baby. The applicant further complained that, in order to establish his involvement in the robbery of Ms Ch. and Mr Sh., the trial court had relied, inter alia, on statements made by Ms T. and Mr S. at the preliminary investigation; however those statements did not correspond to the actual circumstances of the incident. The applicant also complained that the trial court had incorrectly assessed the adduced evidence and qualified his actions, and that it had rejected the statements of witnesses proving his alibi.

On 30 November 2004 the Regional Court upheld the applicant’s conviction on appeal. It stated that the applicant’s guilt in all the episodes of robbery incriminated to him had been proven by a body of evidence, including witness statements, which the trial court had duly addressed and assessed correctly. The appellate court remained silent in respect of the applicant’s argument concerning the trial court’s failure to call and examine witness K.

3.  Further developments

On 20 October 2006 the Presidium of the Kostroma Regional Court, in the supervisory review proceedings, reduced the applicant’s sentence to ten years nine months’ imprisonment.

By a final decision of 19 July 2011 the Regional Court further reduced the term of the applicant’s imprisonment to ten years and eight months with reference to certain changes in the criminal law.

COMPLAINTS

The applicant complains under Article 5 of the Convention that his detention in the period from 17 May until 24 December 2003 was unlawful.

The applicant complains under Article 6 § 2 of the Convention that, when establishing his guilt in offences imputed to him, the trial court relied on witness statements incriminating him and rejected statements of witness on his behalf, which violated his right to a fair trial.

The applicant complains under Article 6 § 3 (d) that the trial court refused to call and examine witness K. and established his involvement in her robbery on the basis of her pre-trial statements incriminating him, even though she had later repudiated those statements. The applicant also complains that the trial court established his involvement in the robbery of Ms Ch. and Mr Sh. mainly on the basis of statements of witnesses T. and S. made during the preliminary investigation and read out at the trial. The applicant alleges that those statements did not correspond to actual circumstances of the incident imputed to him. He also complains that that Ms T. was not examined at the trial, whereas Mr S. was unable to confirm those statements at the trial.

Lastly, the applicant refers to Article 6 of the Convention complaining that he was unable duly to study the transcript of the hearings before the first instance court, because of illegible hand-writing in which it was written, which violated his right to a defence, as he was not fully able to prepare his appeal submissions.

QUESTIONS TO THE PARTIES

1.  Did the applicant have a fair trial in the determination of the charges of robbery, in accordance with Article 6 § 1 of the Convention? In particular, as regards the episode of robbery of Ms Kozlova, was the applicant able to examine Ms Kozlova, as required by Article 6 § 3 (d) of the Convention? Was every reasonable effort made to secure the attendance of Ms Kozlova at the trial?

2.  The Government are invited to produce copies of transcripts of Ms Kozlova’s all witness interviews carried out during the preliminary investigation, as well as copies of the record in respect of identification by Ms Kozlova of the applicant and the record in respect of confrontation between Ms Kozlova and the applicant.