(Application no. 7025/04)
24 September 2009
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 Pishchalnikov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 3 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Arrest and pre-trial investigation
“Before the inquiry [the applicant] is informed that by virtue of the requirements of Article 149 of the RSFSR Code of Criminal Procedure and on the basis of Articles 46, 47, 48, 49, 77, 141-1, 151, 152, 154, 202, 202-2 of the RSFSR Code of Criminal Procedure he has a right: to defend himself, to know what he is charged with and to give explanations about the charges brought, to submit evidence, to lodge requests, to complain to a court about the unlawfulness and ill-foundedness of his arrest and detention, to study records of investigative actions in which he participated, [to study] materials which were submitted to a court as evidence of the lawfulness and well-foundedness of the authorisation and extensions of [his] detention on remand and, after the end of the pre-trial investigation, [to study] all materials of the criminal case file, to copy any and in any amount information out of [the case file], to be assisted by counsel from the moment when the arrest record or a detention order or a bill of indictment is served on [him], to have private meetings with counsel, to lodge complaints with a court against the arrest or extension of detention and to participate in a court hearing when [those complaints] are examined, to participate in trial hearings, to challenge [the bench, prosecutor, other participants of criminal proceedings], to appeal against investigators', interrogators', prosecutors' and courts' actions and decisions, to defend his rights and lawful interests by any other means and measures which do not run contrary to the law, and [he] also [has] the right [to make pleadings at the end of the trial] as a defendant.
Moreover, [the applicant] was informed that by virtue of Article 51 of the Constitution of the Russian Federation, no one is obliged to make self-incriminating statements and [statements] incriminating his/her spouse and close relatives, whose list is determined by the federal law.
[the applicant's signature]
According to Article 17 of the RSFSR Code of Criminal Procedure I was informed of my right to make statements in my native language and to be assisted by an interpreter. I speak Russian. I do not need the services of an interpreter and want to make statements in Russian.
[the applicant's signature]
Before the interrogation [the applicant] stated: I need to be assisted by counsel appointed by a Bar Association.
[the applicant's signature]
I can give the following explanation in relation to the questions put to me:
The content of the charges against me was explained to me.
I partially admit my guilt of having committed crimes under Article 327 § 3 and Article 327 § 2 of the Criminal Code of the Russian Federation. In fact, I forged two passports of USSR citizens. One of [the passports] was issued in the name of Mr M., and the other one [was issued] in the name of Mr Z. I glued pictures of myself in those passports and forged the cameo printing “USSR Passport” with a wooden homemade engraving, which I had made myself. I bought Mr Z.'s passport in Revda town railway station from Mr Z. for 50 Russian roubles; [I] took Mr M.'s passport from my house where it was kept. In my house, that is at the [following address]: ... where I lived temporarily. [I] note that my mother lives permanently at that address. I have never used passports in the names of Mr Z. and Mr M.
I do not confess to [having committed] other criminal offences with which I am charged.
By virtue of Article 51 of the Russian Constitution I will no longer make any statements.
My words recorded correctly and read by me.
[the applicant's and his lawyer's signatures].”
B. Trial and appeal proceedings
“refusals of legal assistance handwritten by [the accused] in the [interrogation] records due to the fear of a leak of information should be considered involuntary as in reality lawyers were not appointed during the interrogations”.
II. RELEVANT DOMESTIC LAW
A. Access to counsel
1. RSFSR Code of Criminal Procedure of 1960, in force until 1 July 2002 (“old CCrP”)
“A lawyer should be called to take part in a case at the moment when charges are brought or, if a person suspected of a criminal offence is arrested or detained before charges are brought against him, at the moment when the arrest record or a detention decision is read out to him.
If the lawyer chosen by a suspect or an accused is unable to appear within twenty-four hours after the arrest or detention has been effected, an interrogator, investigator, or a prosecutor may offer the suspect or accused the possibility to retain another lawyer or provide him with a lawyer through the assistance of the Bar Association.”
2. Code of Criminal Procedure of the Russian Federation of 18 December 2001, in force since 1 July 2002 (“new CCrP”)
“1. Participation of legal counsel in the criminal proceedings is mandatory if:
1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code;
2) the suspect or the accused is a minor;
3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap;
3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code;
4) the suspect or the accused does not speak the language in which the proceedings are conducted;
5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;
6) the criminal case falls to be examined by a jury trial;
7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code;
3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on request, or with consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.”
B. Reopening of criminal proceedings
“1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances.
4. New circumstances are:
(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:
(a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;
(c) other new circumstances.”
III. RELEVANT INTERNATIONAL DOCUMENTS
Right of access to a lawyer during police custody
1. Council of Europe
Rules adopted by the Committee of Ministers
23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.
23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.
23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”
(2) United Nations
International Covenant on Civil and Political Rights
(3) European Union
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE PROCEEDINGS
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
A. Submissions by the parties
B. The Court's assessment
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF ABSENCE OR DEFICIENCY OF LEGAL REPRESENTATION
“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.”
A. Submissions by the parties
B. The Court's assessment
(a) Restrictions on access to a lawyer in the police custody
(i) General principles
(ii) Application of the above principles in the present case
(α) Whether the applicant's access to counsel was restricted
(β) Whether the restriction of the defence rights was justified. Waiver of the right to counsel
(γ) The effect of the restriction on the overall fairness of the criminal proceedings
Ineffectiveness of legal assistance during the trial and absence of legal aid on appeal
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 5,500 (five thousand five hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the settlement, plus any tax that may be chargeable;
(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.
Done in English, and notified in writing on 24 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Spielmann is annexed to this judgment.
CONCURRING OPINION OF JUDGE SPIELMANN