Information Note on the Court’s case-law No. 127
February 2010
Aleksandr Zaichenko v. Russia - 39660/02
Judgment 18.2.2010 [Section I]
Article 6
Criminal proceedings
Article 6-1
Criminal charge
Admissions made by suspect during roadside spot check: Article 6 § 1 applicable
Fair hearing
Conviction on basis of admissions made to police prior to the administration of a caution: Admissions made by suspect during roadside spot check: violation
Article 6-3-c
Defence through legal assistance
Absence of legal assistance during police spot check at roadside: no violation
Facts – On 21 February 2001 the applicant was stopped on his way home from work by police officers investigating allegations of the theft of fuel from his employer. After finding two cans of fuel in the applicant’s car and without administering a caution, the officers questioned him on the spot and got him to sign a record of inspection in which he acknowledged that the fuel had come from his service vehicle. The applicant was subsequently asked to sign a written statement admitting that he had taken the fuel for his personal use and acknowledging that he had been informed of his right not to incriminate himself. The record of inspection and the statement were then sent to an inquirer, who reported to his superior that there was evidence of an offence. On 2 March 2001 the applicant was charged with theft and signed an act of accusation in which he acknowledged that he had been informed of the nature of the accusation and of his rights, and stated that he did not require legal representation. At his trial, the applicant, who was by now represented by a lawyer, produced an invoice which he alleged proved that he had in fact purchased the fuel. However, the trial court ruled the invoice inadmissible on the ground that it should have been produced earlier. It also rejected testimony by two defence witnesses whom it considered too closely connected to the applicant to be reliable. The applicant was convicted and given a suspended prison sentence. His conviction was upheld on appeal.
In his application to the European Court, the applicant complained that he had not had access to a lawyer during the pre-trial stage of the proceedings (Article 6 § 3 (c)) and that the trial court should not have convicted him on the basis of his pre-trial statements (Article 6 § 1).
Law – Article 6: Applicability – Article 6 was applicable to the events on 21 February 2001 as, although the applicant had not at that stage been accused of any criminal offence, the proceedings on that date had “substantially affected” his situation. The Court reiterated, however, that the manner in which the guarantees of Article 6 §§ 1 and 3 (c) were to be applied in pre-trial proceedings depended on the special features of those proceedings and the circumstances of the case assessed in relation to the entire domestic proceedings.
Article 6 § 1 – The Court considered that the police must have suspected the applicant of theft from the moment he was unable to produce any proof of purchase of the cans of fuel that had been found in his car. They had therefore been under an obligation to inform him of his rights not to incriminate himself and to remain silent. Although he was informed of his right to remain silent before he signed the written statement admitting that he had taken the fuel, he had by then already made a self-incriminating statement in the record of inspection. The Court was not satisfied that the applicant had validly waived the privilege against self-incrimination before or during the drawing up of the record of inspection and, given the weight accorded to his admission at the trial, did not need to determine the validity of his subsequent waiver of that privilege in his written statement, which derived from his earlier admission.
As to whether the use made of the applicant’s pre-trial admission had affected the fairness of the proceedings, the Court considered that the detriment he had suffered through the breach of due process in the pre-trial proceedings was not remedied at the trial. To begin with, the trial court had expressly referred to the self-incriminating statements the applicant had made to the police, both in the record of inspection and subsequently. Further, the domestic courts had not given sufficient reasons for dismissing his arguments challenging the admissibility of those statements. Lastly, the trial court had rejected the testimony of the defence witnesses on account of their close relationship with the applicant and had refused to accept in evidence the invoice which allegedly showed that he had purchased the fuel. In sum, the trial court had based the conviction on the statement the applicant had given to the police without being informed of his right not to incriminate himself.
Conclusion: violation (unanimously).
Article 6 § 3 (c): Although the applicant had not been free to leave when he was stopped on 21 February the circumstances of the case disclosed no significant curtailment of his freedom of action sufficient to activate a requirement for legal assistance at that stage. The police’s role had been to draw up a record of inspection of the car and to hear the applicant’s explanation as to the origin of the cans. That information had then been passed to an inquirer who had in turn compiled a report on the basis of which his superior had decided to open a criminal case against the applicant. At that stage (2 March 2001) the applicant was apprised of his right to legal assistance, but voluntarily and unequivocally agreed to sign the act of accusation and waived his right to legal assistance, indicating that he would defend himself at the trial. Accordingly, the absence of legal representation on 21 February and 2 March 2001 had not violated the applicant’s right to legal assistance.
Conclusion: no violation (six votes to one).
Article 41: EUR 3,000 in respect of non-pecuniary damage; reopening of the proceedings considered the most appropriate form of redress.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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