THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 72250/01 
by Aleksandr LOPATA 
against Russia

The European Court of Human Rights (Third Section), sitting on 3 May 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr L. Caflisch
 Mr A. Kovler
 Mr V. Zagrebelsky
 Mrs A. Gyulumyan, 
 Mr David Thór Björgvinsson, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 26 March 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Konstantinovich Lopata, is a national of Kazakhstan who was born in 1963 and who lived until his arrest in the village of Akhun (also referred to as Akhunovo) in the Bashkortostan Republic of the Russian Federation. The applicant is now serving the sentence in Ufa. He is represented before the Court by Ms D. Vedernikova, a lawyer with the European Human Rights Advocacy Centre (EHRAC) in Moscow. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  The applicant's arrest and pre-trial detention

(a)  The applicant's 14-day detention in August 2000

On 3 August 2000 the applicant was arrested, along with several other village residents, and placed in the temporary confinement ward of the Uchaly police station (ИВС Учалинского ГРОВД). He was allegedly beaten and pressed to confess to the murder of a certain Mr D. in the village of Akhunovo. The applicant stayed in detention for fourteen days; the legal basis for his detention remains unclear, yet the applicant appears not to have challenged the lawfulness of his detention before the domestic authorities.

(b)  The applicant's arrest in September 2000

On 5 September 2000 the applicant was apprehended again and taken to the Uchaly police station. On the same day he was questioned by Mr Alibakov, investigator of the Uchaly prosecutor's office, Mr Gabdrakhmanov, senior operational officer, Mr Mustafin, deputy head of the Uchaly police station, and Mr Mukhamadeyev, head of the criminal police. According to the applicant, throughout the questioning they put pressure on him to confess to D.'s murder.

The Government submit that on 5 September 2000 the investigator Alibakov formally explained the rights of an accused to the applicant, including the right to free legal assistance, and assigned a certain Mr Ur. to represent him. However, a copy of the report “on announcement of the defence rights to an accused/defendant” of 5 September 2000, produced by the Government, is not countersigned by the applicant or by Ur. and it only bears a signature of the investigator Alibakov.

On 6 September 2000 the applicant retained defence counsel, Ms Akhunova, to represent him. On that and the following days she visited him in the detention facility.

On 8 September 2000 Mr Alibakov, who was in charge of the investigation into D.'s murder, authorised the applicant's detention on remand. The applicant was accused of murdering D., a friend of the applicant's daughter, in the night of 29-30 July 2000. The applicant did not appeal against the detention order to a court.

(c)  Alleged ill-treatment of the applicant on 8-9 September 2000

The following account of events is based on a typed statement (undated and signed by the applicant) enclosed with a supervisory-review application to the Supreme Court of the Russian Federation lodged in April 2001.

On Friday, 8 September 2000, at about 3 p.m. the applicant was brought to an office in the Uchaly police station where Gabdrakhmanov and Mustafin were already present. The investigator Alibakov was not there. Gabdrakhmanov and Mustafin pressured the applicant to write voluntarily a “confession statement” (явка с повинной) and promised in exchange to ask Alibakov to reclassify the applicant's offence as involuntary manslaughter in a fit of passion. The applicant did not admit his guilt and refused to make any statements to that effect.

Mustafin and Gabdrakhmanov started beating the applicant. They hit his head against the wall, twisted his arms, punched his neck and kicked him in the groin. The beatings alternated with admonitions to confess his guilt. Three times the applicant was placed with his hands against the wall, legs wide apart, and Gabdrakhmanov hit his ankles so that the applicant's legs slid apart and the applicant fell. Then the applicant was brought back to his cell for a respite.

At about 9 p.m. Mr Khafizov, deputy head of the criminal police, took the applicant out of the cell onto the second floor of the ward to the office of Mukhamadeyev. Mustafin and Gabdrakhmanov were in the room and Khafizov stayed outside. The applicant was shown a confession statement written by someone else and was ordered to confess, too. After he refused, police officers switched on the television and started punching him in the face and kicking his ankles. This lasted for approximately twenty minutes, then Gabdrakhmanov, using the remote control unit, set the television to switch on in one hour; this signalled an hour-long pause in the beatings. The applicant was handcuffed and brought back to the cell by Khafizov who had waited outside.

An hour later the applicant was taken again to the office. This time Mukhamadeyev joined Gabdrakhmanov and Mustafin, while Khafizov stayed outside. The applicant refused to write a confession statement. Mukhamadeyev turned the applicant to face the wall, took a truncheon out of a cupboard, pulled the applicant's trousers down and threatened to rape the applicant with the truncheon. Once the applicant lowered his arms to pull his trousers up, he received a series of truncheon blows to his head, back and legs. He fell and broke his lip against the cupboard. After a series of punches and kicks the officers set the timer for one hour and Mukhamadeyev placed the applicant in the cell, having hit his head against the cell door.

When the applicant was brought back again, the officers were drinking beer and offered the applicant to join. The applicant had a drink and then he was sent back to the cell to “think about [his] confession”.

Later on, the applicant was taken several times out of the cell and brought to different offices where Mukhamadeyev, Mustafin, Gabdrakhmanov and Khafizov, taking turns, tortured him in various ways. The applicant's handcuffed hands were twisted so that he strangled himself, he received strong blows to his left ear and fainted.

At about 5 a.m. on 9 September 2000, Saturday, police officers escorted the applicant to the investigator's office in the ward and told him to write down what he had been doing on 29 July 2000. It appears that the applicant did something wrong and the officers stuffed the “spoiled” sheet of paper in his mouth and twisted his limbs in all directions.

Finally, the applicant yielded and wrote a confession statement along the lines described to him by Alibakov during the first interrogation on 5 September. The officers read the statement and continued to beat him up to get a more detailed account. The applicant wrote that on 30 July 2000 at about 1.30 a.m. he had gone out to look for his daughter and discovered her having sex with a man; he had taken a log and hit the man in the head; he had not been able to hide the body immediately because his scooter had been out of order.

At about 6.30 a.m. the applicant was escorted to the cell.

(d)  Events of 9-11 September 2000

On the same day (9 September 2000) at 11 a.m. Mustafin and Gabdrakhmanov woke the applicant up and told him that he would be transported to a detention facility in Ufa. He objected to the trip; his right ear was blocked and his left ear oozed blood and matter.

At about 4 p.m. investigator Alibakov called the applicant and asked him whether he was ready to testify. The applicant refused to speak without his counsel, Mrs Akhunova. Alibakov invited the same lawyer who had been present at the interview on 5 September 2000. The lawyer talked to the applicant while Alibakov left the room, and then confirmed to Alibakov that the applicant was entitled to claim the presence of his private lawyer. The questioning did not take place.

On Sunday, 10 September 2000 the applicant stayed in the cell.

On 11 September 2000 Mukhamadeyev, Gabdrakhmanov and the director of the temporary confinement ward took the applicant in a private car to detention facility SI-1/2 of Beloretsk (СИ-1/2 г. Белорецка). At the Court's request, the Government produced the applicant's medical record from that facility. The record indicates that upon his admission to the facility on 11 September 2000 the applicant was examined by a doctor. The doctor noted a complaint about pain in his left ear and diagnosed it as “sinister chronic otitis recrudescence” (обострение хронического отита слева). He also observed that the applicant's skin was clear.

The applicant was placed in cell 13, then transferred to cell 43 and later to cell 30.

(e)  Restrictions on the applicant's communication with his lawyer

According to the applicant's counsel, on 8 September 2000 she obtained permission from the head of the Uchaly police station to visit the applicant. But after Mustafin had telephoned the police, access was refused.

On the same day she complained about that situation to the Uchaly district prosecutor's office. On 25 September 2000 a deputy Uchaly district prosecutor responded to her that no irregularities could be observed: Mustafin denied that he had refused her access to the applicant on 8 September and, according to officers on duty in the ward, she had collected a standard permission form and never returned it duly authorised by the investigator in charge (that is, Alibakov).

(f)  Complaints about alleged ill-treatment on 8-9 September 2000

On 13 September 2000 the applicant, questioned by Alibakov in the presence of counsel, stated that he had not murdered D. and that the confession had been obtained from him by the officer Mustafin, a “police major” and another “chubby police officer”.

On 14 September 2000 the applicant's lawyer lodged a complaint with the Uchaly district prosecutor's office. She requested that a criminal case for torture be opened against Mukhamadeyev, Mustafin and two other unidentified police officers. She indicated that on seeing the applicant on 12 September she had observed the following injuries:

“Physical injuries: abrasions between the right eye and ear and below the lower lip on the right side; a fluid mixed with blood flowing from the left ear; a contusion measuring 15-17 cm by 8-10 cm in the area of the solar plexus; bruising and swelling to the left foot; a bloody abrasion on the right knee; marks from handcuffs; a bruise underneath the right eye and a damaged lip, split on the inside.”

It appears that a medical examination of the applicant's body was commissioned. At the Court's request, the Government produced a copy of expert report no. 1060 prepared by the medical expert G. on the basis of a written decision of the senior investigator Alibakov. According to the report, the examination began on 14 September and ended on 18 September 2000. The expert noted the applicant's complaint about pain in his left ear, but he did not find any bodily injuries on him.

On 17 September 2000 the applicant's lawyer lodged a complaint about ill-treatment of her client with the Uchaly District Court. The contents of the complaint were identical to that of 14 September. She also added that the medical examination was not possible because the expert was on holidays and she feared for the applicant's life and health because he remained under the influence of Uchaly police officers. These officers had allegedly visited the applicant in Beloretsk and threatened him with “grave complications” if he “misbehaved”. The lawyer requested the court to release the applicant on bail.

On 21 September 2000 the applicant's lawyer complained to the Uchaly prosecutor's office about non-provision of medical assistance to the applicant who suffered from pain in his left ear. On the following day the prosecutor ordered the head of the temporary confinement ward in Uchaly to take the applicant to an ear specialist.

On 24 September 2000 a deputy Uchaly district prosecutor refused the applicant's lawyer's request to initiate criminal proceedings against police officers who had allegedly beaten the applicant. The deputy prosecutor solicited explanations from the officers Mukhamadeyev, Mustafin, Khafizov and Gabdrakhmanov who denied having pressured or ill-treated the applicant. The deputy prosecutor also referred to the medical report of 14-18 September 2000 which had not disclosed any injuries on the applicant's body. On the basis of these materials the deputy prosecutor concluded that the applicant's allegations of ill-treatment “raise[d] great doubts as to their credibility”. The decision indicated that it could be appealed against to a higher prosecutor or a district court. It appears from the forwarding note addressed to the applicant's counsel that the decision of 24 September 2000 was served on her on 4 October 2000.

On 27 September 2000 the applicant's lawyer obtained a medical certificate confirming that the applicant had been diagnosed with ear inflammation. On the same day she complained to a prosecutor that the applicant did not receive the prescribed ear treatment.

On an unspecified date the applicant's lawyer lodged another complaint with the prosecutor of the Bashkortostan Republic. She complained about the ill-treatment of the applicant and continuing threats to him by officers Gabdrakhmanov and Mukhamadeyev.

On 3 October 2000 the applicant's lawyer sent a letter to Mr Turumtayev, the prosecutor of the Bashkortostan Republic, claiming that the medical expert who failed to discover any physical injuries on the applicant's body during the examination on 14-18 September 2000, had committed an offence by public official, because “apart from the obvious physical injuries he has sustained, [the applicant] has damaged kidneys and his bladder is not working properly”.

On 4 October 2000 a deputy Uchaly district prosecutor informed the applicant's counsel that he had visited the applicant on 30 September and 1 October 2000 in order to verify the conditions of his detention. The conditions were found to be satisfactory and the applicant confirmed in writing that no pressure had been applied to him.

It appears that in November 2000 at the latest, the investigator Alibakov was dismissed from the prosecutor's office and the applicant's case was transferred to investigator L.

2.  Trial and subsequent appeals

The prosecution's case was that in the night of 29-30 July 2000 the applicant had seen his daughter having sex with Mr D., he had become angry and hit D. on the head with a log, causing him a fatal injury.

At the trial the applicant pleaded not guilty. He denied having committed D.'s murder and claimed that his confession statement had been given under pressure by police officers.

The applicant's underage daughter also revoked her statements given on 5 September 2000 in the presence of M., child protection inspector of the Uchaly education department. On that day she had testified that her father had discovered her having sex with D. and chased her home and that on the following day her father had been nervous and mentioned to her mother that “apparently the corpse had been discovered”. However, M. and I., teacher of the applicant's daughter, testified before the court that she had given her testimony voluntarily, without any pressure by the investigator. The court also ordered an expert examination of the applicant's daughter handwritten notes “My statements are correctly recorded and I have read them” on the interrogation transcript. The expert confirmed that the handwriting was that of the applicant's daughter.

The court then heard nine other witnesses, one of whom had discovered D.'s corpse and another had seen D. and the applicant's daughter kissing, and examined certain forensic evidence.

The court interviewed the police officers Mukhamadeyev, Mustafin and Gabdrakhmanov who denied having used any “unlawful methods” on the applicant and confirmed that he had written his confession statement of his own will. The former investigator Alibakov confirmed that the applicant's daughter had testified voluntarily. The court rejected the applicant's lawyer allegations of ill-treatment by reference to, in particular, medical report no. 1060 of 14-18 September 2000 where no injuries were recorded.

On 15 January 2001 the Uchalinskiy District Court found the applicant guilty as charged and sentenced him to nine years' imprisonment in a high-security correctional colony.

The applicant and his lawyer appealed against the conviction. Their grounds of appeal indicated, in particular, that the applicant's confession statement was inadmissible as it had been obtained under duress and in breach of procedural rules. The statements of the applicant's underage daughter were also inadmissible because she had been questioned in the absence of a teacher, which is required by the Code of Criminal Procedure.

On 15 March 2001 the Supreme Court of the Bashkortostan Republic upheld the applicant's conviction. It confirmed the conclusions of the first instance court and held that no evidence of ill-treatment had been discovered.

On 21 and 24 April 2001 R. and Z., the applicant's cellmates in cell 13 of the Beloretsk facility SI-1/2, drafted hand-written depositions. They indicated that on 11 September 2000 the applicant had been locked into their cell and at that time he had had bruises all over his body, a split lip and a swollen left ear oozing blood. These depositions were enclosed with the applicant's lawyer's subsequent applications for supervisory review. An account of ill-treatment printed on five densely filled pages, that described details of the events of 8-9 September 2000, such as the layout of furniture in the offices of the Uchaly police station where the applicant had been beaten up, was also annexed.

On 7 May and 4 June 2001 the Presidium of the Supreme Court of the Bashkortostan Republic and the Supreme Court of the Russian Federation, respectively, examined the applicant's lawyer's applications for supervisory review and dismissed them as advancing no new arguments.

3.  Alleged intimidation of the applicant

On 15 October 2003 the Court communicated the application to the respondent Government.

On 18 January 2004 the Court received a faxed letter from the applicant's brother (who had initially represented the applicant before the Court) in which he indicated that the applicant had been intimidated and forced to withdraw his application. In a letter of 21 January 2004 the applicant's brother provided further details. His description ran as follows:

“...I have to inform you about a conversation between [my brother] and a Captain of the Department who did not show his documents and did not identify himself. That happened on 6 January 2004. The Captain first asked [my brother] and then ordered [him] to describe in writing the events of 2000. He said: 'You must write it in the way I want you to. [My brother] answered: 'I won't write or sign anything without a lawyer. Captain: 'I don't care about you or your lawyer; it will be as I say. You are pawns. I will arrange it so that you die here in two weeks but you will give me the statement I want.

We are very concerned about one issue. Why the representatives [before the European Court] did not come from Moscow themselves, and a Captain showed up and asked [him] to write [an explanation]?”

On 13 February 2004 the Court requested comments from the respondent Government.

On 5 April 2004 the Government informed the Court that on 6 January 2004 Captain Galin, an employee of the Main Directorate of Execution of Punishments in the Bashkortostan Republic, had had a “conversation” with the applicant “in order to clarify the circumstances that had given rise to his application to the European Court”.

B.  Relevant domestic law

Article 51 of the Russian Constitution provides that no one may be required to incriminate himself or herself and his or her spouse and close relatives. Article 21 § 2 of the Russian Constitution prohibits torture.

The RSFSR Code of Criminal Procedure (in force until 1 July 2002) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities' own motion (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or require the proceedings to be re-opened. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction (Article 113).

Article 111 of the Code of Criminal Procedure (“Confession statement”) required that a confession statement be recorded in detail in a separate document, signed by the person who gave the confession and by the investigator or prosecutor who took the confession.

Section 16 of the federal law “on holding of criminal suspects and accused persons in custody” (no. 103-FZ of 15 July 1995) provides that placement in custody and in-take of suspects must be regulated by the internal order regulations. The regulations for detention facilities, approved by the Ministry of Justice of the Russian Federation on 12 May 2000 (no. 148), provide, in particular, that on the day of the placement a medical report is to be drawn up about the person in custody. If the medical examination reveals any bodily injuries, an appropriate act is to be signed by the assistant-on-duty, a medical specialist, and the head of the guards who brought the person in. The information on bodily injuries shall be operatively reviewed and, if there are indications of a criminal offence, the materials are to be sent to a regional prosecutor.

COMPLAINTS

1.  The applicant complains under Article 3 of the Convention about his ill-treatment by the police officers on 8-9 September 2000.

2.  The applicant complains under Article 5 of the Convention about his unlawful detention in September 2000.

3.  The applicant complains under Article 6 § 3 (c) of the Convention that he was held without access to his lawyer between 8 and 12 September 2000. He also complains that he and his lawyer only were allowed to study a copy of the case-file which allegedly did not match the original documents sent to the court.

4.  The applicant complains under Article 6 §§ 1 and 2 and Article 7 of the Convention that his conviction was based, to a significant extent, on the self-incriminating statement obtained from him by torture. He submits that the courts failed to establish when, where and how D. had been murdered and that they disregarded the expert reports which concluded, in particular, that D. could not have been murdered with a log as stated in the applicant's confession statement.

THE LAW

1.  The applicant complained that his treatment by police officers on 8-9 September 2000 was incompatible with Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  The parties' submissions

The Government submit that they have no objection to the presentation of the factual circumstances of the case, subject to certain clarifications. They claim that the applicant's allegations that the police officers forced him to confess are unsubstantiated. Firstly, the confession statement contains the applicant's hand-written note that he had given the confession without any pressure on the part of the police. Secondly, according to the expert report of 18 September 2000, no injuries on the applicant's body were recorded. Furthermore, at the time of the applicant's admission to facility no. SI-2 of Beloretsk on 11 September 2000, he was examined by a doctor who noted “recrudescence of chronic otitis” but did not record any abrasions. Finally, the medical certificate of 27 September 2000 does not indicate the traumatic genesis of the applicant's ear disease. In any event, the applicant and his lawyer never appealed to a court against the prosecutor's decision of 24 September 2000 refusing to initiate a criminal investigation into their allegations. The Government invite the Court to reject the applicant's complaint as manifestly ill-founded and also for his failure to exhaust the domestic remedies.

The applicant submits that he has exhausted domestic remedies because his lawyer filed complaints regarding the ill-treatment on 14 September 2000 with the Uchaly prosecutor's office and on 17 September 2000 with the Uchaly district court. Furthermore, the allegations of his ill-treatment was examined by the trial and appeal courts within the framework of the criminal proceedings against him.

The applicant claims that the ill-treatment to which he was subjected on 8-9 September 2000 by police officers, was designed to cause both physical injury and mental suffering, in violation of Article 3. He points out that the Government have raised no objection to the summary of facts prepared by the Court's Registry on the basis of his original submissions and that they merely asserted that his allegations were unsubstantiated and were not corroborated by medical reports. The applicant maintains that since he had come to Bashkortostan in 1997 and before the interrogation in September 2000 he had no health-related complaints which is confirmed by a certificate from the local hospital. To date, as a consequence of the beatings on 8-9 September 2000, he suffers from pain in the area of kidneys, collar bone, and deafness of the left ear. As he was taken into police custody in good health, it has been the Court's traditional approach to require the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 (Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). The applicant further submits that the medical documents drawn up after he had been tortured, such as the expert report of 14-18 September 2000, did not reflect the truth about his physical condition at that time and that subsequent medical examination did not indicate the causes of his otitis. The applicant refers to the witness statements by R. and Z. and to his advocate's letter of 14 September 2000 (see above) which corroborate his version of events and on which the Government failed to comment. It is submitted that his version of events is supported by the fact that he has described in minute detail the ill-treatment he was subjected to, the layout of rooms, doors, furniture and objects in the Uchaly police station, and the movements, ranks and names of the police officers concerned. Finally, he notes that he had consistently denied his involvement in the murder (during the interrogations on 3 August and 5 September and the meetings with his advocate on 6 and 7 September) and that it is hard to imagine that he would have suddenly decided to confess on 9 September when his counsel was absent.

As regards the procedural requirement of Article 3, the applicant claims that the investigation carried out in the alleged ill-treatment was manifestly inadequate and ineffective. No confrontation between the police officer and him was carried out. In fact, he was not himself questioned about the alleged ill-treatment. No specific questions were put to the police officers. As to the medical report of 18 September 2000, the applicant disagrees with its conclusions and sees as the only possible explanation of it, the doctor's bias or pressure from the police officers not to record the actual injuries. The prosecutor did not take any steps to establish the truth: thus, he did not interrogate possible witnesses about the applicant's state of health at the material time. In any event, the investigation was not impartial because Alibakov, who was responsible for the investigation of the murder, was aware of the beatings, and was an official from the prosecutor's office.

B.  The Court's assessment

The Court recalls that Article 3 requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3290, § 101-2). It considers therefore that the Government's objection as to the non-exhaustion of domestic remedies is closely linked to the merits of the applicant's complaint about the domestic authorities' failure to comply with its procedural obligations under Article 3 of the Convention. Thus, the Court finds it necessary to join the Government's objection to the merits of the case.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicant complained under Article 5 of the Convention that his detention in September 2000 had been unlawful. The relevant parts of that Article provide as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

...”

The Court notes that the applicant's detention was authorised by an order of 8 September 2000. The applicant countersigned the order below the printed statement indicating that the procedure for lodging an appeal to a court had been explained to him. He did not lodge such an appeal at that time or in the subsequent period when he could benefit from legal assistance of his lawyer.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3.  The applicant complains under Article 6 §§ 1, 2 and 3 (c) the Convention that he was convicted on the basis of his “confession statement” given under duress and in the absence of a legal counsel and that the courts did not elucidate all the relevant facts. The relevant parts of Article 6 read as follows:

Article 6

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”

A.  The parties' submissions

The Government submit that the “confession statement” (явка с повинной) had been hand-written by the applicant on 9 September 2000. Under the Russian rules on criminal procedure, it was not a procedural document that should, or could, have been compiled in the presence of a lawyer. In contrast to the official record of an interrogation, a “confession statement” is a manifestation of the defendant's good will. The statement contains the applicant's hand-written and countersigned admission that he was advised about his right not to incriminate himself, guaranteed by Article 51 of the Russian Constitution. Referring to their submissions under Article 3 above, the Government claim that the “confession statement” was not given as a consequence of ill-treatment by police officers. In any event, they consider that the complaint is inadmissible because the applicant failed to exhaust domestic remedies in that he did not lodge an appeal against the decision of 24 September 2000.

The applicant refers to the Convention organs' case-law, according to which the admission in court of evidence that is obtained by “maltreatment with the aim of extracting a confession” is a breach of the right to a fair hearing (Austria v. Italy, no. 788/60, Commission's report, Yearbook VI, p. 116). It was also found that during the investigation of a case, a confession by an accused must be given in the presence of his lawyer or, in the absence of that, satisfactory procedures be available at the trial to check that it has not been given under duress (G. v. the United Kingdom, no. 9370/81, Commission decision of 13 October 1983, Decisions and Reports 35, p. 75). The applicant takes note of the Government's admission that his confession was given in the absence of a lawyer. He draws the Court's attention to the fact that his advocate was denied access to him on 8 September 2000, the very day of the alleged ill-treatment. At the same time, the Government did not refer to any law provision prohibiting an advocate's presence in the time of signing of a “confession statement”. Nor did the Government specify any good cause for restriction on his right to benefit from the assistance of a lawyer at the initial stage of the investigation (John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, § 63). On the other hand, the applicant submits that no satisfactory procedures were available at the trial to check that his “confession” had not been given under duress. The trial and appeal courts grounded their findings on the medical report of 14-18 September 2000 and the prosecutor's decision of 24 September 2000, but they had no evidence of his involvement in the crime other than his “confession”.

B.  The Court's assessment

As the requirements of Article 6 §§ 2 and 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaints under those provisions taken together. It notes that the crucial issue for the assessment of the fairness of the applicant's trial is whether or not his confession had been obtained under duress. This issue is closely linked to the complaint under Article 3 of the Convention and the Court also finds it necessary to join the Government's objection of non-exhaustion to the merits of the case.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4.  The applicant complained under Article 7 of the Convention that he was convicted in breach of that provision which reads as follows:

“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed...”

The Court reiterates that it is not its task to rule on the applicant's individual criminal responsibility or the facts disputed by the applicant, those being primarily matters for the assessment of the domestic courts. From the standpoint of Article 7 § 1 of the Convention, it must consider whether the applicant's acts, at the time when they were committed, constituted offences defined with sufficient accessibility and foreseeability by domestic law (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 51, ECHR 2001-II). In this connection, the Court observes that the Criminal Code of the Russian Federation provided for criminal liability for intentional manslaughter, both at the time of the acts imputed to the applicant and at the time of the trial. The offence of murder carried up to fifteen years' imprisonment. These provisions were publicly accessible and their application should have been sufficiently clear and foreseeable to the applicant. The trial court sentenced the applicant to nine years' imprisonment and the appeal court upheld that sentence. Thus, the sentence did not exceed the maximum penalty provided for in the Criminal Code for the act of which the applicant was found guilty. It appears therefore that the conviction satisfied the requirements of paragraph 1 of that Convention provision.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5.  Lastly, upon receipt of the applicant's brother's letters of 18 and 21 January 2004, the Court, of its own motion, raised the issue whether the events of 6 January 2004 amounted to a hindrance to the effective exercise of the applicant's right of individual petition. Article 34 reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government have conceded that a conversation between Captain Galin and the applicant took place on 6 January 2004. They claim, however, that the applicant was not subjected to any mental or physical pressure. In support of their statements, they submitted an “explanation” written by the applicant by hand and dated 3 March 2004, in which he indicated that he had not been subjected to “mental or physical pressure by employees of the Prisons' Directorate of the Bashkortostan Republic”.

The applicant has not made any further comments.

The Court recalls that it is of the utmost importance for the effective operation of the system of individual petition guaranteed under Article 34 of the Convention that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, § 105; Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, § 105; Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, § 159). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy. Having regard to these criteria, the Court considers that the allegation of hindrance raises serious issues of fact and law under the Convention, the determination of which requires its further examination.

For these reasons, the Court unanimously

Decides to join to the merits the Government's objection as to the exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the applicant's complaints about the alleged ill-treatment by the police and the unfairness of the trial;

Decides to pursue the examination of the allegation of the respondent Government's failure to comply with its obligations under Article 34 of the Convention;

Declares inadmissible the remainder of the application.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

LOPATA v. RUSSIA DECISION


LOPATA v. RUSSIA DECISION