THIRD SECTION
CASE OF AZARSANOV AND BOROKOV v. RUSSIA
(Applications nos. 63160/13 and 33661/14)
JUDGMENT
STRASBOURG
19 July 2022
This judgment is final but it may be subject to editorial revision.
In the case of Azarsanov and Borokov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Peeter Roosma,
Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications 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 the applicants listed in the appended table (“the applicants”) on the dates indicated therein;
the decision to give notice of the complaints concerning the applicants’ unfair convictions based on their initial confessions made in the absence of a lawyer to the Russian Government (“the Government”), initially represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Vinogradov;
the parties’ observations;
Having deliberated in private on 15 March 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. Between 2011 and 2012 the applicants were prosecuted and convicted for different criminal offences. Their convictions were notably based on their confession statements made shortly after their de facto apprehension by police but before they had been granted the formal procedural status of suspect, and access to a lawyer. At trial, they unsuccessfully sought to exclude their initial confessions as inadmissible evidence on the grounds that they were obtained without a lawyer. They also pointed out that in the absence of direct evidence, the extent of their involvement in the crimes for which they were prosecuted and in particular the conclusion on the existence of their prior intent and conspiracy was based to a decisive extent on these confessions. Their motions were rejected by domestic courts for two main reasons, that is because the domestic legislation did not require a lawyer’s presence at that particular moment and because these confessions were consistent with other evidence (for more details see the appended table).
THE COURT’S ASSESSMENT
JOINDER OF THE APPLICATIONS2. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 c) OF THE CONVENTION3. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
4. The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, the waiver of the right to legal assistance and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in Beuze v. Belgium ([GC], no. 71409/10, §§ 119‑50, 9 November 2018).
5. In the present case, it is not disputed by the parties that when they made their initial confessions the applicants had already been considered as criminal suspects by the police and apprehended on that account. Consequently, they should have benefited, as from the moment of their de facto arrest, from all rights inherent to this status including the right to a lawyer. Once brought to the police stations, the applicants made confession statements. There is no indication in any of the files that either of the applicants were apprised of their rights, including their right to a lawyer, prior to giving their confession statements. The Court is thus satisfied that the applicants’ right of access to a lawyer was restricted.
6. Yet, restrictions on access to a lawyer should be justified by compelling reasons and be permitted only in exceptional circumstances, they must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (Simeonovi v. Bulgaria [GC], no. 21980/04, § 129, 12 May 2017). According to the Government, these restrictions were based on a general state of the domestic legislation and practice. The Court thus concludes that this general reference excluded any individual assessment and therefore could not stand up to scrutiny in relation to the procedural requirements of the concept of “compelling reasons” (see Beuze, cited above, §§ 138 and 142).
7. The Court has already found violations of Article 6 §§ 1 and 3 c) of the Convention on account of a similar practice consisting of delaying the formalisation of the status of a criminal suspect until a person apprehended on suspicion of having committed a criminal offence makes a confession, which could subsequently be used against him at trial (Turbylev v. Russia, no. 4722/09, §§ 92-98, 6 October 2015, and Rodionov v.Russia, no. 9106/09, §§ 158-59, 11 December 2018). Unlike a confession statement made after the formalisation of a suspect’s status and in the presence of a lawyer, the initial confession given before that remains admissible even if the defendant later retracts it. The Court thus concluded that this practice was used as leeway to circumvent the strict rules on admissibility of self-incriminating statements made by a person apprehended on suspicion of having committed a criminal offence at the very early stage of the investigation (Turbylev, cited above, § 95).
8. In the Court’s view, the present case constitutes another illustration of this practice. Although both applicants subsequently denied their initial confession statements, it did not prevent the domestic courts from using them to justify the applicants’ conviction. It is true that at their respective trials, the applicants, assisted by their lawyers, could challenge the admissibility of the evidence, including their confession statements. The domestic courts rejected their motions first by reference to domestic law (see § 7 above). That technical compliance with the domestic law undermined the applicants’ ability in practice to challenge the use of evidence obtained from them in the absence of a lawyer because the domestic courts found it sufficient to observe that domestic law had been complied with (see Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 81, 10 November 2016). They further referred to the fact that these confessions were corroborated by other evidence. The Court notes that it results from the case files that the applicants’ initial confessions essentially served as not the sole but, in any event, decisive evidence to establish the existence of important and aggravating elements of their prior intent and conspiracy, whereas the other evidence only concerned the circumstances of the commission of the crimes not disputed by the applicants. As regards the initial confession statements of their co-defendants, the only other element directly relating to the conspiracy, the Court notes that they were also obtained in similar circumstances, that is without a lawyer, and subsequently retracted by them, which cast doubt on their reliability and sincerity. The trial and appeal proceedings, where the applicants’ motion for the exclusion of their confessions from the body of evidence were rejected without proper examination of the circumstances in which they were made, as well as of the quality of other corroborative evidence, did not have a remedial effect on the procedural flaws of the investigation stage.
9. The foregoing considerations are sufficient for the Court to conclude that the overall fairness of the criminal proceedings against the applicants was prejudiced to an extent that is incompatible with Article 6 of the Convention.
10. There has accordingly been a violation of Article 6 §§ 1 and 3 c) of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
11. The applicants claimed different amounts in respect of non-pecuniary damage and the first applicant also claimed 4,400 euros (EUR) in respect of costs and expenses incurred before the Court.
12. The Government considered that the best way to provide redress to the applicants would be trial de novo.
13. Having regard to the fact that domestic law provides that criminal proceedings may be reopened if the Court finds a violation of the Convention, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant (see Zadumov v. Russia, no. 2257/12, §§ 80-81, 12 December 2017, and most recently, Kumitskiy and Others v. Russia, nos. 66215/12 and 4 others, § 28, 10 July 2018).
14. The Court notes the first applicant failed to submit either a representation agreement or a payment receipt or any other proof that the expenses claimed had been actually incurred. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the complaints concerning Article 6 §§ 1 and 3 c) of the Convention admissible;Holds that there has been a violation of Article 6 §§ 1 and 3 c) of the Convention;Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;Dismisses the remainder of the applicants’ claim for just satisfaction.Done in English, and notified in writing on 19 July 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli
Deputy Registrar President
APPENDIX
No.
Application no.
Case name
Introduction date
Applicant’s name
Year of birth
Place of residence
Nationality Representative’s name
Location
Procedure
Circumstances of the applicant’s arrest
and confession
Conviction
1.
63160/13
Azarsanov v. Russia
16/09/2013
Akhmed Valeriyevich AZARSANOV
1978
Kokhma
Russian
Irina Anatolyevna BIRYUKOVA
Podolsk
Partial decision
Arrested at around 6 p.m. on 27/04/2011
Confession statement at 9.20 a.m. on 28/04/2011
Arrest record drawn up at 1.30 p.m. on 28/04/2011
Ivanovskoye police department, Moscow (отдел полиции по району Ивановское г. Москвы)
Retracted on an unspecified date (during an interview as a suspect), on 05/05/2011 (during an interview as an accused person in the presence of a lawyer)
Moscow City Court, 18/12/2012
Supreme Court of the Russian Federation, 21/03/2013
Convicted for the murder of a person in a helpless state
Other evidence: confession of 28/04/2021 of co-accused
2.
33661/14
Borokov v. Russia
19/04/2014
Kazbek Zaurbiyevich BOROKOV
1979
Cherkessk
Russian
Kazbek TOKHCHUKOV
Cherkessk
Partial decision
Arrested at 7.40 p.m. on 25/01/2012
Confession statement at 8.48 p.m. on 26/01/2012
Arrest record drawn up at 10.42 p.m. on 26/01/2012
Centre on Counteracting Extremism of the Ministry of Interior of the Republic of Karachayevo-Cherkessia (Центр противодействия экстремизму МВД России по Карачаево-Черкесской республике)
Retracted on 26/01/2012 (during an interview as a suspect in the presence of a lawyer)
Supreme Court of the Republic of Karachayevo-Cherkessia, 30/07/2013
Supreme Court of the Russian Federation, 24/10/2013
Convicted for contributing to the murder of person by hiding traces and arms of the crime
Other evidence: confession of co‑accused of 24/01/2012