Communicated on 15 November 2016
THIRD SECTION
Application no. 25877/12
Viktor Alekseyevich AKIMOV
against Russia
lodged on 5 April 2012
STATEMENT OF FACTS
A. The circumstances of the case
The applicant, Mr Viktor Alekseyevich Akimov, is a Russian national, who was born in 1963 and is now serving his sentence in a correctional colony in Sokol, Vologda Region.
The facts of the case, as submitted by the applicant, may be summarised as follows.
At around 8 p.m. on 2 January 2011 the applicant was arrested by the police on suspicion of having committed a murder at his place of residence. The applicant severely intoxicated was sitting in an armchair and a dead woman was lying on the floor. The applicant was brought to the Rzhevskiy district police department of the Tver Region (ОВД по Ржевскому району Тверской области).
Between 8 p.m. on 2 January 2011 and the evening of 3 January 2011 the applicant remained at the police premises. From time to time he was taken from one office to another for informal interviews. The police officers gave the applicant alcohol to drink to make him confess to the crime.
At 2.05 p.m. on 3 January 2011 an arrest record was drawn up and the applicant was granted status of a criminal suspect. He was informed of all his rights, including the right to remain silent, the right to a lawyer and the privilege against self-incrimination. No lawyer was present at that moment.
Later on the same day the applicant made a confession statement («явка с повинной»). He admitted to having been drinking alcohol with the victim, that the victim stole money from him, so he hit her several times, then he saw that she was dead. The applicant made his confession in the form of a confession statement record («протокол явки с повинной»). The record contained the explanation of the rights under Article 51 of the Constitution. It did not indicate the exact time when the confession statement was made.
At around 8 p.m. on the same day the applicant was placed in a temporary detention facility (IVS).
On 4 January 2011 the applicant retracted his confession statement during an interview as a suspect in the presence of a lawyer.
On 5 January 2011 the Rzhevskiy Town Court of the Tver Region ordered the applicant’s placement in pre-trial detention for two months, that is until 3 March 2011.
The applicant appealed arguing, inter alia, that he was arrested on 2 January 2011 and not on 3 January as indicated by the Town Court.
On 26 January 2011 the Tver Regional Court amended the decision of 5 January 2011 in part, authorising the applicant’s detention until 2 March 2011. The Regional Court did not address the issue regarding the exact date of the applicant’s arrest.
On 10 January 2012 the Town Court convicted the applicant of infliction of serious bodily injuries resulting in the victim’s death.
At trial the applicant denied his guilt and refused to testify about the facts. He claimed that his confession statement was inadmissible because it had been made without a lawyer and when he was severely intoxicated.
As regards the applicant’s condition, the Town Court found that even if he was intoxicated at the moment of his arrest, that is in the evening of 2 January 2011, he was already sober when he made his confession statement in the afternoon of 3 January 2011. As for the alleged violation of his right to legal assistance, the Town Court found that the domestic legislation did not require a lawyer’s presence for “surrender with confession” and that the applicant had not requested to be provided with a lawyer. The Town Court established that the applicant was arrested and taken to the police department after 8 p.m. on 2 January 2011, but decided to calculate the applicant’s sentence from 3 January 2011.
The applicant appealed arguing, inter alia, that he was unlawfully detained at the police department between 8 p.m. on 2 January 2011 and 2.05 p.m. on 3 January 2011. He further complained that he was only provided with a lawyer on 4 January 2011 when he was questioned as a suspect, and consequently his confession statement should have been excluded from the body of evidence as made in violation of his right to legal assistance. Finally, he claimed that the Town Court should have granted his request for a handwriting expert examination to establish whether he was intoxicated when he wrote the confession statement.
On 14 March 2012 the Regional Court rejected the applicant’s appeal. It refused to declare the applicant’s “surrender with confession” inadmissible on the ground that it was collected by the police in accordance with the legislation in force and that it was consistent with other evidence gathered by the investigation. As regards the applicant’s condition when he made his confession statement, the Regional Court considered that the Town Court adduced enough elements demonstrating that he was not intoxicated and consequently rejected his request for a handwriting expert examination. Finally, as regards the applicant’s complaints regarding his unrecorded detention, the Regional Court relied on the initial detention orders which retained as a starting point of his police custody 3 January 2011.
B. Relevant domestic law and practice
Article 51 of the Russian Constitution provides that no one may be required to incriminate himself or herself and his or her spouse and close relatives.
The relevant domestic law and practice are summarised in the cases of Rakhimberdiyev v. Russia, no. 47837/06, §§ 35‑36, 18 September 2014, and Turbylev v. Russia, no. 4722/09, §§ 46-56, 6 October 2015.
COMPLAINTS
Relying on Article 5 of the Convention, the applicant complained about his unrecorded detention at the police station between 8.00 p.m. on 2 January and 2.05 p.m. on 3 January 2011.
The applicant further complained under Article 6 §§ 1 and 3 (c) of the Convention that his confession – which formed the basis of his criminal conviction – was obtained in breach of his right to legal assistance.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was his detention between 8 p.m. on 2 January 2011 and 2.05 p.m. on 3 January 2011 recorded, as required by Article 5 § 1 of the Convention?
The Government are requested to provide copies of the register of persons escorted to police stations (книга/журнал учета лиц, доставленных в отдел внутренних дел) and the register of de facto arrested persons (реестр лиц, подвергнутых задержанию) for the relevant period.
2. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (c) of the Convention, given his submissions that the domestic courts convicted him, inter alia, on the basis of a confession statement he had made in the absence of a legal representative? In particular,
- did the applicant waive his right to a lawyer when making his confession statement and if so, was such waiver established in an unequivocal manner and was attended by minimum procedural safeguards (Sejdovic v. Italy [GC], no. 56581/00, ECHR 2006‑II; Talat Tunç v. Turkey, no. 32432/96, § 59, 27 March 2007; and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003)?
- was the applicant’s right to a lawyer restricted and if so, on what basis and what were the compelling reasons thereof (Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 258-259, 13 September 2016)?
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