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FIRST
SECTION
CASE OF VANFULI v. RUSSIA
(Application
no. 24885/05)
JUDGMENT
STRASBOURG
3 November
2011
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 Vanfuli v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24885/05) 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, Mr Vladimir Vladimirovich
Vanfuli (“the applicant”), on 1 June 2005.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged under Articles 3 and 6 of the Convention that he
had been ill-treated by the police after his arrest, that the
authorities had failed to investigate this episode and that the
criminal proceedings against him had been tainted with a number of
defects, such as the courts’ failure to secure the attendance
of key prosecution witnesses, alleged denial of access to counsel on
3 and 4 October 2002 and erroneous assessment of the evidence in the
case by the courts.
- On
6 November 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in the town of Chita, the Chita
Region (the Zabaykalskiy Region).
A. Arrest and alleged ill-treatment of the applicant
- On 1 and 2 October 2002 a series of night robberies
took place on the Khabarovsk-Chita motorway in the vicinity of the
town of Mogocha, the Chita Region. According to the reports of the
victims, the perpetrators were five individuals travelling in two
cars.
- At around 5.30 p.m. on 3 October 2002 the police
stopped two cars corresponding to the descriptions given by the
victims on the outskirts of Chita. The police arrested the applicant
and three individuals, N., Ta. and To., who had been travelling in
the cars, on suspicion of their involvement in the recent robberies.
- The applicant’s arrest record notes the suspicion
of his involvement in one of the recent robberies and the fact that a
victim had already identified him as one of the perpetrators of the
robbery. The record bears the applicant’s handwritten comment:
“I consent to arrest. I did commit that crime ...”
- The arrest record of that date contains the following
pre-typed standard wording followed by the applicant’s
signature:
“I have been informed that in accordance with
Article 46 of the Code of Criminal Procedure, I have the following
rights:
1) to know what I am suspected of, and to
receive a copy of [the relevant decision];
2) to make comments and statements in respect
of that suspicion or to refuse to make any comments and statements;
3) to benefit from the assistance of a lawyer
from the moment defined by subparts 2 and 3 of the second paragraph
of Article 49 of the Code of Criminal Procedure and to see him
privately and confidentially before my first interview ...
I have also been informed that in accordance with
Article 51 of the Constitution I have the right not to give evidence
against myself ...”
- The applicant acknowledged having received a copy of
the record with his signature.
- After the arrest, the applicant was taken to the
building of the Department for Combating Organized Crime of the
Ministry of Internal Affairs of the Chita Region (“the
Organised Crime Unit”). It appears that the policemen started
to interview him on arrival, but that the applicant remained silent.
According to the applicant, his request for counsel was turned down.
There is no record in the case file which would confirm that the
applicant indeed made such a request. The applicant submitted that he
had been punched and kicked all over his body and that a plastic bag
had been put over his head to suffocate him.
- On 4 October 2002 the applicant was brought to the
temporary detention wing of the Department of the Interior of Chita
(“the temporary detention wing”, изолятор
временного
содержания
УВД г.
Читы).
Upon arrival, he was examined by a nurse, who detected no injuries on
his body.
- On 5 October 2002 the applicant was placed in remand
prison IZ 75/1 in Chita.
- On 8 October 2002 a doctor from the remand prison
examined the applicant and reported a soft tissue contusion on his
chest. The contusion was diagnosed as having appeared two or three
days prior to the examination.
B. Criminal proceedings against the applicant
1. Pre-trial stage of proceedings
- It appears that on 3 October 2002 an interview with
the applicant did not take place, as the applicant chose to remain
silent.
- On the next day a police investigator conducted
face-to-face confrontations between the applicant and his alleged
victims M. and Ya., who both identified the applicant as one of the
perpetrators of the robbery. During the confrontations the applicant
admitted his involvement in the robbery of M. and Ya. and described
in detail how it had happened.
- Both confrontation records state that the applicant:
“... agreed to participate in the face-to-face
confrontation in the absence of counsel ... [and that he]
... has been informed that under Article 51 of the
Constitution [he] has a right not to give evidence against himself
...”
- On 5 October 2002 the applicant was formally charged
with aggravated robbery of M. and Ya., committed as a member of an
organised group consisting of him and three other individuals, N.,
Ta. and To., who had travelled with him in two cars on the night of 2
October 2002.
- During a subsequent interview which took place on that
day in the presence of his counsel the applicant made a handwritten
comment on the interview record that:
“... [he] endorsed his earlier statements only in
part and that [he had] decided to remain silent ...”
- On 24 December 2002 the applicant was additionally
charged in respect of other episodes of aggravated robbery committed
by the same group in respect of Sh., Zh., Z. and spouses G. on the
night of 1 October 2002.
- During a subsequent interview which took place later
on the same day in the presence of his counsel the applicant made a
handwritten comment on the interview record to the effect that:
“... he denied the charges ... did not wish to
make any statements ... would give evidence in court ...”
- During the pre-trial stage of proceedings victims Zh.
and Sh., Z., Ya., and M., as well as spouses G., made detailed
statements about the circumstances of the robberies. In addition,
photo identification parades were conducted and victims Zh., Ya. and
spouses G. recognised the applicant and other members of the group as
the perpetrators of the robberies.
2. Court examination of the applicant’s criminal
case
(a) Trial proceedings
- The criminal case against the applicant and three
co-accused N., Ta. and To. was sent for examination on the merits to
the Mogochinskiy District Court of the Chita Region (“the
District Court”).
- During the subsequent trial the District Court called
victims Zh. and Sh., spouses G., M. and Ya. to the hearing as
witnesses and issued three decisions dated 22 December 2003, 4 March
and 27 April 2004, in which it gave instructions to the police to
locate their whereabouts and secure their attendance by force.
- In response to the court’s request, the
competent police authorities carried out a search, but were unable to
locate spouses G., because they had moved away and failed to leave
any information about their whereabouts.
- As regards witnesses M. and Ya., they established that
both resided in the town of Krasnoyarsk, which is over three thousand
kilometres away from the location of the trial. In addition, witness
Ya. had a sick child and could not come, whilst M., fearing for his
life, categorically refused to appear in court and asked the court to
examine the case on the basis of his prior statements.
- Witness Sh. could not appear because of his state of
health and the distance of over one thousand kilometres between his
home town of Irkutsk and the location of the trial. In addition,
witness Sh. wrote a letter to the court and complained that unknown
individuals had been calling him on the phone with threats in
connection with the proceedings. Witness Zh., residing in Irkutsk,
also refused to appear, fearing for his life, and asked the court to
examine the case on the basis of his previous statements, made at the
pre-trial stage of the proceedings.
- Having analysed the information collected by the
police, the District Court excused the absence of the above-mentioned
witnesses, ruling that their failure to appear was for “a good
reason”, and granted the prosecution’s motion to read out
their pre-trial statements in spite of the objections of the
applicant and co-accused.
- On 14 July 2004 the District Court examined the
evidence presented by the prosecution and, having analysed its
admissibility, approved the use of the evidence, including the
applicant’s confession of 4 October 2002, contained in the
prosecution case file.
- During the trial the applicant acknowledged having
travelled by car with the other co-accused on both nights when the
robberies in question had been committed. The applicant also stated
that he had had an argument with M. and punched M. in the eye with a
lighter. As a result, M. had given him 100 United States dollars
(USD) and Ya. had given a tyre mounted on a rim to one of the
applicant’s co-accused (see below). At the same time, the
applicant insisted that both M. and Ya. had acted voluntarily.
(b) The first-instance judgment of 17
August 2004
- On 17 August 2004 the District Court convicted the
applicant and the other co-accused of participation in three episodes
of robbery committed on the Khabarovsk-Chita motorway near the town
of Mogocha. The applicant was sentenced to nine years of
imprisonment. The court noted that:
“The accused created an organised group which
corresponded to the description given in Article 35 of the Criminal
Code, [namely,] permanent links between its members, prior collusion,
stability and the use of specific methods in commission of the
crimes. The group was created to [intercept newly-purchased Japanese
cars being driven home] on the Khabarovsk-Chita motorway by persons
passing near the town of Mogocha [and to levy an unofficial “toll”
on the drivers]. The attacks were directed solely at drivers who had
... transit identification number of the town of Vladivostok [and
presumably had just bought a “new” second-hand Japanese
car and were driving it back home]. To carry out their attacks, the
group had its own cars, acted only during the night, in a coordinated
manner and daringly, made threats and substantiated them by showing
[weapons], such as a shotgun, grenades, pistols ..., gave special
notes confirming the payment, which also confirms that there were
preliminary preparations and coordination. All of the accused were
participants. No group leader was identified. The stability and
organised nature of the group are also confirmed by the fact that
they acted [on two consecutive nights]. That their actions were
coordinated is also confirmed by the [wire-tapping records of their
cell phone conversations] ...”
- The court established that the group had carried out
its robberies on three occasions. As regards the first episode, the
court noted that on the night of 1 October 2002 the applicant and the
co-accused stopped two cars belonging to and driven by Zh. and Sh.,
having shown them a gun. They then forced them to pay for “safe
passage” through the territory of the Chita Region and
compelled them to hand over a spare car tyre. The involvement of the
group had been confirmed by the discovery of a small handwritten note
given by the group to victims Zh. and Sh. as a confirmation of
payment and as a “security” in case of future extortion
during their further journey, which read:
“Masda Bongo Pulsar [the make and models of the
victims’ cars] in Mogochi were met by us [signature]”
- The expert examination recognised that the note had
been written by To., one of the co-accused. The court also relied on
the statements given by Zh. and Sh. during the pre-trial stage of the
proceedings, the results of a photo identification parade during
which Zh. had recognised the applicant, and the arrest and search
record, which confirmed that the group had been in possession of
firearms, that the applicant had travelled in one of the cars
referred to by the victims, and the finding of the tyre taken away
from Zh. and Sh. in possession of the group.
- As regards the second episode, the court noted that
very shortly after the first episode the group flagged down the car
of spouses G. and forced them to stop and pay. The co-accused
collectively intimidated the victims, showing them a grenade and a
gun, and also later gave them a handwritten note confirming the
payment. The note contained the make and the identification number of
the victims’ car and was recognised by an expert as having been
written by To. Apart from the note and the search record confirming
the finding of a mock grenade in possession of the applicant’s
group, the court also relied on the statements made by spouses G.
during the pre-trial stage of the proceedings, the identification
records according to which spouses G. identified the co-accused,
including the applicant, and the grenade.
- As regards the third episode, the court pointed out
that on the following night the group stopped the car of Ya. and M.,
who were also robbed in a similar way. The group took away a tyre
mounted on a rim as well as a one-hundred-dollar bill, which was
later found and identified by the investigation authorities and M.,
because the group used it for payment later on the journey to Chita.
The court referred to the search record, which confirmed the finding
of the mounted tyre and its subsequent identification by M., as well
as the applicant’s own admissions made during the pre-trial
stage of proceedings and in court of having punched M. and having
afterwards received the hundred dollar bill and the mounted tyre from
M. and Ya. The court also referred to the medical examination of M.,
which showed that the latter had a minor facial injury.
- In respect of all three episodes, the court also
relied on the applicant’s admission made at the pre-trial stage
of proceedings and during the trial that he had travelled as a member
of the group on both nights.
- In so far as the group was also charged with the
robbery of individual Z., who had allegedly been robbed on one of
those nights in the same area and in a similar manner, the court
noted that the prosecution case was unsubstantiated, as it contained
no evidence implicating the group apart from the pre-trial statement
of Z. Accordingly, the court acquitted the group on that count of
charges.
- In addition to the above-mentioned evidence, the court
also relied on the records of the applicant’s telephone
conversations with his co-accused in the first few days following
their arrest.
- The court rejected the applicant’s arguments
concerning the alleged use of torture, the denial of access to
counsel as well as the absence of the victims of the robberies from
the trial. The applicant appealed and raised those arguments on
appeal.
- On 25 April 2005 the Chita Regional Court upheld the
judgment. It stated that the first-instance court had fulfilled its
duty to call the victims to the hearing, but that they had failed to
appear for a legitimate reason. The appeal court also found that the
first-instance court’s decision rejecting the applicant’s
allegations of ill-treatment by the police as unsubstantiated had
correctly been based on the materials of the case file, medical
documents and the investigator’s decisions to discontinue the
criminal proceedings. The court also examined and rejected the rest
of the applicant’s arguments about the use of the pre-trial
statements of the victims and the alleged denial of access to his
counsel at the initial stages of the investigation.
C. The applicant’s attempts to bring criminal
proceedings in connection with the alleged ill-treatment
1. The initial refusal to institute criminal
proceedings
- On unspecified dates the applicant and three other
co-accused lodged requests with the investigator to institute
criminal proceedings against the UBOP officers, who had allegedly
beaten them up.
- On 14 October 2002 a medical expert examination of the
applicant was conducted. The expert stated in his report no. 3454
that he had not discovered any injuries on the applicant.
- By decisions of 24 October 2002 and 9 June and 3
August 2003 the investigator refused to institute criminal
proceedings. By a decision of 22 September 2003 the supervising
prosecutor quashed the investigator’s refusals and ordered
additional investigation into the applicant’s allegations of
ill-treatment.
- On 27 September 2003 the investigator refused to
institute criminal proceedings against the police officers.
2. Criminal investigation into the events of 3 October
2002
- On 6 November 2003 the prosecutor quashed the decision
of 27 September 2003 and instituted criminal proceedings against
unidentified police officers under Article 286 of the Criminal Code.
- On 6 January 2004 the investigator discontinued the
criminal proceedings due to the absence of a crime. He relied on the
statements of police officers denying the use of any force on the
applicant, and information received from the temporary detention
facility showing an absence of any complaints on the applicant’s
part about any injuries during his detention there, and concluded
that the injury had occurred on the second day of the applicant’s
placement in the remand prison and therefore the allegations of
ill-treatment had not been supported by any evidence.
- On 19 February 2004 the deputy prosecutor quashed the
decision of 6 January 2004 and ordered additional investigation.
He indicated in the decisions that it was necessary to indentify and
question all the individuals who had been detained with the applicant
in the temporary detention facility and in the remand prison.
- The criminal proceedings were subsequently
discontinued by the investigator’s decisions of 25 April, 27
May, 28 July, 22 September and 22 October 2004 and reopened by
the prosecutor’s decisions of 27 April, 28 June, 23 August
and 22 September 2004 and 18 April 2005.
- In the decisions of 27 April, 28 June and 23 August
2004 and 18 April 2005 the prosecutor referred to the need to
find and question all former cellmates of the applicant from the
temporary detention facility and the remand prison. In the decision
of 22 September 2004 the prosecutor also considered it important to
eliminate the contradictions between the statements of the applicant
about beatings by the police and the statements of the temporary
detention facility’s officers about the absence of any visible
injuries on the applicant upon his arrival there.
- On 19 May 2005 the investigator suspended the criminal
proceedings, since a person who could be held responsible for the
alleged ill-treatment of the applicant had not been identified. The
criminal proceedings were subsequently reopened by the prosecutor’s
decisions of 10 August, 2 November and 12 December 2005 and 7
November 2006 and suspended by the investigator’s decisions of
14 September and 9 December 2005 and 12 January 2006.
- The decision of 10 August 2005 once again indicated
the need to identify all those who had been detained together with
the applicant in the temporary detention facility.
- The decisions of 2 November and 12 December 2005 and
7 November 2006 referred to the necessity to establish in which
cells of the remand prison the applicant had been detained at the
relevant time.
- The decisions of 2 November 2005 and 7 November 2006
also indicated the need to resolve the contradictions between the
statements of the applicant about the alleged beatings and the
statements of the temporary detention facility’s officers about
the absence of injuries on the applicant. The decision of 2 November
2005 also noted the need to question the attesting witnesses to the
applicant’s identification by the victims in the first few days
following his arrest.
- On 26 May 2010 the expert studied the results of the
applicant’s medical examination of 14 October 2002 and
concluded in report no. 752 that the applicant had not had any
injuries at the time of the examination.
- On 7 June 2010 the investigator discontinued the
criminal proceedings concerning the alleged ill-treatment of the
applicant. He noted that the applicant’s allegations about
beatings by the police had been disproved by the results of the
expert medical examination of the applicant, during which no injuries
on him had been recorded.
- With regard to the injuries of the applicant’s
co-accused, the investigator concluded that they could have been
inflicted by the victims of the crimes or by other persons, including
the co-accused themselves, during their detention in the remand
prison. Since the actions of unidentified individuals in that case
fell under Article 116 of the Criminal Code the criminal proceedings
were due to be terminated, as the time-limit for holding those
persons responsible had expired.
- The investigator relied on: (i) the statements of the
doctor who had examined the applicant on 8 October 2002 and
discovered a soft tissue contusion on the applicant’s chest;
(ii) the findings of the expert in report no. 752 on the
examination of the applicant’s medical records of 14 October
2002, which did not note any injuries on the applicant, (iii) the
statements of the police officers who had denied any application of
force to the applicant; (iv) the statements of three of the
applicant’s former cellmates from the remand prison and one
from the temporary detention facility, who had asserted that there
had been no fights in the cells; (v) the statements of the officer on
duty of the temporary detention facility who had examined the
applicant on 4 October 2002 and had found no injuries on him,
though he had noted that the applicant had complained about pain in
the chest area; and (vi) the statements of the nurse of the temporary
detention facility who had examined the applicant on 5 October 2002
and had discovered no injuries.
- The applicant has apparently never challenged any
decision to discontinue the criminal proceedings in the domestic
courts.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article 116 § 1 of the Criminal Code of the
Russian Federation of 13 June 1996 in force as from 1 January
1997 provides that application of physical force to another person
which has caused physical pain but has not resulted in any health
damage shall be punishable by a fine, compulsory or correctional
labour or arrest for a period up to three months.
- Article 286 § 3 (a) of the Criminal Code provides
that actions of a public official which clearly exceed his authority
and entail a substantial violation of the rights and lawful interests
of citizens, committed with violence or the threat of violence, shall
be punishable by three to ten years’ imprisonment with a
prohibition on occupying certain posts or engaging in certain
activities for a period of three years.
- The Code of Criminal Procedure of the Russian
Federation (CCrP) in force as from 1 July 2002 provides that a
witness cannot evade the duty to appear when summoned by a court and
that in case of evasion for no valid reason a witness can be
compelled to appear (Article 56). Articles 9 and 75 of the Code
prohibit the use of evidence obtained through inhuman or degrading
treatment or torture in criminal proceedings.
- Article 49 § 2 of the CCrP provides that an
advocate is admitted to participate in the proceedings as defence
counsel. It also specifies that defence counsel takes part in the
criminal proceedings as of the moment of institution of a criminal
case against a specific person (part 2) or as of the moment of
the actual apprehension of the suspect if [the latter was caught
red-handed] (part 3).
- Article 144 of the CCrP provides that a prosecutor,
investigator, or body of inquiry is obliged to consider applications
and information about any crime committed or being prepared, and to
take a decision on that information within three days. In exceptional
cases, this time-limit could be extended to ten days. The decision
should be either a) to institute criminal proceedings, or b) to
refuse to institute criminal proceedings, or c) to transmit the
information to another competent authority (Article 145 of the CCrP).
- Article 125 of the CCrP provides that the decision of
an investigator or a prosecutor to dispense with criminal proceedings
or to terminate criminal proceedings, and other decisions and acts or
omissions which are liable to infringe the constitutional rights and
freedoms of the parties to criminal proceedings or to impede
citizens’ access to justice may be appealed against to a
district court, which is empowered to check the lawfulness and
grounds of the impugned decisions.
- Article 213 of the CCrP provides that in order to
terminate the proceedings the investigator should adopt a reasoned
decision with a statement of the substance of the case and the
reasons for its termination. A copy of the decision to terminate
the proceedings should be forwarded by the investigator to the
prosecutor. The investigator should also notify the victim and the
complainant in writing of the termination of the proceedings.
- According to Article 214 of the CCrP, the prosecutor
can reverse the decision of the investigator and reopen the
proceedings. The proceedings can be reopened until the time-limit for
holding a person criminally responsible has expired.
- Under Article 221 of the CCrP, the prosecutor
exercises general supervision of an investigation. In particular, the
prosecutor can order that specific investigative activities be
carried out, transfer the case from one investigator to another, or
reverse unlawful and unsubstantiated decisions taken by investigators
and bodies of inquiry.
- In its Ruling of 27 December 2002 no. 29 “On
judicial practice in cases concerning theft and robbery”, the
Plenary Session of the Supreme Court of Russia explained that a group
could be defined as “organised” if it had a stable
structure, a leader and a developed plan of concerted criminal
activity. It was also characterized by a division of roles between
its members when preparing and carrying out a criminal act. The
Supreme Court noted that when it was established that a crime had
been committed by an organised group, all members of the group
carried responsibility for it as perpetrators irrespective of their
individual roles in the commission of the crime.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that on 3 October 2002 he had been ill-treated
by the police and that no proper investigation into this had been
made, all in breach of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- The
Government argued at the outset that the alleged ill-treatment of the
applicant had not reached the minimum level of severity required to
engage Article 3 of the Convention. The Government further submitted
that the applicant had failed to exhaust the available domestic
remedies since he had never challenged any of the investigator’s
decisions not to institute criminal proceedings in a court of general
jurisdiction. The Government also argued that the investigation into
the applicant’s allegations of ill treatment had been
thorough and effective.
- The
applicant disagreed with the Government and maintained his initial
complaints. He also stated that he could not have challenged the
investigator’s decisions since he had not been provided with
effective legal assistance during his detention on remand.
B. The Court’s assessment
1. Admissibility
- The Court reiterates that the rule of exhaustion of
domestic remedies referred to in Article 35 § 1 of the
Convention obliges applicants to use first the remedies that are
normally available and sufficient in the domestic legal system to
enable them to obtain redress for the breaches alleged. The existence
of the remedies must be sufficiently certain, in practice as well as
in theory, failing which they will lack the requisite accessibility
and effectiveness. Article 35 § 1 also requires that the
complaints intended to be brought subsequently before the Court
should have been made to the appropriate domestic body, at least in
substance and in compliance with the formal requirements laid down in
domestic law, but not that recourse should be had to remedies which
are inadequate or ineffective (see Aksoy v. Turkey, 18
December 1996, §§ 51-52, Reports of Judgments and
Decisions 1996 VI, and Akdıvar and Others v. Turkey,
16 September 1996, §§ 65-67, Reports 1996-IV).
- Turning
to the facts of the present case, the Court notes that the applicant
has never challenged any of the investigator’s decisions to
discontinue the criminal proceedings on his complaints of
ill-treatment in court (paragraph 58). The Court has already found
that although a court itself has no competence to institute criminal
proceedings, its power to annul a refusal to institute criminal
proceedings and indicate the defects to be addressed appears to be a
substantial safeguard against the arbitrary exercise of power by the
investigating authority (see Trubnikov v. Russia (dec.),
no. 49790/99, 14 October 2003). At the same time the Court has
pointed out that the rule of exhaustion is neither absolute nor
capable of being applied automatically; for the purposes of reviewing
whether it has been observed, it is essential to have regard to the
circumstances of the individual case (see Akdivar and Others,
cited above, § 69, and Aksoy, cited above, §§
53-54).
- The
Court has strong doubts as to whether this remedy would have been
effective in the circumstances of the present case. The investigation
into the applicant’s allegations of ill-treatment continued
with some short interruptions for almost seven years. During this
period the criminal proceedings were discontinued and reopened
thirteen times (see paragraphs 46-55). In fact, except for two
long interruptions of five and ten months, the proceedings were
discontinued and reopened every one or two months on the supervising
prosecutors’ requests. The prosecutors had mostly referred to
the same reasons for reopening the investigation (see paragraphs 47,
49, 51-53). In the Court’s view, this demonstrates that the
investigators were not diligent in eliminating the drawbacks in the
investigation indicated by the supervising prosecutors. In such
circumstances, the Court is not convinced that an appeal to a court,
which could only have had the same effect, would have offered the
applicant any redress. It considers, therefore, that such an appeal
in the particular circumstances of the present case would be devoid
of any purpose (see, for example, Khatsiyeva and Others v. Russia,
no. 5108/02, § 151, 17 January 2008). The Court finds that the
applicant was not obliged to pursue that remedy and that the
Government’s objection should therefore be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) The alleged breach of Article 3 under
its procedural limb
- The
Court reiterates its settled case-law to the effect that where an
individual raises an arguable claim that he has been seriously
ill-treated in breach of Article 3, that provision, read in
conjunction with the State’s general duty under Article 1 of
the Convention to “secure to everyone within their jurisdiction
the rights and freedoms defined in ... [the] Convention”,
requires by implication that there should be an effective official
investigation. An obligation to investigate “is not an
obligation of result but of means”: not every investigation
should necessarily be successful or come to a conclusion which
coincides with the claimant’s account of events; however, it
should in principle be capable of leading to the establishment of the
facts of the case and, if the allegations prove to be true, to the
identification and punishment of those responsible.
- The
investigation of arguable allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill founded conclusions to close their investigation or as the
basis of their decisions. They must take all reasonable steps
available to them to secure the evidence concerning the incident,
including, among other things, a detailed statement concerning the
allegations from the alleged victim, eyewitness testimony, forensic
evidence and, where appropriate, additional medical certificates apt
to provide a full and accurate record of the injuries and an
objective analysis of the medical findings, in particular as regards
the cause of the injuries. Any deficiency in the investigation which
undermines its ability to establish the cause of the injuries or the
identity of the persons responsible will risk falling foul of this
standard. The investigation into the alleged ill-treatment must be
prompt. Lastly, there must be a sufficient element of public scrutiny
of the investigation or its results; in particular, in all cases, the
complainant must be afforded effective access to the investigatory
procedure (see, among many other authorities, Assenov and Others
v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports
1998-VIII; Mikheyev v. Russia, no. 77617/01, §§
107-08, 26 January 2006; and Petropoulou-Tsakiris v. Greece,
no. 44803/04, § 50, 6 December 2007).
- Turning to the circumstances of the present case, the
Court notes that from the date of the first decision refusing to
investigate the incident it is clear that the applicant complained
about the alleged beatings by the police no later than the first two
weeks of October 2002 (see paragraphs 41 and 43). By that time,
the results of the applicant’s medical examination of 8 October
2002, which noted a soft tissue contusion on the applicant’s
chest, were already available to the authorities (see paragraph 14).
The Court considers that those results, together with the applicant’s
complaint, constituted an “arguable claim” of
ill-treatment at the hands of the police and warranted an
investigation by the domestic authorities in conformity with the
requirements of Article 3 of the Convention.
- The Court notes, however, that the investigation into
the applicant’s allegations of ill-treatment was properly
instituted only on 6 November 2003, which is over a year after the
events at issue (see paragraph 45). The authorities thereby missed an
opportunity to collect relevant material evidence, to identify and
question all possible witnesses in this case and to order a medical
examination of the police officers allegedly involved. In fact, the
delay in the institution of proceedings constituted such a serious
omission that the Court has doubts that any subsequent investigation
would have been able to remedy the resulting damage.
- Next,
the Court finds that the investigation authority routinely
disregarded its duties and displayed a surprising lack of diligence
in the subsequent examination of the case, to the extent that the
supervising prosecutor had to issue the same instruction to identify
the applicant’s former inmates on at least five occasions (see
paragraph 49), the same instruction to identify the applicant’s
cells on at least three occasions (see paragraph 52) and the same
instruction to dissipate the discrepancies in witness statements on
at least three occasions (see paragraphs 49 and 53). This resulted in
a delay of almost two years in the execution of the first task and
delays of almost of three years each in respect of the last two
tasks.
- The
Court further notes that the initial witness statements collected in
the course of the investigation contained many inconsistencies
(paragraphs 49 and 53) which had to be dissipated by the meticulous
comparison of this evidence in relation to specific details as well
as a series of cross-examinations, identification parades,
confrontations or possibly crime-scene reconstructions. It was
important to conduct this process as fast as possible whilst the
memories of what had happened were still fresh, but also in order to
avoid the loss of contact with witnesses. The
Court is also mindful of the important role which investigative
interviews play in obtaining accurate and reliable information from
suspects, witnesses and victims and, ultimately, the discovery of the
truth about the matter under investigation. Observing the suspects’,
witnesses’ and victims’ demeanour during questioning and
assessing the probative value of their testimony forms a substantial
part of the investigative process. The recollection of the
events in question by the witnesses naturally fades away over the
years, and the substantial delays in carrying out these assignments
in the present case added up to the initial lapse of time (paragraph
79) and contributed greatly towards rendering the investigation
ineffective.
- Lastly, the Court deplores
the overall quality of the final legal decision which summarised the
findings of the investigation (see paragraphs 55-57). In
addition to being crippled by the previously mentioned and apparently
uncorrected defects, it failed to establish the relevant factual
circumstances of the case, failing to offer any plausible explanation
of the origin of the applicant’s injuries.
- Having
regard to the foregoing, the Court does not consider that the
authorities have conducted an effective investigation into the
applicant’s allegations of ill-treatment and holds that there
has been a violation of Article 3 of the Convention under its
procedural limb.
(b) The alleged breach of Article 3 under
its substantive limb
- As
the Court has stated on many occasions, Article 3 enshrines one of
the most fundamental values of democratic societies. Even in the most
difficult circumstances, such as the fight against terrorism and
organised crime, the Convention prohibits in absolute terms torture
and inhuman or degrading treatment or punishment. Unlike most of the
substantive clauses of the Convention and its Protocols, Article 3
makes no provision for exceptions and no derogation from it is
permissible under Article 15 § 2 even in the event of a public
emergency threatening the life of the nation (see Selmouni v.
France [GC], no. 25803/94, § 95, ECHR 1999-V, and Assenov
and Others, cited above, § 93).
- Allegations
of ill-treatment must be supported by appropriate evidence (see,
mutatis mutandis, Klaas v. Germany, 22 September 1993,
§ 30, Series A no. 269). To assess this evidence, the Court
adopts the standard of proof “beyond reasonable doubt”
but adds that such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Ireland v. the United
Kingdom, 18 January 1978, § 161, Series A no. 25).
- Turning
to the case at hand, the Court has regard to its findings concerning
numerous deficiencies in the domestic investigation into the
applicant’s alleged ill-treatment and, in particular, the late
institution of proceedings in connection with his complaints (see
paragraph 79 above).
- Having regard to the parties’ submissions and
all the materials in its possession, the Court considers that the
evidence before it does not enable it to find beyond all reasonable
doubt that the applicant was subjected to treatment contrary to
Article 3, as alleged. In particular, on the next day after his
arrest the applicant was examined by a nurse who failed to detect any
injuries on his body (see paragraph 12), whilst a medical certificate
issued by a doctor in the remand prison on 8 October 2002 confirming
the presence of a soft tissue contusion on his chest and diagnosed as
having appeared two or three days beforehand (see paragraph 14) does
not correspond in full to the timing and the extent of the
ill-treatment described by the applicant in his version of events
(see paragraph 11). At the same time, this data is contradicted to
some extent by the depositions of the officer on duty of the
temporary detention facility who had examined the applicant on 4
October 2002 and noted the applicant’s complaints about pain in
the chest area (see paragraph 57). Furthermore, it is unclear whether
and to what extent the applicant’s alleged ill-treatment could
have resulted in any visible signs on his body.
- The Court notes, however, that its inability to reach
any conclusions as to whether there has been treatment prohibited by
Article 3 of the Convention derives in a considerable part from the
failure of the domestic authorities to react effectively to the
applicant’s complaints at the relevant time (compare
Gharibashvili v. Georgia, no. 11830/03, § 57, 29 July
2008, with further references, and see Khashiyev and Akayeva v.
Russia, nos. 57942/00 and 57945/00, § 178, 24 February
2005, with further references and Lopata v. Russia, no.
72250/01, §§ 124-26, 13 July 2010).
- Thus,
the Court cannot establish a substantive violation of Article 3 of
the Convention in respect of the applicant’s alleged
ill-treatment while in police custody.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the criminal proceedings against him had
been unfair. In particular, he claimed that:
(a) he
had not been provided with legal assistance from the moment of his
arrest and as a result had been coerced into making
self-incriminating statements;
(b) the
courts had used the statements of witnesses M., Ya., Sh., Zh. and
spouses G. to convict him and that he had not been able to examine
these witnesses before the court in person.
(c) the
domestic courts had erroneously assessed the evidence in his case and
had relied on inadmissible evidence.
The
Court will examine these grievances under Article 6 §§ 1
and 3 (c) and (d) of the Convention, which, in so far as relevant,
provides as follows:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...
3. Everyone charged with a criminal offence has the
following minimum rights:
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(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 ...”
A. The parties’ submissions
- The
Government disagreed with the applicant and submitted that his
allegation that he had been denied legal assistance after his arrest
was unsubstantiated. They further argued that the criminal
proceedings had been fair and that the use of pre-trial statements by
the witnesses had been lawful. In particular, the applicant had had
an opportunity to put questions to victims M. and Ya. during the
face-to-face confrontations conducted at the pre-trial stage. The
Government further submitted that the trial court had taken all
reasonable measures to secure the attendance of the witnesses and,
having excused their failure to appear, lawfully used their pre-trial
statements for the applicant’s conviction.
- The
applicant maintained his original position and argued that the trial
court had failed to take appropriate measures to secure the
attendance of victims M., Ya., Sh., Zh., and spouses G. and had
unlawfully based his conviction on their pre-trial statements.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this part of the case is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
(a) Legal assistance in police custody
i. General principles
- Article
6 § 1 of the Convention requires that, as a rule, access to a
lawyer should be provided as from the first interrogation of a
suspect by the police, unless it is demonstrated in the light of the
particular circumstances of each case that there are compelling
reasons to restrict this right (see Salduz v. Turkey [GC], no.
36391/02, § 55, 27 November 2008; see also Dayanan v. Turkey,
no. 7377/03, §§ 29-34, 13 October 2009). Even where
compelling reasons may exceptionally justify denial of access to a
lawyer, such restriction - whatever its justification - must not
unduly prejudice the rights of the accused under Article 6 (ibid).
The rights of the defence will in principle be irretrievably
prejudiced when incriminating statements made during police
interrogation without access to a lawyer are used for a conviction.
- The
Court further emphasises the importance of the investigation stage
for the preparation of the criminal proceedings, as the evidence
obtained during this stage determines the framework in which the
offence charged will be considered at the trial (see Salduz,
cited above, § 54). At the same time, an accused often finds
himself in a particularly vulnerable position at that stage of the
proceedings, the effect of which is amplified by the fact that
legislation on criminal procedure tends to become increasingly
complex, notably with respect to the rules governing the gathering
and use of evidence. In most cases, this particular vulnerability can
only be properly compensated for by the assistance of a lawyer whose
task is, among other things, to help to ensure respect for the right
of an accused not to incriminate himself (see Jalloh v. Germany
[GC], no. 54810/00, § 100, ECHR 2006-IX, and Kolu v. Turkey,
no. 35811/97, § 51, 2 August 2005).
- Lastly,
the Court reiterates that a waiver of a right guaranteed by the
Convention – in so far as it is permissible – must not
run counter to any important public interest, must be established in
an unequivocal manner and must be attended by minimum safeguards
commensurate to the waiver’s importance (see Sejdovic v.
Italy [GC], no. 56581/00, § 86, ECHR 2006-II). Moreover,
before an accused can be said to have impliedly, through his conduct,
waived an important right under Article 6, it must be shown that he
could reasonably have foreseen what the consequences of his conduct
would be (see Talat Tunç v. Turkey, no. 32432/96, §
59, 27 March 2007, and Jones v. the United Kingdom (dec.), no.
30900/02, 9 September 2003).
ii. The application of the above
principles to the present case
- Turning to the circumstances of the present case, the
Court observes that the applicant was arrested by the police on 3
October 2002 as a part of the group of people travelling in two cars
on suspicion of their involvement in recent robberies (see paragraph
6). The applicant made a handwritten comment in the arrest record to
the effect that he “consent[ed] to arrest” and that he
“did commit that crime”. The arrest record also contained
a notice informing the applicant of his rights, including the right
to remain silent and to be assisted by a lawyer, which he
countersigned. The notice specified that the applicant could see his
lawyer only as of “the moment defined by subparts 2 and 3 of
the second paragraph of Article 49 of the Code of Criminal Procedure”
(see paragraphs 8 and 9). The applicant refused to give evidence on
that day. According to him, he asked for access to a lawyer, but the
request was refused and the police put serious pressure on him,
forcing him to confess (see paragraph 11).
- On
4 October 2002 the applicant agreed to take part in face-to-face
confrontations with victims of one of the robberies, M. and Ya., and,
during these confrontations, confessed. The confrontation record
stated that the applicant had agreed to participate in the absence of
counsel and that he had been informed about his right to remain
silent (see paragraph 17). The applicant was provided with access to
his lawyer after he had been formally charged in connection with this
episode on 5 October 2002. From that moment on, he partly retracted
his earlier confession and consistently refused to give any evidence
to the investigator (see paragraphs 19 and 21). Later at the trial,
the court admitted the applicant’s earlier confession of
4 October 2002 as evidence and used it in convicting the
applicant (see paragraphs 29, 35 and 36).
- The
Court first observes that the parties disagreed whether the applicant
had indeed asked for a counsel after his arrest or whether he
essentially waived this right and his right to remain silent and
consented to giving evidence in the absence of his lawyer. In this
connection, the Court takes note of the undisputed fact that the
applicant refused to give evidence immediately after his arrest on 3
October 2002 and that he made a number of serious allegations about
the pressure and coercion by the police with a view to forcing him to
confess (see paragraph 11). The Court further observes that in
addition to the allegation of duress the applicant also contended
that his confession should have been excluded from the body of
evidence at trial due to the absence of legal assistance at the time
it was made (see paragraphs 29 and 39).
- Without
prejudice to its findings under the substantive aspect of Article 3
of the Convention, the Court further observes that it considered that
the applicant had an “arguable claim” of ill-treatment at
the hands of the police (see paragraph 78 above). Regrettably, the
investigation conducted by the domestic authorities failed to
elucidate the circumstances, in which the applicant’s
confession had been obtained and the Court was afforded no means of
clarifying those circumstances so as to dispel any doubts in that
respect (see paragraph 88).
- The
Court further cannot attach importance to the applicant’s
handwritten comment in the arrest record of 3 October 2002, his
signature on the notice informing him about his legal rights on the
same day and his agreement to participate in the confrontation in the
absence of his counsel on 4 October 2002. The applicant’s
comment was too vague and inconclusive, especially in view of his
refusal to speak on 3 October 2002, whilst the notice cited Article
49 § 2 of the Code of Criminal Procedure without explaining its
meaning (see paragraphs 9 and 62, by contrast to Sharkunov and
Mezentsev v. Russia, no. 75330/01, §§ 102-107, 10 June
2010), which made it difficult for the applicant to understand
whether he at all had the right to consult his lawyer at that
particular moment. As regards the applicant’s agreement of 4
October 2002, it does not confirm that the applicant was at all
informed about his right to see his counsel (see paragraph 17).
- Having
regard to its foregoing considerations, the parties’
submissions and the materials in its possession, the Court concludes
that there is no indication that the applicant validly waived his
right to legal assistance on 4 October 2002 (see paragraphs 16 and 29,
compare to Savaş v. Turkey, no. 9762/03, §§
66-67, 8 December 2009 and Pishchalnikov v. Russia, no.
7025/04, §§ 78-80, 24 September 2009).
- As
is apparent from the judgment of 17 August 2004, the trial court
found the applicant guilty of robbery on the basis of his confession
and the results of face-to-face confrontations, which it found to be
corroborated by other evidence (see paragraphs 35 and 36 above). The
Court has already discussed the circumstances in which the confession
was obtained and considers that they were such as to cast doubts on
its reliability. It also transpires that although the trial and
appeal courts dealt with the applicant’s submissions concerning
duress, the relevant court decisions contain no meaningful ruling on
the issue of legal assistance, despite the fact that the applicant
consistently raised this matter at both levels of jurisdiction (see
paragraphs 39 and 40 above). Hence, the Court is not satisfied that
the applicant’s grievance received an appropriate response from
the national courts and considers that fair procedures for making an
assessment of the issue of legal assistance proved non-existent in
the present case.
- In
sum, even though the applicant had the opportunity to challenge the
evidence against him at the trial and subsequently on appeal (see
paragraph 40), the absence of a lawyer while he was in police custody
irretrievably affected his defence rights.
- In view of the above, the Court concludes that there
has been a violation of Article 6 § 3 (c) of the Convention in
conjunction with Article 6 § 1 in the present case.
(b) The reading out of statements made by
Zh., Sh., Ya., M. and spouses G. at the pre-trial stage of the
proceedings
i. General principles
- According to the Court’s case-law, the right to
a fair trial presupposes that all the evidence must normally be
produced at a public hearing, in the presence of an accused, with a
view to adversarial argument. However, the use in evidence of
statements obtained at the stage of the police inquiry and the
judicial investigation is not in itself inconsistent with paragraphs
1 and 3 (d) of Article 6, provided that the rights of the defence
have been respected.
- As
a rule, these rights require that the defendant be given an adequate
and proper opportunity to challenge and question a witness against
him or her either when the statements were made or at a later stage
of the proceedings (see Saïdi v. France, 20 September
1993, § 43, Series A no. 261-C, and A.M. v. Italy,
no. 37019/97, § 25, ECHR 1999-IX). In the event that the
witnesses cannot be examined and that this is due to the fact that
they are missing, the authorities must make a reasonable effort to
secure their presence (see Artner v. Austria, 28 August 1992,
§ 21, Series A no. 242 A; Delta v. France, 19
December 1990, § 37, Series A no. 191 A; and Rachdad
v. France, no. 71846/01, § 25, 13 November 2003).
- Article
6 does not grant the accused an unlimited right to secure the
appearance of witnesses in court. It is normally for the national
courts to decide whether it is necessary or advisable to hear a
witness (see, among other authorities, Bricmont v. Belgium,
7 July 1989, § 89, Series A no. 158).
- However,
where a conviction is based solely or to a decisive extent on
statements that have been made by a person whom the accused has had
no opportunity to examine or to have examined at some stage of the
proceedings, the rights of the defence are restricted to an extent
that is incompatible with the guarantees provided by Article 6 (see
Unterpertinger v. Austria, 24 November 1986, §§
31-33, Series A no. 110; Saïdi, cited above, §§
43-44; Lucà v. Italy, no. 33354/96, § 40, ECHR
2001-II; and Solakov v. the former Yugoslav Republic of Macedonia,
no. 47023/99, § 57, ECHR 2001-X).
ii. The application of the above
principles to the present case
110. Turning to the matter
of the examination of victims Zh., Sh., Ya., M. and spouses G., the
Court observes at the outset that none of these persons testified at
the court hearing. However, all of them should, for the purposes of
Article 6 § 3 (d) of the Convention, be regarded as witnesses
because their statements during the pre-trial interviews, photo
identity parades or face-to-face confrontations, as taken down by the
investigating authority, were used at the trial (see paragraph 33, 34
and 35). In the circumstances, the Court considers that there was no
material difference between
a recorded deposition by a witness or the result of an identity
parade on the one hand and the result of a face-to-face confrontation
on the other, since all are capable of furnishing evidence against a
defendant in a criminal trial (see also Mirilashvili
v. Russia, no.
6293/04, § 159, 11 December 2008).
α. Reading out of statements of Sh.
and Zh.
- As
regards the applicant’s conviction in respect of the first
charge of robbery and the evidence given in this connection by
witnesses Sh. and Zh., the Court notes that the applicant had no
possibility of confronting them either before or during the court
proceedings (see paragraphs 22 and 28). The Court’s task
is thus to determine whether the applicant’s conviction in
respect of the first charge concerning which witnesses Sh. and Zh.
gave their evidence was based solely, or in a decisive manner, on the
evidence given by these witnesses in such a way that his right to a
fair trial was violated (see, for example, Vladimir Romanov v.
Russia, no. 41461/02, §§ 100-03, 24 July 2008).
- In
this connection, the Court would note that, apart from the evidence
given by witnesses Sh. and Zh., the applicant’s conviction in
respect of the first charge was confirmed mostly by less decisive
evidence, such as the handwritten notes given by a member of the
group to the victims in exchange for payment and the search records
confirming the applicant’s group to have been in possession of
the stolen car tyres and the weapons used for threatening the victims
(see paragraphs 32 and 33). Given these circumstances, the Court
concludes that the applicant’s conviction in respect of the
first charge was based to a decisive extent on the pre-trial
statements of witnesses Sh. and Zh. whom the applicant had no
possibility to question. Thus, he was in this respect at a
disadvantage vis-à-vis the prosecution during the trial (see
Vladimir Romanov, cited above, § 103).
β. Reading out of statements of
spouses G.
- Turning
to the applicant’s conviction for the second charge, the Court
notes that the applicant had no possibility of confronting the
victims, i.e. spouses G., either before or during the court
proceedings (see paragraphs 22 and 34).
- Similarly
to the previous episode, his conviction for the robbery of spouses G.
was also based principally on the pre-trial statements and the
identification records by the victims, the other pieces of evidence,
such as a handwritten note and the search record, being of a
secondary nature (see paragraphs 34). In view of the above, the Court
finds that the applicant’s conviction in respect of the second
charge was based to a decisive extent on the pre-trial statements of
witnesses G. whom the applicant had no possibility to question, thus
placing him at a disadvantage vis-à-vis the prosecution during
the trial.
γ. Reading out of statements of M.
and Ya.
- Finally,
the Court notes that in so far as the applicant’s conviction
for the third charge and the evidence given by witnesses M. and Ya.
are concerned, the applicant had an opportunity to confront them at
the interview of 4 October 2002, when they both identified the
applicant as one of perpetrators of that robbery (see paragraph 16).
During that confrontation the applicant admitted his involvement in
the incident, later partly confirming this position at the trial (see
paragraphs 16, 17 and 30). The Court notes, however, its earlier
findings under Articles 3 and 6 § 1 (c) about the circumstances
in which the applicant’s consent to take part in interviews and
confrontations of 4 October 2002 was obtained, the absence of the
applicant’s counsel on that day and, more generally, its doubts
concerning the voluntary character of the applicant’s
participation. It therefore cannot conclude that the applicant had a
meaningful an opportunity to confront these witnesses either at the
pre-trial stage of the proceedings or during the trial.
- As
to the question whether the applicant’s conviction in respect
of the third episode concerning which witnesses M. and Ya. gave their
evidence was based solely, or in a decisive manner, on the evidence
given by these witnesses, the Court notes that that the applicant’s
conviction in respect of the third episode was mainly based on the
evidence obtained from these witnesses on 4 October 2002, including
their statements and the face-to-face confrontation records and the
applicant’s confession, as well the applicant’s
subsequent admissions made to the trial court at a hearing (see
paragraph 35) which themselves resulted from the confession made on
4 October 2002. The other pieces of evidence in respect of that
episode, such as the search records, were of less decisive character.
- The
Court finds that the applicant cannot be regarded as having had a
proper and adequate opportunity to challenge the statements of M. and
Ya., which were of decisive importance for his conviction in respect
of the third charge.
- The
Court would next note that all of the above-mentioned witnesses could
not appear at the trial, that the police authorities were
unsuccessful in their attempts to secure their attendance and that
the domestic courts at two instances eventually excused their absence
as justified (see paragraphs 24-28).
- Regard
being had to the circumstances of the case, the Court has serious
doubts that the decision of the domestic courts to accept their
explanations and excuse their absence from the proceedings could
indeed be accepted as justified. It considers that the domestic
courts reviewed the reasons advanced by the competent police
authorities and the witnesses superficially and uncritically. Whilst
such reasons as the alleged remoteness of the location of the trial,
fear for their lives or the absence at the place of registration (see
paragraphs 26, 27 and 28) could be seen as relevant, the courts did
not go into the specific circumstances of the situation of each
witness and failed to examine whether any alternative means of
securing their depositions in person would have been possible and
sufficient. It follows that the decision to excuse the absence of
these witnesses was not sufficiently convincing and that the
authorities failed to take reasonable measures to secure their
attendance at the trial.
- Overall, the Court concludes that there has been a
violation of Articles 6 § 3 (d) of the Convention, taken in
conjunction with Article 6 § 1 in the criminal proceedings
against the applicant due to the fact that his conviction was to a
decisive extent based on evidence he could not challenge.
(c) The applicant’s other grievances
- The
Court reiterates its earlier findings that the absence of a lawyer
while the applicant was in police custody irretrievably affected his
defence rights (see paragraph 105) and that his conviction in respect
of all three charges was to a decisive event based on evidence he
could not challenge (see paragraph 120).
- It
therefore considers it unnecessary to examine separately whether the
fairness of the proceedings was also breached because of the
allegedly erroneous assessment of the evidence in the applicant’s
case (see Komanický v. Slovakia, no. 32106/96, §
56, 4 June 2002 and Vladimir Romanov, cited above, §
107).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed the overall sum of 53,000 euros (EUR) for the
damage allegedly sustained as a result of “all the violations
of the Convention in his case”.
- The
Government considered the claim unsubstantiated and excessive.
- The
Court observes that the applicant must have suffered a certain degree
of stress and frustration as a result of the violations found. The
actual amount claimed is, however, excessive. Making its assessment
on an equitable basis, it awards the applicant the sum of EUR 6,000
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant has not made any claims with regard to the costs and
expenses incurred before the domestic court or the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention under its procedural limb;
- Holds that there has been no violation of
Article 3 of the Convention under its substantive limb;
- Holds that there has been a violation of Article
6 § 3 (c) taken in conjunction with Article 6 § 1 of the
Convention on account of the absence of a lawyer while the applicant
was in police custody;
- Holds that there has been a violation of Article
6 § 3 (d) taken together with Article 6 § 1 of the
Convention on account of the fact that his conviction was to a
decisive event based on evidence he could not challenge;
- Holds that it is not necessary to consider other
aspects of the criminal proceedings against the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six thousand
euros), in respect of non-pecuniary damage, plus any tax that may be
chargeable to the applicant, to be converted into the Russian roubles
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount[s] at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
