FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48040/99 by Yevgeniy ZHELEZOV against Russia

The European Court of Human Rights (Fourth Section), sitting on 23 April 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mr J. Makarczyk , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste ,

Mr A. Kovler , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 14 January 1999,

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, Yevgeniy Zhelezov, is a Russian national, who was born in 1975. He is currently detained in the Severlokhi Prison in Russia. He was represented before the Court by Ms K. Kostromina, a lawyer practising in Moscow. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation before the Court.

A. The circumstances of the case

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

The applicant was suspected of having murdered his father on 7 August 1997. In particular, it was found that the applicant’s father had died from 41 wounds inflicted with a sharp object. The applicant was arrested and questioned by an investigator on the same day. During the interrogation the applicant wrote a confession whereby he stated that he had killed his father while under the influence of alcohol. 

The interrogation record of 7 August 1997 includes a typed description of the applicant’s procedural rights, including “the right to be represented by a lawyer from the moment of the arrest”. The record also contains the applicant’s statement that he “so far does not need a defence counsel”, confirmed by his signature.

On 8 August 1997 the applicant was again questioned. During the questioning he confirmed his written confession of 7 August 1997 that he had killed his father. After the interrogation the applicant’s detention was authorised by a prosecutor on suspicion of his having committed aggravated murder.

The investigating authorities requested the Bar to designate an official defence counsel to represent the applicant during the inquiry of 8 August 1997, in accordance with the relevant procedural requirements. The respondent Government state that an official counsel, PK, indeed represented the applicant during the interrogation. They have submitted a copy of an order by the Bar dated 8 August 1997 whereby PK had been nominated to represent the applicant at the interrogation on that same day. The detention order of 8 August 1997 also contains the applicant’s signature together with the signature of PK, confirming that they had access to the detention order.

The applicant states that PK was “possibly” designated to represent him at the interrogation of 8 August 1997. He denies however that PK in fact appeared at the interrogation.  

On 13 August 1997 the applicant employed privately a representative who thereafter acted in the proceedings on his behalf. On the same day the applicant was charged with aggravated murder. 

On 2 June 1998 a jury of the Kirov Regional Court convicted the applicant of aggravated murder (Article 105 of the Criminal Code) on the basis of various testimonies by witnesses and experts, and the applicant’s own explanations at the stage of the pre-trial investigation. He was sentenced to 12 years’ imprisonment.

In establishing the applicant’s guilt, the court took account of the applicant’s self-incriminating statements made at the interrogations of 7 and 8 August 1997. The court noted that on the date of the arrest, when submitting his written confession, the applicant had waived the right to be represented by a defence counsel. It further held that the domestic criminal procedure did not require obligatory legal representation of the applicant at the initial stage of the proceedings.

The court rejected the applicant’s subsequent pleadings at the trial that he had acted in self-defence. The court also established that the applicant had committed the crime while being drunk.

The applicant’s appeal against the first instance judgment was rejected by the Supreme Court on 25 August 1998. In dismissing the applicant’s pleadings that he had acted in self-defence, the Supreme Court took notice inter alia of the fact that during the interrogations of 7 and 8 August 1997 the applicant had not made such allegations.

B. Relevant domestic law and practice

Article 48 § 2 of the Constitution states that an arrested person has the right to assistance of a lawyer from the moment of the arrest. 

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

COMPLAINTS

Under Article 6 of the Convention the applicant complains that following his arrest from 7 to 13 August 1997 he was not represented by a defence counsel. Whilst having no access to legal advice at the interrogations of 7 and 8 August 1997, he admitted that he had killed his father, although his state of mind was such as to exclude criminal responsibility. Nonetheless, the domestic courts took account of those pre-trial statements in finding him guilty of aggravated murder, while dismissing his subsequent pleadings at the trial that he had acted in self-defence. The applicant claims that his defence rights were thus breached.

Under Articles 6 and 7 of the Convention the applicant also complains that he was deprived of a fair trial by an independent and impartial tribunal established by law. He alleges that the jury which convicted him at first instance was unlawfully composed. He also complains that the courts were biased, that they did not presume him innocent, and that they wrongly established the facts of the case.

THE LAW

The applicant alleges a violation of Article 6 of the Convention which provides, insofar as relevant, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ... .

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

... ;

(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;

... .”

The applicant also complains under Article 7 of the Convention which reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The applicant alleges in particular that Article 6 § 3 (c) was breached in that he was not represented by a lawyer from 7 to 13 August 1997, and that he was convicted on the basis of self-incriminating statements made on 7 and 8 August 1997.

The Government state that on 7 August 1997 the applicant waived his right to be represented by counsel, on 8 August 1997 he was represented by an official lawyer, and from 13 August 1997 he was represented by defence counsel of his choosing. No procedural act was carried out in breach of the applicant’s defence rights. Overall, the trial was compatible with the fairness requirement of Article 6.

To the extent that the applicant complains about the absence of legal representation from 7 to 13 August 1997, the Court recalls that, even if the primary purpose of Article 6, as far as criminal matters are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 - especially paragraph 3 - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions. The manner in which Article 6 §§ 1 and 3(c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case (see, Brennan v. the United Kingdom , no. 39846/98, 16.10.2001, § 45, ECHR 2001-X).

In its judgment in the case of John Murray v. the United Kingdom (no. 18731/91, 8.2.1996, § 63, ECHR 1996-I), the Court also observed that, although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see the Brennan case cited above, ibid. ).

The Court notes first that on 7 August 1997 the applicant was interrogated and wrote a confession without a lawyer being present. It is further noted, on the basis of the interrogation record of 7 August 1997, that the applicant was aware of the statutory right to be represented by a lawyer already at that stage, and that he refused to be represented by any defence counsel (see, by contrast , the Brennan case cited above, loc. cit. , §§ 46-48). There is no evidence that the applicant was in any manner influenced to waive that right, that he was forced to answer the investigator’s questions, or that he was in any way intimidated to make self-incriminating statements (also see below).

The Court also notes that the parties dispute the facts of 8 August 1997. In particular, they take issue as to whether PK, an official counsel designated to represent the applicant on that day, in fact came to the interrogation. The Court considers that it is not necessary to determine this question for the following reasons. First, it has not been submitted that the lawyer’s alleged failure to appear was the result of the authorities’, and not his own, fault. Secondly, it has not been argued that the applicant lacked means sufficient to employ, or was otherwise prevented from employing, a private representative from the outset of the proceedings, which he did only on 13 August 1997. Thirdly, there is no evidence that the applicant was unable to choose between silence and active participation in the interrogation of 8 August 1997 in view of the alleged failure of the official counsel to appear, or that the applicant was in any manner intimidated to make self-incriminating statements (also see below). Finally, there is no indication that the incriminating statements made on 8 August 1997 were in any way different from, or supplementary to, the statements which the applicant had made a day earlier, when having refused to be represented by a lawyer. Therefore, even if there was a restriction on the exercise of the applicant’s defence rights by reason of the alleged failure of the official counsel to appear during the interrogation of 8 August 1997, it has not been shown that this was the result of the authorities’ fault, or that such a restriction resulted in the applicant making any damaging admissions  different from those which he had already made on the day of his arrest. Nor has it been shown that any such restriction was capable of depriving the applicant of the possibility of subsequently defending himself during the pre-trial investigation and trial (also see below).

The Court further notes that from 9 to 13 August 1997 no procedural act was carried out by the authorities. On 13 August 1997 the applicant employed a private representative who thereafter acted as his defence counsel throughout the proceedings. Against the above background, the Court considers that the applicant’s complaint that the alleged absence of legal representation from 7 to 13 August 1997 violated Article 6 § 3 (c) of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

To the extent that the applicant complains about the fact that, in finding him guilty, the trial court took account of the self-incriminating statements obtained on 7 and 8 August 1997, the Court recalls that the rules on admissibility and the assessment of evidence are principally matters for domestic courts to determine. It is not, as a general rule, for the Court to substitute its own assessment of the evidence made by a domestic court save in circumstances where the domestic court’s assessment was arbitrary or capricious, or the system of guarantees or safeguards which applied in the assessment of the reliability of confession evidence were manifestly inadequate (see the Brennan judgment cited above, loc. cit. , § 51, also see, Edwards v. the United Kingdom , no. 13071/87, 16.12.1992, Series A no. 247-B, pp. 34-35, §§ 34-39). The Court has therefore had regard to the procedural safeguards which were in place in the present case to test the fairness of admitting the confession statements taken from the applicant.

The Court notes in this respect that the statements of the applicant of 7 and 8 August 1997 constituted only part of the evidence upon which his conviction was based. The Court also reiterates its findings above that on 7 and 8 August 1997 the applicant did not lack means and was not prevented from employing a lawyer of his choosing, that he was not required to answer the interrogators’ questions in the alleged absence of a lawyer, and that he was not intimidated into making self-incriminating statements (see, by contrast , Magee v. the United Kingdom , no. 28135/95, 6.6.2000, ECHR 2000-VI, where the applicant had been prevented for 48 hours from having access to a solicitor, had been held in the intimidating atmosphere, and had made damaging admissions later relied on at his trial).

It is undisputed that at least from 13 August 1997 the applicant, personally and through his defence counsel, was afforded ample opportunities to state his case and to contest the evidence that he considered false, including the incriminating statements in question. The fact that at each stage he was unsuccessful makes no difference. The circumstances in which the confession evidence was obtained were subjected to strict scrutiny by the trial court which noted that the applicant had waived his right to be represented by a lawyer at the time when the written confession had been made. The trial court, the findings of which were upheld on appeal, was satisfied as to the reliability of the confessions and as to the fairness of admitting it in evidence. It has not been alleged that the decision of either court was arbitrary. It has not been shown that, in the circumstances, the use of the incriminating statements obtained on 7 and 8 August 1997 on which to base the applicant’s conviction rendered his trial unfair (see, mutatis mutandis , the Brennan case cited above, loc. cit. , §§ 51-55). It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

As regards the remainder of the application, the Court recalls that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court’s task is to ascertain whether the proceedings as a whole were fair (see, inter alia , Bernard v. France , no. 22885/93, 23.4.1998, § 37, ECHR 1998-II).

It has not been established that the courts which decided the applicant’s case at two instances lacked jurisdiction to do so, or that they did not constitute tribunals “established by law”. The Court notes that the applicant contests the competence of the judges in carrying out their statutory functions rather than presents any evidence of the courts’ lack of subjective or objective impartiality within the meaning of Article 6 § 1 of the Convention (see, by contrast, Daktaras v. Lithuania , no. 42095/98, 10.10.2000, §§ 30-38, ECHR 2000-X). Furthermore, the case-file contains no statement by a State official declaring the applicant guilty before his conviction by the competent court (Article 6 § 2 of the Convention). Finally, to the extent that the applicant invokes Article 7 of the Convention, the Court notes that he does not contest the fact that, at the time when the alleged offence was committed, aggravated murder constituted a crime under national law, as envisaged by the first paragraph of the above provision. It follows that these aspects of the case are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

In these circumstances, the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President