CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 novembre 2020

.s800EAC49 { font-size:12pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sDF237D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:8pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s4F2ADFDB { text-align:center; font-family:Arial; font-size:8pt; list-style-position:inside } .sBB6163A7 { width:2.48pt; font:7pt 'Times New Roman'; display:inline-block } .sB217F55D { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:8pt } .s5F16DB7 { margin-left:26.68pt; text-align:justify; padding-left:9.32pt; font-family:serif; font-size:8pt } .sD1FDC82F { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; text-align:justify; font-size:8pt } .sFFA28C46 { margin-left:28.98pt; text-align:justify; padding-left:9.32pt; font-family:serif; font-size:8pt } .sD1F4F40E { margin-top:0pt; margin-left:38.3pt; margin-bottom:0pt; text-align:justify; font-size:8pt } .s8DB21C27 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:8pt } .sDEB681FC { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:7.5pt } .sD5D3F810 { margin-left:28.75pt; text-align:justify; padding-left:9.55pt; font-family:serif; font-size:7.5pt } .s4B01C57B { margin-top:0pt; margin-left:38.3pt; margin-bottom:0pt; text-align:justify; font-size:7.5pt } .s28B1FB4F { margin-left:26.45pt; text-align:justify; padding-left:9.55pt; font-family:serif; font-size:7.5pt } .s6DD2F4D8 { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; text-align:justify; font-size:7.5pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 30 November 2020 Published on 21 December 2020   THIRD SECTION Application no. 69816/17 Danila Andreyevich GOROKHOV against Russia and 9 other applications (see list appended) A.     The circumstances of the cases The applicants are all Russian nationals living in various regions of the Russian Federation. Between 2015 and 2018 they were prosecuted for and subsequently convicted of different criminal offences. When convicting the applicants, the domestic courts relied on their self ‑ incriminating statements given in the absence of a lawyer shortly after their de facto arrest by police or in the course of operative search activities or investigative actions. The applicants’ personal details and information on their convictions, evidence used and their procedural status when making self ‑ incriminating statements appear in the Appendix. B.     Relevant domestic law and practice The relevant domestic law and practice on admissibility of confession statements given in the absence of a lawyer are summarised in cases of Turbylev v. Russia (no. 4722/09, §§ 46-56, 6 October 2015), and Rodionov v. Russia (no. 9106/09, §§ 68-76, 11 December 2018). 1.     The position of the Supreme Court of the Russian Federation On 29 November 2016 the Plenum of the Supreme Court of the Russian Federation delivered Ruling no. 55, section 10 of which provides that before admitting in evidence a statement of surrender and confession referred to by the prosecution the trial court should examine, among other things, whether prior to that confession the defendant was informed of his or her rights, including the right not to incriminate oneself and the right to a lawyer and whether he or she was given the opportunity to effectively exercise them. 2.     The position of the Constitutional Court of the Russian Federation On 18 July 2017 the Constitutional Court of the Russian Federation in its Ruling no. 1543-O reaffirmed its Ruling no. 44-O of 6   February 2004 that the domestic courts do not have the right to interview the police officers about the contents of the suspect’s and accused’s statements for the purpose of reproducing the contents of those statements ( с целью восстановления содержания этих показаний ), thus, the possibility of any, whether direct or indirect, use of the information contained in those statements should be excluded. COMPLAINTS The applicants complain under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 about unfairness of criminal proceedings on account of the use of their self ‑ incriminating statements made in the absence of a lawyer shortly after their de facto arrest by police or in the context of operative-search activities or investigative measures. Mr Fedorov (application no. 11566/18) complains additionally under Article   6 § 1 of the Convention about alleged unfairness of the criminal proceedings, as his conviction was based on evidence planted by police.   COMMON QUESTION Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 of the Convention? In particular, having regard to the fact that the applicants were not assisted by a lawyer when they made statements to the police and to the principles adopted by the Grand Chamber in the cases of Ibrahim and Others v.   the   United Kingdom ([GC], nos. 50541/08 and 3 others, §§ 255-74, 13   September 2016), and Beuze v. Belgium ([GC], no. 71409/10, §§   119 ‑ 50, 9 November 2018), has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention? CASE SPECIFIC QUESTION Application no. 11566/18   Did the applicant have a fair hearing in the determination of the criminal charge against him in accordance with Article 6 § 1 of the Convention taking into account his allegation that his conviction was based on planted evidence (see Bykov v. Russia [GC], no. 4378/02, §§ 89-90, 10 March 2009; and Sakit Zahidov v. Azerbaijan , no. 51164/07, §§ 46-59, 12 November 2015)? In particular, (a)     What was the reason for the applicant’s arrest and subsequent body search? (b)     Was the applicant’s arrest and body search conducted in accordance with domestic rules of criminal procedure? (c)     Why was the applicant’s body search performed at the police station several hours after his arrest, but not immediately at the time of his arrest outdoors? (d)     Was the applicant subjected to narcotics identification tests? If so, how were those tests carried out? (e)     Did the national courts address the applicant’s arguments as regards the quality of evidence obtained during his body search, in particular, whether the circumstances in which it was obtained cast doubt on its reliability or accuracy?     APPENDIX No. Application no.   Date of introduction Applicant’s name Date of birth Place of residence Nationality Represented by Applicant’s conviction Evidence obtained allegedly in violation of the right to legal assistance and used for conviction   Applicant’s procedural status when making self-incriminating statements     69816/17 15/09/2017   Danila Andreyevich GOROKHOV   1991 Astrakhan Russian   Aleksandr Andreyevich KUZMIN Convicted on 13/12/2016 by the Leninskiy District Court of Astrakhan   of an attempted drug dealing in conspiracy,   upheld on appeal on 16/03/2017 by the Astrakhan Regional Court   Self-incriminating statements given in the course of examination of the crime scene (the applicant’s car) at 04.05 p.m. on 14/06/2016, a statement of surrender and confession at 10.00 a.m. on 16/06/2016, examination of the crime scene (terrain) at 05.00 p.m. on 16/06/2016   Testimonies of the police officers Mr S. and Mr K. and attesting witnesses Mr P. and Mr I. on statements given by the applicant in the course of examination of the crime scene (the applicant’s car) on 14/06/2016, report on the discovery of a crime that reproduced the applicant’s statements given in the course of examination of the crime scene (the applicant’s car) on 14/06/2016   Testimonies of the police officer Mr D. on statements given by the applicant in a statement of surrender and confession on 16/06/2016   Stopped outdoors for a routine traffic police check ( alleged driving unfastened), drugs noticed in the car and police officers were called to come for further investigative actions Arrested at 12.50 p.m. on 14/06/2016   Brought to the police department no. 2 of Astrakhan ( ОП-2 УМВД России по г.   Астрахань ) at 08.20 p.m. on 14/06/2016   Administrative arrest record drawn up on suspicion of disorderly conduct at 08.20 p.m. on 14/06/2016   Administrative conviction for disorderly conduct on 16/06/2016 (2 days’ administrative arrest)   Criminal arrest record drawn up at 08.30 p.m. on 16/06/2016 in the absence of a lawyer   Access to a lawyer granted at 08.50 p.m. on 16/06/2016     72828/17 04/10/2017   Anastasiya Alekseyevna NOVIKOVA   1997 Leninsk Russian   Dmitriy Arkadyevich DENISOV Convicted on 24/04/2017   by the Kirovskiy District Court of Astrakhan   of attempted drug dealing in conspiracy,   upheld on appeal on 06/07/2017 by the Astrakhan Regional Court,   amended in part on cassation appeal on 01/10/2019 by the Presidium of the Astrakhan Regional Court   Self-incriminating statements given in the course of examination of the applicant’s flat conducted immediately after arrest at 04.02 a.m. on 30/06/2016, examination of the crime scene (terrain) at 10.00 a.m. on 30/06/2016, a statement of surrender and confession at 09.10 p.m. on 01/07/2016   Testimonies of the police officer Mr T. and attesting witness Ms S. on statements given by the applicant in the course of examination of the applicant’s flat on 30/06/2016   Testimonies of the police officer Mr K. and attesting witnesses Mr   G. and Mr L. on statements given by the applicant in the course of examination of the crimes scene (terrain) on 30/06/2016   Arrested in her flat by police officers of a specialised police unit armed and masked in the course of the operative-search activity “Observation” at 03.30 a.m. on 30/06/2016   Brought to the police station no. 4 of the Ministry of the Interior in Astrakhan ( ОП № 4 УМВД России по г. Астрахани ) at 01.00 p.m. on 30/06/2016   Administrative arrest record drawn up on suspicion of disorderly conduct   at 01.00 p.m. on 30/06/2016   Administrative conviction for disorderly conduct on 02/07/2016 (5 days’ administrative arrest)   Criminal arrest record drawn up at 07.45 p.m. on 05/07/2016   Access to a lawyer granted at unspecified time on 05/07/2016       11566/18 09/02/2018   Denis Valeryevich FEDOROV   1981 St Petersburg Russian   Artem Aleksandrovich RASSOKHIN Convicted on 25/05/2017 by the Leninskiy District Court of St Petersburg   of unlawful storage of drugs without intent to sell,   upheld on appeal on 04/09/2017 by the St Petersburg City Court   Self-incriminating statement given in the course of body search conducted at the police station no. 77 of the Department of the Ministry of the Interior in the Admiralteyskiy District of St Petersburg ( 77   отдел полиции УМВД по Адмиралтейскому району г.   Санкт-Петербург) at 04.00 a.m. on 08/10/2015   Testimonies of the police officer Mr L. on statements given by the applicant in the course of his body search on 08/10/2015   Reiterated on 08/10/2015 in the interview as a suspect in the presence of a State-appointed lawyer Ms K.     Arrested outdoors on suspicion of disorderly conduct at 01.15 a.m. on 08/10/2015   Brought to the police station no. 77 of the Department of the Ministry of the Interior in the Admiralteyskiy District of St Petersburg ( 77   отдел полиции УМВД по Адмиралтейскому району г.   Санкт ‑ Петербург) at 01.25 a.m. on 08/10/2015   Administrative arrest record drawn up at around 01.25 a.m. on 08/10/2015   Administrative conviction for disorderly conduct on 08/10/2015 (a fine)   Released at 03.40 a.m. on 08/10/2015   Institution of the criminal case against the applicant at 04.00 p.m. on 08/10/2015, applicant under an obligation not to leave his place of residence   Access to a lawyer granted at 04.35 p.m. on 08/10/2015 (State-appointed lawyer Ms K.)     20361/18 25/04/2018   Andrey Andreyevich YERMOLAYEV   1988 Astrakhan Russian   Bolpash Serikovna TARANOVA Convicted on 31/08/2017 by the Volodarskiy District Court of the Astrakhan Region   of inflicting grievous bodily injuries that led to the victim’s death,   upheld on appeal on 02/11/2017 by the Astrakhan Regional Court   Self-incriminating statements given in the form of a statement of surrender and confession at the Volodarskiy police department of the Astrakhan Region ( Володарский ОВД Астраханской области ) at 4.30 p.m. on 14/06/2016   Testimonies of the police officer Mr U. on statements given by the applicant in the form of a statement of surrender and confession on 14/06/2016 Arrested at work on suspicion of having committed a murder at around 10.30 p.m. on 12/06/2016   Brought to the local administration of the village Novokrasnoe, Volodarskiy District of the Astrakhan Region ( сельсовет с. Новокрасное, Володарский район Астраханской области ) at around 11.30 p.m. on 12/06/2016   Brought to the Volodarskiy police department of the Astrakhan Region ( Володарский ОВД Астраханской области ) at around 08.30 a.m. on 13/06/2016   Administrative arrest record drawn up on suspicion of disorderly conduct on the street on 13/06/2016   Criminal arrest record drawn up on 15/06/2016   Access to a lawyer granted at 10.35 a.m. on 15/06/2016 (Mr G.)       50518/18 10/10/2018   Sergey Vladimirovich KUZNETSOV   1982 Novyy Urengoy Russian Convicted on 06/02/2018 by the Buguruslanskiy District Court of the Orenburg Region   of several counts of an attempted drug dealing,   upheld on appeal on 10/04/2018 by the Orenburg Regional Court   Self-incriminating statements given in the course of the applicant’s body search conducted outdoors immediately after arrest on 29/05/2017, examination of the applicant’s car on 29/05/2017, examination of the crime scenes (terrain) on 29/05/2017 and 30/05/2017   Testimonies of the police officers Mr A., Mr D., Mr P., Mr T. and attesting witnesses Mr Tat. and Mr K. on statements given by the applicant in the course of body search on 29/05/2017, examination of his car on 29/05/2017, examination of the crime scenes (terrain) on 29/05/2017 and 30/05/2017.   Confessed in illegal acquisition of drugs for personal use from the beginning and further on, never confessed in drug dealing. Arrested outdoors in the course of the operative-search activity “Observation” on 29/05/2017     Brought to the police department Buguruslanskiy of the Ministry of the Interior in the city of Buguruslan in the Orenburg Region ( МО МВД РФ Бугурусланский г. Бугуруслан Оренбургской области )   in the morning of 30/05/2017   Administrative arrest record drawn up (no information about the charges) at 10.00 a.m. on 30/05/2017   Criminal arrest record drawn up at 09.05 p.m. on 31/05/2017   Access to a lawyer granted on 31/05/2017       11438/18 19/02/2018   Sergey Vladimirovich KIBISHEV   1962 Miasskoye, Chelyabinsk Region Russian Convicted on 19/05/2017 by the Krasnoarmeyskiy District Court of the Chelyabinsk Region   of drug dealing and smuggling of drugs,   upheld on appeal on 07/09/2017 by the Chelyabinsk Regional Court     Self-incriminating statements given in the course of the applicant’s body search conducted immediately after arrest at 04.00 p.m. on 02/12/2015, examination of the applicant’s car at 04.35 p.m. on 02/12/2015, examination of the applicant’s flat at 06.39 p.m. on 02/12/2015, examination of the applicant’s house and garage at 11.45 a.m. on 03/12/2015   Testimonies of the attesting witness Ms G. on statements given by the applicant in the course of examination of his flat on 02/12/2015   Testimonies of the attesting witness Mr Kh. on statements given by the applicant in the course of body search on 02/12/2015   Evidence excluded Testimonies of the police officer Mr Y., Sh., L. on statements given by the applicant in the course of body search on 02/12/2015, examination of the car and flat on 02/12/2015 were declared inadmissible by the appeal court on the ground that according to the Criminal Code of Procedure police officers could be interviewed at trial only about the circumstances of the conduction of the procedural action to decide on the admissibility of evidence, but not to find out the contents of the testimonies of defendants and other interviewed persons. Arrested outdoors in the course of the operative-search activity “Observation” at 03.45 p.m. on 02/12/2015   Brought to the police station, Chelyabinsk Region Department of the Federal Drug Control Service ( Управление ФСКН России по Челябинской области ) at unspecified time on 02/12/2015   Criminal arrest record drawn up at unspecified time on 03/12/2015   Access to a lawyer granted at 08.30 p.m. on 03/12/2015 (Ms K.)       40544/18 13/08/2018   Yegor Vyacheslavovich SAFONOV   1991 Novosibirsk Russian Convicted on 02/11/2017 by the Novosibirskiy District Court of the Novosibirsk Region   of drug dealing and of an attempted drug dealing,   upheld on appeal on 06/04/2018 by the Novosibirsk Regional Court Self-incriminating statements given in the course of the applicant’s body search conducted outdoors immediately after arrest at 06.10 p.m. on 19/03/2016, examination of the applicant’s car at 06.40 p.m. on 19/03/2016   Testimonies of the police officer Mr Sh. and attesting witness Mr   Kh. on statements given by the applicant in the course of body search on 19/03/2016, examination of his car on 19/03/2016   Evidence excluded   A statement of surrender and confession given on 19/03/2016 was declared inadmissible by the trial court, as the applicant had not been informed about his rights under Article 51 of the Constitution, his procedural rights, and was not provided with an opportunity to retain a lawyer. Arrested outdoors in the course of the operative-search activity “Observation” at 05.25 p.m. on 19/03/2016   Brought to the Novosibirsk Region Department of the Federal Drug Control Service ( УФСКН РФ по НСО ) on 19/03/2016   Access to a lawyer granted at 02.23 a.m. on 20/03/2016 (State-appointed lawyer Ms P.)   Criminal arrest record drawn up at 02.23 a.m. on 20/03/2016       54784/18 12/11/2018   Kirill Valeryevich KOLESNIKOV   1991 Plavsk Russian   Maksim Yuryevich IZHIKOV Convicted on 19/12/2017 by the Kuntsevskiy District Court of Moscow   of several counts of drug dealing and an attempted drug dealing,   upheld on appeal on 24/05/2018 by the Moscow City Court   Self-incriminating statements given in the course of body search conducted at the police station at 08.05 p.m. on 17/02/2017, examination of the crime scenes (terrain) conducted starting from 08.30 p.m. on 17/02/2017   Testimonies and report of the police officers Mr P., Mr V., Mr   K., Mr R., Mr D., Mr Kap., Mr Y., Mr Z., Mr Sh. and attesting witnesses Mr N., Mr S. on statements given by the applicant in the course of body search on 17/02/2017, explanations on 17/02/2017, examinations of the crime scenes (terrain) on 17/02/2017   Reiterated at 06.20 a.m. on 18/02/2017 in the interview as a suspect in the presence of a State-appointed lawyer Mr G., and at 07.10 a.m. on 18/02/2017 in the interview as an accused in the presence of the same lawyer. Arrested outdoors on the suspicion of involvement in the drug related crimes at 05.00 p.m. on 17/02/2017   Brought to the police station in the district of Kuntsevo, Moscow ( ОМВД России по району Кунцево г. Москвы ) at 05.00 p.m. on 17/02/2017   Access to a lawyer granted at 06.00 a.m. on 18/02/2017 (State-appointed lawyer Mr G.)   Criminal arrest record drawn up at 06.00 a.m. on 18/02/2017   Access to a lawyer of own choosing Mr P. granted in the afternoon on 18/02/2017       58027/18 26/11/2018   Aleksey Vadimovich FEDULOV   1986 Yugra Russian   Aleksandr Viktorovich VALYAVSKIY   Convicted on 14/03/2018 by the Sovetskiy District Court of Krasnodar   of attempted drug dealing,   upheld on appeal on 30/05/2018 by the Krasnodar Regional Court   Self-incriminating statements given in the course of examination of the crime scene (terrain) at 09.20 p.m. on 12/09/2016, examination of the applicant’s car at 11.10 p.m. on 12/09/2016 Arrested outdoors in the course of the operative-search activity “Observation” at 08.00 p.m. on 12/09/2016   Brought to the Krasnodar Department of the Federal Security Service ( Управление ФСБ России по Краснодарскому краю ) at unspecified time on 13/09/2016   Access to a lawyer granted at unspecified time on 14/09/2016 (Mr K.)   Criminal arrest record drawn up at 11.25 p.m. on 14/09/2016     10.     1175/19 28/11/2018   Yegor Igorevich ORLOV   1991 St Petersburg Russian   Yevgeniy Valentinovich SHEIN Convicted on 15/03/2018 by the Kirovskiy District Court of St Petersburg   of an attempted drug dealing,   upheld on appeal on 21/08/2018 by the St Petersburg City Court   Self-incriminating statements given in the course of the applicant’s body search conducted at the police station no. 8 of the Ministry of the Interior in the Kirovskiy district of St   Petersburg ( 8 отдел полиции УМВД России по Кировскому району г. Санкт-Петербург ) at 02.50 a.m. on 21/03/2017, a statement of surrender and confession at 11.20 a.m. on 21/03/2017, examination of the crime scene at 01.20 p.m. on 21/03/2017 Testimonies of the police officers Mr Y., Mr I. on statements given by the applicant in the course of body search on 21/03/2017 Testimony of the police officer Mr Ch. on statements given by the applicant in the course of body search on 21/03/2017, a statement of surrender and confession on 21/03/2017, examination of the crime scene on 21/03/2017 Testimonies of the police officer Mr K. on statements given by the applicant in the course of his body search on 21/03/2017, examination of the crime scene on 21/03/2017 Testimony of the attesting witness Mr P. on statements given by the applicant in the course of examination of the crime scene on 21/03/2017 Testimony of the attesting witnesses Mr S. and Mr I. on statements given by the applicant in the course of body search on 21/03/2017 Arrested outdoors in the course of the operative-search activity “Observation” at 00.25 a.m. on 21/03/2017   Brought to the police station no. 8 of the Ministry of the Interior in the Kirovskiy district of St Petersburg ( 8 отдел полиции УМВД России по Кировскому району г.   Санкт ‑ Петербург ) at 01.47 a.m. on 21/03/2017   Access to a lawyer granted after 06.00 p.m. on 21/03/2017 (Ms Sh.)   Criminal arrest record drawn up at 06.40 p.m. on 21/03/2017