CASE OF PISHCHALNIKOV v. RUSSIA
Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1959 and lived, until his arrest, in the town of Revda in the Sverdlovsk Region. Prior to the events described below the applicant had never been accused of or charged with any crime. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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): “Before the inquiry [the applicant] is informed that by virtue of the requirements of Article 149 of the RSFSR Code of Criminal Procedure and on the basis of Articles 46, 47, 48, 49, 77, 141-1, 151, 152, 154, 202, 202-2 of the RSFSR Code of Criminal Procedure he has a right: to defend himself, to know what he is charged with and to give explanations about the charges brought, to submit evidence, to lodge requests, to complain to a court about the unlawfulness and ill-foundedness of his arrest and detention, to study records of investigative actions in which he participated, [to study] materials which were submitted to a court as evidence of the lawfulness and well-foundedness of the authorisation and extensions of [his] detention on remand and, after the end of the pre-trial investigation, [to study] all materials of the criminal case file, to copy any and in any amount information out of [the case file], to be assisted by counsel from the moment when the arrest record or a detention order or a bill of indictment is served on [him], to have private meetings with counsel, to lodge complaints with a court against the arrest or extension of detention and to participate in a court hearing when [those complaints] are examined, to participate in trial hearings, to challenge [the bench, prosecutor, other participants of criminal proceedings], to appeal against investigators’, interrogators’, prosecutors’ and courts’ actions and decisions, to defend his rights and lawful interests by any other means and measures which do not run contrary to the law, and [he] also [has] the right [to make pleadings at the end of the trial] as a defendant. Moreover, [the applicant] was informed that by virtue of Article 51 of the Constitution of the Russian Federation, no one is obliged to make self-incriminating statements and [statements] incriminating his/her spouse and close relatives, whose list is determined by the federal law. [the applicant’s signature] According to Article 17 of the RSFSR Code of Criminal Procedure I was informed of my right to make statements in my native language and to be assisted by an interpreter. I speak Russian. I do not need the services of an interpreter and want to make statements in Russian. [the applicant’s signature] Before the interrogation [the applicant] stated: I need to be assisted by counsel appointed by a Bar Association. [the applicant’s signature] I can give the following explanation in relation to the questions put to me: The content of the charges against me was explained to me. I partially admit my guilt of having committed crimes under Article 327 § 3 and Article 327 § 2 of the Criminal Code of the Russian Federation. In fact, I forged two passports of USSR citizens. One of [the passports] was issued in the name of Mr M., and the other one [was issued] in the name of Mr Z. I glued pictures of myself in those passports and forged the cameo printing “USSR Passport” with a wooden homemade engraving, which I had made myself. I bought Mr Z.’s passport in Revda town railway station from Mr Z. for 50 Russian roubles; [I] took Mr M.’s passport from my house where it was kept. In my house, that is at the [following address]: ... where I lived temporarily. [I] note that my mother lives permanently at that address. I have never used passports in the names of Mr Z. and Mr M. I do not confess to [having committed] other criminal offences with which I am charged. By virtue of Article 51 of the Russian Constitution I will no longer make any statements. My words recorded correctly and read by me. [the applicant’s and his lawyer’s signatures].” 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. 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: “refusals of legal assistance handwritten by [the accused] in the [interrogation] records due to the fear of a leak of information should be considered involuntary as in reality lawyers were not appointed during the interrogations”. 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. Article 47 of the old CCrP read as follows: “A lawyer should be called to take part in a case at the moment when charges are brought or, if a person suspected of a criminal offence is arrested or detained before charges are brought against him, at the moment when the arrest record or a detention decision is read out to him. If the lawyer chosen by a suspect or an accused is unable to appear within twenty-four hours after the arrest or detention has been effected, an interrogator, investigator, or a prosecutor may offer the suspect or accused the possibility to retain another lawyer or provide him with a lawyer through the assistance of the Bar Association.” 31. Article 48 of the Code established that a lawyer should be called by an accused, his legal representative or other persons on a request or with the consent of the accused. An investigator or court should to provide the suspect or the accused with counsel at his request. In cases where counsel chosen by the accused was not available for a long period of time, the investigator or the court could suggest that the accused choose another counsel or, as an alternative, appoint another counsel for the accused. 32. If the accused was charged with criminal offences punishable by death penalty, participation of counsel was imperative in court proceedings and was also mandatory in the pre-trial investigation from the moment when charges were brought. In such a case, if the accused, his legal representative or other persons on his request did not invite counsel, an investigator, prosecutor or court should ensure the accused’s legal representation in the case (Article 49). 33. An accused could refuse legal assistance at any moment of the criminal proceedings. If the accused was charged with criminal offences punishable by death penalty, such a refusal was not binding for a court, an investigator or a prosecutor (Article 50). 34. Article 51 of the new CCrP, in so far as relevant, reads as follows: “1. Participation of legal counsel in the criminal proceedings is mandatory if: 1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code; 2) the suspect or the accused is a minor; 3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap; 3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code; 4) the suspect or the accused does not speak the language in which the proceedings are conducted; 5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty; 6) the criminal case falls to be examined by a jury trial; 7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code; 2. ... 3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on request, or with consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.” 35. Article 52 of the Code provides that a suspect or an accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. The refusal of legal assistance may not strip the suspect or accused of the right to ask to be assisted by counsel during further procedural actions in the criminal case. The admission of a lawyer may not lead to the repetition of the procedural actions which have already been performed by that time. 36. Article 373 of the Code provides that the appeal instance examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, the appeal instance may directly examine evidence, including additional material submitted by parties. 37. Article 376 of the Code provides that upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the remanded convict should be summoned to the hearing. If the remanded convict has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court 38. 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: “1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances. ... 4. New circumstances are: ... (2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to: (a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms; (b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms; (c) other new circumstances.” 39. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73)5 of the Committee of Ministers of the Council of Europe) provides: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.” 40. Furthermore, the recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec. (2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “Legal advice 23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. 23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. ... 23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.” 41. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. 42. Article 48 of the Charter of Fundamental Rights states that “[r]espect for the rights of the defence of anyone who has been charged shall be guaranteed”. Article 52 § 3 further states that the right guaranteed under Article 48 is among those who have the same meaning and the same scope as the equivalent right guaranteed by the European Convention on Human Rights.