Information Note on the Court’s case-law No. 122
August-September 2009
Pishchalnikov v. Russia - 7025/04
Judgment 24.9.2009 [Section I]
Article 6
Article 6-3-c
Defence through legal assistance
Use in evidence of confession made in police custody in absence of a lawyer: violation
Facts – In December 1998 the applicant was arrested on suspicion of aggravated robbery. He was interrogated – both on the day of his arrest and the following day – in the absence of a lawyer, although he had clearly indicated the name of defence counsel he wished to represent him. During the interrogations the applicant confessed to having taken part in the activities of a criminal group which included murder, kidnapping, hijacking and unlawful possession of weapons. During subsequent interrogations between January and August 1999 the applicant refused legal assistance. He was then assigned legal-aid counsel. On being interrogated in counsel’s presence, he retracted statements he had made to the investigating authorities on his arrest and continued to deny their veracity at the trial and on appeal. In 2002 he was convicted of various offences, including aggravated murder, torture, kidnapping, theft and robbery. He appealed to the Supreme Court, which upheld the convictions in part and sentenced him to twenty years in prison. The applicant was not assisted by a lawyer during his appeal. The courts used the statements the applicant had made on his arrest as evidence to convict him and excluded from evidence all the subsequent statements he had made in the absence of legal assistance, finding that counsel’s presence during the interrogations had been mandatory and that the applicant’s refusals of legal assistance could not be accepted.
Law – Article 6 § 3 (c): The applicant had made his intention to be assisted by counsel sufficiently clear to make it imperative for the investigating authorities to give him the benefit of legal assistance, unless there existed compelling reasons justifying the denial of access to a lawyer. Even assuming that the lawyer in question had been unavailable, there was no evidence showing that the applicant had even been informed of the investigator’s allegedly unsuccessful attempts to contact him. The Government had not argued that the applicant had been advised to find another lawyer or that he had been offered assistance by legal-aid counsel. No justification had been given for not providing the applicant with access to a lawyer. Nor had the Government argued that the lack of access to a lawyer was in accordance with domestic law. In the Court’s view, when an accused had invoked his right to be assisted by counsel during interrogation, a valid waiver of that right could not be established by showing only that he had responded to further police-initiated interrogation even after being advised of his rights. Moreover, the Court was of the opinion that an accused such as the applicant in the present case, who had expressed the desire to participate in the investigation only through counsel, should not be subject to further interrogation by the authorities until counsel had been provided, unless the accused himself initiated further communication with the police or prosecution, which was not the case here. Furthermore, it was possible that the applicant, who had had no previous encounters with the police, had not understood what was required to stop the interrogation. Without legal assistance, he had been unable to make a correct assessment of the consequences his decision to confess would have on the outcome of the proceedings. The Court therefore found that the applicant’s statements, which were made without access to counsel, did not amount to a valid waiver of his right to legal assistance. As regards his subsequent refusals of assistance, although there was no evidence that they had not been made voluntarily and knowingly, it was inexplicable that during purely formal procedural investigative steps the applicant should have been assisted by legal-aid counsel, but was usually refused legal assistance when called upon to answer the investigators’ questions. In the absence of assistance, the applicant was unable to make full and knowledgeable use of his rights. Moreover, his already difficult situation was compounded by the fact that he was surrounded by the police and prosecution authorities, who were experts in the field of criminal proceedings and well-equipped with various, often psychologically coercive, interrogation techniques which facilitated, or even prompted, the receipt of information from an accused. Being mindful of the applicant’s anxious and emotional state after intense interrogations, the Court did not therefore find it surprising that the day following his confessions he had repeated his statements, still without the benefit of legal advice. Although the applicant’s statements on his arrest were not the sole evidence on which his conviction was based, they were nevertheless decisive. In sum, the lack of legal assistance to the applicant at the initial stages of police questioning had irretrievably affected his defence rights and undermined the appearance of a fair trial and the principle of equality of arms. The nature of the detriment he had suffered was such that neither effective assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could remedy the defects which had occurred in police custody.
Conclusion: violation (unanimously).
Article 41: EUR 5,500 in respect of non-pecuniary damage.
(See also Salduz v. Turkey [GC], no. 36391/02, 27 November 2008, Information Note no. 113)
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This summary by the Registry does not bind the Court.
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