CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 18 décembre 2018

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RUSSIA   (Application no. 36658/05)                 JUDGMENT             STRASBOURG   18 December 2018       This judgment is final but it may be subject to editorial revision. In the case of Murtazaliyeva v. Russia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Ganna Yudkivska,   Robert Spano,   Paulo Pinto de Albuquerque,   André Potocki,   Valeriu Griţco,   Faris Vehabović,   Dmitry Dedov,   Iulia Antoanella Motoc,   Carlo Ranzoni,   Armen Harutyunyan,   Georges Ravarani,   Marko Bošnjak,   Tim Eicke,   Péter Paczolay, judges, and Lawrence Early, Jurisconsult, Having deliberated in private on 14 February and 4 October 2018, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 36658/05) 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, Ms Zara Khasanovna Murtazaliyeva (“the applicant”), on 16 September 2005. 2.     The applicant was represented by Mr K.N.   Koroteyev, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G.   Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr   M. Galperin. 3.     The applicant alleged, in particular, that the domestic courts had failed to ensure the examination of witness A. and attesting witnesses B. and K., and that she had been unable to see and examine effectively a secret surveillance videotape shown in the courtroom. 4.     The application was allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court). On 10 November 2010 the application was communicated to the Government. 5.     On 28 March 2017 a Chamber of that Section, composed of Helena Jäderblom, President , Branko Lubarda, Luis López Guerra, Helen Keller, Dmitry Dedov, Alena Poláčková, and Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, gave judgment. The Chamber unanimously declared the above complaints under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible. It held by four votes to three that there had been no violation of Article 6 §§   1 and 3 (d) of the Convention as regards the complaint concerning the absence of witness A. and by five votes to two that there had been no violation of Article 6 §§ 1 and 3 (d) of the Convention as regards the complaint concerning the absence of attesting witnesses B. and K. The Chamber further held, unanimously, that there had been no violation of Article 6 §§   1 and 3 (b) of the Convention as regards the complaint concerning the applicant’s alleged inability to see and examine effectively a secret surveillance videotape shown in the courtroom. Three separate opinions were annexed to the judgment: (a) the partly concurring opinion of Judge Serghides; (b) the joint partly dissenting opinion of Judges López Guerra, Keller and Serghides; and (c) the joint dissenting opinion of Judges López Guerra and Serghides. 6.     In a letter of 9 August 2017 the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. The panel of the Grand Chamber granted the request on 18   September 2017. 7.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. At the final deliberations, Péter Paczolay, substitute judge, replaced Erik Møse, who was unable to take part in the further consideration of the case (Rule 24 § 3). 8.     The applicant and the Government each filed further written observations on the merits (Rule 59 § 1). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 14 February 2018. There appeared before the Court: (a)     for the Government Mr   M. Galperin , the Representative of the Russian Federation to the European Court of Human Rights, Ms   Y . Borisova , Ms   O. Ocheretyanaya ,   Counsels ,   (b)     for the applicant Mr   K.N. Koroteyev ,   Counsel.   The applicant was also present at the hearing. The Court heard addresses by Mr Koroteyev and Mr Galperin, as well as their replies to questions put by the judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicant was born in 1983 and currently lives in Paris. 11.     In September 2003 she arrived in Moscow from Chechnya and started working at an insurance company. In October 2003 she went to a mosque where she met V. and Ku., two young Russian women who had converted to Islam. A.     The secret surveillance operation 12.     In December 2003 the applicant was stopped on the street by two policemen for an identity check. She was then taken to a police station to have her identity verified. According to the applicant, she was released from custody several days later following the intervention of a certain A., who was also an ethnic Chechen and was employed as a police officer attached to the organised crime division of the Moscow police department. In the meantime she was dismissed by her employer because of her unauthorised absence from work. 13.     In February 2004 A. helped the applicant to be reinstated at work. He also found a flat for her, where he visited her on several occasions. The applicant shared the flat with V. and Ku. The flat was located in a dormitory block which belonged to the police department. It was equipped with concealed videotaping and audiotaping devices. The police placed the applicant under surveillance because she was suspected of affiliation with a terrorist group related to the Chechen insurgency movement. The Moscow City Court authorised the use of secret surveillance devices in the flat from 5   February until 4 March 2004. B.     The applicant’s arrest, personal search and the pre-trial investigation 14.     On the evening of 4 March 2004 the applicant was stopped by a police patrol for an identity check as her physical appearance allegedly matched the profile of a suspect in a wanted persons notice. The applicant immediately telephoned A., who spoke briefly with the police officers who had stopped her. The applicant was then taken to a police station because the official registration of her stay in Moscow had expired, which constituted an administrative offence under Russian law. 15.     At the police station, the applicant was informed that she had been apprehended ( задержана ). Her bag was searched by a female police officer   I. in the presence of two attesting witnesses, B. and K., and her fingerprints were taken. The record of the personal search showed that the search of the applicant lasted from 8.35 p.m. until 9.03 p.m. During the personal search, I. discovered two square packages of an unknown substance wrapped in aluminium foil inside the applicant’s bag. The substance, together with the inner lining of the applicant’s bag and the pockets of her jacket, was taken for forensic examination. The forensic examination report stated that the applicant’s fingerprints were taken at 9.30   p.m. The police did not test the applicant’s hands for residue from the substance; nor did they check for her fingerprints on the packages found in her bag. Later the same day the applicant was arrested on charges of terrorism and questioned by the police. A criminal investigation was opened. 16 .     On 12 March 2004 an expert examination of the substance found in the applicant’s bag was carried out. The examination report showed that the substance contained 196 grams of Plastit-4, an industrial explosive prepared using hexogen. In the course of the examination the explosives were destroyed. The examination of the applicant’s bag and the lining of the pockets of her jacket revealed the presence of hexogen. 17.     The police searched the flat where the applicant lived with V. and Ku. and seized a note that had been handwritten by the applicant. The note criticised Russian policy in Chechnya, spoke harshly of Russia and Russians, glorified suicide bombers, preached the way of jihad, vindicated acts of terrorism in Russia and included a statement about “...dreaming of falling [in a] martyr’s death as a shahid on the path of Allah”. The police also found several photographs of an escalator in the Okhotniy Ryad shopping centre in the centre of Moscow. 18 .     A transcript of the conversations on the video tapes recorded at the flat showed that the applicant had been proselytising Islam to V. and Ku., discussing her hatred for Russians and the need for a “holy war” against them, praising the leaders of the Chechen insurgency, and telling her flatmates about the insurgent camps in the Caucasus. 19.     In the course of the investigation the applicant, represented by her defence lawyer, had pre-trial confrontations with witnesses V. and Ku. as well as with police officers S. and I., who had taken part in her arrest and personal search. The applicant had the opportunity to present her account of the events and to put relevant questions. 20 .     On 12 October 2004 the applicant submitted the following motion to the investigating authorities. “Today, 12 October 2004, I was charged with [preparing an act of terrorism]. I completely disagree with the charges. I consider that in my case evidence of my innocence and my lack of connection with this case have not been gathered. I request you to [provide] subpoena records of [my mobile phone calls] on 3 and 4   March 2004, since on those dates the police officers who took me from work and brought me to [the police station] where plastic explosives were planted had talked with A. I request you to question him [A.], and put the following questions to him: 1.     When and under what circumstances did he meet me? 2.     Did he provide me with the accommodation where I resided until my arrest? 3.     In which police station was I unlawfully held for three days and did he or other officers question me? 4.     During the arrest did he talk to me and with the officers who took me from work and brought [me] to [a police station]? 5.     What was his relationship with V. and Ku.?” 21.     The next day an investigator granted the motion in the part concerning the questioning of A., questioned him and informed the applicant about the decision on her motion. 22 .     When questioned A. testified that at the end of December 2003, on the order of his superiors, he had established a relationship of trust with the applicant, who had also introduced him to V. and Ku. He further stated that with the support of the police department he had helped the applicant to find accommodation. She had moved into a flat in the dormitory block belonging to the police department with V. and Ku. On 4 March 2004 the applicant had called him because she had been stopped by a police patrol. He had advised her to obey the orders of the police officers and to follow them to the police station. 23.     The applicant and her defence lawyer, who had been duly informed about the contents of the record of A.’s questioning, did not attempt to put any further questions to him, nor did they request the investigator to conduct a pre-trial confrontation. 24.     On 2 December 2004 the applicant received a copy of the case file for review. On 7 December 2004 the applicant was indicted with preparing an act of terrorism (an explosion) in the Okhotniy Ryad shopping centre and inciting V. and Ku. to commit an act of terrorism. The bill of indictment mentioned A. in the lists of both defence and prosecution witnesses to be summoned to the trial. However, A.’s testimony was merely mentioned by both the prosecution and the defence. The bill of indictment did not contain any information going beyond the statements made during the above ‑ mentioned questioning, and which were neither cross-referenced with any other evidence nor used to substantiate any specific factual or legal point. C.     The trial 25.     On 17 December 2004 the Moscow City Court held a preliminary hearing. It granted the applicant’s motion to consider her case in a single judge formation, scheduled the trial hearing and ordered that witnesses be called according to the lists presented by the parties and in the bill of indictment. 26.     On 22 December 2004 the applicant’s trial began before the city court. The applicant was represented by two lawyers of her own choosing, U. and S. 27.     The trial proceeded in the following manner. 1.     Witness testimony regarding the circumstances of the applicant’s case (a)     Statements by V. and Ku. 28 .     V. testified at the trial that she and Ku. had first met the applicant at a mosque in October 2003. They had become friends and had started frequenting Islamist Internet chat-rooms and surfing pro-insurgency web ‑ sites together. After a while, they had decided to form a religious community ( dzhamaat ) to study Islam and live together. In their conversations the applicant had glorified terrorism and had approved of suicide bombings and the methods and targets of the Chechen insurgents. The applicant had told them about a camp near Baku in Azerbaijan where Muslims received training to become suicide bombers, and that she knew someone from there. She had mentioned that she herself had participated in the Chechen war on the side of the insurgents. Together they had often visited an Internet café in the Okhotniy Ryad shopping centre. The applicant had also taken photos of an escalator in the shopping centre from different positions. 29.     On 3 March 2004 the applicant had told V. and Ku. that if something were to happen to her, they would have to remove all Islamic literature and her diary from the flat, and that they were to call her mother in Chechnya. She had also told them that she had just received a call from a friend who had arrived in Moscow to “blow himself up”, and that she (that is, the applicant) “was in danger” and “under suspicion” [by the authorities]. The applicant had not threatened them and had not incited them to commit a terrorist act but had asked them if they were capable of doing so. She had constantly preached “the way of jihad” to them and had given them Islamist books and audiocassettes. Some of those books had been given to her by her acquaintance, A. 30.     V. denied having seen any explosives in the flat where they had lived. 31.     At the request of the prosecutor, the trial judge allowed V.’s pre-trial testimony to be read out, as it partly contradicted statements she had made at the trial. In particular, during her pre-trial questioning V. had testified that the applicant had undergone terrorist training in a camp near Baku and that she had been indoctrinating V. and Ku. in order to prepare them to become suicide bombers. Asked by the prosecutor to explain her contradictory statements, V. stated that she was not sure whether the applicant had really attended a terrorist training camp. However, she stated that the applicant had been preparing her and Ku. to become suicide bombers. 32 .     During her cross-examination at trial, Ku. partly retracted her pre ‑ trial statements, which were for the most part similar to the above statements by V. During the trial Ku. confirmed that she, V. and the applicant had taken photos in the Okhotniy Ryad shopping centre at the applicant’s initiative, and that the applicant had “taken snapshots randomly”. In particular, the applicant had taken photographs of the escalator and the people on it. Ku. submitted that the applicant had disapproved of the policy of the Russian federal forces in the Caucasus. However, she had not incited Ku. to become a suicide bomber. According to Ku., they had simply wanted to reside together to pray, read and live free from parental supervision. 33.     Ku. further stated that the applicant’s acquaintance, A., was a policeman and that he had paid for the flat where the three of them had lived. He had also occasionally given them money. The applicant had once told her that she liked A. 34.     Ku. further stated that during the pre-trial questioning the investigator had misinterpreted her words concerning a suicide attack and that she had never planned to commit any such attack. She denied having given her pre-trial statements under pressure. In view of Ku.’s change of testimony her pre-trial statements were read out during the trial. (b)     Statements by police officers 35.     Several police officers who had participated in the applicant’s arrest and personal search (P., S., B., I. and Ke.) were questioned in court. They stated that the applicant’s arrest had occurred during a regular patrol and they had not been aware that her bag contained explosives. 36.     P. testified that on the day of the applicant’s arrest he had decided to check the applicant’s documents because “she had been walking idly in the direction of the Prospekt Vernadskogo metro station”. She had shown them her passport and the registration stamp confirming her right to stay in Moscow, which had expired. The policemen took her to a police station. At the point of arrest she had been agitated and aggressive. They had decided to search her bag because such action “was compatible with the law”. P.   further explained that he had stopped the applicant “because it had been unclear where she had been going to”, because she had “resembled a girl from a wanted persons notice”, and because she was “a person of Caucasian ethnicity [that is to say from the North Caucasus region]”. P. also stated that the expiry of her registration had been sufficient reason to arrest the applicant. He further testified that they had been routinely searching all individuals whose registration had expired. 37.     S.’s testimony was similar. He added that the applicant had been walking quickly and that she had started to threaten the police officers with disciplinary sanctions when they stopped her. 38.     B. testified that they had decided to stop the applicant because she had been wearing black clothing and was of “Caucasian ethnic origin”. He added that the applicant’s appearance had matched the description of someone on their wanted persons notice. He also testified that the applicant had her bag with her up until the moment of her personal search at the police station. 39.     The court also questioned the police officers who had been on duty at the Prospekt Vernadskogo police station on the day of the applicant’s arrest. 40.     I. testified that she had searched the applicant in the presence of two attesting witnesses and had found in her bag two square yellow objects wrapped in aluminium foil, which had later been confirmed to be explosives. The applicant’s fingerprints had been taken only once – after the objects had been discovered in her bag. 41 .     Ke. testified that before the search the applicant had had all her personal belongings with her and that it had taken approximately twenty minutes before the start of the search to find attesting witnesses to observe the personal search. 42 .     The prosecution extensively questioned all of the police officers about the circumstances of the applicant’s search and fingerprinting. All of them had consistently testified that the applicant had been in possession of her belongings, i.e. her handbag, at all times prior to the search and that she had been fingerprinted only once after the search. The defence only asked police officer B. whether the applicant had been in possession of her handbag prior to the search and police officer Ke. about the manner in which the attesting witnesses were chosen. Both of the questions were put to the above witnesses only once, and there was no relevant follow-up to their answers. 43.     The prosecution finished presenting their evidence on 12 January 2005 without either attempting to call A. to testify at the trial or referring to his pre-trial statements. 2.     The applicant’s testimony during the trial 44 .     At the trial the applicant pleaded not guilty to the charges against her. She testified that on 4 March 2004, after the police patrol had driven her to the police station, she had first been taken to a room where a police officer, S., had been filling in some papers. He had told her that she had been arrested and that her fingerprints would be taken. She had left her jacket and bag in that room. Another police officer, B., had then taken her to another room, where another police officer, L., had taken her fingerprints using ink. Afterwards, she had gone to a bathroom to wash the ink off her hands. When she returned to the first room, she was informed that she would be searched in the presence of two attesting witnesses B. and K. The police officer had searched the applicant’s bag and discovered two packages wrapped in aluminium foil, which did not belong to her. The applicant stated that her fingerprints had been taken before and after the search, and that only the second episode had been recorded. 45.     The applicant further stated that the police had questioned her in the absence of a lawyer, and had then decided to detain her. Furthermore, the applicant testified that she had been told to sign a record of her questioning, on pain of ill-treatment. Over the following days she had been beaten by the policemen who were questioning her. However, she had continued to deny her involvement in any terrorist activity. 46.     The applicant stated that the packages found in her bag had not belonged to her, that the police had planted them in her bag and that she had never incited V. and Ku. to commit a terrorist attack. When the prosecutor asked whether she had noticed that her rather small bag had become heavier than it was before the personal search, the applicant stated that she had not noticed anything conspicuous. 47.     She further stated that the six photographs of the escalator that had been seized from her flat had been taken by her. However, she had been photographing people at random in the shopping centre, rather than the escalator, and she had done so for recreational purposes. 48.     The applicant admitted writing the note that had been seized from the flat but stated that she had copied its text from the internet because she had liked it and had simply wanted to have a copy. The applicant’s lawyer argued that her words had been misinterpreted and that there had been nothing in them demonstrating a link to any terrorist activity. She stated that the applicant’s bitter perception of the situation in Chechnya was absolutely natural for someone who had been living in a war zone since childhood and that her words should have been analysed more carefully. 49.     At certain points in her testimony the applicant mentioned A. in passing, stating that they had no personal relationship, that he had helped her with finding accommodation free of charge, that he had called her on the phone, given her two books by the American historian Paul Klebnikov, and that he had told her to follow the policemen’s orders at the time of her arrest. 3.     Motion for examination of videotapes 50 .     On 13 January 2005, during the last day of the examination of evidence by the trial court, the applicant’s lawyer U. submitted a motion to play videotapes during the hearing. The relevant part of the trial records reads as follows: “ Lawyer U. : I request to start playing the videotape, since the accused claims that there are multiple discrepancies between the recording and the transcript. I also request to call an interpreter for the translation of the ethnic speech and to view one videotape 5-489c. Accused and lawyers : No objections. Prosecutor : I do not think an interpreter is necessary, since there are transcripts of conversations on the videotapes. In the other part, I agree. The court decided to grant the motion of the defence and to watch the videotape 5 ‑ 489c, in respect of calling an interpreter – to refuse [the motion]. [The videotape recording is viewed for 30 minutes] Lawyer U. asking the accused : Did these conversations take place? Accused : I see nothing illegal in them.” 51.     According to the trial records the defence submitted no requests or complaints concerning the quality of the video-recording or the manner in which the tape was played. 4.     Motions for the questioning of witness A. and attesting witnesses B. and K. 52.     Immediately after viewing the videotape the applicant’s lawyer S. submitted oral motions to summon attesting witnesses B. and K. and police officer A. The relevant part of the trial records reads as follows: “ Lawyer S. : I request to summon the attesting witnesses who were present during the personal search of Murtazaliyeva, that is, B. and K., in order to determine the relevant circumstances [and] whether or not plastic explosives were planted. Lawyer U. : I support [the motion]. Accused : I do not dispute that plastic explosives were seized in the presence of these attesting witnesses, but I maintain that they were planted by police officers prior to the personal search. I do not insist on calling these attesting witnesses, but if [the lawyers] consider this necessary, then I agree with them. Prosecutor : I object, because the accused was questioned and stated that the record [of the search] had been drawn up without any violation of the law... The court decided that the motion for summoning the attesting witnesses would not be granted. Lawyer S .: I request to summon witness A. [The presiding judge informs the parties that witness A. is on a work-related mission outside Moscow and cannot appear in court] Prosecutor : I request to read out the statements made by witness A. during the pre ‑ trial proceedings. Lawyer U. : I do not object to the reading out of A.’s statements. Lawyer S. : I agree to the reading out of his statements. Accused : No objections. The court decided under Article 281 of the Criminal Procedure Code and with the agreement of the parties to read out the statements of witness A., made during the pre ‑ trial proceedings. [The record of witness A.’s interrogation is read out] Prosecutor asks the accused : Do you agree with the statements of witness A.’s read out? Accused : I agree with these statements in part, but do not agree that he had no contacts with the girls without me and that we maintained contact only over the phone.” 5.     Completion of the examination of evidence 53.     Immediately afterwards the defence proceeded to submit evidence in the form of character references about the accused and lodged motions to subpoena the applicant’s phone records and conduct a forensic psychiatric examination of witnesses V. and Ku.; both motions were refused by the court. Subsequently the defence rested its case. 54.     The presiding judge inquired as to whether the parties wished to continue with further examination of evidence. Using that opportunity, the prosecution motioned to read out the applicant’s diary entries and the defence motioned to strike that evidence out. 55 .     After consideration of the above motions the presiding judge repeatedly asked whether the parties were prepared to rest their cases in the absence of those witnesses who had not appeared. There were no objections from either the prosecution or the defence. The trial court closed the examination of evidence and, upon a motion of the defence, adjourned the proceedings until closing arguments on 17 January 2005. 6.     The parties’ closing arguments and the applicant’s conviction 56.     The State prosecutor in his closing argument gave an overview of the entire body of evidence, pointing out inconsistencies in the applicant’s allegations of her innocence and the absence of an act giving rise to a crime (both actus reus and mens rea ). He asked the trial court to find the applicant guilty as charged and to sentence her to twelve years’ imprisonment. 57 .     The applicant and her lawyers U. and S. in their closing arguments maintained that the applicant was innocent and that the prosecution had failed to prove her guilt. They provided their own account of the events, alleging that the substance of the accusation was based on misinterpretation of the applicant’s conversations and actions and that the explosives had been planted by the police. The speech by the lawyer U. included the following statement made in passing while describing the applicant’s attitude to the military conflict in Chechnya and religion: “I think that this whole criminal case is a set-up against Murtazaliyeva by law-enforcement agents.” For her part, the applicant’s speech contained the following relevant part: “... As to conversations in the apartment, many things do not match. I stated that during the hearing. I submitted a motion for confrontation with A. [He] did not appear in court. I do not admit my guilt on any of the charges ...” The defence’s closing arguments contained one-off statements about the explosives having been planted by the police in the applicant’s handbag, but did not refer to the alleged double fingerprinting or the applicant’s lack of control over her possessions prior to the search, or to any matters concerning the choice and participation of the two attesting witnesses. 58.     On 17 January 2005 the court convicted the applicant of preparing an act of terrorism (an explosion), inciting others to commit an act of terrorism and carrying explosives, and sentenced her to nine years’ imprisonment. The court considered the following evidence: i.     the trial and pre-trial statements by V. and Ku., as well as records of their pre-trial confrontations with the applicant; ii.     the trial and pre-trial statements by police officers S., I., P., B., and Ke., as well as records of S.’s and I.’s pre-trial confrontations with the applicant; iii.     the records of the search of the applicant’s residence and her personal search; iv.     a forensic explosives report; v.     six photographs depicting the escalator in the Okhotniy Ryad shopping centre, seized at the flat where the applicant lived, as well as a report on an inspection of the shopping centre premises; vi.     a note containing extremist statements written by the applicant and seized in the flat where she lived, and a forensic handwriting report on that note; vii.     the transcripts of the video tapes recorded in the apartment where the applicant lived; viii.     the pre-trial statement by A.; ix.     the testimony of further prosecution witnesses heard at the trial; x.     the testimony of defence witnesses heard at the trial, and character references about the applicant from her places of residence, study and employment. 59.     The judgment referred to witness A.’s testimony only in one part, which read as follows: “Witness A. [a police officer] testified that at the end of December 2003 under instructions of his superiors he established relations of trust with Murtazaliyeva; [she] introduced him to her friends Ku. and V., who had voluntarily converted to Islam. In view of Murtazaliyeva’s housing problems and with the assistance of [police authorities] she was provided with a room in a dormitory, where she moved with her friends at the beginning of February 2004; in the evening of 4 March 2004 Murtazaliyeva called [A.] and informed him that she had been stopped by a police patrol for an identity check and that she had been requested to go with them to the police station; he recommended that she follow the policemen’s orders.” In contrast to its approach with regard to the testimony of other witnesses, the court did not cross-reference A.’s statements with those of other witnesses and did not refer to his testimony in support of any conclusions. 60.     The judgment contained a detailed analysis of the trial and pre-trial testimony given by V. and Ku., the applicant’s flatmates, as well as the records of their pre-trial confrontations with the applicant. The court accepted the pre ‑ trial statements by V. and Ku. and the trial statements by V. as valid and persuasive, since they were coherent as well as consistent with the remaining body of evidence. As to the change in Ku.’s testimony at trial, the court considered this to be a strategy to assist the applicant and dismissed it. It noted in particular that Ku., assisted by a defence lawyer, had been repeatedly questioned during the pre-trial investigation and that she had never complained of being subjected to duress by the investigating authorities. When questioned at trial she did not dispute that her previous statements had been given voluntarily and without any psychological or physical influence. Ku. did not provide any reasons for making false pre-trial statements. Moreover, she stated in court that after a conversation with the applicant’s lawyer she had formally complained about psychological duress during questioning, but had subsequently withdrawn that complaint as being untrue. 61.     The court examined and dismissed the applicant’s claim that the explosives had been planted in her bag. It referred to the testimony by the patrol officers and the officers at the police station, who had denied those allegations, and to the fact that, according to the official report, the personal search of the applicant had preceded the taking of her fingerprints, and there had been no evidence that the fingerprints had been taken twice, as the applicant had alleged. 62.     The court further found that the applicant must have drafted the text of the handwritten note herself and that she had not copied it from Islamist websites on the internet, as she had claimed, since the note had contained modifications and corrections. D.     Appeal and supervisory review proceedings 63 .     The applicant and her lawyers appealed against her conviction. The statements of appeal submitted by the defence lawyer S. indicated the following: “... during the hearing 15 out of 16 videotapes containing records of the secret surveillance were not examined; they have significant evidentiary value, because their comparison with ... testimony of Murtazaliyeva and the key prosecution witnesses V. and Ku. could have had a considerable impact on [the conviction] ... Murtazaliyeva claimed and continues to claim in her appeal that there are discrepancies between these video recordings and the transcripts. During the selective viewing of one videotape she was deprived for ‘technical reasons’ of the possibility to point out the inconsistencies ... The judge did not consider my motion to examine police officer A. as a witness and did not decide on that motion. He limited himself to saying that witness A. [was] on a work-related mission outside Moscow and [could] not appear in court. At the time this appeal is submitted [the case-file] has no documentary proof of that information. The court’s refusal to call and examine attesting witnesses B. and K., who were present during Murtazaliyeva’s personal search, appears unreasonable. [Murtazaliyeva insists that the plastic explosives were planted in her bag by police officers]. No one can recall who invited the attesting witnesses and how, and when   ... According to the testimony by witness A., read out during the hearing and relied upon by the court in the judgment, he talked on the phone not only with Murtazaliyeva, but also with arresting police officers; [these were not the police officers questioned during the hearing, since they did not mention talking to A. in their multiple statements at the pre-trial and trial stages of proceedings]. [Accordingly] the testimony of A. refutes the testimony [of these police officers] and confirms Murtazaliyeva’s claim that she was arrested by other officers when she was leaving her workplace ...” 64.     The lawyer U. in her statement of appeal stated in particular that the defence had requested witness A.’s attendance as both a defence and a prosecution witness. However, that motion had been denied by the trial court with reference to his absence, which was not supported by any documentary evidence. 65.     On 17 March 2005 the Supreme Court of Russia upheld the judgment, reducing the applicant’s sentence to eight years and six months. 66 .     The Supreme Court held that the videotape had been shown at the request of the defence and that no objections or complaints, including that not all of the videotapes had been shown, had been lodged with the court after the videotape had been played. 67 .     The Supreme Court further considered that the questioning of A. had not been possible due to his absence on a work-related mission and that his pre-trial statement had been read out with the consent of the defence in accordance with Article 281 of the Code of Criminal Procedure. As for the two attesting witnesses B. and K., their personal appearance had not been necessary since the applicant had claimed that the explosives had been planted in her bag before their arrival. In any event, the defence had agreed to proceed to the closing arguments and had not submitted any objections or additional requests about the examination of the applicant’s case. 68 .     In June 2005 the applicant’s lawyer S. lodged a supervisory review complaint, referring, inter alia , to the trial court’s failure to summon and question witness A. and attesting witnesses B. and K. The complaint in the relevant part labelled A. as “a key witness”, who, following the instructions of his superiors, had “covered” the applicant for more than two months, provided her with a job and accommodation and controlled her actions and movements, including her arrest. In respect of the attesting witnesses the complaint stated that “the examination of the attesting witnesses could have resolved the significant contradictions in the statements [and] could have served as the basis to corroborate or disprove the circumstances immediately prior to the search.” 69.     On 13 September 2005 the Supreme Court rejected the supervisory review complaint. II.     RELEVANT DOMESTIC LAW A.     Russian Criminal Code 70.     The Criminal Code of the Russian Federation of 13 June 1996, which entered into force on 1 January 1997, provides an exhaustive list of criminally punishable actions and regulates all substantive aspects of the criminal law in Russia. Article 30. Preparation for crime and a criminal attempt “1.     Preparation for crime is considered [to comprise] the gathering, making or implementing by a person of the means or weapons [with which] to commit a crime, soliciting co-offenders, and conspiring to commit crime or any other wilful act aimed at [facilitating the commission of] a crime, [even] if the crime was not completed due to circumstances outside that person’s control...” Article 205. Terrorism “1.     [Terrorism, that is to say] the commission of an explosion, arson or other action, creating a danger for people’s lives, or causing considerable pecuniary damage or other socially dangerous consequences, if such actions were committed with the aim of undermining public safety, threatening the population or influencing decision-making by the authorities, or the threat of committing such actions with the same aims, shall be punishable by deprivation of liberty for a term of eight to twelve years...” Article 205.1. Inciting or otherwise abetting the commission of a terrorist criminal act “1.     Inciting a person to commit a crime stipulated by Articles 205, 206, 208, 211, 277 and 360 of the present Code, or seeking to engage a person in the activities of a terrorist organisation, supplying weapons or instructing a person with a view to committing specified crimes, as well as financing terrorism or a terrorist organisation, shall be punishable by deprivation of liberty for a term of four to eight years...” Article 222. Illegal acquisition, transfer, sale, storage, transportation and carrying of firearms, its main components, ammunition, explosives and explosive devices “1.     The illegal acquisition, transfer, sale, storage, transportation and carrying of firearms [or the] main components [thereof], ammunition... explosives and explosive devices shall be punishable by the limitation of liberty for a term of up to three years, or detention for a term of up to six months, or deprivation of liberty for a term of up to four years with or without a fine of up to 80,000 roubles or three months’ salary (or other income) of the convicted person.” B.     Russian Code of Criminal Procedure (“CCrP”) 71 .     The Code of Criminal Procedure of the Russian Federation of 18   December 2001, which entered into force on 1 July 2002, regulates all procedural aspects of criminal trials in Russia. Article 53. The powers of a defence lawyer “1.     From the moment a defence lawyer joins the case he or she shall have the right... ... (5)     to take part in interrogations of the accused, as well as other investigative actions with the participation of the accused, either upon the motion of the accused or on his own motion... (7)     to familiarise himself with the materials of the criminal case upon completion of the pre-trial investigation... (8)     to lodge procedural petitions [motions] and motions for recusal... 2.     The defence lawyer taking part in an investigative action shall have the right to provide legal advice to the accused in the presence of an investigator, to put questions to interrogated persons with the permission of an investigator, to make written remarks on the accuracy and completeness of the records of investigative actions. An investigator may refuse to [put to the accused the defence lawyer’s questions], but should mention these questions in the records [of that investigative action].” Article 56. Witnesses “1.     A witness is a person who may have knowledge of facts relevant to the investigation and resolution of a criminal case and who is subpoenaed to testify... ... 7.     If a witness fails to appear for no valid reason, his or her appearance may be enforced.” Article 60. Attesting witnesses “1.     An attesting witness is a person disinterested in the outcome of the criminal case who is invited by an investigator ... to attest to an investigative measure having been carried out and also to its substance, progress and results. 2.     A person shall not be an attesting witness if that person is: 1)     a minor; 2)     a participant of the criminal case, his close relatives and relatives; 3)     [a law enforcement agent entrusted with investigative powers]...” Article 119. Persons who have a right to bring procedural petitions “ 1.     A suspect, accused, his defence lawyer, victim, his legal representative and representative, private prosecutor, expert, as well as civil plaintiff, civil defendant and their representatives can lodge a petition for procedural acts to be carried out and for procedural decisions to be taken in order to establish the circumstances relevant to the criminal case, to secure the rights and legitimate interests of the petitioner...” Article 120. Bringing a procedural petition “1.     A procedural petition may be lodged at any moment during criminal proceedings. A written petition is placed in the case file, [and] an oral petition is reflected in the transcript of an investigative act or of a trial hearing. 2.     R