CEDH · CASELAW;COMMUNICATEDCASES;ENG — 13 avril 2012

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s358106A { margin-top:24pt; margin-bottom:0pt; text-align:center } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt }       FIRST SECTION Application no. 2991/06 Dmitriy Yuryevich BELUGIN against Russia lodged on 31 October 2005 STATEMENT OF FACTS   The applicant, Mr Dmitriy Yuryevich Belugin, is a Russian national who was born in 1976 and lives in Tomsk. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Criminal proceedings against the applicant (a)     Victim Ko. On an unspecified date, criminal proceedings were instituted concerning an assault against Mr Ko. It follows from the document entitled “Spontaneous confession” («явка с повинной» ), dated 25   December 2002 and compiled at 9 p.m., that the applicant “came to the police station” and voluntarily made self ‑ incriminating statements in relation to Ko.’s case. No lawyer was present during the recording of the confession. According to the applicant, at or around noon on 25 December 2002 he was arrested on suspicion of assault against Mr Ko., and was taken to a police station. In the applicant’s submission, from noon to 9   p.m. he was not provided with legal assistance and was beaten up (in an unspecified way) by officers of the Organised Crime Unit. Apparently, the arrest record was compiled at 9.20 p.m. From that time, the applicant was treated as a suspect in a criminal case, who could benefit from the guarantees under various provisions of the Code of Criminal Procedure (CCrP), including those relating to (mandatory) legal assistance (see “Relevant domestic law and practice” below). A lawyer was admitted to the case, under Articles 49-51 of the CCrP. At 9.55 p.m. the applicant was interviewed as a suspect, in the presence of this lawyer. The applicant confirmed his earlier confession. The interview was recorded on video. The interview record indicates that (apparently before the interview) the applicant was informed of his procedural rights in the following terms: “... to make oral statements or testimony concerning the suspicion against him; not to make any such statement or testimony; To have recourse to legal assistance from the time indicated in paragraphs 2 and 3 of [illegible] of the Code of Criminal Procedure, to see counsel in private before the first interview ... I have been informed that under Article 51 of the Convention I am not obliged to make statements against myself ...” The above document was signed by the applicant and the lawyer. Around midnight the applicant was taken to the crime scene. This investigative measure was recorded on video. It is unclear whether it was carried out in the presence of a lawyer. (b)     Victim Kol. In 2001 criminal proceedings were instituted in relation to murder of Mr   Kol. Apparently the proceedings were suspended due to the absence of a suspect. It follows from the document entitled “Spontaneous confession”, dated 26   December 2002, that the applicant “came to the police station” and made a written statement admitting to a robbery and murdering Mr   Kol. No lawyer was present when the applicant made this confession. (c)     Subsequent proceedings From 25 to 27 December 2002 the applicant was kept in the Organised Crime Unit (in the police station) or in the temporary detention centre of Seversk. On 27 December 2002 the applicant was brought before a judge who ordered his release. On the same day, the applicant came to an investigator and was arrested. Apparently, the applicant resisted his interrogation by the police and handcuffing, claiming access to “his lawyer”. Allegedly, the night between 27 and 28 December 2002 the applicant was beaten up and threatened by the investigator and officers of the Organised Crime Unit. On 29 December 2002 the applicant was interviewed by an investigator and alleged that he had confessed under duress on 26 December 2002. The applicant asked to be examined by a forensic medical expert and for the seizure of the shirt he had on the day when the alleged ill-treatment had been inflicted on him. On 30 December 2002 the applicant was examined by a medical expert who concluded that the applicant had several bruises on his head. In January 2003 the applicant’s mother and grandfather lodged a criminal complaint alleging ill-treatment of the applicant. On 30 January 2003 an investigator issued a refusal to institute criminal proceedings. On 6 February 2003 the applicant was given a copy of this decision. He did not seek judicial review of the above refusal under Article 125 of the CCrP. On an unspecified date, the applicant’s criminal case was submitted for trial before the Tomsk Regional Court. The applicant pleaded not guilty to all charges. One of the co-defendants, Mr Ku., pleaded guilty and made incriminating statements against the other co-defendants, including the applicant. Co-defendant Kash. also made incriminating statements against the applicant. On 18   January 2005 the trial court heard witness K., who stated that the applicant had been arrested in the morning on 25 December 2002 and that he had no visible bodily injuries. According to the applicant, in the meantime, on 21 January and 16   September 2005 he lodged separate complaints before the Regional prosecutor’s office alleging unlawful deprivation of liberty on 25   December 2002 and asking for institution of criminal proceedings for this reason. The outcome of these proceedings remains unclear. By a judgment of 9 June 2006 the Regional Court convicted the applicant and his co-defendants of murder and robberies. The court sentenced the applicant to twenty year of imprisonment (to be counted from 25 December 2002, the day of the applicant’s arrest). In its judgment, the Regional Court considered that since the applicant’s arrest on 25   December 2002 was unrelated to the case for which he spontaneously came forward with a confession (Mr Kol.’s case), there was no reason to consider him, at the time, as a suspect in that case (meaning that the requirement of legal assistance did not apply). The court also noted that the confession was corroborated by the incriminating statements made by the applicant’s co-accused Mr Kash. and Mr Ku. The trial court also heard a court registrar, who had been present at the detention hearing on 27 December 2002 (see above). She stated that the defence had not raised any complaint of ill-treatment at that hearing, that she recalled the circumstances of the hearing but did not remember to have seen any bruises on the applicant’s face or head on that day. The trial court also examined a certificate, which had been issued by the temporary detention centre on an unspecified date and indicated that the applicant had had no injuries on 25-27 December 2002. Furthermore, the court heard three police officers and an investigator who stated that on 27   December 2002 physical force and restraints had been used against the applicant, who behaved in a violent manner. Referring to the above evidence, as well as the interview video recording of 26   December 2002, the trial court dismissed as unsubstantiated the applicant’s allegation that his confession in Mr Kol.’s case had been given voluntarily and was truthful. The trial court also dismissed the allegation of duress in relation to the applicant’s confession Mr Ko.’s case “for the same reasons as in Kol.’s case”. The applicant appealed against the judgment of 9 June 2006. On 8 April 2008 the Supreme Court of Russia upheld this judgment. 2.     Proceedings before the Court The applicant’s letter dated 31 October 2005 was dispatched by the staff of Tomsk remand centre no.   70/1 on 21 December 2005. The completed application form was submitted by the applicant on 14   March 2006. B.     Relevant domestic law and practice 1.     Arrest and suspect’s procedural rights Article 46 of the CCrP provided, at the relevant time (December 2002), for the procedural rights from the moment of arrest of a suspect ( задержание подозреваемого ), including the following rights: to be informed of the suspicion against him; to receive a copy of the decision to initiate criminal proceedings against him or a copy of the arrest record; to make a deposition in relation to the suspicion against him or to remain silent; to have legal assistance from the moment indicated in Article   49   §   3   (2) and (3) of the Code; and to have a confidential meeting with counsel before the first interview. According to Article 49 of the CCrP, counsel had to participate in a criminal case from the initiation of criminal proceedings against a named person, from the time of the arrest of a suspect in situations described in Articles 91 and 92 of the Code, or when detention of the suspect had been ordered under Article 100 of the Code. Article 49 also provided that an advocate could be admitted as counsel in a criminal case from the moment when a suspect was apprehended with due regard to Article 91 and 92 of the Code, or when he was remanded in custody under Article 100 of the Code. It followed from Article 50 of the CCrP that a suspect could retain counsel or have it appointed by the investigating or prosecuting authority. Under Article 51 participation of counsel was mandatory unless the suspect waived his right to legal assistance. It was mandatory in cases concerning an eventual sentence beyond fifteen year’s imprisonment. In such a situation counsel should be retained by the suspect or appointed by the investigating or prosecuting authority, following the procedure under Article 49 of the Code.   Article 92 of the CCrP required that after the suspect had been arrested he should be brought ( доставление ) before an investigating authority or a prosecutor. No later than three hours after this an arrest record should be compiled together with a notice that the suspect had been informed of his rights under Article 46 of the Code. The suspect should be interviewed, and before such interviews, he should, if requested, be afforded an opportunity to have a meeting with counsel. 2.     Investigation of allegations of criminal offences Article 144 of the CCrP provided that an investigator or a prosecutor was required to deal with a complaint alleging a criminal offence or a voluntary and spontaneous confession (« явка с повинной »). Such procedure led to a decision to institute or not to institute criminal proceedings (Article 145). When criminal proceedings were instituted, the investigating or prosecuting authority was required to open a preliminary investigation and was empowered to carry out various investigative measures indicated in Article 150-226 of the CCrP, such as search and seizure, telephone tapping, interrogation, confrontation or identification. COMPLAINTS 1.     The applicant complains under Article 3 of the Convention that he was beaten up on 25 and 26 December 2002. He also complains that on 27 ‑ 28   December 2002 he was beaten up again and that he was kept in appalling conditions. 2.     The applicant complains under Articles 5, 6 and 13 of the Convention that the arrest record was not drawn up within three hours after his arrest and that he was not provided with legal assistance, that he was wrongly convicted on the basis of unlawfully-obtained evidence, including his own confessions, and that he was forced to incriminate himself. QUESTIONS   1.     (a)     What is the date (31 October, 21 December 2005 or another date) which should be taken into consideration as the date of introduction for the purpose of the six-month time-limit under Article 35 § 1 of the Convention?   (b)     Were the applicant and other detainees required to dispatch all his correspondence through the detention facility and its staff? When did he hand over his letter dated 31 October 2005 for dispatch? When was it registered by the staff of the detention facility? Did the delay in dispatching the above letter to the Court amount to hindrance of the applicant’s right of application, in breach of Article 34 of the Convention (see for comparison Sevastyanov v. Russia , no.   37024/02, §§   84-87, 22   April 2010)?   2.     (a)     Has the applicant been subjected to inhuman or degrading treatment on 25-26 and/or 27-28 December 2002, in breach of Article 3 of the Convention? Was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular: -     Did the absence of instituted criminal proceedings prevent investigative measures, which could correspond to the notion of an effective investigation, as required by the Court’s case-law under Article 3 of the Convention (see, mutatis mutandis , Taraburca v. Moldova , no.   18919/10, §   57, 6   December 2011, and Shanin v. Russia , no. 24460/04, §   69, 27   January 2011)? Which of the investigation methods employed for a preliminary investigation under Articles 150-226 of the Code of Criminal Procedure (CCrP) could be and were employed, in the present case, in the course of the inquiry under Article 144 of the Code? -     Were persons from whom explanations ( объяснения ) were taken liable for false statements or a refusal to testify?   (b)     The respondent Government are requested to submit a copy of the refusal to prosecute dated 30 January 2003 and other related refusals to institute criminal proceedings.   3.     (a) Was the applicant “deprived of his liberty”, within the meaning of Article 5 § 1 of the Convention, from noon to 9 p.m. on 25   December 2002? Was there a violation of that Article on account of the alleged delay in compiling the arrest record and the unavailability of legal assistance during the relevant period of time? Were the alleged shortcomings in breach of Russian law and/or “gross and obvious irregularities” (see for comparison Boris Popov v. Russia , no. 23284/04, § § 70-77, 28 October 2010)?   (b)     The respondent Government are requested to submit a copy of the arrest record ( протокол задержания ) of 25 December 2002, as well as extracts from the relevant logbooks concerning the applicant’s presence at and his departure from the police station, the Organised Crime Unit and the detention facilities on 25-27 December 2002.   4.     Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular:   (a)     Was there a breach of this provision on account of the alleged violation of the privilege against self-incrimination and the right to remain silent in relation to the applicant’s self- incriminating statements, which were made, allegedly, under duress and without legal assistance? When was the applicant first informed of his right not to incriminate himself (in relation to victims Ko., Kol. or another case)? Was it before or after he made self ‑ incriminating statements concerning Mr Ko.’s and Mr Kol.s cases? What was the exact scope of this right under Russian law? What was the exact wording by which such information was conveyed to the applicant? Was such information conveyed in a manner which allowed him to understand the scope of this right and the significance of waiving it? Was any such waiver recorded in the presence of a lawyer or after the applicant had access to legal advice on the question whether or not he should waive his right?   (b)     Was there a violation of Article 6 §§ 1 and 3 of the Convention on account of the alleged violations of the applicant’s right to legal assistance after the applicant’s arrest in December 2002? In particular:   -     What was the applicant’s status in the pending criminal proceedings concerning Mr Ko. and Mr Kol. before 25 December 2002? Was there any suspicion against the applicant before that date? In other words, was he sufficiently “affected” by the pending criminal proceedings to engage Article 6 before and on 25 December 2002 (see Aleksandr   Zaichenko v.   Russia , no. 39660/02, §§ 42 and 43, 18   February   2010)?   -     When was the applicant first informed of his right to legal assistance? Was it before or after he made self-incriminating statements concerning Mr   Ko.’s and Mr Kol.s cases? What was the exact scope of this right at the relevant stage of proceedings? What was the exact wording by which such information was conveyed to the applicant? Noting the cross-references between Articles 46, 49, 91, 92 and 100 of the CCrP in the relevant parts, was such information conveyed in a manner which allowed him to understand the scope of this right, including free legal assistance, and the significance of dispensing with the services of a lawyer ?   -     Did the applicant waive this right once or several times in December 2002? Was any such waiver recorded in writing and in the presence of a lawyer or after the applicant had access to legal advice on the question whether or not he should waive his right?   -     When did the applicant first talk to his counsel? Did he talk to counsel before the investigative measures, for instance an interview ( допрос )? Was counsel present during the investigative measures?   -     Did the absence or delay of legal assistance in December 2002 entail “irretrievable” damage to the defence, thus leading to a violation of Article   6 of the Convention (see Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008, and Mehmet Şerif Öner v. Turkey , no. 50356/08, §§ 21-23, 13   September 2011)?   (c)     In addition, was there a violation of Article 6 § 1 of the Convention on account of the use made of any tainted evidence at the applicant’s trial (see for comparison Pavlenko v. Russia , no. 42371/02, §§ 114-120, 1   April 2010)? Was any evidence obtained during the relevant period of time (confessions, etc.) used for convicting the applicant? Was the applicant’s conviction based, solely or to a decisive extent, on such evidence? Were any alleged deficiencies arising of the pre-trial problem relating to legal assistance and duress remedied at the trial and on appeal against the judgment of 9 June 2006?