THIRD SECTION

DECISION

Application no. 38106/05 Mikhail Ivanovich YURCHENKOV against Russia

The European Court of Human Rights (Third Section), sitting on 10 April 2018 as a Committee composed of:

Alena Poláčková , President, Dmitry Dedov , Jolien Schukking , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 22 August 2005,

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 Mikhail Ivanovich Yurchenkov , is a Russian national who was born in 1959 and lived before his arrest in Nizhniy Tagil , Sverdlovsk Region. He is currently serving his sentence in a correctional colony in the Sverdlovsk Region.

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. On 3 April 2013 the President of the Section granted the applicant leave for self-representation.

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

A. The applicant ’ s first arrest and release

5. On 8 December 1996 the applicant was arrested for the first time on suspicion of having committed an aggravated robbery. He expressed his will to be legally represented and a State-appointed lawyer, Mr Z. was assigned to him.

6. On 9 December 1996 the applicant was interviewed as a suspect in the presence of a lawyer Mr Z.

7. On 20 December 1996 the applicant was apprised of his right to legal assistance. He waived it and confirmed the waiver by signing in the records of the notice of the right to legal assistance. Subsequently, the criminal proceedings against the applicant were terminated and the applicant was released, as insufficient evidence was gathered against him.

B. The applicant ’ s second arrest and pre-trial proceedings

8. On 16 March 1998 the applicant was charged with a number of crimes committed by a criminal gang that operated in Nizhniy Tagil , Sverdlovsk Region, between November 1994 and March 1998. An arrest warrant was issued against him. According to the Government, the applicant was on the run.

9. On 17 August 1998 the applicant was arrested in Nizhniy Novgorod. He was subsequently transferred to Nizhniy Tagil .

10 . On 22 and 24 August, 29 October, 26 November 1998 and 12 July 1999 the applicant was apprised of the rights of an accused person, including the right to legal assistance, and interviewed. Each time the applicant waived his right to a lawyer and made a relevant handwritten note in the records.

11 . On 26 November 1998 the applicant reiterated his waiver of the right to legal assistance in a separate handwritten statement also signed by a State-appointed lawyer, Mr G.

12 . After each notification of his rights as an accused and on 25 and 26 August, 1, 2, 10, 15, 16, 17, 22, 23 and 24 September, 6, 7, 22, 27 and 28 October 1998, 4, 5, 12, 16, 17, 19, 25 and 28 November 1998, 14 January, 3 February and 12 March 1999 the applicant refused legal assistance, each time signing the records of the interviews straight under the line with the following wording: “during the present interview I do not require legal assistance, I have financial means, I will testify voluntarily”. Each time the applicant confessed to numerous counts of aggravated robberies.

13 . On 12 July 1999 a State-appointed lawyer, Ms V., made a handwritten note in the records of the notice of the rights of an accused confirming the applicant ’ s refusal to use her services.

14 . On 14 July 1999 the applicant was again apprised of his rights, including the right to legal assistance and the right to have a confidential meeting with a lawyer, as he was finally notified of all charges, including murder that required the applicant ’ s mandatory legal assistance. A State ‑ appointed lawyer, Ms V., was assigned to the applicant. The applicant retracted his previous statements and denied his guilt. He requested a confidential meeting with his lawyer, Ms V., before the interview but this was refused. The lawyer Ms V. wrote a note concerning the refusal in the notice of the rights of an accused.

15. On the same day the applicant was interviewed as an accused in the presence of the lawyer Ms V. The applicant denied his guilt and refused to testify.

16. On 16 July 1999 the applicant complained to the regional prosecutor about the investigator ’ s refusal to allow him a meeting with his lawyer before his questioning on 14 July 1999. The applicant also complained that throughout the pre-trial proceedings his defence rights had been violated and that he had been subjected to ill-treatment and forced to incriminate himself.

17 . On 14 November 2000 the Military Court of the Ural Circuit returned the criminal case to the investigating authorities on the grounds of serious violations of the applicant ’ s defence rights. In particular, the Military Court found that the applicant ’ s defence rights had been violated by the investigator ’ s refusal to allow him to have a confidential meeting with his lawyer on 14 July 1999.

18 . On 11 March 2001 following the prosecutor ’ s appeal the Supreme Court of the Russian Federation quashed the decision of the Military Court and referred the criminal case to the trial court for examination on the merits. It notably considered that the guarantees of the applicant ’ s rights during the trial provided for by the criminal procedure legislation could compensate the defects of the investigation.

C. The applicant ’ s trial and conviction

19. Between 15 May 2001 and 8 September 2003 the Military Court heard the criminal case against the applicant and his co-defendants.

20. On 8 September 2003 the Military Court found the applicant guilty of a number of criminal offences, including murder and aggravated robberies, committed as a member and leader of a criminal gang and sentenced him to twenty-three years ’ imprisonment. During the trial the applicant was represented by State-appointed lawyers Mr B. and Ms B.

21 . The Military Court held that the applicant ’ s guilt in relation to the impugned crimes had been proven by an extensive body of evidence examined during the trial, such as the records of the applicant ’ s interviews, statements by his co-defendants, victims and witnesses, expert examinations and other evidence. It rejected as unsubstantiated the applicant ’ s allegations of ill-treatment and of the absence of voluntary character of his waivers.

22 . On 14 July 2005 the Supreme Court quashed the judgment of 8 September 2003 in the part concerning the applicant ’ s conviction for two counts of aggravated robberies, upheld the remainder of the judgment and decreased the applicant ’ s sentence to twenty-one years ’ imprisonment. The appeal court notably referred to the testimony of the investigator Sh. indicating that by the time of the applicant ’ s arrest his involvement in almost all crimes had already been established because he was the last member of the gang to be arrested.

COMPLAINTS

23. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that, despite his numerous requests, investigating authorities did not provide him with a lawyer between his arrest on 17 August 1998 and until 14 July 1999 and did not allow him to contact a lawyer; that they forced him to waive his right to legal assistance by putting physical and psychological pressure on him; and that when he was finally provided with a lawyer, Ms V., on 14 July 1999 he was not allowed to have a confidential meeting with her before his interview.

24. The applicant also raised additional complaints under Articles 3, 5, 6 and 8 of the Convention.

THE LAW

A. Alleged violation of Article 6 §§ 1 and 3 (c) of the Convention

25. The applicant complained that the criminal proceedings against him were unfair on the ground that he had been coerced by police to waive his right to a lawyer between the time of his arrest and 14 July 1999. 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 ...”

26 . The Government considered that the applicant ’ s complaint was unsubstantiated and should be declared inadmissible. They first indicated that after having been duly apprised of his rights, including the right to remain silent and the right to a lawyer, the applicant signed a written waiver of those rights and testified voluntarily. As regards the authorities ’ refusal to allow the applicant to have a confidential meeting with his lawyer on 14 July 1999, the Government acknowledged that this refusal was contrary to the domestic legislation but considered that it did not irretrievably prejudice the overall fairness of the proceedings on account of other guarantees provided to the applicant at the subsequent stages of the proceedings. In this respect, they indicated that at trial the applicant had been assisted by two lawyers and he clearly stated at the beginning of his trial that he had had enough time to consult with them before its opening. The Government considered that in any event the domestic courts ’ conclusion regarding the applicant ’ s guilt was based on other numerous elements examined in adversarial proceedings, including the testimonies of the applicant ’ s co-defendants, witnesses and victims, records of the crime scene inspections and of reconstructions, expert examinations and other evidence. Finally, as to the applicant ’ s allegations of ill-treatment, the Government indicated that after a thorough examination, the domestic courts found them unsubstantiated and contrary to the available evidence, notably the video record of the applicant ’ s interviews demonstrating the lack of injuries.

27 . In response, the applicant reiterated his allegations that until 14 July 1999 he had been subjected to physical and psychological pressure and beatings. He also reiterated that he had been deprived of the possibility to see a lawyer until the same date. He further indicated that his medical file, in which some of the injuries sustained by him between the moment of his arrest and 14 July 1999 were recorded, had been lost by the authorities. He submitted a copy of a medical certificate drawn up for his wife and indicating that she had been admitted to a psychiatric hospital between 19 and 28 August 1998. According to the applicant, this was the result of the ill-treatment she had sustained in the hands of the police.

28. As the Court has held many times, the requirements of Article 6 § 3 of the Convention are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention (see, among many other authorities, Sakhnovskiy v. Russia [GC], no. 21272/03 , § 94, 2 November 2010, and Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015 ). The right to a fair trial under Article 6 § 1 of the Convention is an unqualified right. However, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case. The Court ’ s primary concern under Article 6 § 1 of the Convention is to evaluate the overall fairness of the criminal proceedings (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others , § 250, ECHR 2016, with further references) .

29. The Court notes at the outset that the present case differs from many other cases in which it found a violation of Article 6 of the Convention on account of a systematic restriction on the right of access to legal assistance on the basis of statutory provisions (see, among many others, Salduz v. Turkey [GC], no. 36391/02, §§ 56, 58, 62, ECHR 2008, and Turbylev v. Russia , no. 4722/09 , §§ 93-93, 95, 6 October 2015). In the present case, the applicant had in principle the right to seek the assistance of a lawyer. However, before each of the questionings, he signed documents containing a detailed description of his procedural rights and provided reasoned handwritten explanations as to why he chose to waive his right to a lawyer (see paragraphs 10 - 12 above). At least on two occasions, his waivers were certified by the State-appointed lawyers (see paragraphs 11 and 13 above). Nor has the Court grounds to find that in waiving his right to legal representation the applicant was coerced by police. Even assuming that he was prevented from producing medical documents (see paragraph 27 above), he provided no explanation as to why he did not pursue the proceedings in relation to his ill ‑ treatment complaint at domestic level, in particular after 14 July 1999, when he had access to a lawyer and retracted his previous statements (see paragraph 14 above). The applicant provided in support of his allegations of ill-treatment a medical certificate attesting that his wife underwent psychiatric treatment (see paragraph 27 above). That document cannot, however, be considered as sufficient to corroborate the applicant ’ s allegations of ill-treatment. In this respect, the Court notes that there is no indication that a criminal complaint was lodged in respect of the applicant ’ s wife ’ s ill-treatment either.

31. The applicant further complains that he was denied a confidential meeting with his lawyer on 14 July 1999. The Court notes that a violation of the applicant ’ s rights on this account was subsequently acknowledged by the domestic courts (see paragraph 17 above). However, the Supreme Court examining the matter following the prosecutor ’ s appeal considered that his rights could be duly remedied during his trial (see paragraph 18 above). The Government indicate in this respect that at trial the applicant was assisted by two lawyers and he also indicated that he had enough time to consult with them (see paragraph 26 above). The applicant provided no comments in response. In these circumstances, the Court thus finds that the applicant has failed to explain what, if any, prejudice to the overall fairness of his trial has been caused by the alleged failure to allow him to meet privately with his lawyer on 14 July 1999.

32. In view of the above, the Court concludes that the present complaint should be dismissed as manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.

B. Other alleged violations of the Convention

33. Lastly, the Court has examined the other complaints submitted by the applicant and, having regard to all the material in its possession and in so far as the complaints fall within the Court ’ s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 May 2018 .

FatoÅŸ Aracı Alena Poláčková              Deputy Registrar President