CASE OF KUZHIL v. RUSSIA

THIRD SECTION

CASE OF KUZHIL v. RUSSIA

(Application no. 32702/13)

JUDGMENT

STRASBOURG

25 February 2020

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

In the case of Kuzhil v. Russia,

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

Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 28 January 2020,

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

PROCEDURE

1.  The case originated in an application (no. 32702/13) 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 Yuriy Anatolyevich Kuzhil (“the applicant”), on 7 April and 1 September 2013.

2.  The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation to the European Court of Human Rights.

3.  On 19 October 2017 notice of the complaint concerning the applicant’s access to legal assistance was given to the Government and 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 1976 and is serving a prison sentence in Solikamsk.

A.  Arrest and first set of criminal proceedings

5.  At 1.20 a.m. on 9 December 2009 the applicant was arrested on suspicion of sexually abusing two boys, M. and U., and taken to a temporary detention facility.

6.  On the same date the investigator, F., questioned him as a suspect. According to the official record, the questioning took place in the temporary detention facility from 9.05 to 9.30 p.m. and the applicant confessed to both charges in the presence of State-appointed counsel, S. According to the applicant, the lawyer was not present. According to the official record, the investigator questioned the applicant as a defendant from 9.40 to 9.55 p.m. in the presence of the lawyer. According to the applicant, the lawyer did not attend.

7.  On 23 December 2009 the investigator questioned the applicant in the presence of State-appointed counsel. The applicant refused to answer any questions.

8.  On 27 December 2010 the Babushkinskiy District Court of Moscow found the applicant guilty as charged and sentenced him to eight and a half years’ imprisonment.

9.  On 4 May 2011 the Moscow City Court upheld the applicant’s conviction on appeal.

B.  Supervisory review of the applicant’s conviction

10.  On 17 February 2012 the Presidium of the City Court quashed the applicant’s conviction for the offence committed against U. in supervisory review proceedings and remitted the matter to the trial court for fresh consideration.

11.  On 25 October 2012, following a further supervisory review, the Supreme Court of the Russian Federation quashed (i) the judgment of 17 February 2012 and (ii) the judgments of 27 December 2010 and 4 May 2011 as regards the applicant’s conviction for the sexual abuse of U. and remitted the matter to the trial court for fresh consideration. As regards the applicant’s conviction for the sexual abuse of M., the Supreme Court upheld the lower courts’ findings and sentenced him to eight years and three months’ imprisonment.

C.  New set of criminal proceedings

12.  During the new trial the applicant maintained his innocence. He claimed that he had written a confession statement in exchange for a promise by the investigator that U. would not be subjected to any unlawful treatment. The applicant also claimed that the lawyer had not been present during the questioning on 9 December 2009. When questioned in court, U. retracted his earlier statements that the applicant had sexually abused him.

13.  On an unspecified date the acting head of the temporary detention facility provided the District Court with the following information:

“In response to your query... please be advised that ... on 9 December 2009 [the applicant] was visited twice by [the investigator] F. from 12.20 to 12.40 p.m., and from 9.20 to 10.45 p.m. (as per the inmate movement register ...).

I would also inform you that on 9 December 2009 counsel S. was at the temporary detention facility. However, according to the inmate movement register, he visited another inmate from 5.25 to 5.50 p.m.”

14.  On 20 May 2013 the District Court found the applicant guilty of child sexual abuse. The court took into account his earlier conviction and sentenced him cumulatively to eight and a half years’ imprisonment. The court relied on (i) statements made by U. when questioned by the investigator, (ii) statements made by the police chief (D.), social worker (Ye.), psychologist (Sok.) and school teacher (B.), who had all been present during U.’s questioning; (iii) a statement made by the head of the children’s shelter (P.), whom U. had told about the sexual abuse; (iv) a statement made by the investigator, who claimed that the applicant had written a confession statement voluntarily and that on 9 December 2009 S. had been present during his questioning; (v) a statement made by another investigator (As.), who had questioned U. on several occasions; (vi) statements made by the applicant’s former wife and his father, who had had no knowledge of the events leading to the charges; and (vii) the applicant’s confession statement of 9 December 2009. The court also took into account forensic evidence as to the psychological and physical condition of the applicant and U.

15.  As regards the statements made by U., the court accepted as truthful those which he had made when questioned by the investigator and disregarded his later testimony given in court. The court considered that U. had retracted his earlier statements out of gratitude to the applicant, who had been his appointed guardian from 2006 to 2009.

16.  The court dismissed as unsubstantiated the applicant’s allegation that on 9 December 2009 he had been questioned in the absence of a lawyer and that the information to the contrary in the interview record had been falsified by the investigator. The court relied on the investigator’s statement.

17.  The applicant appealed alleging, inter alia, that on 9 December 2009 he had been questioned and had made a confession statement in the absence of a lawyer.

18.  On 6 November 2013 the City Court upheld the applicant’s conviction on appeal.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

19.  The applicant complained that he had not had access to a lawyer on 9 December 2009 when he had made a confession statement concerning the sexual abuse of U. He relied on Article 6 of the Convention, the relevant parts of which read 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[.]”

20.  The Government contested that argument. They submitted that following his arrest the applicant had been advised of his rights, including the right to legal assistance. They argued that the lawyer had been present when the investigator had questioned the applicant as a suspect and then as a defendant, and had signed both records. As to the information provided by the temporary detention facility to the effect that the lawyer had not met with the applicant on 9 December 2009, they submitted that, if an investigator was accompanied by another person when meeting with an inmate, under the applicable regulations, no record had to be made of that person’s attendance at the temporary detention facility.

21.  The applicant maintained his complaint.

A.  Admissibility

22.  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.

B.  Merits

1.  General principles

23.  The general principles concerning the right to legal assistance and the overall fairness of criminal proceedings are summarised in the cases of Simeonovi v. Bulgaria [GC] (no. 21980/04, §§ 112-20, 12 May 2017), and Beuze v. Belgium [GC] (no. 71409/10, §§ 119-50, 9 November 2018).

2.  Application of the principles in the present case

(a)  Whether the lawyer attended the applicant’s questioning

24.  The Court observes that the facts in the present case are in dispute between the parties. The applicant claimed that he had not been afforded access to legal assistance when he had been questioned by the investigator and had made a confession statement. Once he had been provided with legal assistance and access to legal advice, he had chosen to remain silent. The Government argued that State-appointed counsel had been present at the time.

25.  The Court reiterates that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in certain instances the respondent Government alone have access to information capable of corroborating or refuting the allegations made. A failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the validity of the applicant’s allegations (see, among other authorities, Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004).

26.  In support of their position that the applicant did benefit from legal representation when he was questioned by the investigator and made a confession statement on 9 December 2009, the Government relied on the official interview record prepared by the investigator and signed by the lawyer.

27.  In this connection, the Court notes that the time of the questioning and the lawyer’s attendance indicated by the investigator in the official record are at variance with the information provided by the administration of the temporary detention facility where the questioning took place. While the investigator indicated that on 9 December 2009 he had questioned the applicant in the lawyer’s presence twice between 9.05 and 9.55 p.m., the administration of the temporary detention facility recorded that the investigator had visited the applicant from 12.20 to 12.40 p.m. and from 9.20 to 10.45 p.m. on the same date. Nothing was documented by the administration of the facility to suggest that the lawyer was also present.

28.  The Court further notes that the domestic courts did not examine this discrepancy and, referring to the investigator’s statement that the lawyer had been present during the questioning, dismissed the applicant’s allegation that he had been questioned and had confessed without any access to legal advice.

29.  The Government did no more than claim that the applicable regulations did not require the lawyer’s visit to the temporary detention facility to be registered if he was accompanied by the investigator. They did not cite those regulations, or explain why the domestic courts had not mentioned or discussed them in their decisions.

30.  Lastly, the Court observes that there is nothing in the material submitted by the Government to suggest that there was unrestricted access to the temporary detention facility and that the authorities did not keep a register of those who entered or left the premises. In the Court’s view, it was possible and incumbent on the national courts and the Government in the proceedings before it to submit a visitor’s log to elucidate the circumstances of the applicant’s questioning on 9 December 2009. Having failed to do so, the Government have not substantiated their position. Accordingly, the Court accepts the applicant’s allegations and concludes that that he was questioned and confessed without being provided with legal advice.

(b)  Whether there were compelling reasons and the fairness of the proceedings as a whole

31.  The Court does not discern, and the Government do not argue otherwise, any exceptional circumstances which could have justified the restrictions on the applicant’s right of access to legal advice. In such circumstances, the Court must apply very strict scrutiny to its assessment of the overall fairness of the criminal proceedings (see Beuze, cited above, § 165).

32.  In order to assess the overall fairness of the criminal proceedings against the applicant, the Court takes into account the following. The applicant was questioned by the investigator and confessed without being able to consult a lawyer beforehand or secure the presence of one. The domestic courts admitted that statement as evidence without properly considering the circumstances in which it had been given, or the impact that the absence of a lawyer might have. The confession statement played an important role in his conviction.

33.  In view of the absence of compelling reasons to justify the restriction on the applicant’s right of access to a lawyer, the Court finds the circumstances mentioned in the paragraph above sufficient for it to conclude that the criminal proceedings in the applicant’s case were unfair. Even though from 23 December 2009 the applicant was duly represented by a lawyer during the investigation stage, the trial and appeal proceedings, where he chose to remain silent, the judicial proceedings did not have a remedial effect on the procedural flaws of the investigation stage. There has been accordingly a violation of Article 6 §§ 1 and 3 (c) of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  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

35.  The applicant claimed an unspecified amount in respect of pecuniary and non-pecuniary damage. He argued that, as a result of his conviction and imprisonment, he had lost certain earnings and suffered mental distress and anguish.

36.  The Government submitted that, should the Court decide to award just satisfaction to the applicant, it should do so in compliance with the relevant case-law.

37.  The Court considers that the applicant failed to make a claim in respect of pecuniary damage and that there is no call to award any sum to him under this head. On the other hand, it awards the applicant EUR 7,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 7,800 (seven thousand eight 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen Phillips Georgios A. Serghides
RegistrarPresident

 

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