CASE OF CHUKAYEV v. RUSSIA
(Application no. 36814/06)
5 November 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Chukayev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
András Sajó, President,
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 13 October 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 36814/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Shaukhat Galimovich Chukayev (“the applicant”), on 11 July 2006.
2. The applicant, who had been granted legal aid, was represented by Mrs V.A. Bokareva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that he (i) had been detained in inhuman and degrading conditions on remand, (ii) had not been provided with a lawyer after his arrest, (iii) had been ordered to pay legal aid fees, and (iv) had not been able to question a witness against him. He also maintained that the Russian authorities had hindered the exercise of his right of individual petition to the Court.
4. On 10 February 2012 the application was communicated to the Government.
5. The applicant is a Russian national who was born in 1960 and lived before his arrest in Vatazhnoe, a village in the Astrakhan region.
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
1. Covert operation
6. On or around 22 December 2003 the applicant sold drugs to B. and O.
7. On 1 March 2004 B. and O. sold a quantity of those drugs to Su., a police officer taking part in an undercover operation.
8. In March 2004 the Voronezh branch of the Federal Drug Control Service (“FSKN”) instituted criminal proceedings against B. and O. When questioned they submitted that they had purchased drugs from the applicant, who lived in Astrakhan.
9. On 20 May 2004 the FSKN instituted criminal proceedings against the applicant and ordered a “test purchase” from him, to be carried out with the help of B. and two undercover police officers, Sh. and P.
10. The covert operation took place between 3 and 5 June 2004 in a hotel in Astrakhan, where Sh. had booked a room. Audio recording devices were installed in the room and the hotel was placed under surveillance. The applicant alleged that during the operation the police had poisoned him with an unknown substance, which had resulted in him being admitted to a prison hospital.
2. The applicant’s arrest, personal search and questioning as a suspect
11. According to the arrest record drafted at 3.30 p.m. on 5 June 2004, police arrested the applicant in the hallway of the eighth floor of the hotel on the grounds that “witnesses and eyewitnesses indicated that the applicant had committed a criminal offence”. The record also indicated that immediately after his arrest the applicant had been apprised of his right to be assisted by counsel and that he had been searched. The search and its results were described as follows:
“... Mr Chukayev was asked to hand over of his own free will any powerful narcotic substances ... he had been keeping on himself unlawfully, money acquired illegally... In reply to the investigator’s request, Mr Chukayev explained that he had none of those things except money, which he had made illegally from selling a narcotic substance, heroin, in a quantity of approximately 38-50 grams. He also explained that the money he had made illegally was in his bag, and submitted that he wished to give it [to the investigator] of his own free will. As a result of the personal search, Mr Chukayev took the money out of his bag voluntarily ...”
12. According to the applicant, investigator L. refused to provide him with a lawyer immediately after his arrest on the grounds that no investigating activities were being carried out in respect of him, therefore he did not need a lawyer. The applicant also stated that he had not been questioned on the day of his arrest.
13. According to the arrest record, which he had signed, the applicant had made no comments concerning its contents or any other matters, and his wife had been notified of his arrest over the telephone.
15. On the same day the investigator ordered fingerprint and palm print chemical expert reports. The applicant’s fingerprints and palm prints were taken. The applicant alleged that he had not been informed of the request for these reports or their results. He had only learnt of the expert analyses while reviewing the criminal case file in March 2005.
16. On 6 June 2004 the investigator started questioning the applicant as a suspect. According to the interrogation report, lawyer Or. was present during questioning. The applicant alleged that he had refused to give a statement for health reasons, whereas the interrogation report stated that he had invoked his right not to incriminate himself and refused to testify. According to the interrogation report, which he had signed, the applicant had no comments concerning its contents or any other matters.
3. The applicant’s placement in detention and the charges against him
17. On 6 June 2004 the Kirovskiy District Court of Astrakhan (“the District Court”) remanded the applicant in custody. He alleged that counsel Or. had not represented him properly at that hearing. His detention was extended on several subsequent occasions. He remained in detention until his conviction on 14 October 2005.
18. On 11 June 2004 the applicant was charged with drug offences and questioned in the presence of counsel I. It is apparent from the record of that interview duly signed by him that he had understood the charges against him and denied all of them. He refused to make a statement.
19. On 16 August 2004 new charges were brought against the applicant in the presence of his counsel. He was charged with two counts of drug trafficking, namely unlawfully acquiring, transporting and possessing drugs with intent to sell, and selling drugs to B. and O. in December 2003 and Sh. on 5 June 2004.
4. Return of the case to the prosecution
20. On 17 February 2005 the District Court returned the criminal case to the prosecutor because the applicant had not had sufficient time to review the criminal case file. In March 2005 he finished doing so.
5. The trial and the applicant’s conviction for drug offences
21. The trial took place in the District Court between April and October 2005. The applicant was represented by counsel M. and I. The court heard him and several witnesses, and examined the pre-trial statements of absent witnesses as well as physical evidence.
(a) The applicant’s testimony
22. The applicant denied all the charges against him. He testified, in particular, that he had met B. in November 2003 and had helped him to buy fish wholesale. On 5 June 2004 they had met because B. had brought some money he had owed him and had wanted to arrange another purchase of fish from him with Sh.
(b) Witness statements in court as to the first set of charges
23. During the examination of the first set of charges against the applicant, namely unlawfully acquiring and possessing drugs and selling drugs to B. and O. in December 2003, the District Court heard, and the applicant questioned, O., Av., Le., Sv., Iv. and Yu. as witnesses.
(i) Statements by witness O.
24. Witness O. testified that in November 2003 he and B. had gone to Astrakhan from Voronezh and had bought fish from the applicant. Later, the applicant had contacted them and said that he could supply more fish. They had gone to Astrakhan again, where B. had bought drugs from someone. At the end of the investigation of the criminal case against him and B., the police had asked them, in exchange for a more lenient sentence, to go to Astrakhan again and incite the applicant to sell them drugs. He had refused, whereas B. had agreed.
25. O.’s testimony in court contradicted his earlier statements made during the pre-trial investigation and the prosecutor asked to have his pre-trial statement read out in court. The applicant did not object to this request and it was granted.
26. It was apparent from O.’s pre-trial statement that he and his business partner B. had been buying fish in Astrakhan and selling it in Voronezh. In November 2003, during their stay in Astrakhan, B. had met the applicant, who had promised to help them purchase some fish. In December 2003 they had again been in Astrakhan, where they had bought heroin from the applicant and transported it to Voronezh.
(ii) Statements by police officers Av., Le., Sv. and attesting witnesses Iv. and Yu.
27. Witness Av., a police officer, testified that he had taken part in the planning of the covert operation in June 2004 and had been present at the time of the applicant’s arrest and personal search. He had heard the applicant say at the time of his arrest that he had made money from selling drugs.
28. Witnesses Le. and Sv., police officers from the Voronezh police department, submitted that they had taken part in B. and O.’s arrest in March 2004 after they had tried to sell drugs to an undercover police officer.
29. Witness Iv. submitted that in March 2004 police had asked him to be an attesting witness during a search of B.’s apartment in Voronezh.
30. Witness Yu. submitted that in March 2004 police had asked him to be an attesting witness in the covert operation.
(c) Pre-trial witness statements as to the first set of charges
31. The prosecutor submitted two requests to have B. summoned as a witness; however, according to medical documents submitted to the District Court, B. could not attend the hearing because he had a serious oncological condition (cancer) and accompanying speech problems. The District Court then granted the prosecutor’s request, despite the applicant’s objections, to have B.’s pre-trial statement read out and admitted as evidence.
32. Witness B. testified in his pre-trial statement that his business partner O. had introduced him to the applicant in November 2003. The applicant had agreed to be an intermediary in his business, which involved supplying fish in Voronezh. On or around 15 December 2003 B. and O. had come to Astrakhan to buy fish. The applicant, however, had not had enough fish for them. B. had serious financial difficulties so O. had suggested buying drugs from the applicant. O. had assured B. that he had an established drug distribution network in Voronezh and that he would help B. to sell drugs within three days to resolve his financial troubles. That had been the first time B. had learnt that the applicant sold drugs. On or around 18 December 2003 the applicant had sold 1.5 kilograms of heroin to B. and O. They had then transported it to Voronezh. The police had arrested them there when they had been trying to sell heroin.
33. The District Court also read out and admitted pre-trial statements of five prosecution witnesses as evidence.
36. Attesting witnesses M., D. and Z. testified in their statements that in March 2004 the police had asked them to serve as attesting witnesses in the undercover operation, during which they had observed the manner in which the test purchase had been carried out in respect of B. and O.
(d) Witness statements in court as to the second set of charges
37. During the examination of the second set of charges against the applicant the District Court questioned three police officers (Sh., K. and Sha.) and two attesting witnesses.
38. Witness Sh. submitted that in June 2005 he had taken part in the test purchase from the applicant. B. had identified the applicant as the dealer. During the covert operation he and B. had met the applicant several times in the hotel room. At their last meeting the applicant had sold Sh. about 50 grams of heroin.
41. Witnesses Shi. and Ba. testified that the police had asked them to serve as attesting witnesses in the undercover operation, during which they had observed the manner in which the test purchase had been carried out in respect of the applicant.
(e) Witness pre-trial statements as to the second set of charges
42. The District Court also read out a pre-trial statement of absent witness B.
43. B. testified that he had agreed to take part in the test purchase from the applicant. A police officer, Sh., had been designated as the buyer. In late May B. had called the applicant to inform him that he had already sold the drugs to a certain person, someone who was interested in buying more drugs from him, but as wished to do so in person he would come to Astrakhan. The applicant had agreed and said that he would arrange the deal.
44. B. then described in detail how the covert operation had been carried out between 2 and 5 June 2004. In particular, he had called the applicant several times over those days to arrange a meeting with him. On 3 June 2004 the applicant had come to their hotel and B. had introduced him to Sh., who had asked the applicant to supply him with 2 kilograms of heroin and discussed other terms of the deal. The applicant had said that he could only get 1.2 kilograms of heroin and they had agreed to meet the following day. On 4 June 2004 the applicant had come to their hotel and said that he had contacted the dealers and that they would call him back. They had all stayed in the hotel room until the applicant had received a telephone call. The applicant told them that he would bring the heroin the next day. On 5 June 2004 the applicant had come to their hotel with about 38 grams of heroin. When Sh. had asked him about the remaining amount, the applicant had explained that he could bring more in two days. However, he had 9 grams on him for personal use so Sh. had agreed to buy that too. Sh. had handed money over to the applicant, who had said that he would go downstairs to get change. When he had left the room he had been arrested by the police.
(f) The applicant’s conviction
45. On 14 October 2005 the District Court sentenced the applicant to nine years’ imprisonment, after finding him guilty of drug offences, in particular the sale of drugs to B. and O. in December 2003 and Sh. on 5 June 2004. The court admitted the following material as evidence:
(i) the statements made during trial by O., Av., Le., Sv., Iv. and Yu. and the pre-trial statements of B., R., Su., M., D. and Z;
(ii) the statements made during trial by Sh., K., Sha., Shi. and Ba. and the pre-trial statement of B.
(iii) a record of the examination of the banknotes used to buy drugs from the applicant;
(iv) the test purchase record;
(v) the arrest record of 5 June 2004;
(vi) a transcript of the audio recording made in the course of the test purchase;
(vii) forensic chemical examination reports of substances seized at the crime scene;
(viii) a forensic examination report of the applicant’s palm prints.
48. The District Court did not use the applicant’s interrogation report of 6 June 2004 as evidence.
49. In his appeal against the conviction the applicant complained, among other things, that the trial court had not ensured the presence of a key prosecution witness, B.
50. On 2 March 2006 the Astrakhan Regional Court (“the Regional Court”) upheld the applicant’s conviction. It held that according to medical certificates, B. was suffering from cancer and could not speak. The trial court had therefore lawfully decided that his situation could be considered to be “other exceptional circumstances” which had prevented him from appearing at the hearing, and that his testimony could be read out in accordance with Article 281 of the Code of Criminal Procedure (see paragraph 77 below).
6. Supervisory review proceedings
(a) First set of supervisory review proceedings
51. On an unspecified date in 2006 the applicant applied to the Presidium of the Regional Court for a supervisory review of his conviction.
52. On 29 August 2006 it examined the applicant’s case by way of supervisory review. Neither the applicant nor his counsel were present at that hearing. The Presidium amended the judgment of 14 October 2005 as upheld on 2 March 2006 in so far as the applicant’s actions on 5 June 2004 had been classed as a drug offence, and held that his actions should have been classed as an attempt to commit a drug offence. It upheld the remainder of the judgment of 14 October 2005.
(b) Second set of supervisory review proceedings
53. On 6 March 2009 a judge of the Supreme Court of the Russian Federation (“the Supreme Court”) referred the case to the Presidium of the Supreme Court for examination on the merits, at the request of the Prosecutor General of the Russian Federation.
54. On 2 April 2009 the Supreme Court quashed the decision of 29 August 2006 by way of supervisory review, on the grounds that the applicant had not been duly informed of the date of the hearing, and had therefore been unable to attend. It remitted the case to the Presidium of the Regional Court for fresh examination.
(c) Third set of supervisory review proceedings
55. On 19 May 2009 the applicant requested the Presidium of the Regional Court (“the Presidium”) to provide him with legal aid counsel for the hearing before it. He claimed that he had insufficient means to pay for a lawyer.
57. The applicant objected to the panel of the Presidium on the grounds that it had already examined his case by way of supervisory review on 29 August 2006. The Presidium dismissed this objection, finding that the decision of 29 August 2006 had been quashed on procedural grounds. There was therefore no reason to exclude these judges from the new examination of the case.
58. The applicant submitted on the merits of the case that at the time of his arrest he had not been informed of his rights or provided with a lawyer and that the record of his arrest had been forged. He also had not received a copy of the arrest record or been able to question key prosecution witness B. at the trial.
59. Having examined the case file, the Presidium found that the applicant’s grounds of appeal were unsubstantiated. In particular, it held that the arrest record of 5 June 2004 had been duly authenticated and signed by the applicant, who had been informed of his rights, including the right to be represented by counsel. He did not however request that counsel be instructed or make any comments in the record. The Presidium also noted that statements by prosecution witnesses had been read out at trial in accordance with the law.
60. The Presidium amended the judgment of 14 October 2005 as upheld on 2 March 2006, held that the applicant’s actions on 5 June 2004 should have been classed as an attempt to commit a drug offence, and upheld the remainder of the judgment of 14 October 2005.
61. By a decision issued on the same day the Presidium ordered the recovery of counsel’s fees in the amount of 1,485.85 Russian roubles (RUB) (about 30 euros (EUR)) from the applicant for the representation in the supervisory review proceedings.
B. Conditions of detention
(a) between 6 and 9 June 2004;
(b) between 9 July and 16 December 2004;
(c) between 28 December 2004 and 11 April 2006; and
(d) between 27 February and 26 March 2008.
63. During the first three periods the applicant was detained in different cells. All of them were overcrowded and infested with insects. They measured about 25 square metres each and contained six bunk beds. He did not have an individual sleeping place and inmates had to take turns to sleep. Some cells were not equipped with ventilation system, while in others it was not working. The electric lighting was always on. The toilet was not separated from the rest of the cells.
64. During his last period of detention the applicant was detained in cell 5 located in the basement. He was not provided with any bedding or cooking utensils. Remand prison officers told him that he should have brought his own bedding. The cell was very cold and damp. Since he did not have any bedding he was obliged to sleep in his clothes. The windows were closed all the time and let in no daylight. The cell was never ventilated. The toilet was in the corner of the cell and offered no privacy. The dining table was very close to the toilet. The cell was infested with insects. Detainees could take a fifteen-minute shower once a week.
C. The applicant’s correspondence with the Court
65. On an unspecified date the applicant was transferred to correctional colony IK-2 in the Astrakhan region to serve his sentence. It appears that in 2010 he was transferred to correctional colony IK-6, also in the Astrakhan region.
66. The applicant submitted that the authorities of IK-2 and IK-6 had opened and read a number of the Court’s letters to him, in particular one dated 13 September 2006 acknowledging receipt of his application and giving him further information on the conduct of the proceedings before the Court, and others dated 21 November 2006, 15 January, 20 February, 22 and 29 May 2007, and 26 February 2008. The applicant provided the Court with copies of these letters. All of them had been stamped by the colony authorities.
67. The applicant also submitted that the colony authorities had delayed in sending the Court’s letters to him.
68. The Government claimed that during his detention in IK-2 and IK-6 the applicant had sent one letter to the Court and had received 11 letters from the Court. The receipt and dispatch of letters had been properly recorded in the prison log book. Some letters addressed to the applicant had been opened for registration purposes only. They had not been censored and had been handed over to the applicant in their entirety. One letter had been forwarded to the applicant after a four-day delay due to an omission by one of the prison employees who had been duly reprimanded in the intervening period.
II. RELEVANT DOMESTIC LAW
A. Pre-trial Detention Act (Federal Law no. 103-FZ of 15 July 1995)
69. Section 22 of the Detention of Suspects Act of 15 July 1995 provides that detainees should have at least 4 square metres of personal space in their cell. Section 23 provides that they should be kept in conditions which satisfy sanitary and hygiene requirements, provided with an individual sleeping place and given bedding, tableware and toiletries.
B. Criminal Procedure Code of 18 December 2001, in force since 1 July 2002 (the CCrP)
1. Legal representation
71. Article 50 § 1 provides that defence counsel should be called by a suspect or an accused, his legal representative or other persons upon his request or with the consent of the suspect or the accused.
72. Article 50 § 2, as in force at the material time, provided that an investigator, prosecutor or court should provide a suspect or an accused with counsel upon his request.
73. Article 51 § 1 of the CCrP provides for mandatory legal representation in criminal judicial proceedings if, inter alia, the defendant has not waived his right to legal representation in writing.
2. Grounds for arrest
74. Article 91 § 2 provides that a person can be arrested on suspicion of having committed an offence punishable by a term of imprisonment if, inter alia, victims and eyewitnesses have indicated that that person has committed a criminal offence.
3. Taking of samples for comparative analysis
75. Article 202 § 1 as in force at the material time, provided that an investigator could obtain handwriting or other samples for comparative analysis from a suspect as evidence if it was necessary to determine whether any traces had been left at a particular place.
4. Litigation costs
76. Article 131 of the CCrP provides that litigation costs are to be borne by the parties to the proceedings or the State. This includes lawyer’s fees if the lawyer has been appointed by the State. Article 132 provides that litigation costs have to be paid by the convicted person or the State. The courts have the power to order the convicted person to pay costs, with the exception of lawyer’s fees if the court had previously rejected the defendant’s waiver of counsel and the lawyer has been appointed by the State. The State is liable for costs if the person concerned is indigent. The court can also absolve the person concerned from the liability for costs or reduce their amount.
5. Absence of witness
77. Article 281 of the CCrP, as in force at the material time, provided that where a victim or witness did not appear at the hearing, the court could decide, at the request of a party to the proceedings or on its own initiative, to read out the testimony previously given by the victim or witness during the preliminary investigation. It could do so if the victim or witness had died or could not appear at the hearing because of serious illness, if he or she was a foreign national and refused to appear before the court, and in cases of natural disaster or if other exceptional circumstances prevented him or her from appearing.
6. Appeals against orders by the Presidium of the highest regional court
78. Article 403 § 2, as in force at the material time, provided that an appeal against an order issued by the Presidium of the highest regional court could be lodged with the Supreme Court of Russia in supervisory review proceedings.
C. Code of Execution of Sentences (CES)
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
80. The applicant complained that the conditions of his detention in IZ-30/1 in Astrakhan were 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.”
81. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
82. The applicant’s submissions regarding the conditions of his detention on remand in IZ-30/1 are presented in paragraphs 62-64 above.
83. The Government acknowledged that the conditions of the applicant’s detention in IZ-30/1 were incompatible with the requirements of Article 3 of the Convention on account of the overcrowding.
84. The Court notes that it examined the conditions of detention in IZ-30/1 between 2005 and 2008 and established that there was severe overcrowding in the facility (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 20-21, 134-38, 10 January 2012).
85. Having regard to the information submitted by the applicant and the Government’s acknowledgement that the conditions of his detention on remand during the periods in question had been inadequate, and given its own findings in the case of Ananyev and Others, cited above, the Court finds that the applicant was detained in cramped and inadequate conditions in IZ-30/1. The Court therefore considers that the applicant was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION (FAIR TRIAL)
86. The applicant complained under Article 6 §§ 1 and 3 (c) and (d) of the Convention that the overall fairness of the criminal proceedings against him was undermined because he had not been provided with a lawyer after his arrest, had been ordered to pay legal aid fees for representation in supervisory review proceedings, and because he had not been able to question a witness against him.
A. Legal assistance
87. The applicant complained that the trial in his case had not been fair because he had not been provided with a lawyer immediately after his arrest and because the court had ordered him to reimburse the State for legal aid fees incurred during the examination of his case in the third set of supervisory review proceedings. He relied on Article 6 §§ 1 and 3 (c) of the Convention which, in the relevant part, read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
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 ...”
1. Lack of legal assistance after arrest
88. The Government claimed that the applicant had not raised his complaint of a lack of legal assistance upon arrest with the domestic courts.
89. The applicant argued that he had raised complaints in this regard with both the domestic courts and the Prosecutor’s Office.
90. Having examined the applicant’s case file, the Court finds that the court records and grounds of appeal contain sufficiently clear and specific allegations that the applicant had not been provided with a lawyer immediately after his arrest. Moreover, it is clear from these documents and the respective judgments that these complaints were understood by the domestic courts as such, but were dismissed. Consequently, the Court concludes that the applicant’s complaint was brought to the attention of the domestic courts competent to deal with it. Accordingly, the Court dismisses the Government’s objection as to non-exhaustion of domestic remedies.
91. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(i) The parties’ submissions
92. The Government stated that on 5 June 2004 the applicant had been informed, immediately after his arrest, of his right to a lawyer from the moment of his arrest but that the applicant had not requested legal assistance. In any event, Article 51 of the CCrP did not require a lawyer to be present at the time of arrest. The applicant had also been informed of his right to remain silent and his wife had been notified of his arrest. The Government further claimed that, under Article 202 of the CCrP, the presence of a lawyer had not been mandatory when the applicant’s fingerprints and palm prints had been taken in order to promptly preserve the traces of the crime, and that the applicant in any event had not requested a lawyer at the time of his arrest and had subsequently used the results of the forensic examination as exculpatory evidence during his trial. Lastly, they contended that the applicant had been scheduled to be questioned on 6 June 2004 as a suspect but had invoked his right not to incriminate himself and refused to answer questions - even in the presence of lawyer Or.
93. The applicant maintained that on 5 June 2004 he had requested a lawyer immediately after his arrest but that the investigator had told him he did not need a lawyer, as no investigative measures were being carried out at that time. He further contended that his relatives had only learned of his arrest some four days after his arrest, while they were trying to locate his whereabouts. He stated that a lawyer who could have informed him of his rights should have been present when the investigator had ordered the expert examination of his fingerprints and palm prints. He also stated that he had not been questioned on either 5 or 6 June 2006. He further submitted that the original arrest record of 5 June 2004 had been lost from his criminal case file, and that a copy of it, as well as the interrogation report of 6 June 2004 submitted by the Government with their observations, had been forged. He maintained that on 6 June 2004 he had met his lawyer, Or., for the first time during the hearing on his pre-trial detention.
(ii) The Court’s assessment
(α) General principles
94. The Court notes at the outset that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1. The applicant’s complaints under Article 6 §§ 1 and 3 should therefore be examined together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I).
95. The Court reiterates that, although not absolute, the right under Article 6 § 3 (c) of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001-II). The question, in each case, is whether the restriction on the right to benefit from the assistance of a lawyer, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see John Murray v. the United Kingdom, 8 February 1996, § 63, Reports of Judgments and Decisions 1996-I).
96. The requirements of Article 6 § 3 (c) of the Convention may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with those requirements (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275).
97. In this respect, the Court emphasises the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial. At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer, whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression, in defiance of the will of the accused (see Pishchalnikov v. Russia, no. 7025/04, § 69, 24 September 2009, with references cited therein).
98. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify the denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used to secure a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008).
(β) Application of these principles to the present case
99. The Court notes that the applicant was informed of his right to legal counsel immediately after his arrest, in accordance with Article 49 § 3 (3) of the CCrP (see paragraphs 11 and 70 above). According to the record of the applicant’s arrest, he did not request counsel and made no other comments at the time of his arrest (see paragraphs 13 and 59 above). In this regard the Court notes that the applicant’s general allegations concerning the falsification of the record of his arrest were duly examined and dismissed as unsubstantiated by the Astrakhan Regional Court and the Court accepts these findings (see paragraph 59 above).
100. The Court further notes that when the police proceeded to have the applicant’s fingerprints and palm prints taken they confined themselves to promptly recording the gathered material for the purposes of investigating a criminal offence (see paragraphs 11, 14, 15 and 75 above). According to the applicant’s own submissions, the police did not question him after his arrest (see paragraphs 12 and 93 above).
101. In this regard, the Court observes that the record of arrest did contain a statement made by the applicant at the time of his arrest (see paragraph 11 above). However, it does not appear from the materials before the Court that the applicant provided this statement in response to questions by the police.
102. The Court further notes that when the applicant was scheduled to be questioned on 6 June 2006, his lawyer, Or., was present but the applicant refused to testify and made no other comments (see paragraph 16 above).
103. Furthermore, when the District Court was examining the applicant’s case it took the record of the arrest into account as evidence that the applicant had been caught after “witnesses and eyewitnesses indicated that the applicant had committed a criminal offence” (see paragraph 11 above). The District Court did not regard the applicant’s statement contained in the record of his arrest as a separate statement concerning the charges (see, for similar reasoning, Blaj v. Romania, no. 36259/04, § 96, 8 April 2014). Furthermore, the applicant did not allege, before either the domestic courts or this Court, that he had given any statements - either immediately after his arrest or later - without the benefit of legal advice or under duress. Neither he nor his appointed counsel sought to have the statement contained in the record of his arrest excluded from the evidence and he did not explain in either his observations or his original application to the Court whether and how any such statements had been taken into account by the District Court in finding him guilty or had impaired the overall fairness of the proceedings against him.
104. The applicant only complained about his fingerprints and palm prints having been taken in his lawyer’s absence. However, in any case, the District Court did not admit as evidence the forensic examination report on the applicant’s fingerprints, and the forensic reports on the applicant’s palm prints served as exculpatory evidence at the trial (see paragraphs 45-47 above).
105. In view of the above, given the circumstances of the present case, the Court concludes that the applicant’s right to counsel upon arrest was not restricted and the absence of a lawyer at the time of the applicant’s arrest did not prejudice the overall fairness of the proceedings against the applicant.
2. Recovery of legal fees for representation in the third set of supervisory review proceedings
107. The Government pleaded that the applicant had not appealed against the court order for the recovery of legal aid fees.
108. The applicant maintained his claim.
109. The Court will first consider the Government’s plea of non-exhaustion of domestic remedies and notes that under Russian law at the time, the applicant could have raised a supervisory review complaint with the Supreme Court of Russia against the order to pay costs issued by the Presidium of the Regional Court (see paragraph 78 above). However, the Court reiterates that the supervisory review appeal available at the relevant time in Russia was not regarded as an effective remedy to be exhausted in criminal proceedings (see Berdzenishvili v. Russia, (dec.), 29 January 2004, no. 31697/03). Accordingly, the applicant was not required to raise his complaint in such proceedings before bringing it to the Court. The Court therefore dismisses the Government’s objection as to non-exhaustion of domestic remedies.
110. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(i) The parties’ submissions
111. The Government submitted that the applicant had not applied to be exempted from reimbursing legal aid fees.
112. The applicant maintained that he had had insufficient financial means when the authorities had appointed a legal aid lawyer to represent him in the supervisory review proceedings, and that they should not have sought from him the reimbursement of his legal aid fees.
(ii) The Court’s assessment
113. The Court notes that the CCrP regards counsel’s fees as “litigation costs” to be borne, in general, by the party concerned. It thus appears that even if a convicted defendant has been provided with “free” legal assistance, he may still be required to pay for it after his trial (see paragraph 76 above).
114. The Court observes that the applicant was represented by lawyers Or., M. and I. before and during the first-instance trial and during the appeal proceedings (see paragraphs 16, 18 and 21 above) and by lawyer K. in the third round of supervisory review proceedings (see paragraph 56 above).
115. The Court further notes from the material before it that the State covered the costs of the applicant’s legal assistance throughout the proceedings. It only sought to recover legal fees paid to K. in respect of the third set of supervisory review proceedings; the amount claimed (EUR 30) does not appear excessive.
116. In any event, the applicant could have applied for a total or partial waiver of legal fees on account of indigence (see paragraph 76 above and Orlov v. Russia, no. 29652/04, § 113, 21 June 2011). In this connection, the Court considers it acceptable, under the Convention, that the burden of proving insufficient means should be borne by the person who pleads such insufficiency (see Orlov, cited above, § 114, citing Croissant v. Germany, 25 September 1992, §§ 33 and 34, Series A no. 237-B). However, the applicant did not submit any financial or other documents to support his claim for exemption on the grounds of indigence and did not cite any impediment to his obtaining such documents.
117. Therefore, considering that the applicant had a benefit of free legal assistance throughout the proceedings and that he did not apply to have waived legal fees paid to K. and given the amount of legal fees, the reimbursement order does not appear to have adversely affected the overall fairness of the proceedings against the applicant.
B. Absence of witness
119. The applicant also complained that the trial in his case had not been fair because the court had not obtained the attendance of witness B. for the prosecution. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”
120. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) The parties’ submissions
121. The Government claimed that the proceedings against the applicant had been fair. In particular, they submitted that witness B. had not participated in the hearing of the applicant’s case because he was suffering from a serious oncological condition (cancer) that had left him unable to speak. They further alleged that they had taken all necessary steps to ensure B.’s participation in the proceedings against the applicant. Furthermore, the courts had assessed B.’s pre-trial testimony along with other evidence, including statements of fourteen prosecution and defence witnesses questioned in court, pre-trial statements of five more witnesses and twenty pieces of documentary and physical evidence.
122. The applicant alleged that B.’s condition did not prevent him from appearing in court and if he could not speak, he could have responded to questions in writing. Furthermore, the applicant contended that B.’s pre-trial testimony had been the sole basis for his conviction, and the District Court had not taken into account the testimony of other witnesses when it had found him guilty. Lastly, he alleged that the authorities should have conducted a pre-trial confrontation between him and B.
(b) The Court’s assessment
123. In the case of Al-Khawaja and Tahery v. the United Kingdom ([GC] nos. 26766/05 and 22228/06, § 118, ECHR 2011), the Court held that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings.
124. Furthermore, as regards witnesses, the Court reiterates that there are two requirements which follow from this principle. Firstly, there must be a good reason for the non-attendance of a witness. Secondly, when a conviction is based solely or to a decisive degree on statements that have been made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or at trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (the so-called “sole or decisive rule”) (see Al-Khawaja, cited above, § 119). Where the conviction is based solely or decisively on the evidence of absent witnesses, the Court will inquire in each case whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place (ibid., § 147).
125. Turning to the facts of the present case, the Court observes that the prosecution summoned B. as a witness to the hearing of the applicant’s case twice. He did not appear because he was gravely ill and unable to speak (see paragraphs 31 and 50 above). The Court accepts the illness as the reason for the absence in accordance with the domestic law. In the light of the above and on the basis of the material before it, the Court therefore considers that B.’s confirmed poor physical condition significantly impaired him and was a good reason for his non-attendance of the trial.
126. The Court will also examine whether B.’s pre-trial statements were sole or decisive evidence of the applicant’s guilt. The applicant alleged that in finding him guilty, the District Court had only relied on B.’s pre-trial testimony, without taking into account the testimony of other witnesses. However, witness O. who bought drugs from the applicant together with B. in December 2003, testified about the deal and the applicant questioned him in court. Furthermore, according to the trial transcript, the accuracy of which the applicant did not dispute, the applicant had no objections to the admission of O.’s pre-trial statement as evidence (see paragraph 25 above). In this regard, the Court notes that O. and B.’s pre-trial testimony was identical. In particular, they both testified during the pre-trial investigation that they had met the applicant in Astrakhan in November 2003, that he had sold them heroin in December 2003, and that they had transported it to Voronezh (see paragraphs 26 and 32 above). Furthermore, the District Court also heard six police officers who had organised and participated in the undercover operation themselves, and testified about the applicant’s involvement in the sale of drugs (see paragraphs 27, 28 and 38 - 40 above). The applicant was able to question all of them in court and did not repudiate their testimony in his observations to the Court. The District Court also admitted pre-trial statements of two absent police officers and three absent attesting witnesses, as well as a significant amount of documentary and physical evidence (see paragraphs 34 - 36 and 46 above).
127. Having regard to the above, the Court considers that the applicant’s conviction cannot be said to have been based solely or to a decisive degree on B.’s pre-trial statement. The Court does not therefore find it necessary to assess whether a pre-trial confrontation or other counterbalancing factors should have been in place to compensate for B.’s absence from the applicant’s trial.
III. ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE CONVENTION
129. The applicant also complained that his correspondence with the Court had been opened and read by the detention facility’s administration, which had also refused to send some of his letters to the Court. He relied on Articles 8 and 34 of the Convention, which read:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“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.”
130. The Court has examined complaints concerning the monitoring of correspondence between applicants and the Court under Article 8 of the Convention, under Article 34, or under both provisions (see, with further references, Shekhov v. Russia, no. 12440/04, § 53, 19 June 2014).
131. As the Court is master of the characterisation to be given to the facts of the case, and having regard to the nature of the interference and the contents of the applicant’s submissions, it considers that the matters relating to the correspondence between the applicant and the Court should be examined under Articles 8 of the Convention.
132. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. Submissions by the parties
133. The Government denied hindering the effective exercise of the applicant’s right of petition. They claimed that some of the Court’s letters had been opened by prison employees, but maintained that they had not been censored. They had been opened for registration purposes only and had been handed over to the applicant in their entirety. One letter had been sent to him after a four-day delay, but this was due to an omission by one of the prison employees who had been duly reprimanded.
134. The applicant maintained his claims.
2. The Court’s assessment
135. The Court observes that the applicant claimed that at least seven of the Court’s letters had been opened by the prison administration. The Government stated that the letters had been opened for registration purposes only, without being read. The Court considers that the opening of the letters addressed to the applicant constituted an interference with his rights under Article 8.
136. The Court reiterates that interference with Article 8 rights must be applied “in accordance with the law”; it must pursue one or more of the legitimate aims listed in paragraph 2; and, in addition, must be justified as being “necessary in a democratic society”.
137. The Court notes that at the relevant time, Article 91 of the Code of Execution of Sentences expressly prohibited the monitoring of correspondence between a detainee and the Court (see paragraph 79 above). The applicant’s correspondence with the Court was privileged and not subject to monitoring. Thus, the Court’s letters were opened in breach of domestic law, which provided for no exception to the regulation in question.
138. In the light of the above finding, it is not necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with.
139. Accordingly, the Court considers that in the present case there has been a violation of Article 8 of the Convention on account of the opening of the applicant’s correspondence with the Court.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
140. Lastly, the Court has examined the other complaints submitted by the applicant under Article 2, Article 3, Article 5, Article 6, Article 7, Article 8 and Article 14 of the Convention. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
141. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
142. The applicant claimed compensation in respect of pecuniary damage, leaving the amount to be awarded to the Court’s discretion. The Government submitted that the applicant did not claim any at all. The Court observes that the applicant failed to substantiate his claim of pecuniary damage incurred and, for that reason, rejects it.
143. The applicant also claimed 100,000 euros (EUR) in respect of non-pecuniary damage for a violation of Article 3 of the Convention and EUR 100,000 for the interference with his correspondence.
144. The Government considered that the acknowledgment of a violation, if found by the Court, would constitute sufficient just satisfaction in the present case. They contested the claim for compensation for non-pecuniary damage by the applicant as unsubstantiated, excessive and out of line with the awards made by the Court in similar cases.
145. The Court considers that the applicant’s suffering caused by the conditions of detention on remand and his frustration with the monitoring of his correspondence with the Court cannot be compensated for by the mere finding of a violation; however, the sums claimed by him appear to be excessive. Making its assessment on an equitable basis and having regard to the nature of the violations found, the Court awards the applicant EUR 9,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
146. The applicant claimed, in general terms, compensation in respect of legal costs and expenses incurred before the domestic courts and the Court, leaving the amount to be awarded to the Court’s discretion.
147. The Government submitted that the applicant did not claim any compensation in respect of costs and expenses, and therefore no award should be made.
148. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to the fact that the applicant has been granted legal aid, the Court rejects the applicant’s additional claim for costs and expenses.
C. Default interest
149. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning the conditions of detention on remand, the absence of legal representation after arrest, recovery of legal fees, absence of witness from trial and monitoring of the applicant’s correspondence with the Court admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s conditions of detention on remand in IZ-30/1 in Astrakhan;
3. Holds that there has been no violation of Article 6 §§ 1 and 3 (c) the Convention on account of the lack of legal assistance after arrest;
4. Holds that there has been no violation of Article 6 §§ 1 and 3 (c) on account of recovery of legal fees paid for legal representation the third set of supervisory review proceedings;
5. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) on account of absence of witness;
6. Holds that there has been a violation of Article 8 the Convention on account of opening of the applicant’s correspondence with the Court by the prison authorities;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,800 (nine thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
8. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach András
Deputy Registrar President