Communicated on 30 November 2020
Published on 21 December 2020
THIRD SECTION
Application no. 69816/17
Danila Andreyevich GOROKHOV against Russia
and 9 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 2015 and 2018 they were prosecuted for and subsequently convicted of different criminal offences.
When convicting the applicants, the domestic courts relied on their self‑incriminating statements given in the absence of a lawyer shortly after their de facto arrest by police or in the course of operative search activities or investigative actions.
The applicants’ personal details and information on their convictions, evidence used and their procedural status when making self‑incriminating statements appear in the Appendix.
B. Relevant domestic law and practice
The relevant domestic law and practice on admissibility of confession statements given in the absence of a lawyer are summarised in cases of Turbylev v. Russia (no. 4722/09, §§ 46-56, 6 October 2015), and Rodionov v. Russia (no. 9106/09, §§ 68-76, 11 December 2018).
1. The position of the Supreme Court of the Russian Federation
On 29 November 2016 the Plenum of the Supreme Court of the Russian Federation delivered Ruling no. 55, section 10 of which provides that before admitting in evidence a statement of surrender and confession referred to by the prosecution the trial court should examine, among other things, whether prior to that confession the defendant was informed of his or her rights, including the right not to incriminate oneself and the right to a lawyer and whether he or she was given the opportunity to effectively exercise them.
2. The position of the Constitutional Court of the Russian Federation
On 18 July 2017 the Constitutional Court of the Russian Federation in its Ruling no. 1543-O reaffirmed its Ruling no. 44-O of 6 February 2004 that the domestic courts do not have the right to interview the police officers about the contents of the suspect’s and accused’s statements for the purpose of reproducing the contents of those statements (с целью восстановления содержания этих показаний), thus, the possibility of any, whether direct or indirect, use of the information contained in those statements should be excluded.
COMPLAINTS
The applicants complain under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 about unfairness of criminal proceedings on account of the use of their self‑incriminating statements made in the absence of a lawyer shortly after their de facto arrest by police or in the context of operative-search activities or investigative measures.
Mr Fedorov (application no. 11566/18) complains additionally under Article 6 § 1 of the Convention about alleged unfairness of the criminal proceedings, as his conviction was based on evidence planted by police.
COMMON QUESTION
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, having regard to the fact that the applicants were not assisted by a lawyer when they made statements to the police and to the principles adopted by the Grand Chamber in the cases of Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, §§ 255-74, 13 September 2016), and Beuze v. Belgium ([GC], no. 71409/10, §§ 119‑50, 9 November 2018), has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention?
CASE SPECIFIC QUESTION
Application no. 11566/18
Did the applicant have a fair hearing in the determination of the criminal charge against him in accordance with Article 6 § 1 of the Convention taking into account his allegation that his conviction was based on planted evidence (see Bykov v. Russia [GC], no. 4378/02, §§ 89-90, 10 March 2009; and Sakit Zahidov v. Azerbaijan, no. 51164/07, §§ 46-59, 12 November 2015)? In particular,
(a) What was the reason for the applicant’s arrest and subsequent body search?
(b) Was the applicant’s arrest and body search conducted in accordance with domestic rules of criminal procedure?
(c) Why was the applicant’s body search performed at the police station several hours after his arrest, but not immediately at the time of his arrest outdoors?
(d) Was the applicant subjected to narcotics identification tests? If so, how were those tests carried out?
(e) Did the national courts address the applicant’s arguments as regards the quality of evidence obtained during his body search, in particular, whether the circumstances in which it was obtained cast doubt on its reliability or accuracy?
APPENDIX
No.
Application
no.
Date of introduction
Applicant’s name
Date of birth
Place of residence
Nationality
Represented by
Applicant’s conviction
Evidence obtained allegedly in violation of the right to legal assistance and used for conviction
Applicant’s procedural status when making self-incriminating statements
69816/17
15/09/2017
Danila Andreyevich GOROKHOV
1991
Astrakhan
Russian
Aleksandr Andreyevich KUZMIN
Convicted on 13/12/2016
by the Leninskiy District Court of Astrakhan
of an attempted drug dealing in conspiracy,
upheld on appeal
on 16/03/2017
by the Astrakhan Regional Court
Self-incriminating statements given in the course ofexamination of the crime scene (the applicant’s car)
at 04.05 p.m. on 14/06/2016,a statement of surrender and confession
at 10.00 a.m. on 16/06/2016,examination of the crime scene (terrain)
at 05.00 p.m. on 16/06/2016
Testimonies of the police officers Mr S. and Mr K. and attesting witnesses Mr P. and Mr I. on statements given by the applicant in the course ofexamination of the crime scene (the applicant’s car)
on 14/06/2016,report on the discovery of a crime that reproduced the applicant’s statements given in the course of examination of the crime scene (the applicant’s car)
on 14/06/2016
Testimonies of the police officer Mr D. on statements given by the applicantin a statement of surrender and confession
on 16/06/2016
Stopped outdoors for a routine traffic police check (alleged driving unfastened), drugs noticed in the car and police officers were called to come for further investigative actions
Arrested
at 12.50 p.m.
on 14/06/2016
Brought to the police department no. 2 of Astrakhan (ОП-2 УМВД России по г. Астрахань)
at 08.20 p.m.
on 14/06/2016
Administrative arrest record drawn up on suspicion of disorderly conduct
at 08.20 p.m.
on 14/06/2016
Administrative conviction for disorderly conduct
on 16/06/2016
(2 days’ administrative arrest)
Criminal arrest record drawn up
at 08.30 p.m.
on 16/06/2016
in the absence of a lawyer
Access to a lawyer granted
at 08.50 p.m.
on 16/06/2016
72828/17
04/10/2017
Anastasiya Alekseyevna NOVIKOVA
1997
Leninsk
Russian
Dmitriy Arkadyevich DENISOV
Convicted on 24/04/2017
by the Kirovskiy District Court of Astrakhan
of attempted drug dealing in conspiracy,
upheld on appeal
on 06/07/2017
by the Astrakhan Regional Court,
amended in part on cassation appeal on
01/10/2019
by the Presidium of the Astrakhan Regional Court
Self-incriminating statements given in the course ofexamination of the applicant’s flat conducted immediately after arrest
at 04.02 a.m. on 30/06/2016,examination of the crime scene (terrain)
at 10.00 a.m. on 30/06/2016,a statement of surrender and confession
at 09.10 p.m. on 01/07/2016
Testimonies of the police officer Mr T. and attesting witness Ms S. on statements given by the applicant in the course ofexamination of the applicant’s flat
on 30/06/2016
Testimonies of the police officer Mr K. and attesting witnesses Mr G. and Mr L. on statements given by the applicant in the course ofexamination of the crimes scene (terrain)
on 30/06/2016
Arrested
in her flat by police officers of a specialised police unit armed and masked in the course of the operative-search activity “Observation”
at 03.30 a.m.
on 30/06/2016
Brought to the police station no. 4 of the Ministry of the Interior in Astrakhan
(ОП № 4 УМВД России по г. Астрахани)
at 01.00 p.m.
on 30/06/2016
Administrative arrest record drawn up on suspicion of disorderly conduct
at 01.00 p.m.
on 30/06/2016
Administrative conviction
for disorderly conduct
on 02/07/2016 (5 days’ administrative arrest)
Criminal arrest record drawn up
at 07.45 p.m.
on 05/07/2016
Access to a lawyer granted at unspecified time
on 05/07/2016
11566/18
09/02/2018
Denis Valeryevich FEDOROV
1981
St Petersburg
Russian
Artem Aleksandrovich RASSOKHIN
Convicted on 25/05/2017
by the Leninskiy District Court of St Petersburg
of unlawful storage of drugs without intent to sell,
upheld on appeal
on 04/09/2017
by the St Petersburg City Court
Self-incriminating statement given in the course ofbody search conducted at the police station no. 77 of the Department of the Ministry of the Interior in the Admiralteyskiy District of St Petersburg (77 отдел полиции УМВД по Адмиралтейскому району г. Санкт-Петербург)
at 04.00 a.m. on 08/10/2015
Testimonies of the police officer Mr L. on statements given by the applicant in the course ofhis body search
on 08/10/2015
Reiterated on 08/10/2015 in the interview as a suspect in the presence of a State-appointed lawyer Ms K.
Arrested
outdoors on suspicion of disorderly conduct
at 01.15 a.m.
on 08/10/2015
Brought to the police station no. 77 of the Department of the Ministry of the Interior in the Admiralteyskiy District of St Petersburg (77 отдел полиции УМВД по Адмиралтейскому району г. Санкт‑Петербург)
at 01.25 a.m.
on 08/10/2015
Administrative arrest record drawn up
at around 01.25 a.m.
on 08/10/2015
Administrative conviction for disorderly conduct
on 08/10/2015 (a fine)
Released
at 03.40 a.m.
on 08/10/2015
Institution of the criminal case against the applicant
at 04.00 p.m.
on 08/10/2015,
applicant under an obligation not to leave his place of residence
Access to a lawyer granted
at 04.35 p.m.
on 08/10/2015
(State-appointed lawyer Ms K.)
20361/18
25/04/2018
Andrey Andreyevich YERMOLAYEV
1988
Astrakhan
Russian
Bolpash Serikovna TARANOVA
Convicted on 31/08/2017
by the Volodarskiy District Court of the Astrakhan Region
of inflicting grievous bodily injuries that led to the victim’s death,
upheld on appeal
on 02/11/2017
by the Astrakhan Regional Court
Self-incriminating statements given in the form ofa statement of surrender and confession at the Volodarskiy police department of the Astrakhan Region (Володарский ОВД Астраханской области)
at 4.30 p.m. on 14/06/2016
Testimonies of the police officer Mr U. on statements given by the applicant in the form ofa statement of surrender and confession
on 14/06/2016
Arrested
at work on suspicion of having committed a murder
at around 10.30 p.m.
on 12/06/2016
Brought to the local administration of the village Novokrasnoe, Volodarskiy District of the Astrakhan Region
(сельсовет с. Новокрасное, Володарский район Астраханской области)
at around 11.30 p.m.
on 12/06/2016
Brought to the Volodarskiy police department of the Astrakhan Region (Володарский ОВД Астраханской области)
at around 08.30 a.m.
on 13/06/2016
Administrative arrest record drawn up on suspicion of disorderly conduct on the street
on 13/06/2016
Criminal arrest record drawn up
on 15/06/2016
Access to a lawyer granted
at 10.35 a.m.
on 15/06/2016
(Mr G.)
50518/18
10/10/2018
Sergey Vladimirovich KUZNETSOV
1982
Novyy Urengoy
Russian
Convicted on 06/02/2018
by the Buguruslanskiy District Court of the Orenburg Region
of several counts of an attempted drug dealing,
upheld on appeal
on 10/04/2018
by the Orenburg Regional Court
Self-incriminating statements given in the course of the applicant’sbody search conducted outdoors immediately after arrest
on 29/05/2017,examination of the applicant’s car
on 29/05/2017,examination of the crime scenes (terrain)
on 29/05/2017 and 30/05/2017
Testimonies of the police officers Mr A., Mr D., Mr P., Mr T. and attesting witnesses Mr Tat. and Mr K. on statements given by the applicant in the course ofbody search
on 29/05/2017,examination of his car
on 29/05/2017,examination of the crime scenes (terrain)
on 29/05/2017 and 30/05/2017.
Confessed in illegal acquisition of drugs for personal use from the beginning and further on, never confessed in drug dealing.
Arrested
outdoors in the course of the operative-search activity “Observation”
on 29/05/2017
Brought to the police department Buguruslanskiy of the Ministry of the Interior in the city of Buguruslan in the Orenburg Region
(МО МВД РФ Бугурусланский г. Бугуруслан Оренбургской области)
in the morning
of 30/05/2017
Administrative arrest record drawn up
(no information about the charges)
at 10.00 a.m.
on 30/05/2017
Criminal arrest record drawn up
at 09.05 p.m.
on 31/05/2017
Access to a lawyer granted
on 31/05/2017
11438/18
19/02/2018
Sergey Vladimirovich KIBISHEV
1962
Miasskoye, Chelyabinsk Region
Russian
Convicted on 19/05/2017
by the Krasnoarmeyskiy District Court of the Chelyabinsk Region
of drug dealing and smuggling of drugs,
upheld on appeal
on 07/09/2017
by the Chelyabinsk Regional Court
Self-incriminating statements given in the course of the applicant’sbody search conducted immediately after arrest
at 04.00 p.m. on 02/12/2015,examination of the applicant’s car
at 04.35 p.m. on 02/12/2015,examination of the applicant’s flat
at 06.39 p.m. on 02/12/2015,examination of the applicant’s house and garage
at 11.45 a.m. on 03/12/2015
Testimonies of the attesting witness Ms G. on statements given by the applicant in the course ofexamination of his flat
on 02/12/2015
Testimonies of the attesting witness Mr Kh. on statements given by the applicant in the course ofbody search
on 02/12/2015
Evidence excluded
Testimonies of the police officer Mr Y., Sh., L. on statements given by the applicant in the course ofbody search
on 02/12/2015,examination of the car and flat
on 02/12/2015
were declared inadmissible by the appeal court on the ground that according to the Criminal Code of Procedure police officers could be interviewed at trial only about the circumstances of the conduction of the procedural action to decide on the admissibility of evidence, but not to find out the contents of the testimonies of defendants and other interviewed persons.
Arrested
outdoors in the course of the operative-search activity “Observation”
at 03.45 p.m.
on 02/12/2015
Brought to the police station, Chelyabinsk Region Department of the Federal Drug Control Service (Управление ФСКН России по Челябинской области)
at unspecified time
on 02/12/2015
Criminal arrest record drawn up
at unspecified time
on 03/12/2015
Access to a lawyer granted
at 08.30 p.m.
on 03/12/2015
(Ms K.)
40544/18
13/08/2018
Yegor Vyacheslavovich SAFONOV
1991
Novosibirsk
Russian
Convicted on 02/11/2017
by the Novosibirskiy District Court of the Novosibirsk Region
of drug dealing and of an attempted drug dealing,
upheld on appeal
on 06/04/2018
by the Novosibirsk Regional Court
Self-incriminating statements given in the course of the applicant’sbody search conducted outdoors immediately after arrest
at 06.10 p.m. on 19/03/2016,examination of the applicant’s car
at 06.40 p.m. on 19/03/2016
Testimonies of the police officer Mr Sh. and attesting witness Mr Kh. on statements given by the applicant in the course ofbody search
on 19/03/2016,examination of his car
on 19/03/2016
Evidence excluded
A statement of surrender and confession given on 19/03/2016 was declared inadmissible by the trial court, as the applicant had not been informed about his rights under Article 51 of the Constitution, his procedural rights, and was not provided with an opportunity to retain a lawyer.
Arrested
outdoors in the course of the operative-search activity “Observation”
at 05.25 p.m.
on 19/03/2016
Brought to the Novosibirsk Region Department of the Federal Drug Control Service
(УФСКН РФ по НСО)
on 19/03/2016
Access to a lawyer granted
at 02.23 a.m.
on 20/03/2016
(State-appointed lawyer Ms P.)
Criminal arrest record drawn up
at 02.23 a.m.
on 20/03/2016
54784/18
12/11/2018
Kirill Valeryevich KOLESNIKOV
1991
Plavsk
Russian
Maksim Yuryevich IZHIKOV
Convicted on 19/12/2017
by the Kuntsevskiy District Court of Moscow
of several counts of drug dealing and an attempted drug dealing,
upheld on appeal
on 24/05/2018
by the Moscow City Court
Self-incriminating statements given in the course ofbody search conducted at the police station
at 08.05 p.m. on 17/02/2017,examination of the crime scenes (terrain) conducted starting
from 08.30 p.m. on 17/02/2017
Testimonies and report of the police officers Mr P., Mr V., Mr K., Mr R., Mr D., Mr Kap., Mr Y., Mr Z., Mr Sh. and attesting witnesses Mr N., Mr S. on statements given by the applicant in the course ofbody search
on 17/02/2017,explanations
on 17/02/2017,examinations of the crime scenes (terrain)
on 17/02/2017
Reiterated at 06.20 a.m. on 18/02/2017 in the interview as a suspect in the presence of a State-appointed lawyer Mr G., and at 07.10 a.m. on 18/02/2017 in the interview as an accused in the presence of the same lawyer.
Arrested
outdoors on the suspicion of involvement in the drug related crimes
at 05.00 p.m.
on 17/02/2017
Brought to the police station in the district of Kuntsevo, Moscow (ОМВД России по району Кунцево г. Москвы)
at 05.00 p.m.
on 17/02/2017
Access to a lawyer granted
at 06.00 a.m.
on 18/02/2017
(State-appointed lawyer Mr G.)
Criminal arrest record drawn up
at 06.00 a.m.
on 18/02/2017
Access to a lawyer of own choosing Mr P. granted
in the afternoon
on 18/02/2017
58027/18
26/11/2018
Aleksey Vadimovich
FEDULOV
1986
Yugra
Russian
Aleksandr Viktorovich VALYAVSKIY
Convicted on 14/03/2018 by the Sovetskiy District Court of Krasnodar
of attempted drug dealing,
upheld on appeal on 30/05/2018
by the Krasnodar Regional Court
Self-incriminating statements given in the course ofexamination of the crime scene (terrain)
at 09.20 p.m. on 12/09/2016,examination of the applicant’s car
at 11.10 p.m. on 12/09/2016
Arrested
outdoors in the course of the operative-search activity “Observation”
at 08.00 p.m.
on 12/09/2016
Brought to the Krasnodar Department of the Federal Security Service
(Управление ФСБ России по Краснодарскому краю)
at unspecified time on 13/09/2016
Access to a lawyer granted
at unspecified time
on 14/09/2016 (Mr K.)
Criminal arrest record drawn up
at 11.25 p.m.
on 14/09/2016
10.
1175/19
28/11/2018
Yegor Igorevich ORLOV
1991
St Petersburg
Russian
Yevgeniy Valentinovich SHEIN
Convicted on 15/03/2018
by the Kirovskiy District Court of St Petersburg
of an attempted drug dealing,
upheld on appeal
on 21/08/2018
by the St Petersburg City Court
Self-incriminating statements given in the course of the applicant’sbody search conducted at the police station no. 8 of the Ministry of the Interior in the Kirovskiy district of St Petersburg (8 отдел полиции УМВД России по Кировскому району г. Санкт-Петербург)
at 02.50 a.m. on 21/03/2017,a statement of surrender and confession
at 11.20 a.m. on 21/03/2017,examination of the crime scene
at 01.20 p.m. on 21/03/2017
Testimonies of the police officers Mr Y., Mr I. on statements given by the applicant in the course ofbody search
on 21/03/2017
Testimony of the police officer Mr Ch. on statements given by the applicant in the course ofbody search
on 21/03/2017,a statement of surrender and confession
on 21/03/2017,examination of the crime scene
on 21/03/2017
Testimonies of the police officer Mr K. on statements given by the applicant in the course of hisbody search
on 21/03/2017,examination of the crime scene on 21/03/2017
Testimony of the attesting witness Mr P. on statements given by the applicant in the course ofexamination of the crime scene
on 21/03/2017
Testimony of the attesting witnesses Mr S. and Mr I. on statements given by the applicant in the course ofbody search
on 21/03/2017
Arrested
outdoors in the course of the operative-search activity “Observation”
at 00.25 a.m.
on 21/03/2017
Brought to the police station no. 8 of the Ministry of the Interior in the Kirovskiy district of
St Petersburg
(8 отдел полиции УМВД России по Кировскому району г. Санкт‑Петербург)
at 01.47 a.m.
on 21/03/2017
Access to a lawyer granted
after 06.00 p.m.
on 21/03/2017
(Ms Sh.)
Criminal arrest record drawn up
at 06.40 p.m.
on 21/03/2017
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