CASE OF VOZHIGOV v. RUSSIA
No violation of Art. 6
David Thór Björgvinsson
6. The applicant was born in 1974 and lives in Bryansk. 7. In October 2000 the applicant was taken to a police station in the Bezhitskiy District of Bryansk on suspicion of the murder of a man who had been beaten to death. 8. The applicant submitted that he was arrested on 17 October 2000 and interrogated in the absence of a lawyer. According to the applicant, on the same date he was ill-treated by policemen and wrote a confession under pressure from them. He further submitted that a medical examination was conducted only ten days later, when bruises could no longer be seen. 9. The Government submitted that the applicant was arrested and first interrogated on 18 October 2000. In the report on his arrest the applicant stated that he “agreed to be detained”. In the course of the interrogation between 9.07 p.m. and 9.57 p.m. he waived his right to legal assistance, as was noted in the record of the interrogation. 10. On 21 October 2000 detention as a measure of restraint was applied to the applicant. 11. During interrogation on 26 October 2000 the applicant confirmed the waiver of his right to legal assistance, which was also noted in the minutes of the interrogation. 12. On 27 October 2000 he was charged with murder. During the interrogation on the same date the applicant refused to make any statements and denied his guilt. 13. In the course of the investigation a witness, Ms Y., stated to the investigative authorities that she had seen the applicant beating the man. On an unspecified date the applicant was confronted with Ms Y., where it was open to him to put questions and comment on her statements. Ms Y. confirmed her earlier statement. 14. On an unspecified date the public prosecutor's office instituted criminal proceedings against the policemen who had allegedly ill-treated the applicant. As a result of the investigation conducted, the proceedings were discontinued on account of lack of indication of a crime. 15. On 30 October 2000 the applicant sent a request for legal assistance to the prosecutor. He indicated that he wanted to be represented by one of the following counsel: Mr V., a lawyer from the Moscow law firm Vedischev and Partners; Ms M., a lawyer of the Moscow Bar Association; or an unspecified lawyer from the Legal Advice Office of the Bezhitskiy District of Bryansk. According to the Government, the request was received by the public prosecutor's office on 8 November 2000. The prosecutor then transferred the request to the investigator. 16. On 21 December 2000 the investigator sent three letters to the counsel chosen by the applicant, asking them to inform him whether they could participate in the investigative measures – the serving of the bill of indictment and studying of the case file – scheduled for 21, 25 and 26 December 2000. 17. On 21 December 2000 the letter was received by the Legal Advice Office of the Bezhitskiy District of Bryansk and on 10 January 2001 by the law firm Vedischev and Partners. It is not clear whether it was received by Ms M. 18. The Government submitted that no investigative measures were undertaken on either 21 or 25 December 2000. 19. The applicant submitted that the investigative measures were not postponed, and that he was not provided with the opportunity to study the case file. 20. On 25 December 2000 advocate K., a member of the Bryansk Bar Association, was assigned to assist the applicant. According to the Government, advocate K. worked for the Legal Advice Office of the Bezhitskiy District of Bryansk. 21. On 26 December 2000, when the bill of indictment was served on the applicant, advocate K. assisted him in studying the case file. The applicant refused to sign a statement to the effect that he had studied the case file. However, the statement was signed by advocate K. 22. On 12 January 2001 the law firm Vedischev and Partners sent two replies, to the investigator and the applicant. The reply to the investigator read: “We have received your letter, in which you inform us that the following investigative measures ... are scheduled for 21, 25 and 26 December 2000 ... however, according to the postmark, the letter was sent on 21 December 2000 and it was received by us on 10 January 2001. By using such a method of notification you deliberately excluded the possibility of our lawyer's participation in the investigative measures indicated. By your action you have grossly violated the defence rights of the accused [Mr] Vozhigov, who expressed his wish to be assisted by a lawyer from our law firm. You must set a new date for [the investigative measures] and notify us about it in due time in order to provide a real opportunity for our lawyer to participate in the defence of [Mr] Vozhigov.” 23. On 30 January 2001 the Bezhitskiy District Court of Bryansk ordered a number of witnesses, including Ms Y., who appeared to be the only eyewitness, to be brought before the court. The hearing was fixed for 19 February 2001. On that date the bailiff went to Ms Y.'s residence. However, he did not find her at home as, according to her mother, since December 2000 she had been living in Moscow. The hearing was then postponed twice, until 19 March and 19 April 2001. Both times the court ordered to have Ms Y. brought to the hearing. According to the bailiff's report of 19 April 2001 Ms Y. had ceased to reside at the address indicated to the court and her new place of residence was not known. 24. On 7 May 2001 the court requested the prosecutor at the Bezhitskiy District Court of Bryansk to establish Ms Y.'s whereabouts. In the reply of 29 May 2001 the prosecutor informed the court that Ms Y. was not registered as resident either in Moscow or in the Moscow Region. The court issued another order to have Ms Y. brought to the hearing of 4 June 2001. The Government submitted that by the aforementioned date it appeared impossible to establish her whereabouts since she did not live at the address provided to the court and her relative did not have any information as to where she was. 25. At the hearing of 4 June 2001 the Bezhitskiy District Court of Bryansk decided to examine Ms Y.'s statements made during the preliminary investigation. The court asked both parties whether they had any objections. Neither party objected. The court based its judgment on the statements of Ms Y., the applicant's confession made at the beginning of the investigation – although he later changed his statements and pleaded not guilty before the court – and on a certain amount of indirect evidence, such as statements by indirect witnesses and expert reports. At the hearing the court also examined the applicant's doctor, Mr R., who had monitored the applicant since April 2000 in connection with a hip fracture he had sustained in August 1999, with a view to determining whether the applicant would have been able to commit the offence, taking into account his injury. Mr R. stated that because of the improvement of his state of health the applicant had not been operated on but had been recommended not to lift weights of over 12 kilograms. The court also found the applicant's allegations of ill-treatment unsubstantiated. The court reached that conclusion relying on oral evidence given at the hearing by another policeman, a medical certificate according to which the applicant had no injuries that could have been caused on the date of the alleged ill-treatment, and the results of the investigation conducted by the public prosecutor's office. Advocate K. assisted the applicant in the proceedings before the trial court. The court convicted the applicant of murder and sentenced him to 11 years and six months' imprisonment. 26. On 7 June 2001 the applicant applied to the Bezhitskiy District Court of Bryansk to examine the record of the hearing. On 21 June 2001 the applicant stated in writing that he had studied the record. 27. The applicant appealed against the conviction on the grounds, inter alia, that during the preliminary investigation he had been unduly refused legal assistance and that the authorities had deliberately precluded him from being assisted by the lawyer of his choosing. He also claimed that his confession had been made under pressure from the police officials and stated that the key witness, Ms Y., had not been examined at the hearing. 28. On 6 July 2001 the Bryansk Regional Court upheld the conviction. The court held that the trial court had been correct to rely on Ms Y.'s statements made during the preliminary investigation because it had been impossible for her to appear at the hearing. The court also held that there had been no substantial breaches of procedural requirements, including any alleged breach of the applicant's right to defence, such as to render the conviction unlawful. 29. Article 48 of the Constitution guarantees everyone the right to qualified legal assistance. Under Article 48 § 2 an arrested person has the right to the assistance of a lawyer from the moment of the arrest. 30. Pursuant to Articles 47 and 52 of the RSFSR Code of Criminal Procedure of 1960, a suspect, from the moment of his arrest, has the right to be represented by defence counsel, if necessary to be paid for by the authorities. 31. Pursuant to Article 199 of the Code of Criminal Procedure of 1960, the preliminary investigation ends by the drawing up of a bill of indictment. Article 201 further provides that an investigator has to notify the accused of the termination of the preliminary investigation and explain to him his right to examine the case file either in person or with the assistance of a lawyer. When the accused asks for the assistance of a lawyer the investigator has to provide the accused and his lawyer with the file on the case, which facility has to be deferred until the actual appearance of a lawyer, but not for longer than five days. After the accused and his lawyer have finished studying the case file, the investigator has to ask them whether they wish to make any applications to amend the investigation.