EHRM, 24-09-2009, nr. 7025/04

On 15 December 1998 the applicant was arrested on suspicion of aggravated robbery. According to the Government, a police investigator apprised the applicant of the rights of an accused, including the right to be assisted by counsel. The Government insisted that the record of the applicant's arrest contained a line which read as follows: ‘[the applicant] needs services by a retained lawyer Mr L.’ The Government did not produce a copy of the arrest record, despite the Court's request to that effect. The applicant confirmed that he had made a handwritten note in the arrest record, asking to be assisted by counsel, Mr L. He had also included Mr L.'s phone number and home address in the record. The applicant stressed that after the investigator had drawn up the arrest record, he had commenced interrogating the applicant about his participation in the robbery on 10 December 1998. As a consequence of the interrogation the applicant confessed to ‘[having gone] to a motorway together [with six other individuals] to seize a cargo by fraud’. The applicant also noted that one of his accomplices had had a gun which he had planned to use as a threat.

On 16 December 1998 an investigator again interrogated the applicant about the circumstances surrounding the robbery. According to the applicant, the investigator disregarded his request for legal assistance and proceeded to questioning. During that interrogation the applicant described in detail the preparations for the robbery, his meetings with other co-accused and the subsequent events on 10 December 1998. He also confessed to having participated with his co-accused in other criminal activities, including a murder, kidnapping, hijacking and unlawful possession of weapons. The Government did not produce a copy of the interrogation record drawn up on 16 December 1998.

On the following day the Sverdlovsk Regional Prosecutor-Criminalist performed an investigative experiment aimed at verifying the applicant's statements made during the questioning on 15 and 16 December 1998. In the course of the experiment the applicant was taken to various places where he and his accomplices had allegedly planned or committed criminal offences. In each location the applicant, in the presence of attesting witnesses, answered the prosecutor's questions pertaining to various criminal activities committed by the criminal group in which the applicant had taken part. It appears from the record of the investigative experiment that the prosecutor commenced the experiment by asking the applicant whether he agreed to participate in the experiment in the absence of a lawyer. The applicant did not object. The prosecutor further informed the applicant of his constitutional right not to make self-incriminating statements and asked whether he was willing to show the crime scenes, describe his and his accomplices' actions and reproduce his actions at the crime scene. The applicant agreed and signed the record.

On 18 December 1998 the Achitskiy District Prosecutor authorised the applicant's detention on remand. The detention was subsequently extended on a number of occasions by a prosecutor or a court.

On 24 December 1998 a senior investigator of the Sverdlovsk Regional Prosecutor's office charged the applicant with aggravated robbery. The indictment record was served on the applicant in the presence of free legal aid counsel, Ms K. On the following day the senior investigator, in the presence of counsel, Ms K., informed the applicant of his procedural rights, including the right to free legal aid. The applicant made a handwritten note in the record, stating that he was in need of free legal aid.

During subsequent interrogations on 15 January, 1, 10, 16 and 25 February, 29 March, 15 April and 30 August 1999 the applicant refused legal assistance, each time making handwritten notes in the interrogation records to that effect. He also noted that his refusal was not due to lack of financial resources but his fear of a possible ‘information leak’. The Government provided the Court with copies of the first few pages of the interrogation records, containing the applicant's handwritten notes. The pages pertaining to the statements which the applicant had made during the questioning were not enclosed.

On 27 October 1999 an investigator from the Sverdlovsk Regional Prosecutor's office questioned the applicant about his involvement in forgery of documents in August 1998. On the applicant's request Mr B., legal aid counsel, was called to assist him. The applicant confessed to having forged two national passports, but did not admit to having used them.

On 9 November 1999 the applicant, assisted by legal aid counsel, Mr Sh., studied reports of various expert examinations. Two days later he was again questioned in the absence of a lawyer. The first two pages of the interrogation record, presented to the Court by the Government, contain the applicant's signature confirming his knowledge of the accused's procedural rights and his refusal of legal assistance.

The Government, supporting their assertion with extracts of interrogation records bearing the applicant's handwritten notes, submitted that during the remaining three interrogations on 17 November, 6 and 22 December 1999 the applicant had refused legal assistance. The Government noted that the refusal was not conditioned by the applicant's lack of financial resources.

On 30 December 1999 the applicant was served with the final version of the bill of indictment comprising all charges. In particular, the prosecution authorities accused the applicant of having participated in a stable armed criminal group and having committed criminal offences within that criminal group, including several counts of aggravated robbery, hijacking, theft, aggravated kidnapping, unlawful deprivation of liberty, forgery of documents, murder, attempted manslaughter, torture and unlawful possession of weapons. Following the service of the bill of indictment an investigator questioned the applicant. Mr B. was appointed to act as the applicant's counsel. The interrogation record, provided to the Court by the Government, consisted of a three-page printed template, in which the dates, the investigator's and applicant's names, the applicant's personal data and his statements made during the interrogation were filled in by hand. The relevant part read as follows (the pre-printed part in roman script and the part written by hand in italics):

No further investigative actions were performed until 26 January 2000, when the applicant, in the presence of counsel, Mr B., was served with a copy of the decision on the closing of the pre-trial investigation. Between 7 February and 20 June 2000 the applicant and counsel B. studied the case file.

On 14 August 2000 the applicant and his co-defendants were committed to stand trial before the Sverdlovsk Regional Court. The Regional Court received the case file on the same day.

According to the Government, it was not until 24 April 2001 that the Sverdlovsk Regional Court fixed the first trial hearing for 29 May 2001. Ms Ya. was appointed to act as the applicant's lawyer at the trial.

At the hearing on 29 May 2001 the Regional Court adjourned the proceedings until 4 June 2001 to allow the defendants to study the case file materials.

Between 4 and 11 July 2001 the Regional Court held eight hearings. The following hearing, fixed for 11 July 2001, was postponed due to a co-defendant's illness. The proceedings were stayed until 7 August 2001.

Between 7 August and 18 December 2001 sixty-five hearings were held. The Sverdlovsk Regional Court heard a number of witnesses. A victim of a car hijacking, Ms Lo., asked to be dismissed from the proceedings and for her statements given at the pre-trial investigation to be taken into account. She noted that her pre-trial statements were true, but she did not want to testify in open court as she was afraid of the applicant and his co-defendants. The Regional Court found that Ms Lo.'s fears were justified and dismissed her from the proceedings.

In October 2001 the applicant lodged a complaint with the Regional Court alleging ineffective legal representation and asking to appoint another counsel or, in the alternative, to be allowed to defend himself. The applicant asserted that Ms Ya. had no knowledge of the criminal case file and had not held any private meetings with him to discuss the strategy of his legal defence. On 22 October 2001 the Sverdlovsk Regional Court dismissed that request, finding that Ms Ya. was an experienced and well-qualified lawyer who defended the applicant effectively. The Regional Court also noted that by virtue of Article 50 § 2 of the RSFSR Code of Criminal Procedure the participation of a lawyer was mandatory in the trial hearings, having regard to the gravity of the charges against the applicant. At the same time, the applicant had a right to retain counsel of his own choosing, but he refused to do so. Therefore, there were no grounds to dismiss Ms Ya. from the proceedings.

On 17 January 2002 the Sverdlovsk Regional Court, composed of one professional judge and two lay judges, found the applicant guilty of aggravated murder, torture, kidnapping, unlawful deprivation of liberty, theft, robbery, attempted robbery, car hijacking, participation in a criminal group and forgery of documents. The Regional Court sentenced him to twenty-two years' imprisonment. While holding the applicant guilty on a charge of having taken part in a criminal group and having committed a number of criminal offences within it, the Regional Court noted that the co-defendants, including the applicant, denied their guilt in open court. However, it cited their statements given during the pre-trial investigation in support of its findings of guilt. In particular, it gave a detailed account of the applicant's statements made on 15 and 16 December 1998, in which the latter confessed his guilt to a number of criminal offences. At the same time the Regional Court excluded from evidence the records of the remaining applicant's interrogations carried out in the absence of counsel, finding that the counsel's presence during the interrogations had been mandatory and the applicant's refusals of legal assistance could not be accepted. The Regional Court reached a similar conclusion in respect of the majority of the interrogations performed with other co-defendants, finding as follows:

The applicant appealed against the conviction. In his appeal statement he complained, inter alia, that he had been denied legal assistance during the pre-trial investigation and that his legal defence during the trial had been ineffective.

According to the Government, on 14 March 2002 a Sverdlovsk Regional Court judge held that the applicant and his co-defendants could study the case file materials from 22 to 27 March 2002. In addition, from 29 May to 11 October 2002 the applicant studied four volumes of the case file.

In August 2002 the applicant asked for legal assistance for preparation of the appeal statement. He also asked for his sister to be appointed as his ‘public defender’. In reply, on 12 August 2002 a judge of the Sverdlovsk Regional Court informed the applicant that the Russian law did not provide him with the right to be assisted by a relative during appeal proceedings. The judge, however, noted that he could have asked a court to provide him with free legal assistance. According to the Government, such a request was never lodged by the applicant.

On 2 December 2002 the case file was sent from the Sverdlovsk Regional Court to the Supreme Court of the Russian Federation for an examination.

On 8 August 2003 the Supreme Court of the Russian Federation amended the judgment of 17 January 2002. The Supreme Court discontinued the proceedings against the applicant on the charges of torture, unlawful deprivation of liberty and one count of attempted robbery because his participation in those criminal offences had not been proved. The Supreme Court also reduced the applicant's sentence by two years. While upholding the remainder of the applicant's conviction, the Supreme Court endorsed reasons given by the Regional Court, once again relying on the statements made by the applicant on 15 and 16 December 1998. The applicant was not assisted by a lawyer at the appeal hearing.

Article 413 of the Russian Code of Criminal Procedure, setting out the procedure for re-opening of criminal cases, reads, in so far as relevant, as follows:

The Government submitted that the ‘reasonable time’ requirement was not violated in the present case as the case had been complex. In particular, the case file had comprised thirty-one volumes, the proceedings had involved twelve defendants and eleven victims and the domestic courts had heard more than eighty witnesses. The Government acknowledged that there had been an unjustified delay of approximately nine months, between 14 August 2000, when the Regional Court had received the case file, and 29 May 2001, when the first hearing had been held. However, they contended that that delay had not affected the overall duration of the proceedings. They further submitted that the remaining delays had been caused by objective reasons: the applicant's and his co-defendants' requests for studying case file materials, their numerous statements of appeal which they had brought for several months, the co-defendant's illness and other valid grounds.

The applicant contested the Government's submissions, save for the assertion that the criminal case had been complex. He claimed, however, that the complexity of the case taken on its own could not justify the overall length of the proceedings which amounted to almost four years and eight months. He also drew the Court's attention to the fact that he had been detained during the entire duration of the criminal proceedings. That fact, in the applicant's view, should have prompted the domestic authorities to expedite the proceedings against him. He further pointed to several delays in the examination of his case which were attributable to the domestic authorities. In particular, he stated that it had taken the Regional Court too long to fix the first trial hearing and to send the case file to the Supreme Court. The applicant also noted that the Supreme Court had only held one hearing, on 8 August 2003, although the case had been pending before it since December 2002.

The Government, relying on the information provided by the Supreme Court of the Russian Federation, submitted that the applicant's access to a lawyer had not been hindered at any stage of the criminal proceedings. The Government maintained that before each questioning the investigating authorities had reminded the applicant of his rights as an accused, including the rights to remain silent and be assisted by counsel. They particularly stressed that whenever the applicant had applied for legal aid during a certain investigative action, counsel had been appointed to ensure his defence. However, they drew the Court's attention to the fact that the applicant had refused legal assistance during the majority of the interrogations performed after January 1999. The Government supported their assertion with extracts from the interrogation records bearing the applicant's handwritten notes confirming his refusal of legal assistance. Referring to Article 49 of the RSFSR Code of Criminal Procedure, they further stressed that the counsel's mandatory participation in the case had only been required after the final charges had been brought against the applicant, that is after 30 December 1999.

In response to the applicant's complaints about the questioning on 15 and 16 December 1998 in the absence of a lawyer the Government, in their observations lodged on 5 March 2007, confirmed that immediately after his arrest the applicant had asked for assistance by counsel, Mr L. They did not, however, comment on whether Mr L. had been contacted. In their further observations submitted on 19 September 2007 the Government noted that ‘[the applicant's] request to contact [Mr L.] [had] been executed, however Mr L. [had] done nothing to ensure the applicant's defence.’

As regards the applicant's representation at the trial, the Government noted that, as it followed from the case file materials, Ms Ya. had actively participated in the proceedings. She was a ‘skilful’ lawyer and the applicant's requests for her dismissal had been lodged under ‘a far-fetched pretext’. Furthermore, by virtue of Article 49 § 1(5) of the RSFSR CCrP, participation of defence counsel at the trial was absolutely indispensable for the interests of justice.

In conclusion, the Government addressed the issue of the applicant's representation before the appeal court. They submitted that the applicant had never lodged a request for free legal aid during the appeal proceedings. Furthermore, his relative had been notified of the appeal hearing and she could have retained counsel for the applicant, but had failed to do so. Moreover, the applicant had been afforded the opportunity to attend the hearing before the Supreme Court of the Russian Federation which had thoroughly studied the applicant's appeal statements and had heard his oral arguments.

The applicant, citing the Court's judgment in the case of Quaranta v. Switzerland (24 May 1991, §§ 32–34, Series A no. 205), submitted that the domestic authorities had been under an obligation to provide him with free legal aid from the very start of the criminal proceedings. He invoked his lack of financial resources, the complexity of the criminal case, the gravity of the charges against him and the fact that he had been facing the death penalty or life imprisonment as the conditions making the provision of legal aid indispensable. He also pointed out that the presence of those four conditions had never been disputed by the Government.

The applicant further described the events of 15 and 16 December 1998 alleging that despite his request for counsel, Mr L., to be contacted the police investigators had proceeded to the questioning, extracting the confession from him. The Government did not dispute that he had asked for Mr L.'s assistance and they did not produce any evidence showing that his request had been complied with. The applicant stressed that he had initially been arrested on the robbery charge. However, his statements made on the first two days after his arrest, in the absence of legal assistance, had later served as the ground for instituting criminal proceedings against him on other grave charges, including murder, kidnapping, hijacking, etc. Those statements also served as the basis for his conviction because both the trial and appeal courts cited them as evidence of his having committed the offence, disregarding the fact that he had refuted all those confession statements in open court.

In addition, the applicant observed that the Government's claim that he had been provided with legal assistance after 30 December 1999 on a permanent basis is devoid of any sense, as no investigative steps had been taken after 30 December 1999 and by that time the investigating authorities had already obtained from him the confession which they had successfully used at the trial.

Finally, the applicant maintained his complaints pertaining to the ineffective assistance of Ms Ya. at the trial and absence of legal aid during the appeal proceedings. He did not dispute Ms Ya.'s professional qualifications and her adequate legal experience; however, he insisted that she had had no time to study the case file as she had only been invited to the proceedings before the first trial hearing. He further invoked Article 51 of the new CCrP, asserting that the provision of legal aid during the appeal proceedings had been not a right, but an obligation of the domestic courts as he had faced more than fifteen years' imprisonment. In fact, he was sentenced to twenty-two years. He observed that the inability to obtain assistance by counsel on appeal had placed him in a very disadvantaged position, taking into account that he had faced complex issues of facts and law and had no legal training.

The applicant claimed compensation in respect of non-pecuniary damage, leaving the determination of the amount of compensation to the Court. He further asked the Court to award him justice through re-trial.

The Government submitted that as the applicant's rights had not been violated, his claims should be dismissed.

The Court firstly notes that in the present case it has found a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1. Inasmuch as the applicant's claim relates to the finding of that violation, the Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention he should, as far as possible, be put in the position in which he would have been 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 requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210in fine, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 264, 13 July 2006). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention (see paragraph 38 above).

As to the applicant's claims in respect of non-pecuniary damage, the Court has found several violations in the present case. In these circumstances, the Court considers that the applicant's suffering and frustration cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 5,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

The applicant did not claim any amount for the costs and expenses incurred before the domestic courts and before the Court. Consequently, the Court does not make any award under this head.

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.