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ALEKSANDR ZAICHENKO v. RUSSIA - 39660/02 [2010] ECHR 185 (18 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/185.html
Cite as:
[2010] ECHR 185
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FIRST
SECTION
CASE OF ALEKSANDR ZAICHENKO v. RUSSIA
(Application
no. 39660/02)
JUDGMENT
STRASBOURG
18 February 2010
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 Aleksandr Zaichenko
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 28 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 39660/02) 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 Aleksandr Georgievich
Zaichenko (“the applicant”), on 8 August 2001.
The
applicant was represented by Mr A. Adamchik, a lawyer practising
in Birobidjan. The Russian Government (“the Government”)
were represented by Mr P. Laptev and subsequently by Ms
V. Milinchuk, the then Representatives of the Russian Federation
at the European Court of Human Rights.
On
17 November 2005 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1946 and lives in the village of Lazarevo in
the Jewish Autonomous Region, Russia.
The
applicant worked as a driver for a private company.
It
appears that at the time there were several reported cases of the
company workers allegedly pouring out diesel from their service
vehicles. Thus the company’s director asked the competent
authorities to carry out checks.
On
21 February 2001 while driving home in the company of another
person (Mr Kh), the applicant’s car was stopped and
inspected by the police. Two cans of diesel were discovered in the
car.
According to the applicant, in reply to the questioning
by the police he did not tell about the purchase of the fuel because
he felt intimidated and did not have a receipt to prove the purchase
(see also paragraph 14 below). That is why he explained that he had
poured the fuel from the tank of his service vehicle (see also
paragraph 11 below).
Immediately, a vehicle inspection record was drawn
under Article 178 of the RSFSR Code of Criminal Procedure (CCrP) in
force at the material time (see paragraph 26 below). The record reads
as follows:
“Vehicle Inspection Record [drawn] at Birofeld
village on 21 February 2001 from 8.50 to 9.20 [pm].
Officers B and L in the presence of attesting witnesses
K and P and [the applicant] have carried out an inspection of
VAZ-21061 car in compliance with Articles 178 and 179 of the RSFSR
Code of Criminal Procedure and have drawn this record under Article
182 of the Code.
Before the start of the inspection all the above persons
have been informed of their rights to be present throughout the
proceeding and to make comments in relation to the inspection...
The attesting witnesses have been informed of their
obligation to attest the fact of the inspection and its results
(Article 135 of the Code)...
During the inspection one passenger was present in the
car; there was a white plastic can with fuel (ten litres). There was
another metallic can of fuel (twenty litres) in the car boot...
The physical evidence has been seized in order to be
attached to a criminal file: the plastic can with fuel (ten litres)
and the metallic can with twenty litres of fuel...
Requests and comments by the participants: [the
applicant] explained that he had poured out the fuel from the company
premises.
I have read the record and agree with its contents.
Signatures: Officer B, attesting witnesses K and P, [the
applicant], officer L.”
Having completed the inspection record, officer B put
in writing a statement entitled “Explanations”, which
included a note concerning Article 51 of the Constitution of the
Russian Federation on the privilege against self-incrimination (see
paragraph 21 below). The “Explanations” read as follows:
“Explanations [put in writing] on 21 February 2001
at Birofeld village.
I, officer B..., have interviewed [the applicant]...
The contents of Article 51 of the Constitution have been
explained to me. {[the applicant’s signature]}
I [the applicant] make the following statement. Since
1997 I have been employed as a driver by a private company. On 21
February 2001 I arrived to my workplace at 9 am. During the day
I was repairing my service vehicle. In the evening I poured out
thirty litres of fuel from the tank of my service vehicle. I have
previously brought the cans, ten and twenty litres each, from home.
After work, at around 8 pm, I was driving home in my car and was
stopped by the police. The car was inspected in the presence of the
attesting witnesses. I poured out the fuel for personal use.
{in the applicant’s handwriting} I have read this
statement. It is correct. {[the applicant’s] signature.}
{Officer’s B signature.}”
On
the same day, both attesting witnesses made written statements,
indicating that they had been present during the inspection of the
car and seizure of the fuel. They confirmed that the applicant had
explained that he had poured out the fuel from the company premises
for personal use.
The applicant was not detained. On 2 March 2001 an
inquirer compiled a report under a so-called record-based procedure
(see paragraph 23 below) on the events of 21 February 2001. The
report reads as follows:
“I, inquirer P, have examined the data concerning
theft. As required under Article 415 of the RSFSF Code of Criminal
Procedure, I have compiled this report, which states as follows:
At 8 pm on 21 February 2001 [the applicant]...being at
work intentionally stole from his service vehicle the diesel in the
amount of thirty litres. Thereby, he caused to the company pecuniary
damage in the amount of 279 roubles.
His actions disclose an offence of theft punishable
under Article 158 § 1 of the Criminal Code.
The above has been confirmed by the following evidence:
1. the inspection record . 2. [the applicant’s]
written statement. 3. Mr K’s written statement. 4. Mr P’s
written statement...
{Inquirer P’s signature}”
On the same day, the inquirer’s superior opened
a criminal case against the applicant on suspicion of theft and
summoned him (see paragraph 23 below). The act of accusation read as
follows:
“I, major K, having examined the [inquirer’s]
report and the enclosed documents, consider that there are sufficient
grounds indicating that [the applicant] had committed the offence of
theft punishable under Articile 158 of the Criminal Code.
Pursuant to the procedure under Article 415 § 4 of
the RSFSR Code of Criminal Procedure, a criminal case should be
opened against [the applicant]...
The accusation: At 8 pm on 21 February 2001 [the
applicant]...being at work intentionally stole from his service
vehicle the diesel in the amount of thirty litres. Thereby, he caused
to the company pecuniary damage in the amount of 279 roubles.
Major K’s signature
I have been informed of the nature of the accusation,
the right to have access to the case file, the right to legal
representation, the right to make requests and challenge the
inquiring authorities’ actions.
[the applicant’s] signature
I have studied the case file and have read this
document. I have no requests or motions. I do not require legal
assistance; this decision is based on reasons unrelated to lack of
means. I will defend myself at the trial.
[the applicant’s] signature”
At the trial the applicant was represented by Mr
Adamchik, a lawyer practising in Birobidjan. As follows from the
trial judgment and the trial record, the applicant contended at the
trial that he had purchased the fuel on or around 15 February
2001 at a petrol station; on 21 February 2001 he had put the cans in
his car intending to exchange it for firewood later and went to his
work; after the working day he was stopped by the police on his way
home; when stopped he had not told about the purchase of the fuel
because he felt intimidated and had no receipt to prove the purchase.
He contended that Mr Kh, who was in his car on 21 February 2001, had
seen the applicant purchase the fuel at the petrol station. At the
trial the applicant was asked if the inspection record had been drawn
up on the spot or in Birofeld. The applicant replied as follows:
“[The police] started to draw up the inspection
record on the spot. Then a bus arrived. There was a tense situation
so we left. The bus was also inspected...
The inspection record was signed in Birofeld. It was
started on the spot but was not finished there.”
On
20 March 2001 the applicant submitted to the court an invoice for the
purchase of diesel. The court refused to accept the invoice in
evidence considering that the applicant did not specify why he had
not adduced that evidence at the initial stage of the questioning by
the police or at the opening of the trial. The applicant, however,
indicated that the invoice had been kept by his wife. It also appears
that he specified the name and location of the petrol station where
he had allegedly bought it and asked the court to verify this fact.
It appears that the court did not follow up his request.
The
trial court heard the applicant’s wife, who claimed that she
had purchased the fuel and had given one petrol can to the applicant
and that the applicant had purchased the remainder. The court also
questioned Mr Kh who claimed to have seen the applicant purchasing
diesel. Mr Kh was with the applicant on 21 February 2001 and
told the court that he had not witnessed any threats to the applicant
from the police officers. The trial court refused to take those
testimonies into consideration, considering that those persons were
in close or friendly relationship with the defendant and that their
testimonies would therefore be prejudiced.
Instead, the trial judge relied on the inspection
record and the written statement made by the applicant on 21 February
2001, testimonies from the attesting witnesses who had been present
during the inspection and seizure of fuel from the applicant’s
car. The court also examined a Mr F who explained there had been
cases of workers pouring out diesel from their service vehicles, and
thus the company’s director had asked the competent authorities
to carry out checks. The applicant’s car was apparently stopped
during one of the checks.
Having examined the evidence, the judge considered
that as followed from the inspection record, the applicant had
admitted to “have stolen” the diesel from the company
premises. By a judgment of 20 April 2001, the Birobidjan District
Court convicted the applicant of theft and sentenced him to a
suspended sentence of six months’ imprisonment. The court held
as follows:
“It follows from the inspection record that two
cans of diesel (thirty litres) were seized from [the applicant’s]
car...The applicant explained that he had stolen the diesel from the
company premises...
Assessing the defendant’s testimony at the trial,
the court considers that it is made-up with a view to avoiding
criminal responsibility for the crime committed; this testimony has
not been supported by any objective evidence. The court takes into
account his pre-trial testimony, from which it follows that on 21
February 2001 after the end of his working day he had poured out fuel
from his service vehicle and was stopped on his way back home. This
testimony is logical and corresponds to witness statement by Mr F,
Mr K and Mr P, as well as to the materials in the case file.”
The
applicant and his counsel appealed alleging that there was no proof
that any diesel had been stolen from the company and that the
applicant had not been apprised of the privilege against
self-incrimination while the court then relied on his admissions made
on 21 February 2001. In his appeal, the prosecutor considered that
the applicant’s acts should be reclassified as misappropriation
of property. On 24 May 2001 the Court of the Jewish Autonomous
Region dismissed the appeals and upheld the judgment. The court
confirmed that the applicant had been convicted on the basis of his
own pre-trial admission and other evidence obtained by lawful means,
including the inspection record. The applicant’s allegation of
self-incrimination had been rightly rejected as unfounded.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Russian Constitution
Article 48 § 2 of the Constitution provides that
an arrested or detained person or a person accused of a criminal
offence should have a right to legal representation from the moment
of his or her arrest, placement into custody or when charges are
brought.
Article 51 of the Constitution provides that no one
should be obliged to give evidence against himself or herself, his or
her spouse or close relative. Other exemptions from the obligation to
testify may be authorised by a federal statute.
B. RSFSR Code of Criminal Procedure
1. Right to legal representation
Pursuant to Article 47 § 1 of the Code, counsel
could participate in the proceedings from the date when charges were
brought or when the person was arrested or detained. If no
preliminary inquiry or investigation was required in the case,
counsel could participate in the proceedings from the date when the
case was submitted for trial (Article 47 § 2). On 27 June
2000 the Constitutional Court declared Article 47 § 1
unconstitutional as regards the limitation on legal representation
before charges were brought. The Constitutional Court decided that
until the relevant legislation was amended, Article 48 § 2 of
the Constitution should be directly applicable with due regard to the
interpretation given by the Constitutional Court.
2. Record-based procedure
Chapter 13 of the RSFSR Code of Criminal Procedure
provided for a record-based pre-trial procedure in respect of a
number of criminal offences. The general provisions of the Code were
applicable in this procedure unless Chapter 13 of the Code otherwise
provided (Article 414). Under the record-based procedure, an inquirer
was required to determine within ten days the circumstances of the
case, identify the offender and collect the evidence (Article 415).
The offender should sign an undertaking to present himself on the
inquirer’s or court’s summons. The circumstances of the
case and the legal characterisation of the offence should be put in
writing in a report.
Having
examined the report, the inquiring authority should open a criminal
case. The person concerned should be informed of the nature of the
accusation and be apprised of his right to legal representation and
to have access to the file.
Having
received the file, the prosecutor should (i) submit the case to a
court or (ii) order an inquiry or preliminary investigation or (iii)
discontinue the case.
3. Inspection
An investigator could carry out an inspection of a
crime scene, location, premises, physical objects or documents in
order to detect traces of the crime or other physical evidence or to
determine the relevant circumstances (Article 178 of the Code). In
urgent cases, the inspection could be carried out before opening a
criminal case. In such cases, the case was to be opened immediately
after the inspection of the crime scene.
A
record had to be drawn up and signed by all persons who took part in
the investigative measure (Articles 141 and 182 of the Code). Those
persons were to be informed that they had a right to make comments
(Article 141). If the suspect, accused or another participant refused
to sign the record, a note to this effect should be included in the
record (Article 142).
4. Admissions
An accused had a right to give the testimony on the
charges against him, the circumstances of the case and the evidence
collected in the case. His or her admission of guilt in the
commission of an offence could be used as a basis for criminal
charges only if his or her culpability was confirmed by the totality
of evidence collected in the case (Article 77 of the Code).
C. Code of Criminal Procedure
Article 413 of the Code of Criminal Procedure, in
force at the present time, provides for a possibility to re-open
criminal proceedings on the basis of a finding of a violation of the
Convention made by the European Court of Human Rights.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
The
applicant alleged that the proceedings on 21 February 2001 and the
ensuing criminal proceedings before the national courts, taken
together, had violated his rights under Article 6 §§ 1 and
3 (c) and (d), Article 7 of the Convention and Article 2 of Protocol
No. 7. The Court has examined the applicant’s complaint
under Article 6 of the Convention, which in the relevant parts reads
as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ...
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
1. Complaints concerning the pre-trial proceedings
The
applicant alleged that on 21 February 2001 he had admitted the
wrongdoing without the benefit of legal advice, fearing incarceration
and in the hope of being acquitted at the trial. The applicant
submitted that the village in which the questioning had taken place
and the proceedings had been instituted had no lawyers. He had not
been afforded any time to retain one from a nearby town.
The
Government submitted that the applicant’s car had been
inspected in the presence of two attesting witnesses; two cans of
diesel had been seized from the car. As follows from the inspection
record signed by the applicant, he had poured out the diesel from his
employer’s premises. Thereafter, he had been apprised of his
right not to testify against himself and had been questioned under
Article 415 of the RSFSR Code of Criminal Procedure (CCrP) (see
paragraph 23 above). The applicant confirmed that he had taken the
diesel for personal use. The Government contended that Article 47 of
the CCrP had not been applicable in the record-based proceedings (see
paragraph 22 above). The latter did not require presence of counsel
for an on-the-spot interview such as that of the applicant on
21 February 2001. In any event, the applicant waived his right
not to testify against himself.
2. Complaints concerning the court proceedings
The
applicant also complained that the trial court should not have
convicted him on the basis of his pre-trial statements; the trial
judge had arbitrarily rejected the testimonies by the defence
witnesses, including the applicant’s wife and Mr P and thus had
failed to examine them under the same conditions as the prosecution
witnesses, who merely attested the fact of the car inspection. He
also contended that both the trial and appeal courts had wrongly
refused to verify and to take into consideration other exculpatory
evidence, including an invoice for the purchase of diesel.
The
Government submitted that the applicant’s conviction had been
based on his pre-trial statements and witness testimonies by Mr K,
Mr P and Mr F. The witnesses suggested by the applicant had been
examined by the trial court. Their testimony had not been considered
reliable in view of their interest in the outcome of the proceedings.
Despite repeated requests from the trial court, the applicant had
failed to provide a convincing explanation for the delay in
submitting the invoice. Thus, this document had not been accepted in
evidence.
B. The Court’s assessment
1. Admissibility
The Court considers that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
(a) General principles
The
Court reiterates that Article 6 – especially
paragraph 3 – may 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 its
requirements (see Öcalan v. Turkey [GC], no. 46221/99,
§ 131, ECHR 2005 IV, and Imbrioscia
v. Switzerland, 24 November
1993, § 36, Series A no. 275).
The manner in which Article 6 §§ 1 and 3 (c) is to be
applied during the preliminary investigation depends on the special
features of the proceedings involved and on the circumstances of the
case. In order to determine whether the aim of Article 6 – a
fair trial – has been achieved, regard must be had to the
entirety of the domestic proceedings conducted in the case
(Imbrioscia, cited
above, § 38).
In
Salduz v. Turkey [GC] (no. 36391/02, §§ 55, 27
November 2008) the Court held that as a rule, access to a lawyer
should be provided as 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. 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 for a
conviction (ibid, and more recently, Çimen v. Turkey,
no. 19582/02, §§ 26-27, 3 February 2009).
The Court also reiterates that the right to silence
and the right not to incriminate oneself are generally recognised
international standards which lie at the heart of the notion of a
fair procedure under Article 6. Their rationale lies, inter alia,
in the protection of the accused against improper compulsion by the
authorities, thereby contributing to the avoidance of miscarriages of
justice and to the fulfilment of the aims of Article 6 (see Bykov
v. Russia [GC], no. 4378/02, § 92, ECHR 2009 ..., with
further references). The right not to incriminate oneself 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, inter alia, J.B. v. Switzerland,
no. 31827/96, § 64, ECHR 2001-III). In this sense
the right is closely linked to the presumption of innocence contained
in Article 6 § 2 of the Convention. In examining whether a
procedure has extinguished the very essence of the privilege against
self-incrimination, the Court must examine the nature and degree of
the compulsion, the existence of any relevant safeguards in the
procedures and the use to which any material so obtained is put
(ibid.).
The
general requirements of fairness contained in Article 6 apply to all
criminal proceedings, irrespective of the type of offence at issue.
Public-interest concerns cannot justify measures which extinguish the
very essence of an applicant’s defence rights, including the
privilege against self-incrimination guaranteed by Article 6 of the
Convention (see Bykov, cited above, § 93).
Lastly, the Court reiterates that a waiver of a right
guaranteed by the Convention – in so far as it is permissible –
must not run counter to any important public interest, must be
established in an unequivocal manner and must be attended by minimum
safeguards commensurate to the waiver’s importance (see
Sejdovic v. Italy [GC], no. 56581/00, § 86,
ECHR 2006 ...). Moreover, before an accused can be said to have
impliedly, through his conduct, waived an important right under
Article 6, it must be shown that he could reasonably have foreseen
what the consequences of his conduct would be (see Talat Tunç
v. Turkey, no. 32432/96, § 59, 27 March 2007, and
Jones v. the United Kingdom (dec.), no. 30900/02, 9 September
2003).
(b) Application in the present case
Having
examined all the material submitted by the parties, the Court makes
the following findings as to the sequence of events concerning the
applicant’s self-incriminating statements. As followed from the
statement made at the trial by Mr F, there had previously been cases
of workers pouring out diesel from their service vehicles, and thus
the company’s director had asked the competent authorities to
carry out checks (see paragraph 17 above). The applicant’s car
was apparently stopped during one of such checks. It does not
transpire from the case file that at any time on 21 February
2001 the applicant was informed of the reason for which his car had
been stopped and inspected. Neither was he informed of the nature and
cause of any suspicion or accusation against him. After the police
inspection of his car, the applicant was asked about the origin of
the fuel. He did not tell them about the purchase of the fuel because
he felt intimidated and did not have a receipt to prove the purchase.
Instead, he stated that he had poured out the fuel from his service
vehicle. An inspection record was drawn. This record contained a note
indicating that the applicant had poured out the fuel from the
company’s premises. Shortly thereafter, the applicant was
apprised of his right to remain silent and signed a statement to the
police confirming that he had poured out thirty litres of fuel from
his service vehicle for personal use.
The Court reiterates that in criminal matters, Article
6 of the Convention comes into play as soon as a person is “charged”;
this may occur on a date prior to the case coming before the trial
court, such as the date of arrest, the date when the person concerned
was officially notified that he would be prosecuted or the date when
preliminary investigations were opened (see Eckle v. Germany,
15 July 1982, § 73, Series A no. 51, and more recently,
O’Halloran and Francis v. the United Kingdom [GC],
nos. 15809/02 and 25624/02, § 35, ECHR 2007 ...).
“Charge”, for the purposes of Article 6 § 1, may be
defined as “the official notification given to an individual by
the competent authority of an allegation that he has committed a
criminal offence”, a definition that also corresponds to the
test whether “the situation of the [person] has been
substantially affected” (see Shabelnik v. Ukraine, no.
16404/03, § 57, 19 February 2009; Deweer v. Belgium, 27
February 1980, § 46, Series A no. 35; and Saunders v. the
United Kingdom, 17 December 1996, §§ 67 and 74, Reports
of Judgments and Decisions 1996 VI). Given the context of
the road check and the applicant’s inability to produce any
proof of the diesel purchase at the moment of his questioning by the
police, the Court considers that there should have been a suspicion
of theft against the applicant at that moment.
Applying these principles to the facts of the case,
the Court notes that the trial court’s use made of the
admissions made on 21 February 2001, which led to the institution of
criminal proceedings against the applicant and then served for
convicting him of theft, is at the heart of the applicant’s
complaints under Article 6 of the Convention (compare Saunders,
cited above, §§ 67 and 74; and Allen v. the United
Kingdom (dec.), no. 76574/01, 10 September 2002). It is
also noted that the inspection record itself indicated Article 178 of
the RSFSR Code of Criminal Procedure as the legal basis for the
inspection (see paragraph 26 above). Thus, although the applicant was
not accused of any criminal offence on 21 February 2001, the
proceedings on that date “substantially affected” his
situation. The Court accepts that Article 6 of the Convention was
engaged in the present case. Nor was there any disagreement on this
point between the parties.
The
Court further notes that the main thrust of the applicant’s
complaint is that he was convicted on the basis of his pre-trial
admissions made without the benefit of legal advice. It is noted that
the respondent Government did not plead that the applicant had not
exhausted domestic remedies by failing to raise in substance the
above issue on appeal against the trial judgment. Thus, the Court
will examine the merits of the applicant’s complaint.
Although
the Court has accepted that Article 6 of the Convention was
applicable in the pre-trial proceedings in the present case (see
paragraph 43 above), the Court repeats that the manner in which the
guarantees of its paragraphs 1 and 3 (c) are to be applied in
pre-trial proceedings depends on the special features of those
proceedings and the circumstances of the case assessed in relation to
the entirety of the domestic proceedings conducted in the case.
(i) Legal assistance
The
Court notes at the outset that the applicant only complained that he
had not been afforded enough time to contact a lawyer in a nearby
town. The Court cannot but note that, as confirmed by the applicant’s
representative in his letter to the European Court dated 26 July
2002, both on 21 February and 2 March 2001 the applicant
“chose not to exercise his right to legal representation with
the hope that the court would give him a fair trial even without
counsel”.
Moreover,
the Court observes that the present case is different from previous
cases concerning the right to legal assistance in pre-trial
proceedings (see Salduz [GC], §§ 12-17 and Öcalan
[GC], § 131, both cited above; see also Shabelnik,
cited above, § 59; Panovits v. Cyprus, no. 4268/04,
§§ 7-10, 11 December 2008; Kolu v. Turkey,
no. 35811/97, §§ 14-22, 2 August 2005; Brennan
v. the United Kingdom, no. 39846/98, § 41, ECHR 2001 X;
Quinn v. Ireland, no. 36887/97, §§ 10-13,
21 December 2000; Averill v. the United Kingdom, no.
36408/97, § 55, ECHR 2000 VI; Magee v. the United
Kingdom, no. 28135/95, §§ 8-15, ECHR 2000 VI;
and Imbrioscia, §§ 9-19, cited above)
because the applicant was not formally arrested or interrogated in
police custody. He was stopped for a road check. This check and the
applicant’s self-incriminating statements were both carried out
and made in public in the presence of two attesting witnesses. It is
true that the trial record contains a statement by the applicant
suggesting that the writing down of the inspection record and/or his
subsequent statement were started on the spot but were completed in
the village of Birofeld. Nevertheless, the Court concludes on the
basis of the materials in the case file that the relevant events,
namely the drawing of the inspection record and the taking of the
applicant’s explanation, were carried out in a direct sequence
of events.
Although
the applicant in the present case was not free to leave, the Court
considers that the circumstances of the case as presented by the
parties, and established by the Court, disclose no significant
curtailment of the applicant’s freedom of action, which could
be sufficient for activating a requirement for legal assistance
already at this stage of the proceedings.
The
Court notes that the role of the police in a situation such as in the
present case was to draw up an inspection record and receive the
applicant’s explanation as to the origin of the cans in his car
(see paragraphs 9 and 10 above). Having done so, the police
transferred the documents to the inquirer who, in his turn, compiled
a report to his superior indicating that there was a case to answer
against the applicant on suspicion of theft (see paragraph 12 above).
This report prompted the inquirer’s superior to open a criminal
case against the applicant (see paragraph 13 above).
At
that stage, namely on 2 March 2001, the applicant was apprised
of his right to legal assistance. It was open to him to consult a
lawyer before attending the meeting on 2 March 2001. At that
meeting the applicant was presented with the version of the events
based on his statements made on 21 February 2001. The applicant
voluntarily and unequivocally agreed to sign the act of accusation
and waived his right to legal assistance, indicating that he would
defend himself at the trial.
The
foregoing considerations suffice for the Court to conclude that the
absence of legal representation on 21 February and 2 March 2001
did not violate the applicant’s right to legal assistance under
Article 6 § 3 (c) of the Convention.
(ii) Privilege against self-incrimination
and right to remain silent
Concerning
the privilege against self-incrimination and the right to remain
silent, the Court has already held that the circumstances of the case
disclosed the existence of a suspicion of theft against the applicant
after he had failed to prove the fuel purchase (see paragraph 42
above). It is not without relevance in that connection that when
putting in writing the applicant’s “explanations”,
officer B considered it necessary to apprise him of the privilege
against self-incrimination. In the Court’s opinion, this fact
also gives credence to the argument suggesting that already at that
time the authorities suspected the applicant of theft. The Convention
is intended to guarantee rights that are practical and effective (see
Airey v. Ireland, 9 October 1979, § 24, Series A no.
32). The Court considers that in the circumstances of the case it was
incumbent on the police to inform the applicant of the privilege
against self-incrimination and the right to remain silent.
The
Court notes that the Government maintained that the applicant had
waived his right not to testify against himself. The applicant did
not dispute this. It is true that in accordance with Article 51 of
the Constitution the applicant was told that he was not obliged to
give evidence against himself (see paragraph 21 above). Although it
has not been alleged that the above warning was in any way
insufficient, Court notes that the applicant was apprised of the
right to remain silent after he had already made a self-incriminating
statement in the inspection record indicating that he had poured out
the diesel from the company’s premises.
Bearing
in mind the concept of fairness in Article 6, the Court considers
that the right not to incriminate oneself cannot reasonably be
confined to statements of admission of wrongdoing or to remarks which
are directly incriminating (see Saunders, cited above, §
71). Testimony obtained under compulsion which appears on its face to
be of a non-incriminating nature - such as exculpatory remarks or
mere information on questions of fact - may later be deployed in
criminal proceedings in support of the prosecution case, for example
to contradict or cast doubt upon other statements of the accused or
evidence given by him during the trial or to otherwise undermine his
credibility (ibid).
The
Court considers that being in a rather stressful situation and given
the relatively quick sequence of the events, it was unlikely that the
applicant could reasonably appreciate without a proper notice the
consequences of his being questioned in proceedings which then formed
basis for his prosecution for a criminal offence of theft.
Consequently, the Court is not satisfied that the applicant validly
waived the privilege against self-incrimination before or during the
drawing of the inspection record. Moreover, given the weight accorded
to the applicant’s admission at the trial, the Court does not
need to determine the validity of the applicant’s subsequent
waiver of the privilege against self-incrimination in the
“Explanations”, which derived from his earlier admission
(see paragraphs 11 and 40 above).
In
sum, the evidence available to the Court supports the claim that the
applicant’s pre-trial admission, whether directly
self-incriminating or not, was used in the proceedings in a manner
which sought to incriminate him. In the Court’s view,
statements obtained in the absence of procedural guarantees, should
be treated with caution (see Lutsenko v. Ukraine,
no. 30663/04, § 51, 18 December 2008).
Hence,
what remains to be determined is whether the criminal proceedings
against the applicant can be considered fair on account of the use
made of the applicant’s pre-trial admission. Regard must be had
to whether the rights of the defence have been respected and whether
the applicant was given the opportunity of challenging the
authenticity of the evidence and of opposing its use. In addition,
the quality of the evidence must be taken into consideration,
including whether the circumstances in which it was obtained cast
doubt on its reliability or accuracy.
The
Court notes in that connection that in so far as it can be discerned
from the national courts’ reasoning, the applicant’s
pre-trial admission was not considered to have been obtained in
breach of domestic law. The Court considers in its turn that
although the applicant was represented by a lawyer at the trial, the
detriment he suffered because of the breach of due process in the
pre-trial proceedings was not remedied at the trial. The trial
court expressly referred to the statement made by the applicant in
the inspection record and his subsequent statement. It did not draw
any distinction or made any comparison between that statement and the
subsequent more detailed statement made after the applicant had been
apprised of Article 51 of the Constitution. While it is not the
Court’s role to examine whether the evidence in the present
case was correctly assessed by the national courts, the Court
considers that the conviction was based on the applicant’s
self-incriminating statements. The Court finds it regrettable that
the courts did not provide sufficient reasons for dismissing the
applicant’s arguments challenging the admissibility of the
pre-trial statements, especially in the light of the weakness of the
other evidence presented by the prosecution at the trial. It was,
however, the prosecution’s obligation under Russian law to
prove the offence of theft on the strength of the other evidence
because the CCrP required that a defendant’s admission of guilt
in the commission of an offence could be used as a basis for criminal
charges only if his or her culpability was confirmed by the totality
of evidence collected in the case (see paragraph 28 above). The
Court cannot but observe that two of the witnesses presented by the
prosecution only confirmed the fact of the car inspection and the
seizure of the fuel. A third person only testified on the
circumstances which were capable of clarifying the reasons for and
the purpose of the above inspection.
The
Court further observes that, contrary to the applicant’s
allegation, it follows from the trial record that the trial court
examined witnesses on behalf of the applicant. However, it rejected
their testimony as unreliable on account of the witnesses’
close relationship with the applicant. Lastly, it is also noted that
the court refused to accept in evidence the invoice which would
allegedly exculpate the applicant (see, by contrast, Bykov,
cited above, §§ 95 et seq.; and Heglas v. the Czech
Republic, no.5935/02, §§ 89 and 90, 1 March 2007).
Thus, the Court concludes that the trial court based the conviction
of the applicant on the statement that he had given to the police
without being informed of his right to not incriminate himself.
In
the light of the above considerations, given the particular
circumstances of the present case and taking the proceedings as a
whole, the Court concludes that there has been a violation of Article
6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant claimed 20,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
The
Government considered that the applicant’s claim concerned only
non-pecuniary damage and was unsubstantiated.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, making its assessment on an equitable basis, and
having regard to the nature of the violation found, the Court awards
the applicant EUR 3,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable to the applicant.
The
Court also reiterates that when an applicant has been convicted
despite an infringement of his rights as guaranteed by Article 6 of
the Convention, he should, as far as possible, be put in the position
that he would have been in had the requirements of that provision not
been disregarded, and that the most appropriate form of redress
would, in principle, be trial de novo or the reopening of the
proceedings, if so requested by the person concerned (see Öcalan
[GC], cited above, § 210, and Vladimir Romanov v. Russia,
no. 41461/02, § 118, 24 July 2008). The Court observes, in
that connection, that Article 413 of the Code of Criminal
Procedure of the Russian Federation provides that criminal
proceedings may be reopened if the Court has found a violation of the
Convention (see paragraph 29 above).
B. Costs and expenses
The
applicant made no claim in respect of costs and expenses. The Court
considers that there is no call to make an award under this head.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares unanimously the application admissible;
Holds by six votes to one that there has been no
violation of Article 6 § 3 (c) of the Convention on account of
the issue of legal assistance;
Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention on account of the
issue of the privilege against self-incrimination and the right to
remain silent;
Holds 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 3,000
(three thousand euros), plus any tax that may be chargeable to the
applicant, in respect of non-pecuniary damage, to be converted into
Russian roubles 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;
Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following partly dissenting
opinion of Judge Spielmann is annexed to this judgment.
C.L.R.
S.N.
PARTLY DISSENTING OPINION OF JUDGE SPIELMANN
I
am unable to subscribe to point 2 of the operative part and to the
finding of the majority that there has been no violation of Article 6
§ 3 (c) of the Convention on account of the issue of legal
assistance.
The applicant was convicted on the basis of the admission he made to
the police without the benefit of legal advice.
In
Salduz v. Turkey the Court held that as a rule, access to a
lawyer should be provided as from the first interrogation of a
suspect by the police (see Salduz v. Turkey [GC], no.
36391/02, § 55, ECHR 2008-...). The Court also held that the
lack of legal assistance during a suspect’s interrogation would
constitute a restriction of his defence rights and that these rights
would in principle be irretrievably prejudiced when incriminating
statements, made during police interrogation without access to a
lawyer, were used for a conviction. The Court took a similar approach
in the equally important judgment in Panovits (Panovits v.
Cyprus, no. 4268/04, §§ 66 and 70-73, 11 December
2008).
In
the present case the applicant was not initially informed of any
suspicion or accusation against him. Admittedly, the applicant was
not formally arrested or interrogated in police custody. However, the
interview on 21 February 2001 took place in circumstances that can in
no way be compared to those normally observed during routine road
checks.
Quite the contrary. It transpires from the file and from the judgment
that the checks were carried out on the initiative of the company’s
director (see paragraph 7 of the judgment). During the inspection two
cans of diesel were seized from the car and the police immediately
organised a full-scale interview on the spot, leading to the drawing
up of a written inspection record in which it was stated that the
applicant had taken the diesel from his employer’s premises.
The applicant had also been asked to sign this record, immediately,
on the spot (see paragraph 10). It was only shortly thereafter
that the applicant was apprised of the privilege against
self-incrimination and that he then added that he had taken the
diesel for “personal use” (see paragraph 11). The
relevant steps, namely the drawing up of the inspection record and
the taking of the applicant’s explanation, were carried out as
part of a direct sequence of events (see paragraph 47).
Contrary to what is said in paragraph 48 of the judgment, I cannot
agree that the circumstances of the case disclose no significant
curtailment of the applicant’s freedom of action. I am of the
opinion that those circumstances were sufficient to activate a
requirement for legal assistance.
Nothing should have prevented the police officers from apprising the
applicant immediately (that is, on 21 February and not on 2
March 2001) of his right to legal assistance and asking him to
accompany them to the police station, where the interview could have
been conducted in conditions complying with the requirements of
Article 6 § 3 (c).
