Communicated on 19 October 2017
THIRD SECTION
Application no. 32702/13
Yuriy Anatolyevich KUZHIL
against Russia
lodged on 7 April 2013
STATEMENT OF FACTS
The applicant, Mr Yuriy Anatolyevich Kuzhil, is a Russian national, who was born in 1976 and is serving a prison sentence in Solikamsk.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The applicant’s arrest and first set of criminal proceedings
On 8 December 2009 the applicant was arrested on suspicion of having sexually molested two boys M. and U.
On 9 December 2009 investigator F. questioned the applicant. According to the record of the questioning, it took place in the temporary detention ward from 9:05 p.m. to 9:30 p.m. The applicant confessed to both charges in the presence of the lawyer. According to the applicant, the lawyer was not present during the questioning.
On the same date the applicant wrote a confession statement.
On 27 December 2010 the Babushkinskiy District Court of Moscow found the applicant guilty as charged and sentenced him to 8.5 years’ imprisonment.
On 4 May 2011 the Moscow City Court upheld the applicant’s conviction on appeal.
B. Supervisory review of the applicant’s conviction
On 17 February 2012 the Presidium of the City Court quashed the applicant’s conviction, by way of supervisory review, as regards the offence committed in respect of minor U. and remitted the matter for fresh consideration to the trial court.
On 25 October 2012 the Supreme Court of the Russian Federation quashed, by way of supervisory review (1) the judgment of 17 February 2012 and (2) the judgments of 27 December 2010 and 4 May 2011 as regards the applicant’s conviction on the charges of sexual molestation of U. and remitted the matter for fresh consideration to trial court. As regards the applicant’s conviction on the charges of sexual molestation of M., the Supreme Court upheld the lower courts’ findings and sentenced the applicant to 8 years and 3 months’ imprisonment.
C. New set of criminal proceedings
During the trial the applicant maintained his innocence. As regards his self-written confession statement, the applicant claimed that he had confessed in exchange for the investigator’s promise that U. would not be subject to any unlawful treatment. The applicant also claimed that lawyer S. had not been present during the questioning on 9 December 2009. When questioned in court, U. recanted his earlier statements that the applicant had molested him.
On an unspecified date the acting head of the district police department provided the court with the following information:
“In response to your inquiry ... please be advised that ... on 9 December 2009 [the applicant] was visited twice by [investigator] F. from 12:20 p.m. to 12:40 p.m. and from 9:20 p.m. to 10:45 p.m (as per the register of the inmates’ movement ...).
I would also inform you that on 9 December 2009 counsel S. was at the temporary detention ward. However, pursuant to the register of the inmates’ movement, he visited another inmate from 5:25 p.m. to 5:50 p.m.”
On 20 May 2013 the District Court found the applicant guilty of child molestation. The court took into account the applicant’s earlier conviction and sentenced him cumulatively to 8.5 years’ imprisonment. The court relied on (1) the statements made by U. when questioned by the investigator, (2) the statements made by police chief D., social worker Ye., psychologist Sok. and school teacher B. who had been present during U.’s questioning; (3) the statement made by the head of the shelter for children P. whom U. had told about the sexual abuse; (4) the statement made by investigator F., who claimed that the applicant had written a confession statement voluntarily and that on 9 December 2009 counsel S. had been present during the applicant’s questioning; (5) the statement made by investigator As. who had questioned U. on several occasions; (6) the statements made by the applicant’s former wife and his father who had no knowledge as to events pertaining to the charges; and (7) the applicant’s confession statements of 9 December 2009. The court also took into account the forensic evidence as to the psychological and physiological condition of the applicant and U.
As regards the statements made by U., the court accepted as truthful the statements he made when questioned by the investigator and disregarded his later testimony given in court. The court considered that U. had recanted his earlier statements out of gratitude to the applicant who had been his appointed guardian from 2006 to 2009.
The court dismissed as unsubstantiated the applicant’s allegation that on 9 December 2009 he was questioned in the absence of the lawyer and that the information to the contrary in the record of questioning was falsified by the investigator. The court relied on the investigator’s statement.
The applicant appealed alleging, inter alia, that on 9 December 2009 he had been questioned and made a confession statement in the absence of a lawyer.
On 6 November 2013 the City Court upheld the applicant’s conviction on appeal.
COMPLAINTS
The applicant complains under Article 6 of the Convention that he did not have access to a lawyer on 9 December 2009 when he made confession statements.
QUESTIONS TO THE PARTIES
1. 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? In particular, was the applicant provided with access to legal assistance during detention at the temporary detention ward after his arrest on 8 December 2009, as required by Article 6 § 3 (c) of the Convention (see Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 92-145, CEDH 2017 (extracts))?
2. The parties are requested to provide addition information and supporting documents, if any, on the following issues:
(a) Whether the applicant was informed of the right to legal assistance prior to making a written confession statement on 9 December 2009;
(b) Whether the applicant waived the right to legal assistance prior to making a written confession statement on 9 December 2009;
(c) Whether the lawyer was present during the applicant’s questioning by the investigator on 9 December 2009 and whether he was questioned in this connection;
(d) Whether the applicant was questioned by the investigator after 9 December 2009 and whether the applicant confirmed his confession during those questionings or retracted it.
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