Communicated on 27 June 2017
THIRD SECTION
Application no. 58607/11
Andrey Sergeyevich CHERNYSHEV against Russia
and 4 other applications
(see list appended)
A. The circumstances of the cases
The applicants are all Russian nationals living in various regions of the Russian Federation. Between 2010 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 the applicants were provided with a lawyer, either appointed for them or of their own choosing. While being interviewed in the presence of their lawyers three of the applicants (Mr Azarsanov, application no. 63160/13, Mr Borokov, application no. 33661/14, and Mr Bogatyrev, application no. 62836/15) retracted their confessions. The other two (Mr Chernyshev, application no. 58607/11, and Mr Glodev, application no. 77924/11) retracted their confessions at a later stage.
At trial, all the applicants denied wholly 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 Chernyshev (application no. 58607/11) also indicates that at the time of his initial questioning by the police which resulted in his confession he was severely intoxicated.
B. Relevant domestic law and practice
The relevant domestic law and practice in respect of confession statements given in the absence of a lawyer are summarised in the case of Turbylev v. Russia (Turbylev v. Russia, no. 4722/09, §§ 46-56, 6 October 2015).
The relevant domestic law and practice in respect of inadequate conditions of detention in different detention facilities are summarised in the cases of Ananyev and Others v. Russia (Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 120-68, 10 January 2012) and Sergey Babushkin v. Russia (Sergey Babushkin v. Russia, no. 5993/08, §§ 48-58, 28 November 2013).
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.
Mr Chernyshev (application no. 58607/11) and Mr Glodev (application no. 77924/11) in addition complain under Article 3 of the Convention about inadequate conditions of detention in different detention facilities.
COMMON QUESTION TO THE PARTIES
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)?
CASE SPECIFIC QUESTIONS
Applications nos. 58607/11 and 77924/11
Did the material conditions of the applicant’s detention, in particular the personal space available in the cell, the time allowed outside the cell and the sanitary conditions, amount to inhuman or degrading treatment under Article 3 of the Convention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 120-68, 10 January 2012, Sergey Babushkin v. Russia, no. 5993/08, §§ 48-58, 28 November 2013)?
APPENDIX I
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
58607/11
14/04/2011
Andrey Sergeyevich CHERNYSHEV
27/12/1974
Nizhniy Tagil
Russian
Arrested
at 11 a.m.
on 13/12/2010
Confession statement at 11 p.m.
on 13/12/2010
Arrest record drawn up
at unspecified time
on 13/12/2010
Police department, Verkhnaya Salda, Sverdlovsk Region (ОВД г. Верхняя Салда, Свердловская область)
Reiterated on 13/12/2010 (during an interview as a suspect in the presence of a State-appointed lawyer)
Retracted on 05/03/2011 (during an interview as a suspect refused to testify in the presence of the same lawyer and denied his guilt), 10/03/2011, 25/03/2011 (during interviews as an accused refused to testify and denied his guilt).
Verkhnesaldinskiy Town Court of the Sverdlovsk Region
31/05/2011
Sverdlovsk Regional Court
17/08/2011
77924/11
29/11/2011
Aleksey Viktorovich GLODEV
27/02/1971
Ustye
Russian
Arrested
after 6 p.m.
on 22/06/2010
Confession statement
in the afternoon
on 24/06/2010
Arrest record drawn up
at unspecified time
on 24/06/2010
Police department, Sovetskiy district, Tambov
(ОВД Советского района г. Тамбов)
Reiterated on 24/06/2010 (during an interview as a suspect)
Retracted on 25/06/2010 (during the hearing on the restraint measure)
Reiterated on 25/06/2010 (during an additional interview as a suspect, during a reconstruction of the crime), on 01/07/2010 (during an interview as an accused and a confrontation interview with a witness Mr K.)
Retracted on 26/07/2010 (during a confrontation interview with a witness Mr T.)
Sovetskiy District Court of Tambov
16/03/2011
Tambov Regional Court
31/05/2011
63160/13
16/09/2013
Akhmed Valeriyevich AZARSANOV
03/09/1978
Kokhma
Russian
Irina Anatolyevna BIRYUKOVA
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 01.30 p.m.
on 28/04/2011
Ivanovskoye police department, Moscow
(отдел полиции по району Ивановское г. Москвы)
Retracted on unspecified date (during an interview as a suspect), on 05/05/2011 (during an interview as an accused in the presence of a lawyer)
18/12/2012
Moscow City Court
21/03/2013
Supreme Court of the Russian Federation
33661/14
19/04/2014
Kazbek Zaurbiyevich BOROKOV
05/05/1979
Cherkessk
Russian
Kazbek TOKHCHUKOV
Arrested
at 07.40 p.m.
on 25/01/2012
Confession statement
at 08.48 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 Mr T.), on 28/01/2012 (during a reconstruction of the crime in the presence of the same lawyer), on 29/02/2012 (during an interview as an accused in the presence of the same lawyer), on 10/07/2012 (during an interview as an accused, refused to testify, in the presence of the same lawyer)
30/07/2013
Supreme Court of the Republic of Karachayevo-Cherkessia
24/10/2013
Supreme Court of the Russian Federation,
62836/15
04/12/2015
Igor Alekseyevich BOGATYREV
10/06/1969
Novoshakhtinsk
Russian
Arrested
at unspecified time
on 17/07/2011
Confession statement
at 01.25 p.m.
on 17/07/2011
Arrest record drawn up
at unspecified time
on 17/07/2011
Police department, Novoshakhtinsk, Rostov Region (отдел МВД России по г. Новошахтинску Ростовской области)
Retracted on unspecified dates (during an interview as a suspect in the presence of a lawyer), on 28/09/2011 (during an interview as an accused in the presence of a lawyer)
31/01/2013
Novoshakhtinskiy District Court of the Rostov Region
02/09/2014
Rostov Regional Court
10/06/2015
Supreme Court of the Russian Federation
APPENDIX II
List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention)
No.
Application no.
Lodged on
Applicant name
date of birth
place of residence
nationality
represented by
Facility Start and end date Duration
Sq. m. per inmate
Specific grievances
58607/11
14/04/2011
Andrey Sergeyevich CHERNYSHEV
27/12/1974
Nizhniy Tagil
Russian
IZ-66/3 Nizhniy Tagil
13/03/2011 to
19/09/2011
0 year(s) and 7 month(s)
1.8 m²
Not provided with an individual sleeping place and had to share one with inmates.
Electric light and TV on 24/7.
Toilet not separated from living area.
Those using toilet were in view of inmates and guards.
Dinner table located close to toilet.
Poor food quality.
No ventilation.
Hot in summer.
The air heavy with cigarette smoke.
Daily walk for one hour.
77924/11
29/11/2011
Aleksey Viktorovich GLODEV
27/02/1971
Ustye
Russian
IVS Tambov
22/06/2010 to 25/06/201
6 m²
Solitary confinement.
No windows and no fresh air.
No ventilation.
No food or beverages provided.
No toilet.
IZ-68/1 Tambov
25/06/2010 to 21/06/2011
2.3 m²
Not provided with an individual sleeping place and had to share one with inmates.
No ventilation.
No toiletries.
Poor food quality.
Dim electric light.
No hot water.
Inadequate separation of toilet from living area.
Toilet without a flushing system.
Daily walk for 45-60 minutes.
Walking yard of 13-18 m² for 8-10 inmates.
Lack of sitting places in the walking yard.
Weekly shower for 30-45 minutes.
Insufficient number of shower heads (5 pieces).
Convoy cell of the Sovetskiy District Court of Tambov
25/01/2011 and 15/02/2011
1.5 m²
No windows or ventilation
IK-4 Rabochiy Tambov Region
21/06/2011 to
12/10/2012
1 year(s) and 4 month(s)
160-165 m² /
110 sleeping places / 100 inmates /
1.6 m² per inmate /
4 lavatory pans
Walking yard of 180-190 m² for 40-50 inmates.
Lack of sitting places in the walking yard.
Weekly shower for 1-2 hours.
Insufficient number of shower heads (6 pieces).
IK-3 Zeleniy Tambov Region
12/10/2012
23/05/2016
150 m² /
100 sleeping places / 118 inmates /
1.3 m² per inmate /
3 lavatory pans
Walking yard of 190-200 m² for 30-40 inmates.
Lack of sitting places in the walking yard.
Weekly shower for 2 hours.
Insufficient number of shower heads (5 pieces).
Poor food quality.
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