Communicated on 3 November 2016
THIRD SECTION
Application no 39797/07
Aleksandr Nikolayevich CHERNIGIN against Russia
and 8 other applications
(see list appended)
STATEMENT OF FACTS
A. The circumstances of the cases
The applicants are all Russian nationals living in various regions of the Russian Federation. Between 2006 and 2014 they were prosecuted for and subsequently convicted of different criminal offences. Their personal details appear in the Appendix.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
All the applicants were first arrested by the police on suspicion of having committed different criminal offences and brought to police stations. Shortly after, they made confession statements («явкa с повинной»). In each case, after that statement, an arrest record was drawn up, the applicant received status of a criminal suspect and was informed of all his rights, including the right to remain silent, the right to a lawyer and the privilege against self-incrimination.
Later on, certain applicants were provided with a lawyer (appointed or of their own choosing). Mr Lozovskiy (application no. 21063/08) then refused to testify. Mr Salnikov (application no. 25292/10) and Mr Arestov (application no. 56592/12) retracted their confessions when interviewed as suspects in the presence of their respective lawyers. The rest of the applicants reiterated their confession statements in the presence of a lawyer.
At trial, all the applicants denied wholly or in part their confessions, arguing that they had been obtained by the police in the absence of a lawyer. Their arguments were rejected by the domestic courts for two main reasons. First, the domestic legislation does not require a lawyer’s presence for “surrender with confession”. Second, the applicants’ confession statements were confirmed by other, circumstantial, evidence. The domestic courts’ judgments contain more or less detailed analysis in this respect (for more information see the Appendix).
All the applicants further complain about physical and/or psychological pressure put on them by the police and their unsuccessful attempts to complain about it.
Mr Chernigin, Nikonov and Golubev (applications nos. 39797/07, 60875/11 and 46775/14) also indicate that at the time of their initial questioning by the police which resulted in their confession they were severely intoxicated.
B. Relevant domestic law and practice
The relevant domestic law and practice are summarised in the case of Turbylev v. Russia (Turbylev v. Russia, no. 4722/09, §§ 46-56, 6 October 2015).
COMPLAINTS
The applicants complain under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 that their rights of defence in criminal proceedings were violated, as their initial confessions – which formed the basis of their criminal conviction – were obtained in breach of their right to a lawyer.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 of the Convention? In particular, were the applicants’ defence rights and the principle of fair proceedings (as enshrined in Article 6 §§ 1 and 3 (c) of the Convention) respected, given their submissions that the domestic courts convicted them, inter alia, on the basis of confessions they had made in the absence of a legal representative?
In order to answer the question, the Government are requested to provide the following information:
(a) As regards the applicants’ arrest by the police
1. Were any of the applicants in a vulnerable state at the moment of their arrest (e.g. intoxicated)? The Government are requested to provide copies of the applicants’ medical examination immediately after their arrests, if any.
2. Are there specific requirements/formalities the police should comply with, in order to ensure the admissibility at trial of a confession statement made by a person arrested by the police?
3. When (date and time) did each of the applicants first have access to a lawyer? Were these lawyers of the applicants’ own choosing or State appointed lawyers? In the latter case, was this State appointed lawyer chosen by an investigator or sent by a Bar association?
4. Did any of the applicants waive their right to a lawyer when making their confession statements and if so, was such waiver established in an unequivocal manner and attended by minimum procedural safeguards (Sejdovic v. Italy [GC], no. 56581/00, ECHR 2006‑II; Talat Tunç v. Turkey, no. 32432/96, § 59, 27 March 2007; and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003)? Was the applicants’ right to a lawyer restricted and if so, on what basis and what were the compelling reasons thereof?
The Government are requested to provide copies of the register of persons escorted to police stations (книга/журнал учета лиц, доставленных в отдел внутренних дел) and of detained persons (реестр лиц, подвергнутых задержанию) for the dates of detention as claimed by the applicants, records of the applicants’ initial questioning by the police and copies of other relevant documents indicating the timing of their arrest, their first confession statement given to the police, information that they had been notified about their right to be legally represented, the appointment of a lawyer and other relevant documents.
(b) As regards the pre-trial (investigation) stage
5. During the pre-trial investigation, have each of the applicants:
- confirmed or retracted his initial confession statement; and/or
- refused to testify; and/or
- actively cooperated with the investigative authorities; and/or
- suggested an alternative version of the events by providing a new testimony, and if so, whether and what investigative steps had been taken by the investigative authorities to verify this new version?
6. When the applicants first retracted their confession statements, did it take place before or after they had access to a lawyer and in particular a lawyer of their own choosing?
The Government are requested to provide a copy of the relevant documents and indicate in particular whether each time (investigative activity concerned) a lawyer, and what lawyer (State appointed or of own choosing) was present.
(c) As regards the trial and appeal stages
7. When did the applicants first challenge the admissibility of their confession statements before the trial courts? Did they have a possibility/ obligation to raise this issue at the preliminary hearing? Does the legislation provide for a possibility for the trial court to exclude inadmissible evidence from the body of evidence?
8. Did the applicants have a genuine opportunity to challenge the admissibility of their confession statements? In particular, were the police officers present when the applicants had made their confession statements questioned by the trial court or did the applicants have a possibility to present an alternative version of the events and did the trial court take measures to examine it?
9. Did the domestic courts give an appropriate answer to the applicants’ requests to declare their confession statements inadmissible and did they duly reason their decisions to maintain them in the files (see Vanfuli v. Russia, no. 24885/05, § 104, 3 November 2011, and Nechto v. Russia, no. 24893/05, § 111, 24 January 2012)?
10. To what extent were the applicants’ convictions based on other evidence (direct and/or circumstantial) (see Pakshayev v. Russia, no. 1377/04, §§ 29-34, 13 March 2014)?
APPENDIX
No.
Application no.
Lodged on
Applicant name
Date of birth Place of residence
Nationality
Represented by
Details about arrest, Confession given, Arrest record drawn up
Location
(police station where the applicant was arrested)
Confession reiterated/retracted
Date of the trial and appeal courts’ judgments
1.
39797/07
06/08/2007
Aleksandr
Nikolayevich
CHERNIGIN
05/07/1988
Kostroma,
Kostroma Region
Russian
Arrested
at unspecified time
after midnight
on 12/07/2006
Confession statement at 3.45 a.m.
on 12/07/2006
Arrest record drawn up at 4.15 a.m. on 12/07/2006
Zavolzhskiy police department, Kostroma (ОВД Заволжского округа города Кострома, Костромская область)
Reiterated on 12/07/2006 (in the applicant’s arrest record; an interview as a suspect in the presence of a State-appointed lawyer Mr K.), on 19/07/2006 (in an interview as an accused in the presence of the same lawyer)
Retracted on 21/12/2006 (in an interview as an accused in the presence of a lawyer of own choosing Mr Kab.)
Dmitrovskiy District Court of Kostroma 19/02/2007
Kostroma Regional Court
05/04/2007
2.
21063/08
24/03/2008
Robert Aleksandrovich LOZOVSKIY
09/09/1963
Pyatigorsk, Stavropol Region
Russian
Nver
Sarkisovich GASPARYAN
Arrested
at around 7.00 p.m.
on 16/08/2006
Confession statement at around 1.00 a.m.
on 17/08/2006
Arrest record drawn up at around 10.00 a.m.
on 17/08/2006
Police department,
Yessentuki, Stavropol Region (ОВД по г. Ессентуки, Ставропольский край)
On unspecified date during an interview as a suspect and as an accused the applicant refused to testify
Yessentuki Town Court of the Stavropol Region
10/07/2008
Stavropol Regional Court
17/09/2008
3.
25292/10
07/04/2010
Sergey
Nikolayevich SALNIKOV
08/10/1972
Yelets,
Lipetsk Region
Russian
Arrested
at 10.30 a.m.
on 26/02/2009
Confession statement at 4.30 p.m.
on 26/02/2009
Arrest record drawn up at 5.13 p.m. on 27/02/2009 (a lawyer present)
Police department,
Vuktyl, Komi Republic (ОВД г. Вуктыл, Республика Коми)
Retracted on 28/02/2009 (during an interview as a suspect in the presence of a lawyer)
Supreme Court
of the Komi Republic
03/11/2009
Supreme Court
of the Russian Federation
11/01/2010
4.
60875/11
13/09/2011
Artem
Andreyevich NIKONOV
28/08/1987
Nadvoitsy, Republic of Kareliya
Russian
Arrested
at 5.00 p.m.
on 24/11/2009
Confession statement on 24/11/2009
Arrest record drawn up at unspecified time
on 25/11/2009
Prionezhskiy police department,
Petrozavodsk, Republic of Kareliya (Прионежский РОВД г. Петрозаводск, Республика Карелия)
Reiterated on 25/11/2009 (during an interview as a suspect in the presence of a lawyer), 02/12/2009, 04/12/2009 (during interviews as an accused in the presence of a lawyer but added that killed the victim spontaneously)
Retracted on 17/03/2010 (during an interview as an accused in the presence of a lawyer)
Supreme Court
of the Republic of Kareliya
20/04/2011
Supreme Court
of the Russian Federation
20/07/2011
5.
23731/12
30/03/2012
Roman
Nikolayevich
RYNDIN
08/02/1978
Kursk,
Kursk Region
Russian
Arrested
at around 9.00 p.m.
on 14/09/2010
Confession statement on 14/09/2010
Arrest record drawn up at 11.55 p.m. on 14/09/2010 (was arrested on suspicion of committing an administrative offence, later this arrest was declared unlawful)
Arrest record as a criminal suspect drawn up at unspecified time
on 15/09/2010
Police department,
Kurchatov, Kursk Region (МОВД Курчатовский Курской области).
no information
Kurchatovskiy Town Court of the Kursk Region
02/11/2011
Kursk Regional Court
27/12/2011
6.
56592/12
08/08/2012
Roman
Valeryevich
ARESTOV
17/09/1975
Valuyki,
Belgorod Region
Russian
Arrested
at 3.00 p.m.
on 07/08/2011
Confession statement at 11.00 a.m.
on 08/08/2011
Arrest record drawn up at around 6.00 p.m.
on 08/08/2011
(a lawyer present)
Police department no.1, Belgorod (отдел полиции № 1 УМВД по г. Белгород Белгородской области)
Retracted on 08/08/2011 (during an interview as a suspect and a reconstruction of the crime in the presence of a State-appointed lawyer), 09/08/2011 and 16/09/2011 (during an interview as an accused in the presence of another State appointed lawyer)
Oktyabrskiy District Court of Belgorod
27/12/2011
Belgorod Regional Court
15/02/2012
7.
2509/13
28/11/2012
Aleksandr
Ilyich
LOPATIN
26/02/1960
Norilsk,
Krasnoyarsk Region
Russian
Arrested
at 5.00 p.m.
on 01/02/2012
Confession statement on 01/02/2012
Arrest record drawn up at 6.00 p.m. on 02/02/2012
District police officer’s office in the administration of the village of Sologon, Uzhurskiy district, Krasnoyarsk Region (кабинет участкового инспектора в Администрации с. Сологон Ужурского района Красноярского края).
Reiterated on 02/02/2012 (during a reconstruction of the crime and an interview as a suspect in the presence of a State-appointed lawyer Mr Pestryakov), on 09/02/2012 (during an interview as an accused in the presence of the same lawyer), on 27/06/2012 (during an interview as an accused in the presence of a lawyer of own choosing Mr T., the applicant added that killed the victim by recklessness)
Uzhurskiy District Court of the Krasnoyarsk Region
08/02/2013
Krasnoyarsk Regional Court
11/07/2013
8.
33769/14
07/04/2014
Vitaliy
Sergeyevich
POTOKI
27/01/1982
Ukhta,
Komi Republic
Russian
Arrested
at unspecified time
on 20/06/2013
Confession statement at 9.00 a.m.
on 21/06/2013
Arrest record drawn up at unspecified time
on 21/06/2013
Police department, Krasnokamskiy district, Republic of Bashkortostan (OВД по Краснокамскому району Республики Башкортостан)
Reiterated on
21/06/2013 (during an interview as a suspect, a reconstruction of the crime and an interview as an accused in the presence of a State‑appointed lawyer Ms Ty.)
Retracted on 20/08/2013 (during an interview as an accused, refused to testify, in the presence of a lawyer Ms Akh.)
Krasnokamskiy District Court of the Republic of Bashkortostan
31/10/2013
Supreme Court
of Bashkortostan
15/01/2014
9.
46775/14
02/06/2014
Mikhail
Viktorovich GOLUBEV
04/10/1984
Ognenny,
Vologda Region
Russian
Arrested
at unspecified time
on 20/11/2012
Confession statement between around
2 p.m. and around 6 p.m. on 20/11/2012
Arrest record drawn up at unspecified time
on 20/11/2012 (confession confirmed for the record in the presence of a lawyer Ms Muranskaya)
Police department,
Zima, Irkutsk Region (Зиминский ОВД Иркутской области)
Reiterated on 20/11/2012, 21/11/2012, 21/05/2013 and 22/07/2013 (during an interview as a suspect, a reconstruction of the crime, an interview as an accused in the presence of a lawyer)
Retracted on 25/07/2013 (during an interview as an accused in the presence of a lawyer)
Irkutsk Regional Court
25/09/2013
Supreme Court
of the Russian Federation
26/12/2013
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