CASE OF BALBASHEV v. RUSSIA

THIRD SECTION

CASE OF BALBASHEV v. RUSSIA

(Application no. 13074/07)

JUDGMENT

STRASBOURG

22 September 2020

This judgment is final but it may be subject to editorial revision.

In the case of Balbashev v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,

Having deliberated in private on 1 September 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 13074/07) 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 Mikhail Yevgenyevich Balbashev (“the applicant”), on 18 January 2007.

2.  The Russian Government (“the Government” ) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 12 May 2014 notice of the complaints concerning the applicant’s alleged ill‑treatment at the time of his arrest and while being held in police custody and the lack of an effective investigation into that alleged ill‑treatment, the use by the trial court of a confession given by him as a result of his alleged ill‑treatment and in the absence of a lawyer, and the excessive length of the criminal proceedings in question was given to the Government. The remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1980. He is currently serving a sentence of imprisonment in the Irkutsk Region.

5.  The facts of the case, as submitted by the parties, can be summarised as follows.

A.  The applicant’s arrest and alleged ill-treatment on 28 February – 1 March 2003, and medical evidence

6.  According to the findings of the domestic courts, in the early 2000s one F. and the applicant, together with several other persons, formed an armed gang.

7.  In February 2003 the Department for Combating Organised Crime in Tulun, Irkutsk Region (“the UBOP”) obtained information to the effect that several members of the gang were preparing an armed attack on the house of a private entrepreneur, in the village of Sheragul. The UBOP officers, together with officers of the special rapid-response unit of Bratsk, Irkutsk Region (“the SOBR”) mounted a special operation to apprehend the perpetrators on the spot.

8.  Late in the evening of 28 February 2003 four members of the gang, armed and wearing masks, attacked B.’s house. Two other members – the applicant and F. – waited for them in a VAZ car near a pub, some distance from the house.

9.  Between 10 and 11 p.m. five SOBR officers and two police officers of Tulun police station, apprehended four attackers at the house. Immediately thereafter, at 11.35 p.m., they apprehended F. and the applicant near the pub.

10.  According to the applicant, he did not resist the arrest. Dazzled by the headlights of the police cars, he exited the car and surrendered to the officers. He was unarmed. He was beaten in the course of the arrest.

11.  According to the official account of the events, the people inside the VAZ car disobeyed repeated police orders to stop, and instead attempted to drive away. The officers fired at the car’s wheels. The applicant and F. resisted arrest, and the officers used force against them.

12.  Immediately after the apprehension an assistant prosecutor of Tulun drew up an examination record of the car in the applicant’s presence. Then the applicant and five of the other arrested men were taken to the Tulun district police station (“the GROVD”).

13.  According to the applicant, he and the other arrested persons were each taken to different offices in the GROVD building. The SOBR officers severely beat the applicant and the other co-accused there during the night.

14.  At some point in the morning of 1 March 2003 he made a number of “surrender and confession” statements (явки с повинной). In particular, he confessed to having committed the robbery and murder of R. The parties did not submit a copy of the applicant’s statement in that regard. The file only contains a copy of another “surrender and confession” statement of 1 March 2003 (the exact time of the statement is illegible) by which the applicant submitted that: the night before he had taken F. to Sharagul; he had been acting on F.’s instructions and had understood that they had been going to cover for a robbery (that is to say act as “getaway drivers”); and F. had instructed him to hide when they had seen the lights of a police car. He had started to drive away, but the officers had opened fire. The applicant had stopped the car and had not resisted arrest.

15.  At 3.23 a.m. on 1 March 2003 the assistant prosecutor drew up a record of the applicant’s arrest as a suspect. No lawyer was present. According to the Government, the record contained a note to the effect that the applicant had been notified of his procedural rights, including the right to remain silent and to have legal representation. It can furthermore be seen from the record that the applicant’s sister was immediately informed of his arrest. No copy of the arrest record was submitted by the parties.

16.  At 4.10 a.m. on 1 March 2003 an unspecified officer conducted medical examination No. 186 of the applicant (освидетельствование) in the GROVD and recorded a “banded bruise” (полосчатый кровоподтёк) on the applicant’s right cheek and contusion of both lips.

17.  At some point in the morning of 1 March 2003 the applicant asked to be provided with a lawyer. In the morning of the same day a lawyer was appointed to his defence.

18.  On 1 March 2003 the applicant was questioned as a suspect in the presence of the lawyer who requested a medical examination of the applicant.

19.  On 3 March 2003 a forensic medical examination of the applicant’s injuries was conducted on the basis of the above-mentioned record complied by a GROVD official (see paragraph 16 above). According to medical forensic expert report No. 198, compiled on that date, a forensic expert established that a bruise on the applicant’s right cheek and contusion of both lips had been found on the applicant. The injuries did not cause any harm to his health. They could have been caused by a solid blunt object with a limited surface area (с ограниченной поверхностью соударения), such as a hand or a foot, no more than one day before the initial examination date.

20.  Neither the applicant nor any of his co-accused complained of the alleged ill‑treatment until 2005, when the trial in the criminal case against them was under way (see paragraph 29 below).

21.  The applicant’s relatives subsequently retained the same lawyer to represent the applicant in the criminal proceedings.

B.  Prosecutor’s inquiry into the use of force by the SOBR officers

22.  On the morning of 1 March 2003 the SOBR officers (see paragraph 9 above) in written reports informed their hierarchical superior that the night before they had used physical force during the arrest of a group of armed men. Each officer stated in his respective report that he had used force in a manner in accordance with the Police Act in order to put an end to the armed and physical resistance presented by the criminals, as well as the criminals’ attempts to use firearms. The men had been wearing masks and had been armed with sawn-off rifles, their behaviour had been aggressive, they had disobeyed the police’s orders, and any inaction could have led to a loss of life.

23.  On the same day the police officers (see paragraph 9 above) in separate written reports informed the Tulun inter-district prosecutor that they had used firearms during the arrest. One of them reported that he had had to open fire in order to stop the VAZ car in which the suspects had attempted to flee the crime scene, as they had disobeyed repeated police orders to stop. There had been no casualties.

24.  It appears that on the same date all the SOBR officers who had participated in the apprehension gave oral explanations to a prosecutor regarding their use of force and firearms during the operation.

25.  On 1 March 2003 the Tulun inter-district prosecutor conducted an inquiry into the circumstances surrounding the use of physical force, handcuffs and firearms. The prosecutor observed that on 28 February 2003 a group of seven persons had committed an armed attack on a private entrepreneur in Sharagul. The SOBR and UBOP officers had used physical force, handcuffs and firearms in the course of apprehending the members of the group. Firearms had been used to stop the VAZ car being driven by the applicant, in which the group members had attempted to escape. The prosecutor found that the officers had acted in accordance with the Police Act. They had not exceeded the limits of the use of physical force, “special means” and firearms. The armed attack on the house had been real, and the attackers had possessed loaded firearms. Moreover, in response to the officers’ demand that they cease their unlawful actions, one of the attackers had opened fire, aiming at the police officers. Two suspects had attempted to escape in the VAZ car and had not reacted to repeated police warnings; the police had therefore had to use firearms, in strict compliance with law.

C.  Criminal proceedings against the applicant and the pre‑investigation inquiry into the allegations of ill-treatment

1.  Pre-trial investigation

26.  During the investigation the applicant confirmed the contents of his confession statements, in so far as they concerned the robbery and murder of R. He had made those statements on 31 March and 30 June 2004 (when he had been twice questioned as a suspect) and during an on-site verification of the applicant’s statements (проверка показаний на месте) on 13 April 2004 – each time in the presence of a lawyer.

27.  On an unspecified date, apparently in spring 2005, the investigation in respect of the gang’s activity was completed and the case was sent to the Tulun District Court for trial.

2.  The applicant’s complaint of ill-treatment to the trial court

28.  In the course of the trial the applicant pleaded guilty in respect of all the charges, save for: the creation of and participation in an armed gang; one count of theft; the robbery and murder of R. (as his confession had allegedly been extracted from him under duress); and participation in the robbery on 28 February 2003 (as he had allegedly discontinued his participation in that offence of his own will).

29.  At some point on or before 16 November 2005 the applicant and five other co-accused challenged the “statements of surrender and confession” that they had given on 1 March 2003 as having been extracted from them under duress. According to the applicant’s submissions (which were not supported by evidence), he complained about the alleged ill-treatment to the trial court in April 2005.

30.  As can be seen from undated extracts of the trial record, the applicant submitted in the courtroom that the injuries recorded in the forensic medical examination had been inflicted on him by the SOBR officers during the arrest and further at the GROVD, added that he had also sustained unspecified “internal” injuries and claimed that he had only confessed to having committed the robbery and murder of R. because the SOBR officers had severely beaten and strangled him. He had allegedly learned the details of R.’s murder after studying a confession given by another co-accused. He had not lodged complaints about the ill-treatment as “everyone [at the police station] had been shocked by the SOBR officers’ conduct”, so there had been “no one to complain to”, and added that his lawyer had seen his injuries.

3.  Pre-investigation inquiry into the ill-treatment allegations

31.  On 16 November 2005 the prosecutor in charge of the criminal case ordered an inquiry into the ill‑treatment allegations made by the applicant and the five co-accused.

32.  On 22 November 2005, after the completion of a pre-investigation inquiry under Article 144 of the Code of Criminal procedure, the prosecutor of the Tulun inter‑district prosecutor’s office declined to initiate criminal proceedings. The decision was based on the following evidence:

-  statements by the two GROVD officers, who together with the SOBR officers had arrested the gang members and brought them to the GROVD premises, depositions of three more GROVD officers and a statement of the deputy prosecutor who had been present at the GROVD during the early hours of 1 March 2003. The officers denied using any force against the arrested men and maintained that the co-accused had made their confession statements of their own will. The deputy prosecutor stated that he had not seen any officers beating the arrested men;

-  statements by two of the SOBR officers who had participated in the apprehension of the gang members (three others were not questioned as they had been on mission in the Chechen Republic). They acknowledged that they had used force against the applicant and all other co-accused arrested on that date, as they had been armed and had resisted arrest. They stated that the SOBR officers had forced the apprehended men to the ground but had not hit them in the head and body. Then they had brought the arrestees to the GROVD for interrogation and had remained there until early morning. In the morning the SOBR officers had gone to the prosecutor’s office to report on the use of force and firearms and had then returned to Bratsk. They denied the allegations of ill‑treatment in the GROVD, either at the hands of the SOBR or any other persons.

33.  All the officers noted that they did not remember certain details, as more than two years had passed since the time of the events in question. The prosecutor found no evidence of physical or psychological violence at the GROVD – either during the early hours or the daytime on 1 March 2003 – against the applicant or other co-accused on the part of either the SOBR or the GROVD officers. He concluded that in raising the ill-treatment allegations the co-accused had been attempting to avoid criminal liability.

4.  Trial depositions in respect of the ill-treatment allegations

34.  The first‑instance court heard the SOBR and UBOP officers who had taken part in the arrest of the co-accused on 28 February 2003 and who had been present on the GROVD premises during the early hours of 1 March 2003. The applicant, the other co-accused and their lawyers put questions to them. Four SOBR officers and one of the police officers made the same submissions as they had in the course of the prosecutor’s inquiry (see paragraph 32 above). They added that the SOBR officers had not obtained any statements of surrender and confession. They denied the applicant’s and the other co‑accused’s allegations of ill‑treatment in the GROVD. Three more police officers who had been present on the GROVD premises also denied either having participated in, or having seen any instance of, ill‑treatment in respect of the co-accused.

5.  The applicant’s conviction by the first-instance court

35.  On 13 February 2006 the Irkutsk Regional Court convicted the applicant of participation in an armed gang (banditry) and the unlawful carrying of weapons, as well as on six counts of robbery, five thefts and two murders.

36.  In particular, the court established that in 2001 the applicant and Sal., acting on F.’s instructions, had committed the robbery and murder of R. and had stolen his car, which they had subsequently refurbished and used for the gang’s needs. R.’s body had never been discovered, as a sandy river bank in which the perpetrators had buried it had been subsequently disturbed by flooding. The trial court based its findings in respect of the robbery and murder on the following evidence:

-  the applicant’s statement of surrender and confession of 1 March 2003;

-  interrogation records dated 31 March and 30 June 2004 in which the applicant, questioned as a suspect in the presence of his lawyer, had maintained the same account of events as that given in the above‑mentioned statement of surrender and confession and had provided additional details;

-  a record of the on-site verification of his statements of 12 April 2004, in which he had also maintained his initial account of the events;

-  surrender and confession statements by co-accused F. and Sal. recorded on 1 March 2003, as well as the testimony confirming their initial account of events that they had subsequently given in on several occasions during their questioning as suspects in the presence of lawyers;

-  a statement given by F. in the courtroom in which he had maintained that Sal. and the applicant had committed the murder;

-  an identification record confirming that Sal. had identified R. as the person murdered by the applicant;

-  statements given by one co-accused in respect of other unrelated criminal offences, whom the applicant and Sal. had told about the murder immediately after the events in question, and who confirmed that the applicant had used R.’s car before repainting and refurbishing it, as well as forging identification numbers for its major parts;

-  an on-site inspection record;

-  the record of an expert forensic examination and the record of an expert chemical examination confirming that the VAZ car seized from the applicant on 28 February 2003 had been assembled from parts belonging to two different vehicles – his own and that of R. – and repainted;

-  a statement by a town-planning and architecture expert, produced in the courtroom, to the effect that the sandy shores of the river indicated by the applicant and Sal. as R.’s burial site had been disturbed by flooding and that a human body could have been washed away by water;

-  statements made by five other persons who had known R., giving the date and time of his disappearance.

37.  The court admitted the statements of the applicant, Sal. and F and two other co-accused given at the investigation stage as having been acquired in accordance with law and corroborated by several other items of evidence, including the statements given by the applicant and several other co-accused during the investigation.

38.  With regard to the ill-treatment allegations, the judgment cited the following evidence: medical documents pertaining to the applicant (see paragraphs 16 and 19 above); medical certificates pertaining to some of the co-accused confirming the existence of bruises on them; the SOBR and GROVD officers’ statements given in the courtroom; their reports of 1 March 2003 on the use of force and the conclusion issued by the prosecutor on by the same date; and the prosecutor’s decision of 22 November 2005 (see paragraph 33 above). The trial court concluded from those documents that the injuries had been inflicted on the co-accused, including the applicant, through the use of force during their arrest. That use of force had been lawful and not excessive. The court rejected the allegations of the co-accused as regards their subsequent ill-treatment at the GROVD premises as not substantiated by any evidence.

39.  The court sentenced the applicant to twenty-three years’ imprisonment. By the same judgment, thirteen other co-accused were convicted of various criminal offences, including several counts of murders, robbery and theft; nine of the co-accused were also convicted of banditry.

6.  Appeal proceedings

40.  The applicant appealed. In particular, he challenged the admissibility of his statement of surrender and confession of 1 March 2003, in so far as it concerned the robbery and murder of R., as having been obtained under duress and in the absence of a lawyer. He maintained his allegations of ill‑treatment and claimed that F.’s and Sal.’s confessions had also been extracted under duress. He stated in general terms that during the subsequent investigation he had upheld his self-incriminating statement in respect of R.’s murder after further physical and psychological pressure had been applied to him, but that he had neither complained of nor secured any evidence in respect of the application of that pressure. Lastly, the conviction had been based to a decisive extent on the self-incriminating statements made by the applicant and other co-accused, while the body of the victim or the murder weapon had never been found. In respect of another crime of which he had been convicted he argued that the court had admitted a statement of surrender and confession that had not been given by another co-accused in the presence of a lawyer.

41.  On 16 May 2008 the Supreme Court of Russia upheld the applicant’s conviction on appeal but reduced the sentence to twenty-two years and six months’ imprisonment, given the expiry of the statutory limitation period in respect of some of the offences for which he had been convicted. The appeal court found that the lower court had duly and thoroughly assessed the evidence and had reached properly reasoned conclusions. With regard to the applicant’s ill‑treatment complaint, the court referred to the findings of the trial court, assessed them as thorough and well-founded, and concluded that there was no reason to depart from them. The court rejected the applicant’s plea of inadmissibility in respect of the testimony of the other co-accused, as domestic law did not provide for access to counsel in the event that a person made a statement of surrender and confession.

7.  Decision of 5 March 2010

42.  On 5 March 2010 the Ust-Kut Town Court brought the applicant’s sentence into conformity with amendments in the Criminal Code and reduced the sentence to twenty-one years and six months’ imprisonment.

D.  Court complaint regarding inaction on the part of the prosecutor

43.  The applicant submitted that several written requests lodged by him for information about the progress of the prosecutor’s inquiry in respect of his ill-treatment complaint (see paragraph 31 above) remained unanswered. The parties did not submit copies of the relevant requests.

44.  As can be seen from the domestic courts’ findings (see paragraphs 48 and 49 below), on 27 March 2006 the applicant lodged a complaint with the Irkutsk regional prosecutor’s office regarding unlawful actions undertaken by the SOBR officers. He received no reply, so on 5 July 2006 he lodged a further complaint with the prosecutor’s office.

45.  On 14 July 2006 the Irkutsk regional prosecutor’s office replied to the applicant, informing him that a pre‑investigation inquiry under Article 144 of the Code of Criminal Procedure had been held on 22 November 2005 in response to his respective complaint, and that a copy of the relevant decision had been sent to him.

46.  On 20 July 2006 he received a copy of the decision of 22 November 2005, apparently sent to him on 9 July 2006.

47.  The applicant lodged a complaint with the Kirovskiy District Court of Irkutsk regarding the inaction of the Irkutsk regional prosecutor’s office. No copy of the complaint has been submitted to the Court. On 3 August 2006 the District Court forwarded the case to the Tulun Town Court of the Irkutsk Region, in compliance with the relevant jurisdiction rules.

48.  On 13 September 2006 the Tulun Town Court dismissed the applicant’s complaint. The court noted that the matter raised in his complaints of 27 March and 5 July 2006 had already been subject to a pre‑investigation inquiry, which had ended on 22 November 2005 with a decision not to institute criminal proceedings. That decision had been well‑founded and lawful. The applicant had been informed of the outcome of the inquiry. Furthermore, the Court observed that the complaint about the alleged ill-treatment by the GROVD and SOBR officers had been examined in detail in the course of the applicant’s trial.

49.  On 27 November 2006 Irkutsk Regional Court upheld the decision of 13 September 2006 on appeal, having noted, in particular, that the applicant’s allegations had been examined and duly assessed by the trial court in its judgment of 13 February 2006.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

50.  The applicant complained under Article 3 of the Convention of his ill‑treatment in police custody and of the lack of an effective investigation into the complaint that he had lodged in respect thereof. Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  The parties’ submissions

51.  The Government considered that the complaint was inadmissible on several grounds. Firstly, the applicant had raised the ill-treatment issue before the authorities only in November 2005, and had failed to provide a plausible explanation for his delay in doing so. That clearly demonstrated his lack of either diligence or interest in elucidating the circumstances of the alleged ill-treatment. Secondly, his allegations had been thoroughly examined both by the prosecutor and the courts in the course of the criminal proceedings against him and been dismissed as unfounded. The authorities had concluded that the injuries detected on him had been inflicted during his arrest, as a result of efforts to put an end to his resistance. The courts had based their findings, inter alia, on the statements given in the courtroom by the officers concerned. The authorities had taken all necessary measures to verify the applicant’s allegations. Lastly, the Government submitted that the applicant had failed to appeal against the decision of 22 November 2005 not to open criminal proceedings. Only in 2006 – after his conviction by the trial court, and three years after the alleged beatings – had he lodged a separate complaint regarding the prosecutor’s inaction; that had been rejected by reasoned decisions of the domestic courts. The Government were unable to submit material (apart from the prosecutor’s decision) relating to the pre‑investigation inquiry, as the relevant documents had been destroyed before the communication of the case (after the time-limit for preserving those documents had expired).

52.  The applicant maintained his complaint. He stated that at the time of his arrest he had been unarmed and had surrendered without any resistance. He had not complained of his alleged ill-treatment before the trial out of fear of retribution, but had raised his grievance only “once the risk to his life and limb [at the hands of] the investigation team” had diminished. He and certain other co-accused had started complaining to the trial court of ill‑treatment in the spring of 2005 (see paragraph 29 above), but the prosecutor had only conducted an inquiry in that respect in November 2005, and the applicant had received a copy of his decision several months later. The authorities had been immediately aware of the injuries detected on the applicant on 1 March 2003 but had remained inactive.

B.  The Court’s assessment

53.  The Court finds that it is not necessary to examine whether the applicant exhausted the available domestic remedies as the complaint is in any event inadmissible for the following reasons.

54.  The Court accepts that the authorities ought to have been aware of the use of force against the applicant by the morning of 1 March 2003, when a bruise and contusion were detected on him and were recorded (see paragraph 16 above). However, the use of force against the applicant during the arrest was at no stage disputed by the authorities. Furthermore, there is nothing to suggest that they remained inactive. While no complaint was lodged by any of the co-accused at that moment, as early as on 1 March 2003 the SOBR and UBOP officers submitted reports to their respective hierarchical superiors and gave explanations to the prosecutor regarding the use of force during the applicant’s arrest (see paragraphs 22-23 above; also contrast Davitidze v. Russia, no. 8810/05, §§ 91 and 95, 30 May 2013; and Shevtsova v. Russia, no. 36620/07, §§ 56-57, 3 October 2017). On the basis of those reports, and in the absence of any complaint or information capable of casting doubt on their contents, the prosecutor assessed the context of the police operation, the reality of the risk of human loss and the urgency of the situation. He concluded that the force used against the two persons apprehended in the VAZ car, including the applicant, had been lawful and not excessive, as they had disobeyed the lawful orders of the policemen and had attempted to escape (see paragraph 25 above; also contrast Ryabtsev v. Russia, no. 13642/06, § 72, 14 November 2013; Annenkov and Others v. Russia, no. 31475/10, § 98, 25 July 2017; and Meshengov v. Russia [Committee], no. 30261/09, § 41, 26 March 2019). Notwithstanding somewhat summary nature of both the description of the events contained in the reports and the conclusions reached by the prosecutor, the Court notes that those conclusions remained undisputed until 2005.

55.  Indeed, even assuming that the applicant provided the correct date of his first complaint about the beatings (see paragraph 29 above), it was at least two years after the alleged ill-treatment before he advanced a new account of the events – that is to say a version challenging the use of force at the arrest as excessive and complaining to the trial court of further severe beatings that he had allegedly received at the GROVD office. He did not provide a plausible explanation for his failure to raise the matter earlier. Even assuming that he might have feared reprisals while still at the police station and despite the fact that during the morning of 1 March 2003 he had already had access to legal advice, he offered no explanation for the subsequent two-year delay in raising the issue before the authorities (see Andreyevskiy v. Russia, no. 1750/03, § 55, 29 January 2009).

56.  The Court furthermore reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, among others, Keller v. Russia, no. 26824/04, § 114, 17 October 2013). To assess such evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Bouyid v. Belgium [GC], no. 23380/09, § 82, 28 September 2015).

57.  The Court notes at the outset that the applicant has not submitted any evidence in support of his allegations that he was subjected to ill‑treatment after 4.10 a.m. on 1 March 2003, when the first medical examination report in respect of him was compiled (see paragraph 16 above). Thus, the Court rejects his allegations of ill-treatment after that time as unsubstantiated.

58.  As regards the alleged beatings before 4.10 a.m. on that date, the Court observes that the applicant’s description of the ill-treatment submitted to the domestic authorities and this Court is couched in general terms and lacks details (see Igoshin v. Russia, no. 21062/07, § 48, 21 June 2016). Indeed, his submissions throughout the domestic proceedings were rather confined to his assessment of the treatment as “severe” and “ruthless” (see paragraphs 13, 30, 41 and 52 above). Furthermore, the Court has regard to certain inconsistencies in his account of events. According to the applicant, he was severely beaten up and strangled by the SOBR officers at the GROVD office. However, the Court doubts that the injuries noted in the medical record – a bruise on the right cheek and contusion of both lips – would correspond with the severe ill-treatment lasting for hours alleged by him (see Andreyevskiy, cited above, § 62, with further references). It is noted that the applicant never complained of the inaccuracy of his medical records or the doctors’ refusal to record signs of ill-treatment (see Goryachkin v. Russia, no. 34636/09, § 65, 15 November 2016). Those factors damage the credibility of the applicant’s allegations of ill-treatment. At the same time, the expert’s conclusion as to the nature, time of infliction and origin of the bruises appears consistent with the domestic authorities’ account of the events, according to which the injuries were the result of the use of force against him during his apprehension.

59.  Both accounts of the events were examined during the pre‑investigation inquiry and during the trial. When alerted of the ill‑treatment complaint by the applicant and other co-accused, the prosecutor launched an inquiry in order to elucidate the circumstances of their transfer to and questioning at the GROVD premises, and concluded that there was a lack of evidence of any of the ill-treatment alleged by the complainants (see paragraph 33 above). The trial court, for its part, questioned the applicant on several occasions about the circumstances of the alleged ill-treatment and the way he had sustained his injuries. It also heard all of those co-accused concerned, studied the medical evidence, and admitted the pre-investigation-inquiry file. The court questioned the SOBR and the UBOP officers who had allegedly been involved in the alleged ill‑treatment, as well as other witnesses. The applicant was able to cross‑examine them (see (see paragraphs 34 and 38 above; see also, in a similar context, Andreyevskiy, cited above, §§ 56-57). On the basis of that evidence, the court found no reason to depart from the police officers’ initial account of the events – that is say their account of the use of force against the co-accused concerned during the arrest. The Court finds nothing in the case material to depart from those conclusions.

60.  In the light of the above the Court cannot establish that the applicant had an arguable claim regarding his alleged ill-treatment at the GROVD premises or made a credible assertion. It follows that this part of the complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

61.  In the absence of such an arguable claim, the respondent State did not have a procedural obligation under the Convention to carry out an effective investigation into the ill-treatment complaint. The Court accordingly finds that this part of the complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3

62.  The applicant complained, under Article 13 of the Convention in conjunction with Article 3, that the authorities had failed to carry out an effective investigation into his complaint of ill-treatment. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

63.  In view of its finding in paragraph 60 above, the Court considers that the applicant has no arguable claim under the Convention or its Protocols that would require a remedy within the meaning of Article 13. Consequently, this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected, pursuant to Article 35 § 4 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 6  § 1 AND 6 § 3 (C) OF THE CONVENTION

64.  In the application forms of 14 August 2007 and 15 November 2008 the applicant complained under Article 6 that his criminal conviction had to a significant extent been based on his self-incriminating submissions of 1 March 2003, which had allegedly been made under duress and in the absence of a lawyer. The relevant provisions of Article 6 of the Convention, in so far as relevant, read as follows:

Article 6

“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 ...”

A.  The parties’ submissions

65.  The Government argued that the complaint was premature, as the applicant had raised the matter before the Court before 16 May 2008, the date of the final judgment in the criminal proceedings. In any event, they considered the complaint to be unsubstantiated. The pre-investigation inquiry had established that the applicants’ allegations of ill-treatment were unfounded and that the trial court had therefore reasonably refused to exclude the contested evidence. They argued that the applicant had given his statement of voluntary surrender and confession of his own free will, and had systematically maintained his statement during the investigation – twice when questioned as a suspect and further during the on-site verification of the statements. They furthermore submitted that his statement of surrender and confession had not constituted the sole evidence on which his conviction in respect of the murder and robbery of R. had been based but that his guilt had been sufficiently proved by other evidence in the case, such as statements given by his accomplices, the identification records (see paragraph 38 above), and other evidence. They noted that the applicant’s statement of surrender and confession had been regulated by Articles 141 and 142 of the Code of Criminal Procedure, which did not provide the right to access to defence counsel.

66.  The applicant maintained that he had only been granted legal assistance on the second day following his arrest. In his view, the Government had failed to prove that he had made a statement of surrender and confession after consulting a lawyer. The applicant’s conviction had been based to a decisive extent – in the absence of either R.’s body or a murder weapon – on his statement of surrender and confession in so far as it had concerned the robbery and murder of R.

B.  The Court’s assessment

67.  In respect of both aspects of the complaint, the Court agrees with the Government that it was raised for the first time prior to the date of the final judgment in the domestic proceedings. However, he raised the same complaint again in the application form of 15 November 2008, which was lodged within the six-month period following the final judgment. Accordingly, the Court will not reject the complaint as premature.

68.  The Court further notes that the parties have not provided a copy of the statement of surrender and confession in respect of the robbery and murder of R, or a detailed timeline of the events of the morning of 1 March 2003. Accordingly, the Court is unable to establish either the exact scope of all the confessions given by the applicant on that date before the arrival of the lawyer or, indeed, the exact time that the counsel took up his defence. Similarly, it has no information as to whether the applicant was advised of his right to remain silent and right to legal assistance before making his statement in respect of R.’s murder. Nonetheless, it appears to be common ground between the parties that (i) early in the morning on 1 March 2003, before his questioning as a suspect in the lawyer’s presence, the applicant made a statement of surrender and confession in respect of R.’s murder, and (ii) that statement was admitted by the trial court and, together with other evidence, served as a basis for his conviction in respect of that episode (see paragraphs 36 above).

1.  Use of the statement of surrender and confession of 1 March 2003 allegedly obtained as a result of ill-treatment

69.  The Court notes that it has declared inadmissible as ill-founded the applicant’s complaint under Article 3 of the Convention (see paragraph 60 above). However, it reiterates that the absence of an admissible Article 3 complaint does not, in principle, preclude it from taking into consideration the applicant’s allegations that his statements had been obtained using methods of coercion or oppression and from holding that the admission of such evidence to the case file (and the reliance on that admission by the trial court) therefore constituted a violation of the fair trial guarantee of Article 6 (see Örs and Others v. Turkey, no. 46213/99, § 58, 20 June 2006, and Özcan Çolak v. Turkey, no. 30235/03, § 43, 6 October 2009).

70.  The Court notes that the allegations made by the applicant and the other suspects that they had been subjected to duress were scrutinised in adversarial proceedings. The applicant and other co-defendants had an opportunity to challenge the use both of their own and other co-defendants’ statements during the trial. The trial court approached the defendants’ confessions with considerable caution. In particular, it heard both the co‑accused and the alleged perpetrators, studied medical evidence obtained immediately after the apprehension of the co-accused, the police reports on the use of force and the prosecutor’s decisions on the mater, examined at length and rejected the applicant’s and other co-defendants’ assertion that their relevant statements had been extracted under duress (see paragraphs 34 and 38 above; see, by contrast, Urazbayev v. Russia, no. 13128/06, §§ 72‑73, 8 October 2019; Belugin v. Russia, no. 2991/06, §§ 75-76, 26 November 2019; also compare Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 131, 10 November 2016). In sum, and having regard to its conclusions in paragraph 59 above in so far as the applicant was concerned, the Court finds that the applicant has failed to provide any material or arguments allowing it to reach a conclusion that differs from that of the domestic courts (see, by contrast, Belugin and Urazbayev, both cited above).

71.  Therefore, the Court is unable to conclude that the trial court failed to carry out an independent and comprehensive review of the applicant’s and other co-accused’s allegations that their self-incriminating statements, including the applicant’s statement of surrender and confession of 1 March 2003, were the result of the police violence.

72.  It follows that this part of the complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2.  Use of the evidence obtained in the absence of a lawyer

73.  The Court will now address the use by the trial court of the statement of surrender and confession in respect of the robbery and murder of R. made by the applicant on 1 March 2003 in the absence of a lawyer.

(a)  Admissibility

74.  The Court considers that this complaint is not manifestly ill‑founded and is not inadmissible on any other grounds. It must therefore be declared admissible.

(b)  Merits

(i)  Relevant general principles

75.  The general principles with regard to access to a lawyer, the right to remain silent, privilege against self-incrimination, waiving the right to legal assistance, and the relationship of those rights to the overall fairness of proceedings under the criminal limb of Article 6 of the Convention can be found in Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 249-74, 13 September 2016, Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 112-20, 12 May 2017, with further references, and, most recently, in Beuze v. Belgium [GC], no. 71409/10, §§ 119-50, 9 November 2018.

(ii)  Application of the above principles to the present case

76.  The Court is not in possession of any document confirming that before giving his “statement of surrender and confession” in respect of the robbery and murder of R. the applicant was informed of his right to legal assistance (see paragraphs 15 and 68 above). In any event, even assuming that he was in some form notified of his rights (for instance, during the arrest, as suggested by the Government – see paragraph 15 above), there is nothing to suggest – and it was not alleged by the Government – that the applicant can be considered to have validly waived his entitlement to legal assistance (see Fefilov v. Russia, no. 6587/07, § 55, 17 July 2018).

77.  Furthermore, the Court perceives no “compelling reason” (see Beuze, cited above, §§ 142-43, with further references) justifying the absence of a lawyer at the time that the applicant gave his statement of surrender and confession in respect of R.’s murder. Indeed, no justification – other than compliance with the domestic law – was offered by the Government for the applicant’s lack of access to a lawyer in police custody at the time that he had produced his statement of surrender and confession (see Turbylev v. Russia, no. 4722/09, § 92, 6 October 2015).

78.  Where there are no compelling reasons, the Court must apply very strict scrutiny to its fairness assessment. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Beuze, cited above, § 145).

79.  In making this assessment the Court is guided by the criteria summarised in Beuze (see, for a non‑exhaustive list of factors for the overall fairness assessment, Beuze, cited above, § 150, with further references; see also paragraph 51 above), to the extent that it is appropriate, given the circumstances of the present case.

80.  The Court notes at the outset that a number of factors tend to argue in favour of considering the proceedings fair: (i) there is nothing to indicate that the applicant was particularly vulnerable; (ii) there is no evidence that the applicant’s initial confessions resulted from his ill-treatment (see paragraphs 60 and 70-71 above); (iii) the applicant did not promptly retract his statements of 1 March 2003 but instead consistently maintained them throughout the investigation in the presence of his lawyer – and even provided new details (see paragraph 26 above) – until 2005, when all the co‑accused concerned changed their defence strategy and challenged the relevant evidence as having been obtained under duress; (iv) there was other evidence against the applicant (see paragraph 36 above); (v) all the evidence in respect of the case was assessed by professional judges, and (vi) the public interest in the prosecution of the offence imputed to the applicant – that of a robbery and murder – was clearly strong (see Beuze, cited above, § 150, with further references and, as an example of a similar assessment, Alakhverdyan v. Ukraine [Committee], no. 12224/09, § 60, 16 April 2019).

81.  However, the Court considers that the above factors are not capable of tipping the balance in favour of considering the proceedings fair (see Fefilov, cited above, § 64), for the following reasons.

82.  Turning to the nature of the statement made in the absence of a lawyer and the use to which the evidence was put (see Beuze, cited above, § 150), the Court notes that, according to the trial record and the trial judgment, the applicant confessed to having robbed and murdered R. and signed the relevant statement of surrender and confession. The Court considers that that statement indeed provided the domestic investigating authorities with the framework around which they subsequently built their case. In the absence of either the victim’s body or the murder weapon, the trial court heavily relied on the following items of evidence to secure the applicant’s conviction: statements by two other co-accused, F. and Sal. (which they had retracted at the trial stage); self-incriminating statements produced by the three co-accused at the pre-trial stage; F.’s statement in the courtroom; and the identification record by which Sal. identified R. as the person murdered by the applicant (see paragraph 36 above). Furthermore, while the experts confirmed that the applicant’s car had been assembled from parts taken from R.’s car, (ibid.), this conclusion was of limited probative value in so far as the circumstances of the murder and robbery or, for instance, the co-accused’s respective roles in it were concerned. It is true that the trial court viewed the applicant’s statement of “surrender and confession” in the light of other evidence before it. However, none of that evidence constituted direct evidence. Given those circumstances, the applicant’s statement of surrender and confession can be considered to have constituted an integral and significant part of the probative evidence upon which the conviction was based (compare Ibrahim and Others, cited above, § 309; Sitnevskiy and Chaykovskiy, cited above, §§ 82-85; and Fefilov, cited above, § 63; also contrast Artur Parkhomenko v. Ukraine, no. 40464/05, § 87, 16 February 2017).

83.  It is true that the applicant was able to challenge the authenticity of the evidence and to oppose its use. However, as confirmed by the appeal court – albeit in respect of another co-accused’s statement and, for some reason, not that of the applicant (see paragraph 41 above) – as well as by the Government in their observations (see paragraph 65 above), no prior access to a lawyer was required by the domestic law in order for a suspect to make a statement of surrender and confession. The subsequent use of such a statement in evidence at the trial could not therefore be contested on the grounds of a lack of legal advice (see Turbylev, cited above, § 92). Given the legal framework governing the pre-trial proceedings and admissibility of evidence at trial, while the applicant was indeed free to raise the issue before the courts of criminal jurisdiction, there would have been little point in doing so given the non-existence at the time of a domestic-law requirement of access to a lawyer in respect of a statement of surrender and confession (see Turbylev, cited above; see also, mutatis mutandis, Farrugia v. Malta, no. 63041/13, § 116, 4 June 2019).

84.  In addition, the Court notes that the applicant’s specific argument that he had made his initial confession on 1 March 2003 without the presence of a lawyer (see paragraph 41 above) was not addressed in any way by the appeal court (see Alakhverdyan, cited above, § 67, and – in so far as relevant – Utvenko and Borisov v. Russia, nos. 45767/09 and 40452/10, § 194, 5 February 2019).

85.  The Court again emphasises the very strict scrutiny that must be applied where there are no compelling reasons to justify a restriction on the right of access to a lawyer. Having regard to the above elements, and given the failure of the Government to demonstrate convincingly why the overall fairness of the trial was not irretrievably prejudiced by the applicant’s lack of access to a lawyer from the moment of his de facto arrest on 1 March 2003, the Court finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

IV.  ALLEGED VIOLATION OF ARTICLE 6  § 1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE COURT PROCEEDINGS

86.  The applicant complained, referring to Article 5 of the Convention, of the excessive length of the proceedings in his criminal case. The Court considers that the complaint is to be examined under Article 6 § 1 of the Convention, which reads as follows:

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

87.  The Government submitted that the applicant had not raised any length-of-proceedings complaint under Article 6 of the Convention in the application form. In any event, he had failed to exhaust the domestic remedy introduced by the Compensation Act after the adoption of the pilot judgement Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009. They submitted that the case had been very complex, as it had involved several co-accused and multiple victims and had concerned various instances of the gang’s criminal activity. Any inactivity on the part of the trial court had been due to public holidays, lawyers’ illnesses, changes to the defence lawyers’ team, the need for newly-admitted lawyers to study the case file, and the need to conduct additional expert examinations. The length of the appeal proceedings had been due to the conduct of certain co-accused and their lawyers. The appeal hearing had been adjourned on several occasions as the lawyers had failed to appear before the court, and the co-accused had lodged multiple requests for an adjournment of the appeal hearing, transportation to the courtroom and studying the case file.

88.  The applicant maintained his complaint.

A.  Admissibility

89.  The Court notes the Government’s argument that the applicant had not referred to Article 6 of the Convention when complaining of the excessive length of the court proceedings. In respect of the present case, the applicant complained, albeit mistakenly referring to Article 5 (rather than Article 6), that the proceedings had lasted for more than five years at the material time. The Court reiterates that it is not bound by the legal grounds advanced by an applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). It will accordingly examine the complaint from the standpoint of Article 6 § 1 of the Convention.

90.  As regards the domestic remedies existing prior to the adoption of the aforementioned pilot judgment, the Court reiterates its previous finding that at the time when the applicants brought their applications to Strasbourg there was no effective remedy under Russian law capable of affording redress for the unreasonable length of criminal proceedings (see Borzhonov v. Russia, no. 18274/04, §§ 36, 22 January 2009). As regards the domestic remedy introduced by the Compensation Act, the Court reiterates its position that it would be unfair to request applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court to bring again their claims before domestic tribunals (see, for similar reasoning, Fateyenkov and Others v. Russia, nos. 44099/04 and 9 others, 18 February 2016, with further references). In line with this principle, the Court decides to proceed with the examination of the present cases (compare Fakhretdinov and Others v. Russia (dec.), nos. 26716/09 and 2 others, § 32, 23 September 2010) and, accordingly, dismisses the Government’s non-exhaustion objection.

91.  The Court considers that this complaint is not manifestly ill‑founded and is not inadmissible on any other grounds. It should therefore be declared admissible.

B.  Merits

92.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities, and what was at stake for the applicants in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II; Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII; and Idalov v. Russia [GC], no. 5826/03, § 186, 22 May 2012).

93.  The proceedings in the case at hand lasted for five years, two months and eighteen days. The case spanned the investigation stage and two levels of jurisdiction.

94.  The Court accepts that the case was complex. It notes that several co-accused were charged with serious crimes committed in a series of episodes and involving a large number of victims and witnesses. Before producing its 300-page-long judgment, the trial court examined seventy‑three volumes of the case file and a considerable amount of evidence.

95.  The Court finds nothing in the case to suggest that the conduct of the authorities during the investigation and the examination of the case by the trial court was unreasonable.

96.  However, the Court observes that the case was subsequently pending before the appeal court for two years and three months. The Government argued that several delays had been attributable to the defence. However, they did not submit any documents in support of that argument, and nor did they argue that they had had any difficulty in obtaining such documents. In the absence of any material confirming the Government’s explanation for such a lengthy examination of the case on appeal, or any evidence of “special diligence” on the part of the authorities in a situation where the applicant was being held in custody (see, among other authorities, Panchenko v. Russia, no. 45100/98, § 133, 8 February 2005), the Court concludes that the length of the proceedings failed to meet the “reasonable time” requirement.

97.  There has accordingly been a breach of Article 6 § 1 of the Convention.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

98.  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

99.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.

100.  The Government contested the claim as excessive and ill-founded.

101.  As regards the violation found of Article 6 §§ 1 and 3 (c) on account of the statement of surrender and confession obtained in the absence of a lawyer, the Court reiterates that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be a retrial or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV). Having regard to the fact that domestic law provides that criminal proceedings may be reopened if the Court finds a violation of the Convention,  and given the position of the Russian Supreme Court, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for non-pecuniary damage sustained by the applicant under the above head.

102.  As regards the violation found of Article 6 § 1 on account of the excessive length of the proceedings, the Court awards the applicant EUR 2,600 in respect of non-pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of the claim.

B.  Costs and expenses

103.  The applicant did not submit any claim in respect of costs and expenses. Accordingly, there is no call to make an award under this head.

C.  Default interest

104.  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,

1.  Declares the complaints under Article 6 § 1 concerning the length of the criminal proceedings and under Article 6 §§ 1 and 3 (c) of the Convention concerning the use in evidence of the applicant’s confession which was obtained in the absence of access to a lawyer admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings;

3.  Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the use in evidence of the applicant’s statement of surrender and confession, which was obtained in the absence of access to a lawyer;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;

5.  Dismisses the remainder of the applicant claim for just satisfaction.

Done in English, and notified in writing on 22 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Alena Poláčková
Deputy RegistrarPresident

 

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