THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5953/02 by Andrey Valeryevich VOZHIGOV against Russia

The European Court of Human Rights ( Third Section), sitting on 8 December 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr L. Caflisch , Mr A. Kovler , Mr V. Zagrebelsky , Mrs A. Gyulumyan , Mr David Thór Björgvinsson , Ms I. Ziemele, judges , and Mr M . Villiger , Deputy Section Registrar,

Having regard to the above application lodged on 21 December 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr An drey Valeryevich Vozhigov, is a Russian national who was born in 1974 and lives in Bryansk . He is represented before the Court by Ms Olga Mikhaylova, a lawyer practising in Moscow . The respondent Government are represented by Mr P avel Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

1. Preliminary investigation

In October 2000 the applicant was taken to a police station in the Bezhitskiy District of Bryansk on suspicion of the murder of a man who had been beaten to death.

The applicant submits that he was arrested on 17 October 2000 and interrogated in the absence of a lawyer. On the same date he was ill-treated by policemen and wrote a confession under pressure from them. The applicant further submits that a medical examination was conducted only ten days later, when bruises could no longer be seen.

The Government submit that the applicant was arrested and first interrogated on 18 October 2000 . In the report on his arrest the applicant stated that he “agreed to be detained”. In the course of the interrogation between 9.07 p.m. and 9.57 p.m. he waived his right to legal assistance, as was noted in the record of the interrogation.

On an unspecified date the applicant ’ s home was searched.

On 21 October 2000 detention as a measure of restraint was applied to the applicant.

During the interrogation on 26 October 2000 the applicant confirmed the waiver of his right to legal assistance, which was also noted in the minutes of the interrogation.

On 27 October 2000 he was charged with murder. During the interrogation on the same date the applicant refused to make any statements and denied his guilt.

In the course of the investigation a witness, Ms Y., stated to the investigative authorities that she had seen the applicant beating the man. On an unspecified date the applicant was confronted with Ms Y., who confirmed her earlier statement.

On an unspecified date the public prosecutor ’ s office instituted criminal proceedings against the policemen who had allegedly ill-treated the applicant. As a result of the investigation conducted, the proceedings were discontinued on account of lack of indication of a crime.

On 30 October 2000 the applicant sent a request for legal assistance to the prosecutor. He indicated that he wanted to be represented by one of the following counsels: Mr V., a lawyer from the Moscow law firm Vedischev and Partners; Ms M., a lawyer of the Moscow Bar Association, or an unspecified lawyer from the Legal Advice Office of the Bezhitskiy District of Bryansk. According to the Government, the request was received by the public prosecutor ’ s office on 8 November 2000 . The prosecutor then transferred the request to the investigator.

On 21 December 2000 the investigator sent three letters to the counsels chosen by the applicant, asking them to inform him whether they could participate in the investigative measures – the serving of the bill of indictment and studying of the case file – scheduled for 21, 25 and 26 December 2000.

On 21 December 2000 the letter was received by the Legal Advice Office of the Bezhitskiy District of Bryansk and on 10 January 2001 by the law firm Vedischev and Partners. It is not clear whether it was received by Ms M.

The Government submit that no investigative measures were taken on either 21 or 25 December 2000 .

The applicant submits that the investigative measures were not postponed, and that he was not provided with the opportunity to study the case file.

On 25 December 2000 , in the absence of any reply from the counsel chosen by the applicant, advocate K., of the Bryansk Bar Association, was assigned to represent the applicant.

On 26 December 2000 , when the bill of indictment was served on the applicant, advocate K. assisted him in studying the case file. The applicant refused to sign a statement to the effect that he had studied the case file. However, the statement was signed by advocate K.

On 12 January 2001 the law firm Vedischev and Partners sent two replies, to the investigator and the applicant. The reply to the investigator read:

“We have received your letter, in which you inform us that the following investigative measures ... are scheduled for 21, 25 and 26 December 2000 ... however, according to the postmark, the letter was sent on 21 December 2000 and it was received by us on 10 January 2001 .

By using such a method of notification you deliberately excluded the possibility of our lawyer ’ s participation in the investigative measures indicated. By your action you have grossly violated the defence rights of the accused [Mr] Vozhigov, who expressed his wish to be assisted by a lawyer from our law firm.

You must set a new date for [the investigative measures] and notify us about it in due time in order to provide a real opportunity for our lawyer to participate in the defence of [Mr] Vozhigov.”

2. Court proceedings

On 30 January 2001 the Bezhitskiy District Court of Bryansk ordered a number of witnesses, including Ms Y., who appeared to be the only eyewitness, to be brought before the court. The hearing was fixed for 19 February 2001 . On that date the bailiff went to Ms Y. ’ s residence. However, he did not find her at home as, according to her mother, since December 2000 she had been living in Moscow . The hearing was then postponed twice, until 19 March and 19 April 2001 . Both times the court ordered to have Ms Y. brought to the hearing. According to the bailiff ’ s report of 19 April 2001 Ms Y. had ceased to reside at the address indicated to the court and her new place of residence was not known.

On 7 May 2001 the court requested the prosecutor at the Bezhitskiy District Court of Bryansk to establish Ms Y. ’ s whereabouts. In the reply of 29 May 2001 the prosecutor informed the court that Ms Y. was not registered as resident either in Moscow or in the Moscow Region. The court issued another order to have Ms Y. brought to the hearing of 4 June 2001 . The Government submit that by the aforementioned date it appeared impossible to establish her whereabouts since she did not live at the address provided to the court and her relative did not have any information as to where she was.

At the hearing of 4 June 2001 the Bezhitskiy District Court of Bryansk decided to examine Ms Y. ’ s statements made during the preliminary investigation. The court asked both parties whether they had any objections. Neither party objected. The court based its judgment on the statements of Ms Y., the applicant ’ s confession made at the beginning of the investigation – although he later changed his statements and pleaded not guilty before the court – and on a certain amount of indirect evidence, such as statements by indirect witnesses and expert reports. At the hearing the court also examined the applicant ’ s doctor, Mr R., who had monitored the applicant since April 2000 in connection with a hip fracture he had sustained in August 1999, with a view to determining whether the applicant would have been able to commit the offence, taking into account his injury. Mr R. stated that because of the improvement of his state of health the applicant had not been operated on but had been recommended not to lift weights of over 12 kilograms. The court also found the applicant ’ s allegations of ill-treatment unsubstantiated. The court reached that conclusion relying on oral evidence given at the hearing by another policeman, a medical certificate according to which the applicant had no injuries that could have been caused on the date of the alleged ill-treatment, and the results of the investigation conducted by the public prosecutor ’ s office. Advocate K. assisted the applicant in the proceedings before the trial court. The court convicted the applicant of murder and sentenced him to 11 years and six months ’ imprisonment.

On 7 June 2001 the applicant applied to the Bezhitskiy District Court of Bryansk to study the record of the hearing. On 21 June 2001 the applicant stated in writing that he had studied the record.

The applicant appealed against the conviction on the grounds, inter alia , that during the preliminary investigation he had been unduly refused legal assistance and that the authorities had deliberately precluded him from being assisted by the lawyer of his choosing. He also claimed that his confession had been made under pressure from the police officials and stated that the key witness, Ms Y., had not been examined at the hearing.

On 6 July 2001 the Bryansk Regional Court upheld the sentence. The court held that the trial court had been correct to rely on Ms Y. ’ s statements made during the preliminary investigation because it had been impossible for her to appear at the hearing. The court also held that there had been no substantial breaches of procedural requirements, including the alleged breach of the applicant ’ s right to defence, such as to render the sentence unlawful.

B. Relevant domestic law

1. Right to legal assistance

Article 48 of the Constitution guarantees everyone the right to qualified legal assistance to. Under Article 48 § 2 an arrested person has the right to the assistance of a lawyer from the moment of the arrest.

Pursuant to Articles 47 and 52 of the RSFSR Code of Criminal Procedure of 1960, a suspect, from the moment of his arrest, has the right to be represented by defence counsel, if necessary to be paid by the authorities.

Pursuant to Article 199 of the Code of Criminal Procedure of 1960, the preliminary investigation ends by the drawing up of a bill of indictment. Article 201 further provides that an investigator has to notify the accused of the termination of the preliminary investigation and to explain to him his right to study the case file either in person or with the assistance of a lawyer. When the accused asks for the assistance of a lawyer the investigator has to provide the accused and his lawyer with the file on the case, which has to be postponed until the actual appearance of a lawyer, but not for longer than five days. After the accused and his lawyer have finished studying the case file, the investigator has to ask them whether they wish to make any applications to amend the investigation.

COMPLAINTS

1. The applicant complained under Article s 3 and 13 of the Convention that he had been beaten by the police for the purpose of obtaining a confession . He submitted that a medical examination had not been carried out until ten days later, by which time the bruises could not be seen.

2. The applicant complained under Article 5 of the Convention that his detention had been unlawful because he had not been brought promptly before a judge or a prosecutor and had not been charged until ten days after the arrest.

3. The applicant complained under Article 6 of the Convention about various aspects of the criminal proceedings against him. In particular, he complained that during the preliminary investigation no expert medical examination of him had been carried out. He contended that such an examination would have shown that because of his fractured hip, he could not have committed the offence. Invoking Article 6 § 3 (b), he alleged that he had not been given the opportunity to study the case file. Further relying on Article 6 § 3 (c), he complained that he had been de facto deprived of his right to legal assistance because the investigator had sent his request to the law firm of his choosing too late, thereby making the presence of his lawyer impossible. Relying on Article 6 § 3 (d), the applicant also complained that the key witness Ms Y. had not been examined at the court hearing.

4. Invoking Article 8 of the Convention, the applicant complained about the search conducted at his home and alleged that he and his family had been threatened by the police.

THE LAW

1. The applicant complained under Article s 3 and 13 of the Convention that he had been beaten by the police for the purpose of obtaining a confession and that a medical examination had been conducted ten days later when the bruises could not be seen.

Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has adopted the standard of proof “beyond reasonable doubt”, but has added that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121 , ECHR 2000 ‑ IV ).

Turning to the circumstances of the present case, the Court observes that, apart from his own statements, the applicant has not produced any conclusive proof in support of his allegations of ill-treatment. The Court notes that, according to the applicant, the medical examination was conducted too late, by which time no traces of the alleged ill-treatment could be detected. However, the applicant has not provided the Court with any other evidence, such as witness statements, nor any documents to show that he had actually requested a medical examination to be conducted sooner. Furthermore, the allegations of ill-treatment were the subject of the inquiry conducted by the public prosecutor ’ s office, which found them to be unsubstantiated and on that ground discontinued the criminal proceedings against the policemen. It was not suggested by the applicant that the investigation had not been thorough. Moreover, the Court observes that, under Article 209 of the RSFSR Code of Criminal Procedure, a decision to discontinue criminal proceedings may be appealed against either to a higher prosecutor or to a court. It does not appear, however, that the applicant pursued any avenue of appeal. In any event, the allegations of ill-treatment were also examined by the trial court, which likewise found them to be unsubstantiated. The Court finds that the applicant failed to submit any evidence to enable it to depart from the findings of the domestic authorities on this point.

The Court further recalls that according to its well-established case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

The Court has found that the applicant ’ s complaint under Article 3 is unsubstantiated. It follows that the applicant does not have an “arguable claim” and the complaint does not attract the guarantees of Article 13.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained under Article 5 of the Convention that his detention had been unlawful because he had not been charged until ten days after his arrest and had not been brought promptly before a judge or a prosecutor.

The applicant has not , however, provided the Court w ith any documents to show that he raised the complaint concerning the lawfulness of his detention before the competent domestic authorities. Accordingly, the Court finds that the applicant failed to exhaust domestic remedies.

It follows that this part of the application must be rejected pursuant to Article 34 and Article 35 §§ 3 and 4 of the Convention.

3. The applicant complained under Article 6 of the Convention about a number of procedural irregularities. In particular, he complained about the failure to conduct an expert medical examination of him during the preliminary investigation so as to determine whether he could have committed the offence, taking into account his injury. Relying on Article 6 § 3 (b), he alleged that he had not been provided with the opportunity to study the case file. Invoking Article 6 § 3 (c), he complained that he had been de facto refused legal assistance because the investigator had sent his request to the law firm of his choosing too late, which rendered the presence of his lawyer impossible. Relying on Article 6 § 3 (d), the applicant also complained about the court ’ s failure to examine the key witness Ms Y. at the hearing.

Article 6, in so far as relevant, provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

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

The Government submitted that the applicant had twice waived his right to legal assistance, on 18 and 26 October 2000 . Following his request for legal assistance, lodged on 30 October 2000 , the applicant had been assigned the lawyer K., who had assisted him in examining the case file on 26 December 2000 . Therefore, the first investigative measure after the applicant had lodged the request for legal assistance had been taken in the presence of his lawyer, who had also assisted him before the trial court. Accordingly, there had been no breach of the applicant ’ s right guaranteed by Article 6 § 3 (c). As regards the court ’ s failure to examine Ms Y. at the hearing, the Government submitted that the court had taken all possible measures to ensure her presence at the hearing; however, it had appeared impossible to establish her whereabouts. Furthermore, the applicant had not objected to the examination of the statements she had made in the course of the preliminary investigation. Accordingly, there had been no breach of the applicant ’ s rights guaranteed by Article 6 § 3 (d). In sum, the applicant ’ s complaints under Article 6 were manifestly ill-founded.

The applicant reiterated that the investigator had deliberately sent the letters to the counsels of his choosing too late, thus preventing them from participating in the investigative measures. He further maintained that he had sent the request for legal assistance to the Bryansk Bar Association. Therefore, by appointing advocate K. of the above Bar Association as his counsel the investigator had violated his right to legal assistance of his choosing. Furthermore, the lawyer K. had failed to effectively represent his interests. As regards the failure to examine Ms Y. at the hearing, the applicant contended that the authorities had not taken adequate measures to ensure her presence in the courtroom.

b) The Court ’ s assessment

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. The applicant complained under Article 8 of the Convention about the search conducted at his home and the threats from the police allegedly received by his family.

The Court notes that the applicant has not provided the Court w ith any documents to show that he raised th es e complaint s before the competent domestic authorities .

It follows that this part of the application must be rejected pursuant to Article 34 and Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares admissible, without prejudging the merits, the applicant ’ s complaints under Article 6 ;

Declares the remainder of the application inadmissible.

Mark Villiger Boštjan M. Zupančič Deputy Registrar President