Судебное дело "Шаркунов и Мезенцев против Российской Федерации"
10.09.2010
FIRST SECTION
CASE OF SHARKUNOV AND MEZENTSEV v. RUSSIA
(Application no. 75330/01)
JUDGMENT
STRASBOURG
10 June 2010
This judgment will become final in the circumstances set out in
Article 44 S: 2 of the Convention. It may be subject to editorial
revision.
In the case of Sharkunov and Mezentsev v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Christos Rozakis, President,
Nina Vaji,
Anatoly Kovler,
Khanlar Hajiyev,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Sren Nielsen, Section Registrar,
Having deliberated in private on 20 May 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 75330/01) against the
Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention") by two Russian nationals, Mr Vyacheslav Viktorovich
Sharkunov and Mr Aleksey Aleksandrovich Mezentsev ("the applicants"),
on 20 August 2001.
2. The applicants were represented by Mr I. Timofeyev and then by
Ms A. Demeneva, lawyers practising in Yekaterinburg. The Russian
Government ("the Government") were represented by Mr P. Laptev and
then by Mr G. Matyushkin, respectively the former and current
Representatives of the Russian Federation at the European Court of
Human Rights.
3. By a decision of 2 July 2009 the Court declared the application
partly admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants were born in 1969 and 1971 respectively. They are
serving their prison sentences in the Kurgan Region.
A. First applicant's arrest and detention
1. Alleged ill-treatment
5. On 5 May 1999 the first applicant (Mr Sharkunov) was brought to
the Organised Crime Unit of the Kurgan Regional Department of the
Interior in the town of Shadrinsk. He was suspected of a Mr M.'s
murder. As can be seen from the arrest report drawn up at 2.25 a.m. on
6 May 1999, the applicant's family and next of kin were not informed.
According to the applicant, the police officers placed a canvas bag on
his head, beat him and administered electric shocks with the purpose
of extracting a confession from him. The applicant made no
confessions.
6. During the same night, from 2.35 to 3.15 a.m., the first applicant
was brought before investigator P. The record of interview contains
the following pre-typed standard wording:
"I have been informed that under Article 51 of the Russian
Constitution, no one is required to testify against himself, his
spouse or next of kin... I have also been apprised of the rights of
the suspect during the preliminary investigation under Articles 52 and
64 of the RSFSR Code of Criminal Procedure:
A suspect has the following defence rights: to know the accusation
against him; to make statements; to adduce evidence; to make requests;
to have access to the records of investigative measures carried out in
his presence and to have access to the file submitted to the court
confirming the lawfulness of and reasons for remanding him in custody;
to lodge challenges and complaints against the investigator's
decisions and actions; to read this record after the interview,
request its amendment and to make observations, which must be included
in the record.
I have also been informed that under Articles 47-52 of the RSFSR Code
of Criminal Procedure a suspect has a right of defence. For this
investigative measure I required ___ counsel (appointed by an
advocates' office; a lawyer named by me; if no counsel requested -
indicate a reason...)."
The applicant made a handwritten statement indicating that he did not
require counsel and that he would defend himself. This note bears his
signature.
The record of the interview also contains another handwritten note by
the applicant in the following terms:
"I have been apprised of the content of Article 51 of the
Constitution. For the time being I refuse to speak."
This note bears the applicant's signature.
7. On the same night a medical assistant in the local sobering-up
centre carried out a medical check of the upper part of his body; no
injuries were recorded. The applicant was then placed in the Shadrinsk
temporary detention centre. The applicant was examined by a medical
assistant and complained of "pain all over the body". Blue bruises on
the hip/thigh and blue injection marks on his arms were recorded. The
medical assistant ascribed the marks to drug addiction and withdrawal
symptoms. As can be seen from the applicant's written statement made
on the same day, he had been horse riding the day before and had no
complaints against any public official.
8. On the investigator's order, on 7 May 1999 the applicant was
examined by a medical expert. The examination was carried out in the
presence of two convoy officers. The report drawn up on 7 May 1999
stated that the first applicant had no physical injuries.
9. On 8 May 1999 the applicant was examined by paramedics, who
concluded that he was suffering from withdrawal syndrome. On 15 May
1999 the applicant was examined in relation to abdominal pains and
pain in the neck and in the thoracic spine area. It appears that he
was given unspecified medicines.
10. According to the Government, the applicant had access to counsel
T. on 12 May 1999, and on 14 May 1999 he was interviewed in the
presence of counsel and remained represented throughout the pre-trial
investigation and trial.
11. On 17 May 1999 the applicant was transferred from the temporary
detention centre to a remand centre.
2. Inquiry into the allegation of ill-treatment
12. On 17 May 1999 the applicant's mother lodged a complaint with the
Supervising Prosecutor's Office of the Kurgan Region and the Shadrinsk
town prosecutor, alleging that her son had been ill-treated in police
custody:
"My son was arrested on 5 May 1999...I became aware later on that on 6
May 1999 he had been taken to section 6 of the town department of the
Interior and had been severely beaten and tortured by electric shocks
in order to obtain confessions... Ill-treatment continued later
on...The above was confirmed by my son's former counsel D. who told me
on 7 May that my son was being ill-treated. D. saw my son on 11 May
and called me, asking me to bring my son clean clothes. On 12 May the
lawyer told me that my son had been beaten again and had been given
electric shocks... On the same day I unsuccessfully asked investigator
P. to let me see my son... On 14 May the investigator told me that he
would hand over the clean clothes to my son if I refused to take away
the old ones, which might be needed for an expert examination... After
the arrest my son named the lawyers he wanted to instruct; since they
were not available the investigator should have appointed legal aid
counsel instead... I was misled by the staff of the temporary
detention centre about the withdrawal pains my son had allegedly been
suffering from... This did not make any sense to me... On 8 May I had
brought some pain killers and asked - in vain - to call for an
emergency squad for my son...My son has a medullispinal hernia, which
can be painful at times..."
13. The complaint was forwarded for examination by the Shadrinsk
Inter-District Prosecutor's Office. A preliminary inquiry was ordered.
14. During the inquiry the medical assistant of the sobering-up
centre affirmed that no injuries had been recorded and that the
applicant had made no complaints or allegations on 6 May 1999 at or
around 4 a.m. However, according to the on-duty officer of the
temporary detention centre, on 6 May 1999 at 4 a.m. the applicant had
been brought to the temporary detention centre; blue bruises and
injections marks were visible on his body; the applicant explained
that he had sustained the bruises while horse riding and that he was a
drug addict. As can be seen from a statement issued on 20 May 1999 by
the medical assistant of the temporary detention centre, on 6 May 1999
the applicant complained of pain in the body; the examination at 8
a.m. revealed blue bruises on the hip/thigh and blue injection marks
on his arms; the medical assistant ascribed these to drug addiction
and withdrawal symptoms. According to her statement, the applicant was
also seen on 8 May 1999 for unspecified reasons, and on 15 May 1999 on
account of his complaints of pain in the neck and the thoracic spine
area; he had had no health-related complaints when transferred to the
remand centre on 17 May 1999.
15. A number of officers made written statements. Officer E. stated
that he had brought the applicant to the Unit on 6 May 1999 at or
around 4 p.m; investigative measures had been taken until around
2 a.m. in the presence of investigator P.; thereafter, the applicant
had been brought to the sobering-up centre for an examination and then
to the temporary detention centre; he had not witnessed any
ill-treatment against the applicant (see also paragraph 52 below).
Officer Ba. stated that the applicant had been brought to the Unit on
5 May 1999; investigator P. had also been present while some measures
were being carried out; no ill-treatment was inflicted on the
applicant in the Unit and no signs of ill-treatment were visible on
his body.
Senior officer Ya. made a similar statement (see also paragraph 51
below) indicating that the applicant had been brought to the Unit on 5
or 6 May 1999 in the afternoon.
Officer K. stated that the applicant had been present on the premises
on 6 May 1999 in the afternoon and that he had seen investigator P.
and officers E. and Ya. with the applicant at around 9 p.m. the same
evening. Officer K. did not witness any ill-treatment.
Lastly, investigator P. stated that he had issued an arrest warrant
against the applicant and questioned him; no ill-treatment had been
inflicted on the applicant; a medical expert had examined him on 7 May
1999 and found no injuries.
16. By a decision of 1 June 1999 the Shadrinsk Inter-District
Prosecutor's Office refused to institute criminal proceedings against
the officers allegedly responsible for the first applicant's
ill-treatment. It was established that the applicant had been arrested
on 5 May 1999 and had been brought to the Organised Crime Unit for
investigative measures. Thereafter, he had been examined by a medical
assistant of the sobering-up centre; no injuries had been noted. The
applicant was then brought to the temporary detention centre and
examined by an "on-duty" officer; the applicant explained that the
bruising on his hips/thighs had been sustained before the arrest
(probably from horse riding); no injuries had been found during his
placement in the remand centre on 17 May 1999. In May 1999 the
applicant made no complaint about his health and did not raise any
allegations against any public official. Nor did he raise any
allegations during the inquiry that had been initiated following his
mother's complaint.
17. As can be seen from the decision of 1 June 1999, "the persons
concerned should be informed of the decision and the procedure for
appealing against it". By a letter of the same date, the applicant's
mother was notified of the decision and of the possibility of
appealing to a higher prosecutor.
3. Related proceedings
18. On an unspecified date Mr T. was appointed as counsel for the
applicant. On 15 June 1999 he sought a copy of a search order in
respect of the applicant's flat; he also asked the investigator to
allow the applicant visits from his family.
19. A medical certificate dated 17 September 1999, issued by the
local drug addiction hospital, states that the first applicant did not
suffer from alcohol or drug addiction and did not require any related
treatment while in detention.
20. On 21 February 2000 the first applicant complained to the Kurgan
prosecutor's office supervising detention facilities about the events
of 5 and 6 May 1999 and the investigation. The applicant made the
following statement:
"On 5 May 1999...I was interrogated in a particularly intensive
manner, which I can describe if you so require. The officers tried to
compel me to make confessions in respect of a criminal offence in
which I was not involved and of which I knew nothing. At night
investigator P. joined in. When physical violence temporarily ceased
and the bag was taken off my head, investigator P. compelled me to
make written statements... He told me that he had witness statements
against me... For twelve days in the temporary detention centre I made
statements concerning my alibi on the day of M.'s murder and the
alleged animosity between myself and the above witness..."
21. By a letter of 28 February 2000 the applicant was informed that
his renewed complaint had been dismissed by the Kurgan Regional
Prosecutor's Office because the inquiry had already resulted in a
decision not to initiate criminal proceedings in relation to the
alleged ill-treatment.
22. On 6 May 2000 the applicant was interviewed in the presence of
counsel, pleaded not guilty, sought a face-to-face confrontation with
the second applicant and then chose to remain silent.
23. Between May and September 2000 the applicant sent several
unspecified complaints from the detention facility to the Kurgan Town
Court. In April 2000 the applicant's mother complained to the regional
prosecutor about the inquiry into the allegation of ill-treatment.
B. The second applicant's arrest and detention
1. Alleged ill-treatment
24. On 9 December 1999 the second applicant (Mr Mezentsev) was
brought to the above-mentioned Organised Crime Unit in Shadrinsk from
a detention facility in the town of Kurgan.
25. According to the applicant, he remained in the police car with a
canvas bag on his head and received several blows from the convoy
officers. In the Unit the officers connected wires to his little
fingers and applied electric shocks. When he fainted they hit him on
the head so that he would regain consciousness. A canvas bag was
placed over his head, restricting the airflow. He could not bear the
pain and admitted his complicity in the killing of a Mr K.
26. On the same day, between 7 p.m. and midnight, the second
applicant was questioned by investigator P. The record of interview
contains the following pre-typed standard wording:
"I have been informed that under Article 51 of the Russian
Constitution, no one is required to testify against himself, his
spouse or next of kin...I have also been apprised of the rights of the
suspect during the preliminary investigation under Articles 52 and 64
of the RSFSR Code of Criminal Procedure:
A suspect has the following defence rights: to know the accusation
against him; to make statements; to adduce evidence; to make requests;
to have access to the minutes of investigative measures carried out in
his presence and to have access to the file submitted to the court
confirming the lawfulness of and reasons for remanding him in custody;
to lodge challenges and complaints against the investigator's
decisions and actions; to read this record after the interview,
request its amendment and to make observations, which must be included
in the record.
I have also been informed that under Articles 47-52 of the RSFSR Code
of Criminal Procedure a suspect has a right of defence. For this
investigative measure I required ___ counsel (appointed by an
advocates' office; a lawyer named by me; if no counsel requested -
indicate a reason...)."
The applicant made a handwritten statement indicating that he did not
require counsel and that he was not waiving his right on account of
lack of means. This note bears his signature.
The record of interview also contains another handwritten note by the
applicant in the following terms:
"I have been apprised of the content of Article 51 of the
Constitution. I agree to testify on the substance of the suspicion
against me".
This note bears the applicant's signature. During this interview the
applicant confessed to having been an accessory to K.'s murder,
committed, according to the second applicant, by the first applicant
(Mr Sharkunov). The record ended with a handwritten note stating that
the second applicant had read the record, that it was correctly
transcribed, that the applicant had no comment or objection to make,
that he had been made aware of the video recording and had no comment
to make on it. The interview was videotaped by officer Ba.
27. On 15 December 1999 the applicant was again taken to the
Organised Crime Unit, where the ill-treatment, namely beating him on
the head, allegedly resumed. According to the applicant, while in a
cell he cut the veins in both his arms, allegedly as a protest at the
beatings and pressure put on him. According to the Government, the
second applicant mutilated himself because the first applicant had put
pressure on him while in Shadrinsk remand centre no. 2.
28. After the second applicant had been provided with medical
assistance, at an interview on the same day he was informed of his
rights and pleaded innocent; he declined legal assistance "for this
interview" and refused to testify.
2. Inquiry into the allegation of ill-treatment
29. On 17 December 1999 the second applicant lodged a complaint with
the Regional Prosecutor's Office, alleging that he had been forced to
confess to the murder and to make false accusations against other
persons:
"I urge you to carry out an inquiry and to stop the unlawful methods
of investigation used against me by the officers of the Organised
Crime Unit. As a result of these, I was forced to made confessions on
9 December 1999. I complained to the regional prosecutor's office but
subsequently learnt that the complaint had not been forwarded... On 15
May 1999 I was brought to the Unit again and was forced to incriminate
myself and others of various crimes. To overcome my resistance, the
officers offered a visit from my family in exchange for a confession;
this was a form of psychological pressure...Since I could not stand
the pressure I cut my veins with a razor blade I found in the cell..."
30. On 19 January 2000 the applicant amended his statement, alleging
that electric shocks had been administered on 9 December 1999; that
the waiver of legal assistance had been imposed on him; that he had
been told to be natural during the videotaping and to answer in line
with the previously discussed version of the relevant events.
31. An inquiry was ordered in relation to the second applicant's
allegation of ill-treatment. Officer E. stated that the applicant had
been brought to the Organised Crime Unit for interview with
investigator P.; the interview was videotaped; no ill-treatment or
pressure had been used against the applicant (see also paragraph 52
below). A similar statement was made by senior officer Ya. (see also
paragraph 51 below). To a statement in similar terms investigator P.
added that while the applicant had not requested counsel for the
interview on 15 December 1999 he had expressed the wish to have a
consultation with a lawyer later on in the remand centre. Officer Ba.
confirmed that he had videotaped the interview on 9 December 1999 and
that he had seen no beatings.
32. The prosecutor also obtained a written statement from the
applicant alleging that during his transfer to the Unit on 9 December
1999 he had a canvas bag on his head; in the Unit he had cables
attached to his fingers and that electric shocks had been
administered. The applicant alleged that on 15 December 1999 he had
received several blows from Unit officers; that he could not identify
them as he had a canvas bag on his head; and that in reply to his
request for counsel investigator P. had told him to write to the local
bar association.
33. On 27 January 2000 the applicant was examined by a medical expert
who found scars on his forearms and concluded that these scars could
have been self-inflicted on 15 December 1999. The expert did not
record any traces of electric torture or blows to the second
applicant's head.
34. On 28 January 2000 the Shadrinsk District Prosecutor's office
refused to institute criminal proceedings in relation to the alleged
ill-treatment. The prosecutor relied on the above-mentioned statements
and the expert report. He also noted that the applicant had not made
any complaint while in the remand centre and that no injuries had been
recorded there. The decision states that "the persons concerned should
be informed of the decision and the procedure for appealing against
it".
3. Related proceedings
35. On 31 January 2000 the second applicant asked for legal-aid
counsel, referring to the lack of means to retain one. The applicant
was questioned in the presence of counsel on 4 February 2000 and
retracted the confession made on 9 December 1999 as given under
duress.
36. On 5 May 2000 investigator M., who was also in charge of the
criminal case against the applicant, refused to institute criminal
proceedings, dismissing as unsubstantiated the second applicant's
renewed complaint of ill-treatment.
37. On 10 May 2000 the second applicant was interviewed in the
presence of counsel and, having been apprised of the privilege against
self-incrimination, asserted his innocence and remained silent.
38. On 5 June 2000 the investigator rejected a number of applications
by the defence, indicating, inter alia, that the allegation of
ill-treatment had previously been dismissed after the inquiries and
that the case file contained the relevant decisions not to institute
criminal proceedings.
39. The applicant sent unspecified complaints to the Shadrinsk Town
Court from the detention facility in March 2000 and to the Kurgan Town
Court between June and December 2000.
C. Other relevant facts and the trial
1. Pre-trial proceedings
40. In November 1999 and February 2000 the police questioned a Mr V.
in the framework of unrelated criminal proceedings. It appears that he
was informed of his rights and declined the legal assistance offered
to him. In substance, he stated that he had served as a driver for the
applicants on the day when K.'s murder had been committed and that he
had heard about another murder, allegedly committed by the first
applicant. V. also stated that "in winter 1998-1999" the second
applicant had set a car on fire on the first applicant's instructions;
the latter had unsuccessfully tried to extort a sum of money from the
car owner; the first applicant had then allegedly told V. that the
second applicant had broken the car window, thrown a bottle of
gasoline in the car and set it on fire. V. confirmed his earlier
statements during a face-to-face confrontation with the second
applicant. However, on 19 April 2000 V. retracted his statement,
alleging ill-treatment in November 1999 and February 2000. It appears
that the authorities refused to initiate a criminal case against the
officers.
41. At the pre-trial stage, a Ms S. was interviewed as a witness
regarding the arson charges against the applicants. She identified the
second applicant from his general facial traits, in a line-up of three
persons, as the person she had first seen "in or around March 1998"
when he had tried to set a car on fire in the yard of the block of
flats where she lived; the second time was when he broke the car
window and spilt gasoline in it. A lawyer and two attesting witnesses
were present at the line-up.
42. The applicants and V. were accused of several criminal offences,
including murder and arson. The first applicant was charged with two
counts of murder, two counts of instigation to destruction of property
by arson, unlawful possession of firearms and extortion. The second
applicant was charged with murder and two counts of destruction of
property by arson. The first count of destruction of property by arson
was based on the statement of the victim of the arson attack who
alleged that he had had "tensions" with the first applicant. That
statement was partly confirmed by witness Ch. The second count was
based, in particular, on S.'s statement, an eyewitness who had
identified the second applicant as the arsonist.
2. Trial
43. On 19 July 2000 the Kurgan Regional Court held the first hearing.
The applicants pleaded not guilty to the murder and arson charges. The
second applicant stated that his confession of 9 December 1999 had
been obtained under duress after hours of torture. The applicants'
co-defendant V. also stated that he had been severely beaten by police
officers and, in consequence, had falsely denounced the applicants. He
submitted that the officers had beaten him on the upper part of his
body but that the blows had left no traces.
44. Ms S. was called to testify at the trial in relation to the
second arson case (concerning the events in February 1998). According
to a report dated 21 July 2000, a bailiff came to her home but she
refused to appear before the trial court, alleging that she had to
nurse her underage child.
45. By a judgment of 4 September 2000 the Regional Court found the
first applicant guilty on two counts of murder, unlawful possession of
firearms and on the second count of instigation to destruction of
property by arson and sentenced him to twenty years' imprisonment. The
second applicant was found guilty on the second count of the
destruction of property by arson and of complicity in the above
murder, and sentenced to sixteen years' imprisonment. The court
acquitted the second applicant of another arson count (concerning the
events in January 1998) and discontinued the related prosecution on
that count against the first applicant.
46. On the murder charges the trial court relied on the second
applicant's confession, various testimonies by other persons, certain
forensic reports and physical evidence. The court dismissed the
defendants' allegations of ill-treatment as unsubstantiated because
"no injuries had been identified on the applicants' bodies during the
preliminary investigation".
47. On the second arson charge, the trial court relied on V.'s
pre-trial statement (see paragraph 40 above), S.'s pre-trial
identification report of the second applicant as the arsonist (see
paragraph 41 above); the victim's and a witness's statements that
there had been "tensions" between the first applicant and the victim.
48. The applicants appealed, alleging, inter alia, that the trial
court had failed to summon various witnesses and had wrongly assessed
some pieces of evidence, including the self-incriminating statements
made by the second applicant and other persons. On 2 April 2001 the
Supreme Court of the Russian Federation upheld, in essence, the
judgment of 4 September 2000. The charge against the first applicant
of unlawful possession of a gas pistol was dropped. The appeal court
considered that the trial court had rightly referred to S.'s statement
because that person had seen the second applicant set fire to the
victim's car and had identified him as the arsonist. The appeal court
also noted that S.'s statement and a statement from another person
confirmed that there had been tensions between the first applicant and
the victim.
49. On 19 September 2001 the Presidium of the Supreme Court, sitting
in its supervisory-review capacity, acquitted the first applicant of
unlawful possession of firearms and reduced his sentence to nineteen
years and six months.
D. Subsequent events
50. In 2005, in reply to requests from the deputy President of the
Regional Court, the Kurgan Town Court and the Shadrinsk Town Court
stated that in 1999 and 2000 they had not received any complaints from
the applicants against the administrations of remand centres,
investigating or prosecuting authorities or the police department or
its units (see also paragraphs 23 and 39 above).
51. In June 2005 Mr Ya., senior officer of the Organised Crime Unit
at the relevant time, made a written statement (see also paragraphs 15
and 31 above), indicating that Mr V. had named the applicants as his
accomplices in a number of offences. Thereafter, the second applicant
was brought from Kurgan remand centre no. 1 to Shadrinsk and made
confessions in respect of murdering victim K. and some other offences.
The second applicant was questioned by investigator P. in relation to
the murder; Officer Ya. was in charge of the video recording of the
interview; Officer Ba. was also present. The second applicant was then
brought to Kurgan remand centre no. 2. A week later he was brought to
the Unit for questioning and a visit from his family. However, in the
meantime, he cut his veins and was admitted to hospital for treatment.
On the same day he was brought back to the Unit and retracted his
earlier confessions in the presence of investigator P. and chose to
remain silent. The applicant was brought back to the remand centre.
Subsequently, it was established that the first applicant had tried to
compel the second applicant to retract his confessions. Officer Ya.
also stated that in May 1999 the first applicant had been brought in
for questioning. After his refusal to testify, he had been taken for a
medical examination (for unspecified reasons) and had then been placed
in the temporary detention centre of Shadrinsk. Both applicants had
lodged numerous complaints against various officers of the Organised
Crime Unit. However, the inquiries had disclosed no unlawful actions
on their part. Except for the murder of K., the other episodes of
criminal activity had been dealt with by the Shadrinsk office of the
Interior.
52. In June 2005 Mr E., a police officer in 1999, made a written
statement (see also paragraphs 15 and 31 above) according to which he
had arrested the first applicant in May 1999 and brought him to the
Organised Crime Unit for questioning. No physical force had been used
against him. Mr E. stated that he might have convoyed the second
applicant from Kurgan remand centre no. 1, but without recourse to any
physical force or pressure.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Judicial review
53. The Constitution of the Russian Federation provides, in so far as
relevant:
Article 46
"Everyone shall be guaranteed judicial protection of his or her rights
and freedoms."
"Decisions and actions or lack of action of State bodies, bodies of
local self-government, public associations and officials may be
appealed against in court..."
54. The 1993 Judicial Review Act (Federal Law No. 4866-1 on appeals
against acts and decisions infringing individual rights and freedoms),
as amended in 1995, provides for a judicial avenue for claims against
public authorities, except for those for which the Constitutional
Court is competent or for which another procedure is prescribed
(section 3). The Act states that a decision or omission by a public
authority or official can be challenged before a court if it
encroaches on an individual's rights or freedoms or unlawfully imposes
an obligation or liability on that individual. In such proceedings the
court is entitled to declare the impugned act, decision or omission
unlawful, to order the public authority to act in a certain way
vis--vis the individual, to lift the liability imposed on the
individual or to take other measures to restore the infringed right or
freedom. If the court finds the impugned act, decision or omission
unlawful, this gives rise to a civil claim for damages against the
State.
55. Under the 1960 Code of Criminal Procedure (CCrP), as in force at
the relevant time, a prosecutor, investigator or judge was competent
to examine complaints and information about any offence committed and
to open or refuse a criminal investigation, or to transmit the matter
to a competent authority (Article 109). A prosecutor's refusal to open
a criminal investigation could be appealed to a higher prosecutor; a
judge's refusal could be challenged before a higher court (Article 113
S: 4).
56. On 29 April 1998 the Constitutional Court of the Russian
Federation invalidated Article 113 S: 4 of the Code because it did not
allow for judicial review of a prosecutor's or investigator's refusal
to institute criminal proceedings. The Constitutional Court ruled that
Parliament should amend the legislation on criminal procedure by
inserting a possibility of review. It also held that until such
amendments were enacted, the national authorities, including courts,
should directly apply Article 46 of the Constitution requiring a
judicial review of administrative acts. The ruling was published in
May 1998.
57. In a ruling of 14 January 2000 the Constitutional Court declared
unconstitutional several provisions of the RSFSR CCrP authorising the
courts to initiate criminal proceedings of their own motion. In the
same ruling the Constitutional Court reiterated that a court could
carry out a judicial review of an investigating authority's decision
to open a criminal case, to refuse to initiate criminal proceedings or
to discontinue such proceedings, in particular on a complaint of a
person that his or her constitutional rights had been breached by such
a decision. The ruling was published in February 2000.
B. Legal assistance in criminal proceedings
58. Under Article 52 of the RSFSR CCrP, a suspect has the following
rights: a right to know the accusation against him; to make
statements; to have access to the record of investigative measures; to
lodge complaints; from the time of the arrest to have meetings with
counsel, his next of kin or other persons.
59. Article 47 of the RSFSR CCrP provided that counsel could
participate in the proceedings from the time when a person was
informed of the charges against him or her. If a suspect was arrested
or detained, counsel could participate in the proceedings from the
time when the suspect was given access to the arrest record or
detention order. In its ruling of 27 June 2000 (no. 11-П) the
Constitutional Court held that Article 47 of the CCrP was contrary to
the Constitution in so far it excluded the possibility of legal
representation at the very first stages of the proceedings, that is,
before any charges were brought or before access was given to the
arrest/detention record.
60. The participation of counsel was mandatory in pre-trial
proceedings from the date on which charges were brought in respect of
offences punishable by the death penalty and in the court proceedings
concerning such offences (Article 49 of the RSFSR CCrP). If counsel
was not retained by the person concerned, the authority in charge of
the case had to appoint one (ibid). The defendant could waive legal
assistance; such a waiver could be opposed by the authority in charge
of the case if the case concerned offences punishable by the death
penalty (Article 50 of the Code).
61. Article 59 of the Criminal Code provided for the death penalty as
a punishment for particularly serious criminal offences against human
life, such as aggravated murder.
C. Admissibility of evidence
62. Article 21 of the Constitution guarantees the protection of human
dignity and prohibits torture, violence and inhuman and degrading
treatment and punishment. Article 117 of the Criminal Code punishes
torture, in particular when inflicted in order to compel the person
concerned to make statements or to perform other acts contrary to the
person's will, as a punishment or for other ends. Article 20 of the
RSFSR Code of Criminal Procedure prohibited compelling another to make
a statement through the use of violence, threats or other unlawful
means against the accused or other persons involved in the
proceedings.
63. Article 50 S: 2 of the Russian Constitution prohibits reliance in
a court of law on evidence obtained in breach of federal law. In a
ruling of 31 October 1995 the Plenary Supreme Court of Russia held
that such a breach occurred when the gathering and admission of
evidence resulted in a violation of the constitutional rights and
freedoms or of the criminal law procedure, as well as when the
gathering and admission of evidence was carried out by an authority
lacking competence or acting in breach of the applicable procedural
rules (point 16).
64. Article 69 S: 3 of the RSFSR Code of Criminal Procedure provided
at the time that evidence obtained unlawfully should be declared
devoid of legal force and should not serve as a basis for a
prosecution or for proving relevant circumstances such as the damage
caused by the criminal offence.
D. Reopening of criminal proceedings
65. Article 413 of the 2001 Code of Criminal Procedure provides that
criminal proceedings may be reopened if the European Court of Human
Rights has found a violation of the Convention.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
66. The applicants complained that they had been ill-treated while in
police custody and that there had been no effective investigation into
their complaints, in breach of Article 3 of the Convention. This
provision reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
A. Exhaustion of domestic remedies
67. The Government submitted that the applicants had failed to
exhaust domestic remedies (see also paragraph 50 above). In the
Government's submission, the applicants "should have exercised their
right under Article 46 of the Russian Constitution by way of an action
under the 1993 Judicial Review Act against the refusals to prosecute
[officers]".
68. The applicants argued that at the relevant time there had been a
judicial practice of declining jurisdiction under the Judicial Review
Act in relation to appeals against refusals to institute criminal
proceedings.
69. In the admissibility decision of 2 July 2009 the Court decided to
join this matter to the merits.
70. The Court first observes that it is uncontested between the
parties that the applicants raised their grievances in substance at
the national level, thus affording the national authorities an
opportunity to redress any alleged violations (see Satk v. Turkey (no.
2), no. 60999/00, S:S: 27-29, 8 July 2008).
71. Second, as regards the Judicial Review Act, the Court notes that
the parties did not clarify whether the applicants or their counsel
had been able to obtain in good time a copy of the relevant decisions
not to prosecute the officers regarding the allegations of
ill-treatment. However, this matter is not determinative because the
Government have neither submitted any evidence that this remedy had
any prospect of success in view of the then existing judicial practice
nor any explanation as to how it could have provided the applicants
with adequate redress. Therefore, the Government have not
substantiated their contention that the remedy the applicants had
allegedly failed to use was an effective one (see Khamila Isayeva v.
Russia, no. 6846/02, S: 100, 15 November 2007). Thus, the Government's
objection should be dismissed. Lastly, it is noted that the Government
did not put forward any argument concerning any remedies under the
Russian criminal-law procedure. The Court is thus not called upon to
make any findings in that regard.
72. The Court will now turn to the substance of the complaints made
by the applicants, namely, the allegations of ill-treatment by agents
of the State.
B. Merits of the complaints
1. First applicant (Mr Sharkunov)
73. The Government submitted that the first applicant had not been
ill-treated, and explained his injuries with reference to his drug
addiction.
74. The first applicant alleged that he had been ill-treated by way
of electric shocks and suffocation in a canvas bag. The ill-treatment
had been aimed at obtaining his confession regarding M.'s murder and
had been carried out in the presence of investigator P. As a result,
the applicant had sustained scratches and bruises on the inside of his
thighs and injuries on the forearms. Contrary to the authorities'
findings, there had been no convincing proof of any drug addiction or
withdrawal syndrome.
75. The Court reiterates that Article 3 enshrines one of the most
fundamental values of democratic societies. In assessing evidence in a
claim of a violation of Article 3 of the Convention, the Court adopts
the standard of proof "beyond reasonable doubt" (see Avar v. Turkey,
no. 25657/94, S: 282, ECHR 2001-VII). Such proof may, however, follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see Ireland
v. the United Kingdom, judgment of 18 January 1978, S: 161, Series A
no. 25). The Court is sensitive to the subsidiary nature of its task
and recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, among
others, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April
2000). Nonetheless, the Court applies a particularly thorough scrutiny
for allegations of proscribed treatment in breach of Article 3 of the
Convention (see Avar, cited above, S: 283).
76. The ill-treatment complained of by the first applicant consisted
of a canvas bag being put on his head, beatings and electric shocks.
The certificate issued by a medical assistant in the temporary
detention centre noted blue bruises on his legs and injection marks on
his arms. Nonetheless, a number of elements in the case raise doubts
as to whether the applicant suffered ill-treatment in May 1999.
77. The Court observes at the outset that the applicant did not
complain about the alleged ill-treatment immediately after it had
allegedly occurred. The complaint was lodged by the applicant's
mother. She did so on 17 May 1999, that is, some eleven days after the
alleged ill-treatment. Although the Court accepts that detainees may
have reasons to fear reprisals for their complaints against officers
under whose control they find themselves at the time, no explanation
was given in the present case for the passive attitude on the part of
the applicant. Moreover, it appears that on 14 May 1999 at the latest
the applicant was able to see counsel and could thus have conveyed via
him his grievances regarding the alleged ill-treatment.
78. In that connection, it is noted that the applicant's mother's
complaint did not contain any detailed description of the alleged
ill-treatment based on first-hand experience by the applicant (see
paragraph 12 above). Nor is it apparent from the material in the case
file before the Court that after that date the applicant amended his
mother's statement to make it more detailed and consistent (see
paragraphs 12, 20 and 45 above; see also evik v. Turkey (dec.),
no. 57406/00, 10 October 2006). There is no match between any
available description of the beatings and the injuries identified.
Moreover, the applicant himself explained at the national level that
the bruises had resulted from horse riding. Thus, the available
material was not sufficient to substantiate the ill-treatment
described, in brief and general terms, by the applicant's mother (see
Ahmet Mete v. Turkey (no. 2), no. 30465/02, S: 33, 12 December 2006).
79. Lastly, the Court does not have to take a stance on the issue of
the alleged drug addiction since as such it does not corroborate or
refute the allegation of ill-treatment made by the applicant. In other
words, there is insufficient information to determine whether the
marks on the applicant's arms resulted from the application of
electric shocks or injections.
80. In the circumstances, there is no material in the case file which
could call into question the findings in the certificate of the
temporary detention centre or add probative weight to the allegations
before the Court. In particular, it does not appear that the applicant
requested or was refused permission to see another doctor during or at
the end of his custody period in the temporary detention centre, that
is, after 17 May 1999. In conclusion, the material before the Court is
not sufficient to enable it to conclude that the applicant was
subjected to ill-treatment as alleged.
81. The Court also reiterates that Article 3 of the Convention
requires the authorities to investigate allegations of ill-treatment
when they are "arguable" and "raise a reasonable suspicion" (see
Assenov and Others v. Bulgaria, judgment of 28 October 1998, S:S: 101
and 102, Reports of Judgments and Decisions 1998-VIII). The Court
considers that the investigation carried out in the present case was
acceptable. The inquiry was opened as soon as the national authorities
became aware of the matter and was carried out promptly. The Court
concludes that the procedural obligation of the authorities of the
respondent State under Article 3 of the Convention cannot be said to
have been breached.
82. There has accordingly been no violation of Article 3 of the
Convention in respect of Mr Sharkunov.
2. Second applicant (Mr Mezentsev)
83. The Government submitted that the second applicant's allegation
of ill-treatment had been investigated and that the allegations
concerning events on 9 December 1999 were unfounded. On 15 December
1999 the applicant had inflicted injuries on himself with a razor
blade; the medical examination had revealed no other injuries on his
body. The above-mentioned allegations had also been examined and
rejected as unfounded by the national courts during the determination
of the criminal charges against him.
84. The second applicant submitted that he had had no suicidal
tendencies and that the self-inflicted injuries had resulted from
previous ill-treatment at the hands of police officers. The first
applicant had not compelled the second applicant to change his plea
because they had been detained in different facilities at the time.
The medical examination had been carried out belatedly so that no
traces of the electric shocks remained. No special medical devices
such as an encephalograph had been used for the examination. One of
the complaints about the ill-treatment was examined by investigator
M., who was also in charge of the criminal case against the second
applicant.
85. The ill-treatment complained of by the second applicant consisted
of a canvas bag being put on his head, beatings and electric shock
treatment. Nonetheless, applying the principles cited in paragraph 75
above and having examined the available material, the Court considers
that it has not been established beyond reasonable doubt that the
applicant was subjected to degrading or inhuman treatment in breach of
Article 3 of the Convention. Nor is there any sufficient basis to
support his claim that he caused himself injuries due to previous
ill-treatment (see paragraph 27 above). In view of the above, the
Court considers that the measures taken by the national authorities in
relation to his complaints were sufficient in the circumstances of the
case.
86. There has therefore been no violation of Article 3 of the
Convention in respect of Mr Mezentsev.
II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
87. The applicants complained under Article 6 of the Convention that
the criminal proceedings against them had been unfair. They referred
to the absence of legal counsel during their initial interrogations;
the trial court's reliance on the second applicant's confession
allegedly made under duress at the pre-trial stage of the proceedings
and without legal advice, in connection with the murder charges. The
applicants also referred to the impossibility of obtaining the
attendance and examination of witness S. in relation to the
arson-related charges.
88. Article 6 of the Convention, in the relevant parts, reads as
follows:
"1. In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ....
3. Everyone charged with a criminal offence has the following minimum
rights:
...
(b) to have adequate time and facilities for the preparation of his
defence;
(c) to defend himself in person or through legal assistance of his
own choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require;
(d) to examine or have examined witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him;..."
A. The parties' submissions
1. The applicants
89. The applicants submitted that the waiver of legal assistance at
the initial stage of the investigation had not been valid since the
participation of counsel had been mandatory under the national
legislation (see paragraph 60 above). The investigator could have
rejected the above waiver. In any event, the applicants had not been
provided with any counsel whose services they could waive. Nor could
any counsel be retained at night time, when the applicants were
arrested and interviewed.
90. The applicants also argued that the authorities had not made a
reasonable effort to bring the prosecution witness S. before the trial
court for examination as a witness. The excuse put forward by S.
should not have been accepted. Moreover, the bailiff's report in
respect of Ms S. had not been signed by S. or any witnesses.
2. The Government
91. The Government submitted that after his arrest the first
applicant had been informed of his rights, including the right to be
represented and to remain silent. He had acknowledged in writing that
he waived legal representation. On the same day he had pleaded
innocent and refused to give any further statements. On 12 May 1999 he
had been interviewed in the presence of counsel and had remained
represented throughout the pre-trial investigation and trial.
92. As to the second applicant, the Government submitted that the
officers had duly informed him of his right to legal assistance and
the privilege against self-incrimination, as required under Article 52
of the RSFSR Code of Criminal Procedure (see paragraph 58 above).
Despite this notice, he had waived his right to legal assistance. This
fact was confirmed by his signature on the interview record of 9
December 1999. The second applicant had reiterated his waiver on
15 December 1999. Later on, he had been provided with counsel D. The
second applicant's confession had been examined by the trial court
together with the other evidence. As the confession was corroborated
by that evidence, the court had declared it reliable and valid.
93. Lastly, the Government submitted that S. had been served with the
summons for the hearing on 19 June 2000. As she had defaulted, the
court had ordered that she be brought to the hearing. However, in view
of the need to look after her child, she had been exonerated from the
obligation to appear before the court. The applicants had filed no
objections or applications in that respect. In any event, S.'s
pre-trial statement had not been read out at the trial as it had lost
most of its evidentiary value in view of her failure to appear before
the court. The court had delivered its judgment on the basis of the
"other relevant, reliable and sufficient evidence".
B. The Court's assessment
1. General principles
94. The Court reiterates that, in accordance with Article 19 of the
Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. While Article 6 guarantees the right to a fair hearing, it
does not lay down any rules on the admissibility of evidence as such,
which is primarily a matter for regulation under national law (see, as
a recent authority, Bykov v. Russia [GC], no. 4378/02, S: 88, ECHR
2009-...).
95. It is therefore not the role of the Court to determine, as a
matter of principle, whether particular types of evidence - for
example, evidence obtained unlawfully in terms of domestic law - may
be admissible or, indeed, whether the applicant was guilty or not. The
question which must be answered is whether the proceedings as a whole,
including the way in which the evidence was obtained, were fair. This
involves an examination of the "unlawfulness" in question and, where a
violation of another Convention right is concerned, the nature of the
violation found (ibid, S: 89).
96. In determining whether the proceedings as a whole were fair,
regard must also be had to whether the rights of the defence were
respected. It must be examined in particular whether the applicant was
given the opportunity of challenging the authenticity of the evidence
and of opposing its use. In addition, the quality of the evidence must
be taken into consideration, including whether the circumstances in
which it was obtained cast doubt on its reliability or accuracy (ibid,
S: 90).
97. Furthermore, the Court reiterates that in order for the right to
a fair trial to remain sufficiently "practical and effective" Article
6 S: 1 of the Convention requires that, as a rule, access to a lawyer
should be provided as from the first interrogation of a suspect by the
police, unless it is demonstrated in the light of the particular
circumstances of each case that there are compelling reasons to
restrict this right (see Salduz v. Turkey [GC], no. 36391/02, S: 55,
27 November 2008). Even where compelling reasons may exceptionally
justify denial of access to a lawyer, such restriction - whatever its
justification - must not unduly prejudice the rights of the accused
under Article 6. The rights of the defence will in principle be
irretrievably prejudiced when incriminating statements made during
police interrogation without access to a lawyer are used for a
conviction (ibid.; see also Panovits v. Cyprus, no. 4268/04, S:S:
84-86, 11 December 2008, and Pishchalnikov v. Russia, no. 7025/04,
S:S: 90-92, 24 September 2009).
2. Application of the principles in the present case
(a) Legal assistance in police custody and use of evidence at the
trial
98. The Court will first examine the applicants' allegations
concerning the absence of legal counsel for the initial questioning,
and the trial court's reliance on the second applicant's confession
made at the pre-trial stage of the proceedings allegedly under duress
and without legal advice.
99. The Court reiterates that in the present case it has been alleged
that the second applicant made self-incriminating statements under
physical duress and psychological pressure exerted on him by police
officers and interrogators. However, the Court has found no violation
of Article 3 of the Convention in that connection (see paragraph 85
above). In so far as Article 6 is concerned, the Court notes that when
convicting the applicants on the murder charges the trial court relied
on the second applicant's confession together with testimonies by
witnesses, certain forensic reports and physical evidence. The court
dismissed the defendants' allegations of ill-treatment as
unsubstantiated because "no injuries had been identified on the
applicants' bodies during the preliminary investigation".
100. The Court observes at the outset that Russian law at the time
prohibited reliance on evidence obtained by ill-treatment (see
paragraphs 62 - 64 above). The Court finds no reason to consider in
the present case that the available procedure for contesting the
relevant evidence on this account and for opposing its admission and
use was ineffective or failed to provide sufficient procedural
guarantees. Thus, the Court is not ready to conclude that the second
applicant's pre-trial statement was tainted by the alleged physical
violence or threats.
101. The Court notes that the applicants also argued that there had
been a violation of their right to legal assistance at the initial
stage of the investigation and it was thus unfair to rely on the
second applicant's admissions made in the absence of legal assistance.
102. The Court reiterates in that connection that in the
admissibility decision it decided to join to the merits the
Government's objection concerning the waiver of the right to legal
assistance at the initial stage of the criminal investigation.
103. The Court observes that the second applicant was brought from a
detention facility to the Organised Crime Unit for questioning by the
investigator on 9 December 1999. He made confessions which were
prejudicial to himself and the first applicant. As can be seen from
the interview record, the second applicant waived his right to legal
assistance, adding that the waiver was not related to a lack of
financial means. He was interviewed again on 15 December 1999, waived
legal assistance "for this meeting" and chose to remain silent. It
appears, however, that in reply to his request for counsel the
investigator told him to write to the local bar association (see
paragraphs 31 and 32 above). On 31 January 2000 he asked for free
legal assistance, referring to a lack of means. He was provided with
counsel soon afterwards.
104. The Court notes that as a matter of principle Russian law at the
time, as interpreted by the Constitutional Court, afforded a right to
legal assistance from the time of arrest (see paragraph 59 above;
compare Dayanan v. Turkey, no. 7377/03, S:S: 32 and 33, ECHR 2009-...,
and Bouglame v. Belgium (dec.), no. 16147/08, 2 March 2010). It is
further noted that as can be seen from the interview record of
9 December 1999 the second applicant was informed of the privilege
against self-incrimination and the right to legal assistance. The
record contains his handwritten note to this effect. As also follows
from this note, the applicant chose to waive legal assistance for this
interview for reasons unrelated to his financial situation. This note
was signed by the second applicant. The waiver on 9 December 1999
concerned a specific "investigative measure", namely, the applicant's
interview with the investigator.
105. The Court also observes that the national courts discussed the
matter of legal assistance. Having found no violation of the
applicable rules, the trial judge admitted the second applicant's
pre-trial admission as evidence and referred to it together with other
physical and witness evidence presented at the trial.
106. The Court reiterates that neither the letter nor the spirit of
Article 6 of the Convention prevents a person from waiving of his own
free will, either expressly or tacitly, the entitlement to the
guarantees of a fair trial (see Hermi v. Italy [GC], no. 18114/02, S:
73, ECHR 2006-XII). However, such a waiver must, if it is to be
effective for Convention purposes, be established in an unequivocal
manner and be attended by minimum safeguards commensurate with its
importance (ibid).
107. The Court considers that the circumstances of the case disclose
that the second applicant expressly and unequivocally waived the
privilege against self-incrimination and the right to legal assistance
on 9 December 1999 (see, by contrast, Sava v. Turkey, no. 9762/03,
S:S: 65-71, 8 December 2009).
108. The Court further observes that the second applicant does not
complain that he was unrepresented between 15 December 1999 and
4 February 2000 (see paragraphs 31, 32 and 35 above). The Court notes
in that connection that the second applicant made it clear only on 31
January 2000 that he had insufficient means to retain counsel, as
opposed to his earlier statement on 9 December 1999. In any event, it
is not apparent from the case file that the second applicant made any
statement or admission between 15 December 1999 and 4 February 2000.
109. The foregoing considerations have led the Court to conclude that
there has been no violation of Article 6 of the Convention on that
account.
110. In so far as the first applicant made no statement or admissions
after his arrest in May 1999, the Court considers that there is no
need to make separate findings in respect of him in so far as the
issue of legal assistance is concerned.
(b) Examination of a witness
111. Turning to the matter of the examination of a witness in
connection with the arson-related charges against the applicants, the
Court observes at the outset that S. did not testify at a court
hearing. However, she should, for the purposes of Article 6 S: 3 (d)
of the Convention, be regarded as a witness because her statement
during the identity parade procedure, as taken down by the
investigating authority, was used at the trial. In the circumstances,
the Court considers that there was no material difference between a
recorded deposition by a witness and the result of an identity parade
since both are capable of furnishing evidence against a defendant in a
criminal trial (see also Mirilashvili v. Russia, no. 6293/04, S: 159,
11 December 2008).
112. In finding the second applicant guilty of destruction of
property by arson, the trial court relied on S.'s identification of
him as the arsonist. The trial court also referred to the pre-trial
statement by the applicants' accomplice (see paragraph 40 above). The
remaining witness statements referred to by the trial court without
any further discussion of their probative value were secondary, in
particular in so far they mostly concerned the assessment of the
relationship between the victim and the first applicant.
113. The Court reiterates that the use in evidence of statements
obtained at the stage of the police inquiry and the judicial
investigation is not in itself inconsistent with those provisions,
provided that the rights of the defence have been respected. As a
general rule, they require that the defendant be given an adequate
opportunity to examine a witness against him or have that witness
examined, either when he or she makes statements or at a later stage
(see Van Mechelen and Others v. the Netherlands, 23 April 1997, S: 51,
Reports 1997-III, and Ldi v. Switzerland, 15 June 1992, S: 49, Series
A no. 238). Indeed, it may prove necessary in certain circumstances to
refer to statements made before the trial. If the defendant has been
given an adequate opportunity to challenge the statements, their
admission in evidence will not in itself contravene Article 6 S:S: 1
and 3 (d) of the Convention (see, for instance, Belevitskiy v. Russia,
no. 72967/01, S: 117, 1 March 2007).
114. However, where a conviction is based solely or to a decisive
extent on statements that have been made by a person whom the accused
has had no opportunity to examine or to have examined at some stage of
the proceedings, the rights of the defence are restricted to an extent
that is incompatible with the guarantees provided by Article 6 (see
Unterpertinger v. Austria, 24 November 1986, S:S: 31-33, Series A no.
110; Sadi v. France 20 September 1993, S:S: 43-44, Series A no. 261-C;
Luc v. Italy, no. 33354/96, S: 40, ECHR 2001-II; and Solakov v. the
former Yugoslav Republic of Macedonia, no. 47023/99, S: 57, ECHR
2001-X). The Court also reiterates that where the impossibility of
examining witnesses or having them examined is due to the fact that
they are absent or otherwise missing, the authorities must make a
reasonable effort to secure their presence (see Bonev v. Bulgaria,
no. 60018/00, S: 43, 8 June 2006).
115. The Court notes that S. made her pre-trial statements during an
interview to the investigating authority and also during the identity
parade (see paragraph 41 above). Indeed, as submitted by the
Government, the trial court did not refer to the record of her
pre-trial interview with the investigative authority. Instead, the
trial court relied on the identification report. It has not been
submitted, and the Court does not consider, that besides seeking S.'s
examination at the trial the second applicant failed to use any other
procedural means for effectively contesting the incriminating evidence
received from S. (see, mutatis mutandis, Craxi v. Italy (no. 1),
no. 34896/97, S:S: 90-93, 5 December 2002). The available material
before the Court does not disclose that every reasonable effort was
made to bring S. before the trial court (see paragraph 44 above). Nor
do the circumstances of the case disclose any valid excuse for failure
to comply with the court summons. This being so, the second applicant
was not afforded an effective opportunity to examine S. or have her
examined at another stage of the proceedings (see Melnikov v. Russia,
no. 23610/03, S:S: 74-81, 14 January 2010).
116. There has therefore been a violation of Article 6 S:S: 1 and 3
(d) of the Convention in relation to the impossibility to examine or
have examined witness S. in connection with the arson-related charges.
117. As regards the first applicant, in the Court's view, it cannot
be said that S.'s testimony served for convicting him of instigation
to destruction of property by arson. Indeed, the first applicant made
no specific submissions as to the way in which the alleged
impossibility to examine her at the trial impinged upon the fairness
of the proceedings in respect of him.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
118. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention
or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made,
the Court shall, if necessary, afford just satisfaction to the injured
party."
A. Damage
119. Each applicant claimed 7,000 euros (EUR) in respect of
non-pecuniary damage.
120. The Government contested that claim.
121. Having regard to the nature of the violation found, the Court
awards the second applicant EUR 1,800 in respect of non-pecuniary
damage, plus any tax that may be chargeable.
122. In addition, as regards the findings under Article 6 S:S: 1 and
3 (d) of the Convention, the Court also reiterates that when an
applicant has been convicted despite an infringement of his rights as
guaranteed by Article 6 of the Convention, he should, as far as
possible, be put in the position in which he would have been had the
requirements of that provision not been disregarded, and that the most
appropriate form of redress would, in principle, be the reopening of
the relevant proceedings if requested (see Somogyi v. Italy,
no. 67972/01, S: 86, ECHR 2004-IV, and Bocos-Cuesta v. the
Netherlands, no. 54789/00, S: 82, 10 November 2005). The Court notes
in this connection that Article 413 of the Code of Criminal Procedure
provides that criminal proceedings may be reopened if the Court has
found a violation of the Convention.
B. Costs and expenses
123. The applicants made no claim for reimbursement of any costs or
expenses. The Court is thus not called to make any award under this
head.
C. Default interest
124. The Court considers it appropriate that the default interest
should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's argument concerning exhaustion of
domestic remedies in respect of the applicants' complaints regarding
ill-treatment;
2. Holds that there has been no violation of Article 3 of the
Convention in respect of the first applicant;
3. Holds that there has been no violation of Article 3 of the
Convention in respect of the second applicant;
4. Holds that there has been a violation of Article 6 S:S: 1 and 3
(d) of the Convention in respect of the second applicant;
5. Holds
(a) that the respondent State is to pay the second applicant, within
three months of the date on which the judgment becomes final in
accordance with Article 44 S: 2 of the Convention, EUR 1,800 (one
thousand eight hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
6. Dismisses the remainder of the applicants' claim for just
satisfaction.
Done in English, and notified in writing on 10 June 2010, pursuant to
Rule 77 S:S: 2 and 3 of the Rules of Court.
Sren Nielsen Christos Rozakis
Registrar President
26 SHARKUNOV AND MEZENTSEV v. RUSSIA JUDGMENT
SHARKUNOV AND MEZENTSEV v. RUSSIA JUDGMENT 26
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