THIRD SECTION

DECISION

Application no. 39644/06 Ilya Petrovich NADEZHKIN against Russia

The European Court of Human Rights (Third Section), sitting on 3 November 2020 as a Committee composed of:

Darian Pavli, President, Dmitry Dedov , Peeter Roosma , judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 21 July 2006,

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

1 . The applicant, Mr Ilya Petrovich Nadezhkin , is a Russian national, who was born in 1987. He was represented before the Court by Mr V. Nemerovets , a lawyer practising in Khabarovsk.

2 . The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin , Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin .

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

4 . At 8.05 p.m. on 2 December 2004 the Khabarovsk police was informed that a body of M. was found in his apartment with signs of a violent death.

5 . Late at night on the same day the applicant, aged seventeen years and ten months, K. and K. ’ s father were brought to the Khabarovsk police department.

6 . At 1.10 a.m. on 3 December 2004 a criminal investigation was open into the circumstances of M. ’ s murder.

7 . At 1.50 a.m. K. ’ s father was questioned as a witness and recounted his conversation with his son who had confessed to having killed the victim together with the applicant and had asked him to call the police.

8 . At 6.00 a.m. the applicant was questioned as a witness. He confirmed his presence at the crime scene when K. had punched the victim but denied any involvement in the crime. Prior to being questioned the applicant was informed of his privilege against self-incrimination and his right to be assisted by a lawyer, that was confirmed by the records of the questioning.

9 . At 11 a.m. the applicant confessed that on 2 December 2004 he had punched and had stabbed the victim with a knife once, and then K. had stabbed him twice.

10 . At midnight K. made a similar statement in the presence of a lawyer.

11 . On 3 December at 1 p.m. the applicant was provided with a lawyer S., and a record of his arrest was drawn up in the presence of a lawyer and the applicant ’ s mother. The applicant was informed of his procedural rights, including the right to a lawyer, the right to remain silent and the privilege against self ‑ incrimination.

12 . At 3.30 p.m. the applicant was questioned as a suspect in the presence of his lawyer and his mother and reiterated his confession statement after he had been informed of his procedural rights.

13 . On 25 January 2005 the applicant was questioned as an accused in the presence of another lawyer and admitted that he had punched the victim once, but that it was K. who had stabbed him.

14 . On 22 March 2005 the applicant participated in an on-site reconstruction of the events in the presence of the same lawyer and admitted that he had punched the victim several times but indicated that he had refused to stab the victim and that it had been K. who had done so. He also showed to the investigator the location where he and K. had thrown the knife, although the knife had never been found.

15 . The applicant was tried by a jury. At trial, the applicant denied his guilt and insisted that it was K. who had punched and stabbed the victim. The prosecutor then requested that all applicant ’ s pre-trial testimonies, including his initial confession, be read out to the jury. The defence opposed on the ground that the applicant had made his initial confession in the absence of a lawyer and his mother. The presiding judge granted the prosecutor ’ s request and considered the applicant ’ s confession admissible. The defence did not oppose to the reading out of the record of the applicant ’ s interview as a suspect.

16 . After the applicant ’ s confession was read out to the jury, the prosecutor asked the applicant whether he had made that statement. The applicant confirmed the statement but indicated that he had confessed because the investigator had told him that K. had already confessed and had promised that he would be free to leave the police station with his mother. He added that he had made his confession in the absence of a lawyer. He further indicated that his mother and a lawyer were only allowed access to him thereafter. The applicant ’ s testimonies made as a suspect, as an accused and his statements made in the course of the on-site reconstruction of the events were also read out.

17 . When questioned K. admitted to having killed M. and denied any involvement by the applicant in the murder. He indicated that he had testified to the contrary at the pre-trial investigation because he had thought that as a minor the applicant would not be at risk.

18 . The following other evidence was presented to the jury: the victim ’ s autopsy report, three forensic medical examinations of the material evidence, including a rope used to suffocate the victim with traces of sweat originating from both co-defendants identified on it. The presiding judge indicated to the defence that it might present their position on this evidence in the pleadings before the jury.

19 . On 5 August 2005 the jury trial of the Khabarovsk Regional Court found the applicant and K. guilty of murder. The applicant was sentenced to ten years ’ imprisonment, the term was to be calculated as of 2 December 2004.

20 . On 14 February 2006 the Supreme Court of the Russian Federation upheld the sentence on appeal but noted that the confession statement made by the applicant should have been viewed as a mitigating element and reduced his sentence to seven years and six months.

COMPLAINTS

21 . The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that his initial confession which formed the basis of his criminal conviction was given in breach of his right to a lawyer. The applicant also complained about a violation of Article 5 § 1 of the Convention.

THE LAW

22 . The applicant complained that the proceedings which resulted in his conviction had been unfair on account of the use of his initial statement made on 3 December 2004. He referred to Article 6 of the Convention, which in so far as relevant, reads as follows:

“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: ...

(c) to defend himself in person or through legal assistance of his own choosing ...”

23 . The Government indicated that once provided with a lawyer, the applicant neither challenged the circumstances in which he had given his confession statement nor retracted it. On the contrary, he reiterated his confession on at least three other occasions, that is when questioned as a suspect, as an accused and in the course of the on-site reconstruction of the events whilst trying progressively to minimise his role in the crime. Before each questioning, he was informed of his procedural rights, including the right to remain silent and privilege against self-incrimination, he was also assisted by a lawyer and a legal representative.

24 . The Government also pointed out that throughout the proceedings the applicant gave different versions of the reasons why he had made his initial confession. At trial he complained that he had been asked to do so by the investigator whereas in his grounds of appeal he indicated that it had been K. who had forced him to self-incriminate. Further, they indicated that at the beginning of the trial when the parties had been invited to present motions no request to declare the applicant ’ s confession inadmissible evidence had been presented by the defence. Finally, the applicant was provided with the opportunity to plead his innocence as well as to present arguments pointing towards his co-defendant. The jury decided that the applicant was guilty, not solely on the basis of his initial statement, but on the basis of the body of evidence. Thus, the jury analysed among other evidence the records of the applicant ’ s questioning as a suspect, as an accused and in the course of the on-site reconstruction of the events.

25 . The applicant reiterated his grievances.

26 . The general principles concerning the right to legal assistance are summarised in Beuze v. Belgium [GC], no. 71409/10, §§ 119-50, 9 November 2018 , in which the Court once again reiterated that its primary concern is to evaluate the overall fairness of the criminal proceedings. The Court also reiterates that the rights guaranteed by Article 6 § 3 are not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole. Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident (see Beuze , cited above, §§ 121-22 and, most recently, Sesler v. Russie ( dec. ), no. 67772/10, § 20, 1 September 2020).

27 . Turning to the case at hand, the Court notes that prior to his questioning at 6 a.m. on 3 December 2004, the applicant was informed of his rights, including the right to a lawyer, inherent to his status of a witness. The Court is not however in possession of any document confirming that before making his initial confession at 11 a.m. on the same day the applicant was informed about his rights. Consequently, it considers that there was no effective waiver of these rights. Similarly, it perceives no compelling reasons justifying the absence of a lawyer at that particular moment. Accordingly, the Court must apply a very strict scrutiny in assessing whether the overall fairness of the proceedings was not irretrievably prejudiced by the restriction on access to legal advice ( Beuze , cited above, § 145 ). In making this assessment the Court is guided by the criteria summarised in Beuze (cited above, § 150), to the extent that it is appropriate, given the circumstances of the present case.

29 . Although the presiding judge refused to declare the applicant ’ s initial confession inadmissible, the Court attaches particular weight to the fact that the applicant was able to take the stand and to present evidence as to the circumstances of his initial questioning by the police, to call witnesses and to invite the jury not to take these statements into account. He also had a possibility to explain to the jury why he had retracted his confession and why his statements to the police had been untrue and to provide the jurors with all details casting doubt on the reliability and sincerity of his initial statement (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 283, 13 September 2016). In fact, both co ‑ defendants were provided with an opportunity to explain their conduct at the beginning of the investigation to the jurors. To sum up, the Court sees no basis to conclude that the applicant, who took part at trial personally and was also represented by a lawyer, was in any way restricted in adopting a defence strategy at variance with his initial statement, which indeed he did. Neither was he restricted in his rights to state his case, to question witnesses or to challenge other evidence during the proceedings.

30 . The Court notes that the applicant ’ s case was examined by a jury. Since the jury verdict contains no reasons, it is difficult to assess whether the applicant ’ s initial statement played a role in the jury ’ s assessment of the relevant facts and the finding of guilt. The Court can only regret in this context that the applicant did not provide a full copy of the trial records, in particular, the part including the content of the jury ’ s directions given by the presiding judge and of his detailed grounds of appeal.

31 . Finally, the applicant did not explain how the initial restrictions of his right to a lawyer had irretrievably prejudiced the overall fairness of the proceedings in his case (see paragraph 15 above). In the absence of such explanation the Court considers that the applicant has failed to provide the necessary substantiation for his allegation (see Loboda v. Ukraine , no. 8865/06, § 43, 17 November 2016).

32 . Given the findings above, it follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

33 . Lastly, the applicant complained that his detention between 11 p.m. on 2 December and 1 p.m. on 3 December 2004 was unlawful. The Court however observes that he failed to raise this issue before the domestic courts. For these reasons the Court declares this complaint inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 December 2020 .

Olga Chernishova Darian Pavli Deputy Registrar President