CASE OF FEFILOV v. RUSSIA
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Pere Pastor Vilanova
5. The applicant was born in 1979 and before his conviction lived in Izhevsk. 6. According to the applicant, on 18 February 2005 the police carried out a search of the applicant’s flat in connection with the murder of a lawenforcement officer, which took place during the night of 7-8 February 2005. 7. On 3 March and 10 March 2005 the police interviewed the applicant, in the presence of the applicant’s lawyer, about the circumstances of the murder case under investigation. No suspicions were raised against the applicant. 8. At 6 p.m. on 22 March 2005 the applicant was apprehended on the street in Izhevsk and taken to the Ustinovskiy district police station of Izhevsk (Устиновский РОВД г. Ижевска – “Izhevsk police station”). He was allegedly beaten and coerced into confessing to having committed the murder and to signing a record of his surrender and confession (явка с повинной). 9. According to that record, at 9.50 p.m. on 22 March 2005 in office no. 312 at Izhevsk police station, a police officer, M., obtained from the applicant a confession to the crime, in accordance with Article 142 of the Code of Criminal Procedure of the Russian Federation. In particular, the record stated that at the beginning of February 2005 the applicant had been drinking alcoholic beverages in the company of a certain S. after work. At an unspecified time after midnight he left S.’s flat. On his way home he entered a nearby house to urinate. There he saw a man who made a rude remark about the applicant’s behaviour. The man was also drunk. They began to fight, in the course of which the applicant hit the man several times on the head with a knife handle, and also punched and kicked him. The latter fell down the stairs. When the applicant left the man was still lying on the ground floor. The record further stated that the confession had been handwritten by the applicant himself without any coercion on the part of police officers, and that the applicant had been informed of Article 51 of the Constitution (the right not to give self-incriminating statements), which he had understood. 10. The applicant furthermore wrote a similarly worded confession addressed to the Prosecutor of the Republic of Udmurtiya. 11. At 00.05 a.m. on 23 March 2005 a record of the applicant’s arrest was drawn up. He was formally assigned the status of a criminal suspect and was informed of all his rights, including the right to remain silent, the right to a lawyer and the right not to incriminate himself. The record contained the applicant’s handwritten note to the effect that he accepted his arrest, as he had committed a murder on 8 February 2005. The record further contains the applicant’s request for access to his lawyer. 12. Later on the same day, 23 March 2005, the applicant was provided with a legal-aid lawyer and questioned as a suspect. During the questioning the applicant retracted his confession, asserting that it had been given as a result of coercion and in the absence of a lawyer. He consistently repudiated his confession throughout the ensuing proceedings. 13. On 23 March 2005 the applicant was made to undergo a forensic medical examination, which revealed no injuries on his body aside from a scar on the edge of his hairline dating back two to three months (forensic medical examination report no. 2672). 14. On 27 March 2005 the applicant was remanded in custody and transferred to the Izhevsk SIZO-1 remand prison. 15. On 29 March 2005 charges of murder were brought against the applicant. 16. On 22 April 2005 the applicant lodged a complaint with the Ustinovskiy district prosecutor’s office of Izhevsk, alleging that he had been ill-treated. 17. On 27 May 2005 an investigator from the Ustinovskiy district prosecutor’s office issued a decision not to initiate criminal proceedings against the police officers who had allegedly ill-treated the applicant. 18. On 25 July 2005 the criminal case against the applicant was submitted to the Supreme Court of the Republic of Udmurtiya for trial. 19. On 22 August 2005 the trial against the applicant commenced. 20. Before the court the applicant denied committing the murder and reaffirmed that his confession had been given under pressure from police officers and in the absence of his lawyer. 21. On 19 December 2005 the Supreme Court of the Republic of Udmurtiya convicted the applicant of murder and sentenced him to twelve years’ imprisonment. The court based the conviction on the following evidence: - statements by a police officer, M., who had been involved in the investigation and who had submitted that (i) in the course of the investigation it had been determined that the murder had been committed by the applicant; and (ii) the latter had been apprehended and brought to Izhevsk police station, where he had voluntarily confessed to having committed the murder of G. and had written a statement of surrender and confession (явка с повинной), describing the details of the committed crime; no violence had been exerted on the applicant; - statements by a police officer, N., involved in the investigation of the murder, who submitted that (i) in the course of the investigation it had been determined that the crime had been committed by the applicant; (ii) in March 2005 the latter had been brought to the police station, where he had confessed to the murder; and (iii) a statement of surrender and confession had been drawn up in which the applicant had described in detail the circumstances under which he had committed the murder; - statements by a police officer, O., who submitted that (i) on 8 February 2005 he had participated in the inspection of the scene of the murder of G.; (ii) it had been established that the applicant had been involved in the crime; (iii) in March 2005 the applicant had been brought to Izhevsk police station, where he had confessed to the murder (his confession had been recorded in the statement of surrender and confession); and (iv) no violence had been applied to the applicant. - a statement by a police officer, S., who had participated in the inspection of the crime scene on 8 February 2005 – he submitted that (i) during the check it had been established that a man nicknamed “Gunya” [the applicant] could have committed the crime; (ii) the applicant had been apprehended by the police; (iii) the applicant had been interrogated at about 9 p.m. on 22 March 2005 by M., O., P. and himself; (iv) in the course of the interrogation the applicant had confessed to having committed the murder; and (v) no violence had been applied to him; - statements by a police officer, Nam., who submitted that he had learned from police officer M. that the applicant had confessed to having committed the murder of G.; The above statements were found to be confirmed by the applicant’s statement of surrender and confession of 22 March 2005 and by statements by independent witnesses in the case, specifically: - statements by an anonymous witness, “Akulov”, to whom the applicant had supposedly confided about the murder on 8 February 2005; during the trial “Akulov” had been placed in a separate room, and questions from the parties had been asked through a court bailiff; the parties had heard the witness’s answers by means of a radio communication device with acoustic shielding; - statements by a witness, M., who had been detained together with the applicant at Izhevsk police station during the night of 22-23 March 2005, and whom the applicant had supposedly told about his having committed the murder of a police officer; - statements by a witness, S., who submitted that (i) he had worked with the applicant as a painter and decorator since 2003; (ii) they had been drinking alcoholic beverages after work on 7 February 2005 until 10 p.m., after which they had each gone home; (iii) the following morning at 8 a.m. he had picked the applicant up and gone to work with him; (iv) he had found out about the murder of G. on the evening of 8 February 2005 from a certain M. and later from the police; (v) the applicant had had his right arm in plaster since January 2005, which had not prevented him from working; (vi) that the applicant had had a folding knife, which he had lost in January 2005; and (vii) that the applicant had been nicknamed “Gunya”; - statements by a witness, Ts., the applicant’s colleague and neighbour, who submitted that (i) he had been drinking alcoholic beverages with the applicant and S. until 10 p.m. on 7 February 2005, following which he had left while the applicant and S. had stayed on; (ii) he had found about the murder on 8 February 2005 from the police; (iii) he had known that the applicant was suspected of that murder; - statements by other witnesses with no interest in the outcome of the case; - the applicant’s handwritten statement of 22 March 2005 addressed to the Ustinovskiy district prosecutor’s office describing the circumstances of the murder; - the record of the applicant’s arrest, in which the applicant noted that he accepted his arrest, as he had committed a murder; - records of forensic biological examinations, which did not exclude the possibility that the traces of blood on the applicant’s coat could have been the victim’s; the conclusions of those forensic biological examinations were confirmed by the record of the crime-scene examination and the record of the forensic medical examination of the victim’s corpse; - records of forensic chemical examinations of the fibres discovered at the crime scene, the origin of which could not be excluded as being from the clothes worn by the applicant at the time of the murder; - the record of the forensic medical examination, which concluded that the applicant’s having a plastered right arm did not exclude the possibility of him administering active purposeful actions with that arm; - the record of the applicant’s forensic psychiatric examination. 22. The court dismissed the applicant’s allegation that his confession had been obtained through ill-treatment, referring to the statements made by the police officers and to expert report no. 2672, which had not recorded any injuries on the applicant’s body. 23. The applicant appealed against the conviction. In his statement of appeal he submitted, in particular, that his confession was inadmissible evidence, as it had been obtained under duress and in the absence of a lawyer. 24. On 14 June 2006 the Supreme Court of Russia dismissed the appeal. It endorsed in full the trial court’s decision concerning the admissibility of the statement of the applicant’s surrender and confession. The Supreme Court held, in particular, that the law did not require the presence of a lawyer at the moment of giving a confession. 25. On 4 July 2006 the applicant was transferred to correctional colony IK-8 of the Republic of Udmurtiya to serve his sentence. 26. On 19 August 2006 the applicant was transferred to the IZ-16/2 remand centre of Kazan with ankle-joint oedema, skin erosion and fever. 27. On 30 August 2006 the applicant was transferred to the surgical unit of that facility for medical treatment. 28. On 25 October 2006 the applicant was transferred to penal institution LIU-19 of the Republic of Mordoviya (a medical penal establishment designed for the treatment and detention of drug addicts, alcoholics, and HIV- and tuberculosis-infected prisoners), where he underwent compulsory treatment for drug addiction until 21 November 2008. 29. According to the applicant, there had been a high percentage of HIVpositive detainees in the facility, some of whom had worked with the applicant at the facility’s sewing workshop. The applicant believed, therefore, that he had faced a serious risk of contamination via the working utensils (for example, scissors and sewing needles).