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FIRST
SECTION
CASE OF NECHTO v. RUSSIA
(Application
no. 24893/05)
JUDGMENT
STRASBOURG
24
January 2012
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 Nechto v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Anatoly
Kovler,
Elisabeth Steiner,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24893/05) 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 Andrey Vladimirovich
Nechto (“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 beaten up by police officers after his arrest, that he had
not been able to examine some of the prosecution witnesses during the
trial, that he had not been assisted by counsel during the pre-trial
stage of investigation, and that the courts had erred in the
assessment of evidence in the case and had based his conviction on
inadmissible evidence.
- 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 1970 and is currently serving a prison sentence
in the town of Nerchinsk, the Chita Region.
A. Arrest and alleged ill-treatment of the applicant
- In
June 2002 the applicant was convicted of theft and involving a minor
in the commission of a crime.
- 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 who had been travelling in the cars, V., Ta.
and To., 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 disagree with [my] arrest. I did not commit the
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 UBOP”).
- 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.
- It
appears that the policemen started to interview him on arrival, but
that the applicant remained silent. According to the interview
record, he “was not mentally ready and also because of being
tired” to take part in the interview. The applicant asked for a
lawyer and refused to give evidence.
- 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 7 October 2002 the remand prison’s doctor
examined the applicant and reported one bruise on the right side of
the applicant’s rib cage. The bruise could have originated from
the impact of a hard blunt object 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. In the course of the face-to-face
confrontations, the applicant and the victims answered the
investigator’s questions. The applicant took part in the
confrontations, denied his involvement in the alleged robberies, but
did not put any questions to the victims.
- 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 [that he] has
a right not to give evidence against himself ...”
- On 5 October 2002 the applicant was formally charged
with the aggravated robbery of M. and Ya., committed as a member of
an organised group consisting of him and three other individuals, V.,
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
date in the presence of his counsel, the applicant made a handwritten
comment on the interview record that:
“... [he] refused to give evidence ... and had
nothing else to explain ...”
- It appears from the materials of the case file that
the applicant was represented by counsel from 5 October 2002 onwards.
- On
24 December 2002 the applicant was additionally charged in respect of
other episodes of the aggravated robbery of Sh., Zh., Z. and Mr and
Mrs G. committed by the same group on the night of 1 October 2002.
- During a subsequent interview which took place later
on the same date in the presence of his counsel, the applicant made a
handwritten comment on the interview record to the effect that:
“... he denied the charges ... .”
- During the pre-trial stage of the proceedings, the
victims Zh. and Sh., Z., Ya., M., and Mr and Mrs G., made detailed
statements about the circumstances of the robberies. In addition,
photo identification parades were conducted and the victims Zh., Ya.
and Mr and Mrs G. recognised the applicant and other members of the
group as the perpetrators of the robberies.
2. Court examination of the criminal case against the
applicant
(a) Trial proceedings
- The criminal case against the applicant and his three
co-accused, V., 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
Zh. and Sh., Mr and Mrs 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 Mr and Mrs G. because they had moved away and had 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, Ya. had
a sick child and could not come to give evidence, 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 and making 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 during
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 his 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 record
of the applicant’s face-to-face confrontations of 4 October
2002, contained in the prosecution case file.
- During the trial the applicant denied his involvement
in the robberies.
(b) The first-instance judgment of 17
August 2004
- On 17 August 2004 the District Court convicted the
applicant and his co-accused of participation in three episodes of
robbery committed on the Khabarovsk-Chita motorway near the town of
Mogocha and sentenced him to eight 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 the commission of the
crimes. The group was created to [intercept newly-purchased Japanese
cars being driven home] on the Khabarovsk-Chita motorway by people
passing near the town of Mogocha [and to levy an unofficial “toll”
on the drivers]. The attacks were directed solely at drivers who had
... a transit identification number from 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 his
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 the victims Zh. and Sh. as a confirmation of
payment and as “security” in case of any further
extortion during their onward journey, which read:
“Mazda Bongo Pulsar [the make and models of the
victims’ cars] in Mogochi were met by us [signature].”
- An expert examiner had 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 Mr and Mrs 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 had been 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 Mr and Mrs G. during the pre-trial stage of the proceedings, the
identification records according to which Mr and Mrs G. had
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 investigating authorities and M.,
because the group subsequently used it for payment on the way to
Chita. The court referred to the search record, which confirmed the
finding of the mounted tyre and its subsequent identification by M.
- In so far as the group was also charged with the
robbery of Z., an individual who had allegedly been robbed on one of
the nights in question 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 of that
charge.
- 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 and 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 legitimate reasons. 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 (see paragraphs 44 - 61 below). The court also
examined and rejected the rest of the applicant’s arguments
about the use of the victims’ pre-trial statements and the
alleged denial of access to his lawyer 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 of
his 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. The
investigator had questioned the policemen and convoy officers who had
allegedly been involved, who had all denied the presence of any
injuries on the applicant at the relevant time. At the same time, the
decision mentioned that the applicant had displayed bruising on
7 October 2002, but concluded that these injuries may have been
inflicted after the applicant’s placement in the remand prison.
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 lack of evidence of a crime. He
relied on the statements of the 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 of 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
that 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 decision that it was necessary to identify 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, as nobody who could be held responsible for the alleged
ill-treatment of the applicant had 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 the
remand prison cells in which 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 witnesses attesting to the
applicant’s identification by the victims in the first few days
following his arrest.
- On 26 May 2010 an 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 of
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 sustained by the
applicant’s co-accused, the investigator concluded that they
could have been inflicted by the victims of the crimes or by other
people, including the co-accused themselves, during their detention
in the remand prison. Given that the actions of unidentified
individuals fell under Article 116 of the Criminal Code, the criminal
proceedings were to be terminated, as the time-limit for holding
those persons responsible in the present case had expired.
- The investigator relied on: (i) the statements of the
doctor who had examined the applicant on 7 October 2002 and
discovered a bruise on the right side of the applicant’s rib
cage; (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; and (v) the statements of the nurse
of the temporary detention facility who had examined the applicant on
4 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 of 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 called by a court
and that in case of evasion for no valid reason a witness can be
compelled to appear (Article 56).
- A
witness can be brought to court in case of evasion of the duty to
appear without a valid reason (Article 113 of the CCrP).
- According
to the Directions approved by Order no. 438 of the Ministry of
Internal Affairs of 21 June 2003, the local police enforce decisions
on the compulsory appearance of witnesses by bringing them to court.
- 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 take part in the
criminal proceedings as of the moment of the institution of a
criminal case against a specific person (part 2) or as of the
moment of the apprehension of the suspect if the suspect was caught
in the commission of an offence (part 3).
- Article
144 of the CCrP provides that prosecutors, investigators and inquiry
bodies are 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
can be extended to ten days. The decision should be one of the
following: (a) to institute criminal proceedings; (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 re-opened until the time-limit for holding a person criminally
responsible expires.
- Under
Article 221 of the CCrP, the prosecutor is responsible for general
supervision of the 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 inquiry bodies.
- Reading out in court of statements made by a victim or
a witness at earlier stages of the proceedings is permitted upon the
parties’ consent if the victim or the witness has not appeared
before the court (Article 281 § 1 of the CCrP). The court
may, without seeking the consent of the parties, read out earlier
statements by the absent victim, or the witness, in the event of: (1)
the death of that victim or witness; (2) their serious illness,
preventing their appearance before the court; (3) a refusal to appear
by the victim or the witness if they are citizens of other States; or
(4) a natural disaster or other extraordinary circumstance preventing
their appearance before the court (Article 281 § 2 of the
CCrP).
- In
admissibility decision no. 233-O of 27 October 2000, the
Constitutional Court of Russia held that the reading out of pre-trial
depositions should be considered as an exception to the court’s
own assessment of evidence and should not upset the procedural
balance between the interests of the prosecution and those of the
defence. If a party insists on calling a witness whose testimony may
be important to the case, the court should take all available
measures to ensure this witness’s presence in court. When that
witness is available for questioning, the reading out of his or her
deposition should be considered inadmissible evidence and should not
be relied upon. However, when the witness is not available for
questioning, the defence should still be provided with appropriate
procedural safeguards, such as challenging the deposition read out, a
request to challenge it by way of examining further evidence, or
through a pre-trial face-to-face confrontation between that witness
and the defendant in which the latter was given an opportunity to put
questions to the former (see also admissibility decision no. 548-O of
7 December 2006).
- In
Ruling no. 29 of 27 December 2002 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
characterised 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.
- Article
413 of the Code, setting out the procedure for re-opening of criminal
cases, reads, in so far as relevant, as follows:
“1. Court judgments and decisions which
became final should be quashed and proceedings in a criminal case
should be re-opened due to new or newly discovered circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms committed by a court of the Russian Federation during
examination of a criminal case and established by the European Court
of Human Rights, pertaining to:
(a) application of a federal law which runs
contrary to provisions of the European Convention for the Protection
of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the
Convention for the Protection of Human Rights and Fundamental
Freedoms;
....”
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 in violation of Article 3 of the Convention and that no
proper investigation into this had been conducted. This Convention
provision 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 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 applicant had
been able to do so because he had been timely notified about the
termination of the criminal proceedings concerning his complaints of
ill-treatment and about the possibility to challenge them in court
and had been assisted by counsel at the pre-trial stage and during
the trial. The Government argued that the length of the investigation
of the alleged ill-treatment had been due to the applicant’s
failure to complain of the alleged beatings in time.
- The
applicant disagreed and maintained his initial complaints.
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 first use 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 complaints
intended to subsequently be brought 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 concerning his complaints of
ill-treatment in court (paragraph 61). 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 46-58).
In fact, except for two long interruptions of five and ten months,
the proceedings were discontinued and then reopened on the
supervising prosecutors’ instructions every one or two months.
The prosecutors mostly referred to the same reasons for reopening the
investigation (see paragraphs 50, 52,
54-56). 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 have been 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 of
beatings by the police no later than in the first two weeks of
October 2002 (see paragraphs 44 and 46).
By that time, the results of the applicant’s medical
examination of 7 October 2002, which noted a bruise on the right
side of the applicant’s rib cage, were already available to the
authorities (see paragraph 17). 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 48). 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 is
doubtful that any subsequent investigation would have been able to
remedy the resulting damage.
- Next,
the Court finds that the investigating 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 52), the same instruction to identify
the applicant’s cells on at least three occasions (see
paragraph 55) and the same instruction to
dissipate the discrepancies in witness statements on at least three
occasions (see paragraphs 52 and 56).
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 52 and 56)
which required 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 87)
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 58-60).
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 87 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 15), whilst
the medical certificate issued by a doctor in the remand prison on 7
October 2002 confirming the presence of a bruise on his ribcage and
diagnosing it as having appeared two or three days beforehand (see
paragraph 17) 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 13).
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 to a considerable extent 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;
(b) the
courts had used the statements of witnesses M., Ya., Sh., Zh. and Mr
and Mrs G. to convict him and that he had not been able to examine
these witnesses before the court in person; and
(c) that
the domestic courts had erroneously assessed the evidence in his case
and had relied on inadmissible evidence.
The
Court will examine these complaints 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
given 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, had lawfully used their
pre-trial statements in convicting the applicant.
- 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 Mr and Mrs 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 a 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 criminal proceedings, as the evidence obtained
during this stage determines the framework in which the offence
charged will be considered at 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 has tended 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 a group of people travelling in two cars on
suspicion of their involvement in recent robberies (see paragraph 7).
The applicant made a handwritten comment in the arrest record to the
effect that he “disagree[d] with [his] arrest” and that
he “did not commit the 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 9 and 10).
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 with a view to forcing him to
confess (see paragraph 14).
- On
4 October 2002 the applicant agreed to take part in face-to-face
confrontations with the victims of one of the robberies, M. and Ya.,
and, during these confrontations, denied his involvement in the
crimes at issue. He was given an opportunity to put questions to the
victims, but did not have anything to ask. The confrontation records
stated that the applicant had agreed to participate in the absence of
counsel and that he had been informed of his right to remain silent
(see paragraph 20). The applicant was provided
with access to his lawyer after he had been formally charged on
5 October 2002 in connection with this episode. From that moment
on, he consistently refused to give any evidence to the investigator
(see paragraphs 22 and 25).
Subsequently at trial, the court admitted the record of the
applicant’s participation in the confrontations as evidence and
used it in convicting the applicant (see paragraphs 33
and 39).
- The
Court first observes that the parties disagreed on whether the
applicant had indeed asked for counsel after his arrest or whether he
had essentially waived this right and his right to remain silent and
had consented to giving evidence in the absence of his lawyer on 4
October 2002. 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 pressure and coercion by the
police with a view to forcing him to confess (see paragraph 12).
The Court further observes that in addition to the allegation of
duress the applicant also contended that the record of his
participation in the confrontation on 4 October 2002 should have been
excluded from the body of evidence at trial due to the absence of
legal assistance at the relevant time (see paragraphs 33
and 42).
- 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 86
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 96).
- The
Court further cannot attach importance to the applicant’s
signature on the notice informing him of his legal rights on 3
October 2002 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 10 and 67),
which made it difficult for the applicant to understand whether he
had the right to consult his lawyer at all at that particular moment.
As regards the applicant’s agreement of 4 October 2002, it does
not confirm that the applicant was informed at all of his right to
see his counsel (see paragraph 20).
- 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 Savaş v.
Turkey, no. 9762/03, §§ 66-67, 8 December 2009).
- As
is apparent from the judgment of 17 August 2004, the trial court
found the applicant guilty of robbery on the basis of the record of
the applicant’s participation in the face-to-face
confrontations, which it found to be corroborated by other evidence
(see paragraphs 36-39
above). The Court has already discussed the circumstances in which
this evidence 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 42 and 43
above). Hence, the Court is not satisfied that the applicant’s
complaint 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 trial and subsequently on appeal (see
paragraph 43), 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 Mr and Mrs 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 the accused, with a
view to adversarial argument. However, the use in evidence of
statements obtained at the police inquiry or judicial investigation
stages 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 are 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 in fine, 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
Al-Khawaja and Tahery v. the United Kingdom [GC],
nos. 26766/05 and 22228/06, § 147,
15 December 2011, 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
- Turning to the matter of the examination of the
victims Zh., Sh., Ya., M. and Mr and Mrs 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 37,
38 and 39). In the
circumstances, the Court considers that there is no material
difference between a recorded statement 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 the 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 26 and 32).
The Court’s task is thus to determine whether the applicant’s
conviction in respect of the first charge – in connection with
which witnesses Sh. and Zh. gave their evidence – was based
solely, or to a decisive degree, on the evidence given by those
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 mostly confirmed 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 36 and 37).
In view of the above, 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 the statements of
Mr and Mrs G.
- Turning
to the applicant’s conviction for the second charge, the Court
notes that the applicant had no possibility of confronting the
victims, namely Mr and Mrs G., either before or during the court
proceedings (see paragraphs 26 and 38).
- Similarly
to the previous episode, his conviction for the robbery of Mr and Mrs
G. was also principally based on the pre-trial statements given by
the victims and the records of the identification made by the victims
– the other pieces of evidence, such as a handwritten note and
the search record, being of a secondary nature (see paragraphs 38).
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 Mr and Mrs 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 the 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 19).
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 on 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 opportunity to confront
these witnesses either at the pre-trial stage of the proceedings or
during the trial.
- As
to the question of whether the applicant’s conviction in
respect of the third charge – in connection with which
witnesses M. and Ya. gave their evidence – was based solely, or
to a decisive degree, on the evidence given by these witnesses, the
Court notes that that the applicant’s conviction in respect of
the third charge was mainly based on the evidence obtained from those
witnesses on 4 October 2002, including their statements and the
face-to-face confrontation records. The other pieces of evidence in
respect of that episode, such as the search records, were of a 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 28-32).
- 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 absence from their registered address (see
paragraphs 29, 30 and 31)
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 giving evidence 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 event based on evidence he could not challenge.
(c) The applicant’s other complaints
- 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 113) and that his
conviction in respect of all three charges was to a decisive event
based on evidence he could not challenge (see paragraph 128).
- 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 the violations of the
Convention in his case.
- The
Government considered the claim unsubstantiated and excessive.
- The
Court further 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 costs and expenses
incurred before the domestic court or the Court.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 the applicant’s
conviction was to a decisive event based on evidence he could not
challenge;
- Holds that it is not necessary to consider the
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 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 24 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Peer
Lorenzen Registrar President
