Communicated on 15 November 2017
THIRD SECTION
Application no. 48105/17
Aleksandr Aleksandrovich BORISOV
against Russia
lodged on 21 June 2017
STATEMENT OF FACTS
The applicant, Mr Aleksandr Aleksandrovich Borisov, is a Russian national, who lived, prior to his arrest, in Moscow.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 16 February 2016 the deputy head of the city drug control service authorised the search at the applicant’s place of residence referring to the information received from an informant that the applicant was engaged in selling hashish and amphetamines that he kept in his flat.
On 17 February 2016 at approximately 8 p.m. the applicant and D. were stopped by the police inside the block of flat where D. lived. The police officers took the applicant up to the first floor where they searched him and found no illegal substances on him. During the search one of the police officers slipped something into the left pocket of the applicant’s jacket. Then the police officers handcuffed the applicant and put him and D. into the police car. At 9:36 p.m., when police officer G. and two lay witnesses arrived, the police officers took the applicant out of the car and searched him in the presence of lay witnesses. G. checked the left pocket of the applicant’s jacket and took out two small white plastic bags. It was later established that the plastic bags contained amphetamines. The police also searched the flat where the applicant lived with his mother. They did not find any illegal substances. The applicant was then taken to a hospital where he underwent a medical examination which established that the applicant had been under the influence of amphetamines and cannabis.
On 18 February 2016 the investigator issued a record of the applicant’s arrest.
On 18 February 2016 the forensic expert carried out an examination of the plastic bags allegedly found on the applicant and of the media taken from the applicant’s hands. The expert did not find the applicant’s fingerprints on the bags or the traces of illegal substances on the applicant’s hands.
On 22 September 2016 the Timiryazevskiy District Court of Moscow found the applicant guilty of possession of illegal substances and sentenced him to 4.5 years’ imprisonment. The court relied on the statements made by police officers G. and M. who claimed that in February 2016 they had received information from their sources that the applicant and another unidentified person had been selling amphetamines that he stored at his place of residence. On 17 February 2016 the police had carried out surveillance on the applicant. When the applicant and D. had been about to leave the block of flats, they detained and handcuffed them. It had taken the police approximately forty minutes to find the lay witnesses to conduct the applicant’s bodily search during which they had found amphetamines on him. Then they had carried out a search of the applicant’s flat where they had not found any illegal substances. The court also questioned P. and Ch. who had been present during the applicant’s search as lay witnesses. The court further relied on the search record, the applicant’s medical examination report of 16 February 2016; and forensic report identifying the substances found on the applicant as amphetamines. As regards the applicant’s allegation that G. had planted the drugs on him, the court interpreted it as an attempt on the applicant’s part to avoid criminal liability.
On 21 December 2016 the City Court upheld the applicant’s conviction on appeal.
COMPLAINT
The applicant complains under Article 6 of the Convention that the criminal proceedings against him were unfair. In particular, he alleges that his conviction was based on the evidence planted by the police.
QUESTIONS TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention (see Sakit Zahidov v. Azerbaijan, no. 51164/07, §§ 42-59, 12 November 2015)?
In particular,
(a) What was the reason for the applicant’s arrest and subsequent search?
(b) Was the applicant’s arrest and bodily search conducted in accordance with domestic rules of criminal procedure? When was the applicant provided with legal assistance?
(c) Why was the record of the applicant’s arrest not made on the day of his arrest?
(d) Did the national courts address the applicant’s arguments as regards the quality of evidence obtained during his bodily search?
(e) What was the probative value of the forensic expert examination of 18 February 2016 as attributed by the trial court?
Full & Egal Universal Law Academy