THIRD SECTION

CASE OF BELUGIN v. RUSSIA

( Application no. 2991/06 )

JUDGMENT

Art 6 § 1 (criminal) • Fair hearing • Use in trial of self incriminating statements obtained under duress in absence of lawyer

STRASBOURG

26 November 2019

FINAL

26 /02/2020

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Belugin v. Russia ,

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

Paul Lemmens, President, Paulo Pinto de Albuquerque, Dmitry Dedov , Alena Poláčková , María Elósegui , Gilberto Felici , Lorraine Schembri Orland, judges, and Stephen Phillips , Section Registrar ,

Having deliberated in private on 22 October 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 2991/06) 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 a Russian national, Mr Dmitriy Yuryevich Belugin (“the applicant”), on 31 October 2005 .

2 . The applicant was represented by Mr A.V. Karev , a lawyer practising in Tomsk. 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 applicant alleged that he had been ill-treated by police officers while in police custody and that an adequate investigation had not been carried out in this respect . He also claimed that the criminal proceedings against him had been unfair because his conviction had been based on a forced confession made in the absence of a lawyer.

4 . On 13 April 2012 notice of the application was given to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1976 and is serving his sentence in Tomsk .

A. The applicant ’ s arrests and alleged ill-treatment

1. Events of 25 and 26 December 2002

6 . At around 12 noon o n 25 December 2002 the applicant was arrested on suspicion of having assaulted Mr K o n . and taken to the offices of the Organised Crime Unit of Tomsk ( Управление по борьбе с организованной преступностью по Томской области – “ the UBOP”) . According to the applicant, he was beaten up for nine hours by police officers with a view to making him confess to a crime which he had not committed .

7 . At 9 p.m. , in the absence of a lawyer , the applicant signed a record of his statement of surrender ( протокол явки с повинной ) describing the robbery of Mr Ko n . His confession wa s recorded by an investigator , Mr M . An arrest record was drawn up at 9.20 p.m.

8 . At 9.55 p.m. the applicant was interviewed as a suspect, in the presence of a State - appointed lawyer, Mr F . The applicant reiterated his earlier confession. The interview was recorded on video. According to the applicant, he did not have a confidential meeting with the lawyer prior to his questioning , and t he lawyer also ignored the blood stains on his shirt.

9 . In the meantime, according to the applicant, his relatives hired for him another lawyer , Mr T .

10 . At 11.37 p.m. the applicant was taken to the scene of the crime. This investigative measure was recorded on video. The State-appointed l awyer Mr F. was present.

11 . At an unspecified time the applicant was place d in a temporary detention facility (IVS) . According to an entry in his medical record, he had no injuries at that time.

12 . At 10.30 p.m. o n 26 December 2002 in the absence of a lawyer , the applicant signed two documents : a handwritten statement of surrender and confession ( явка с повинной ) ; and a record of his statement of surrender regarding the robbery and murder of Mr Kol . According to the applicant , h e made th o s e statement s as a result of the ill-treatme nt inflicted by police officers .

2. Events of 27 December 2002

13 . On 27 December 2002 the applicant was taken to the Leninskiy District Court of Tomsk to take part in a hearing. A ccording to him, he then met with his lawyer , Mr T . , for the first time. The court decided to release the applicant under an undertaking not to leave his place of residence.

14 . After the hearing, the applicant went to the investigator ’ s office together with his lawyer and relatives in order to sign the aforementioned undertaking. According to the applicant, the investigator invited the lawyer to stay outside the room while three police officers accompanied the applicant therein a nd arrested him. He contended that he did not resist the arrest but only claimed access to his lawyer. According to the Government , the police used physical force against the applicant because he had actively resisted the arrest .

15 . According to the applicant , on the night of 27 to 28 December 2002 the UBOP officers threatened him with further ill-treatment if he complain ed and identifie d them.

16 . At 8 p.m. o n 28 December 2002 the applicant was placed in an IVS . According to his medical record, he had no injuries.

17 . On 29 December 2002 , during an interview in the presence of his lawyer , Mr T. , the applicant submitted that he had confessed under duress to two counts of robbery and one count of murder.

18 . On 30 December 2002 the applicant was examined by a forensic medical expert. According to forensic report no. 1779 , he had several bruises on the back of his head, the right temple and his left ear , and an abrasion on his right wrist. The injuries had been sustained between three and five days before the examination as a result of repeated blows by a hard blunt object with a limited surface area, for example by a fist. The expert considered that the abrasion on the applicant ’ s wrist could have been caused by handcuffs. The injuries were not considered as harm ful to health.

3 . Investigation into the applicant ’ s alleged ill-treatment

19 . On 13 and 29 January 2003 the applicant ’ s mother and grandfather complained to a prosecutor about his arrests on 25 and 27 December 2002 and his alleged ill-treatment by the police .

20 . On 30 January 2003 an assistant prosecutor issued a refusal to institute criminal proceedings in respect of the applicant ’ s alleged ill ‑ treatment on the ground s that all of the applicant ’ s injuries, such as the bruises on the back of his head, his right temple and his wrists had been sustained on 25 December 2002 in the course of his arrest in response to his resistance . No appeal was lodged against that decision.

4. Proceedings in respect of the failure of the regional prosecutor ’ s office to specify the dates of the applicant ’ s detention

21 . On 9 September 2005 the Sovetskiy District Court discontinued proceedings in respect of the alleged inaction of the r egional p rosecutor ’ s office, which had refused to specify the exact dates of the applicant ’ s detention on the grounds that the examination of the criminal case against him was pending before the Tomsk Regional Court . The District Court considered that the calculation of the term of the applicant ’ s pre-trial detention f e ll within the competence of the trial court.

22 . On 13 October 2005 the decision of the Sovetskiy District Court was upheld on appeal .

B. The applicant ’ s trial and conviction

23 . On an unspecified date in July 2004 the applicant ’ s criminal case was referred to the Tomsk Regional Court for examination . The applicant was represented by his lawyer Mr T. On 1 September 2005 he asked the trial court to replace Mr T. by another lawyer . The applicant was henceforth represented by another lawyer , Mr K.

24 . T he applicant was charged with three counts of robbery and one count of murder. He pleaded not guilty to all charges. One of his co ‑ defendants, Mr Ku., pleaded guilty and made statements incriminating other co-defendants, including the applicant. An other c o-defendant , Mr Kash . , retracted the statements he had made at the investigation stage incriminating the applicant , alleging that they had been obtained under duress .

25 . T he applicant challenged the admissibility of his self ‑ incriminating statements , arguing that they had been obtained as a result of ill-treatment by UBOP officers. He referred to the refusal to open a criminal case of 30 January 2003 and requested that the refusal and forensic report no. 1779 be appended to his criminal case file .

26 . The trial court questioned officers U., G. and F. who had carried out the applicant ’ s arrest in the investigator ’ s office. They testified that they had brought the applicant to the floor and handcuffed his arms behind his back to overcome his resistance . T he defence challenged the ir testimon y that the injuries had been caused to the applicant during arrest , on the ground s that the police officers had been obliged , under the relevant legislation , to draw up a report about the circumstances of the arrest and the use of force, provide the applicant with medical assistance and immediately inform his relatives and the prosecutor about the arrest .

27 . The trial court further questioned Ms A., a court clerk who had been present at the hearing of 27 December 2002 . She submitted that she had not notice d any visible injuries on the applicant , but could not be certain whether he had any injuries a s she was not a doctor and had not examined him .

28 . When describing the circumstances in which he had given his self ‑ incriminating statement s , t he applicant also referred to his unrecorded detention on 25 December 2002 and the delay in drawing up his arrest record . He asked t he trial court to acknowledge th e fact of the falsification of the latter in a separate decision.

29 . After having examined the materials submitted by the parties in relation to the applicant ’ s allegations of ill-treatment, the trial court considered that the applicant ’ s self-incriminating statements were admissible for the following reasons .

30 . As regards the applicant ’ s self-incriminating statements about the robbery and murder of Mr Kol ., t he trial court first noted that on 26 December 2002 the applicant had made two statements of surrender and confession , one of which was handwritten. He had made them after he had been arrested on suspicion of having committed another offence , and the police officers who had arrested him could not have k now n about th o se other facts which he had confessed to having committed .

31 . The trial court rejected the applicant ’ s argument that he had made the statements as a result of ill-treatment inflicted by police officers , on the following ground s :

“At trial Ms D.B. , his mother, and Ms E.K., his sister, when questioned as witnesses, confirmed that [the applicant] had been severely beaten up ; they had seen his injuries on 27 December 2002 after he had been released in the courtroom. [The applicant] contends that these injuries were inflicted on 25 December 2002 when one of the police officers hit him on the head with his shoe . It follows from the forensic medical examination of 30 December 2002 that [the applicant] had a wound on the back of his head , bruises on his left temple and his left ear, which could have been caused to him 3-5 days before the examination. In the meantime, it was established at the trial that these injuries could have been inflicted on him only after the hearing held by the Lenin skiy District Court of Tomsk on 27 December 2002. On that day the District Court examined the request to place [the applicant] in detention, which was rejected by that court. It follows from the testimony of Ms A. , the clerk of the hearing on 27 December 2002, that when [the applicant] was present in the District Court neither [h e ] nor his defence formulated any complaints regarding his ill-treatment; she remembers that when [the applicant] arrived at the District Court, she did not notice any injuries on his head or his face. These circumstances are confirmed by the hearing record of 27 December 2002 examined at the trial , demonstrating that [the applicant] expressed his readiness to cooperate with the investigation, an element which was taken into account in the court ’ s refusal to place him in detention. The absence of any injuries on the [the applicant ’ s] face on the night of 26 December 2002 follows from the video record of his interview carried out in the presence of a lawyer and examined in the courtroom. It follows from a certificate drawn up by the Seversk temporary detention centre (IVS), where Belugin was detained between 25 and 27 December 2002 before the detention hearing, a nd submitted to the trial court that he did not have any injuries. It follows from [his] own testimony that after t he court [hearing] on 27 December 2002, he went together with his relatives and his lawyer to the regio nal prosecutor ’ s office to sign the undertaking not to leav e his place of residence; however, he was arrested again in the investigator ’ s office. Witnesses Mr G . , Mr U . , Mr F . , police officers, and Mr M . , the investigator, testified that in the premises of the regional prosecutor ’ s office [the applicant] had been arrested again on suspicion of having committed another criminal offence; he ac tively resisted the arrest and physical force was used against him. In these circumstances, the trial court considers that [the applicant] was not ill-treated b y police ... when he made his statements of surrender on 26 December 2002 regarding the circumstances of the attack and murder of Mr Kol . ; physical force was used against him during his second arrest on 27 December 2002. The trial court thus considers that his statements of surrender were obtained at the pre-trial investigation stage in accordance with the law .

Since a confession statement constitutes a voluntary report of a person about a committed crime , the requirements prescribed by the relevant legislation on the mandatory participation of a lawyer when obtaining statements from a suspect or an accused person do not apply; consequently, the absence of a lawyer when [the applicant] voluntarily reported on the committed crime to the police cannot constitute a breach of his defence rights. ”

32 . The trial court further considered that the applicant ’ s self ‑ incriminating statements had been corroborated by other evidence, namely the testimony of co-defendant Ku. that the applicant himself had told him about the murder of Mr Kol ., and that of co-defendant Kash . , given during the investigation. It also relied on the forensic reports , considering that their findings as to the way in which the victim ’ s injuries had been inflicted were consistent with the applicant ’ s statements . Finally, it noted that the investigation had examined alternative hypotheses that other people could have killed the victim. T he trial court rejected the applicant ’ s alibi on account of several inconsistencies in the statements given by his mother and his sister.

33 . Referring to the applicant ’ s self-incriminating statement of 25 December 2002 in relation to the robbery of Mr Kon., t he trial court rejected his allegations of ill-treatment for similar reasons (see paragraph 31 above ) . It further considered that the applicant ’ s guilt was corroborated by the testimony of his co-defendants Ku. and Kash ., and other evidence, such as forensic medical reports , witnesses ’ statements , and search records .

34 . On 9 June 2006 the Regional Court found the applicant guilty o n three counts of robbery and one count of murder. It sentenced him to twenty years of imprisonment , starting on 25 December 2002, the day of his arrest. The court also ordered the applicant and two other co-defendants to pay jointly to Mr Kol . ’ s sister 188 , 762 roubles in respect of non-pecuniary damage. In accordance with the court ’ s decision, all physical evidence was to be destroyed.

35 . On 8 April 2008 the Supreme Court of Russia reject ed an appeal lodged by the applicant and upheld the conviction . The applicant ’ s arguments that his self-incriminating statements had been obtained under duress were rejected as unsubstantiated .

C. Developments following notification of the application to the Government

36 . On 30 May 2012 the d eputy p rosecutor of the Tomsk R egion overruled the refusal to institute criminal proceedings of 30 January 2003 and referred the complaints lodged by the applicant ’ s relatives on 13 and 29 January 2003 to the Investigative Committee for further investigation.

37 . On 4 June 2012 a forensic medical examination was carried out. According to forensic medical report no. 3139-M , the applicant ’ s injuries indicated in forensic report no. 1779 could have been inflicted in the circumstances described by the police officers, that is during the applicant ’ s arrest on 27 December 2002. The injuries were not considered as harm ful to health.

38 . On 5 June 2012 a senior investigator of the regional department of the Investigative Committee issued a refusal to institute criminal proceedings . The decision referred to the Tomsk Regional Court ’ s find ings according to which the applicant ’ s injuries recorded by th e forensic medical expert on 30 December 2002 had been caused to him during his arrest on 27 December 2002. In addition to the elements referred to by the trial court, t he investigator pointed to the inconsistencies in the applicant ’ s description regarding the time and place of his alleged ill-treatment. He noted, i n particular, that b efore 29 December 2002 neither the applicant nor his lawyer had complained about his alleged ill-treatment by the police. He further indicated that a t the hearing of 27 December 2002 the applicant had confirmed that he had made his confession state ments voluntarily and that o n 26 and 27 December 2002 his lawyer had asked the investigator and the court to take that fact into account when deciding on a preventive measure . The investigator thus concluded that i t was not until 29 December 2002 when the applicant had made his allegations of ill-treatment o n 26 December 2002. Lastly, the investigator observed that at a later stage , the applicant had also stated that he had been ill-treated on 25 December 2002 and in his application to the Court he had added that he had been ill- treated again between 27 and 28 December 2002.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Code of Criminal Procedure

39 . For relevant domestic law and practice concerning the rights of suspects , see Turbylev v. Russia ( no. 4722/09 , §§ 46-49, 6 October 2015 ) . In particular, the relevant Articles of the CCrP regarding the use of self ‑ incriminating statements made by criminal suspects at the pre-trial investigation stage provide as follows :

Article 75

“2. The following constitute inadmissible evidence:

(1) Statements by the suspect or accused given in the absence of counsel for the defence in the course of pre-trial proceedings in the criminal case ... which have not been confirmed in court ...”

Article 142

“1. A statement of surrender and confession ( заявление о явке с повинной ) is a voluntary statement by a person about a crime which he or she has committed.

2. A statement of surrender and confession can be made in a written as well as a verbal form. A verbal statement shall be taken and entered in a record under the procedure provided for by paragraph 3 of Article 141 of the present Code.”

40 . In its decision no. 391-O of 20 October 2005, the Constitutional Court of the Russian Federation held that Article 142 CCrP , which only lists “surrender with confession” among the reasons for opening a criminal investigation, does not prevent the application of Article 75 of the same Code governing the admissibility of evidence at trial and in particular the circumstances in which a self-incriminating statement made at the pre-trial investigation stage may be read out at trial.

B. Ruling no. 1 “ o n the practice of examination by the courts of complaints lodged under Article 125 of the Code of Criminal P rocedure” adopted by the Plenum of the Supreme Court of the Russian Federation on 10 February 2009

41 . Paragraph 9 of th is Ruling provides that c omplaints lodged under Article 125 of the CCrP may be examined only as long as the criminal investigation is pending. If the case has already been transferred to a court for trial, the judge declares the complaint inadmissible and explains to the complainant that he or she may raise the complaints before the relevant trial court.

C . Ruling no. 55 “ o n criminal conviction” adopted by the Plenum of the Supreme Court of the Russian Federation on 29 November 2016

42 . Paragraph 10 of th is Ruling provides that before admitting in evidence a statement of “surrender and confession” referred to by the prosecution , the trial court should examine, among other things, whether prior to such a confession statement , the defendant had been informed about his rights, including the privilege against self-incrimination and the right to a lawyer , and whether he or she had been able effectively to use them.

43 . I f the defendant changes his previous statements or retracts them on the ground s that they were obtained under duress , the trial court should take adequate and effective measures for the examination of such allegation. In doing so, the courts must take into account that it is for the prosecution to refute the defendant ’ s allegations that his statements were obtained under duress ( p aragraph 12) .

44 . If there are grounds to carry out a preliminary inquiry into the applicant ’ s allegations of ill-treatment raised at trial , the court should refer them to the competent investigati ve body. The court must then examine the results of such inquiry in its decision ( p aragraph 13) .

45 . If the defendant ’ s allegations of ill-treatment have not been refuted , his statements made as a result of such treatment may not be used in evidence ( p aragraph 14).

D. The Police Act

46 . Sections 18-20 of the Police Act 2011 (Federal Law no. 3-FZ of 7 February 2011) provide that

- a police officer may use physical force, special means or a weapon during an arrest ;

- a police officer must ensure that an injured arrestee receive s first aid ;

- where the physical force used results in damage to health, and where special means or a weapon are used, a police officer must submit a report about the use of physical force, special means or a weapon to his supervisor within twenty-four hours.

47 . The Police Act 1991 (Federal Law no. 1026-I of 18 April 1991) and respective by-laws contained similar provisions.

E. Other by-laws

48 . The Instruction s for Police Station Duty Officers (approved by O rder no. 389 of the Ministry of the Interior of the Russian Federation on 30 April 2012) provides that

- a police officer on custody duty must inform his superior of all cases whe re a person arrested and taken in to police custody has visible wounds, injuries or is in a state that requires urgent medical intervention;

- a police officer must call an ambulance or take a n injured person to a nearby hospital;

- a police officer must find out the reasons and circumstances of the injuries sustained by the person concerned. If the latter reports violent actions that resulted in his injuries , then the police officer must receive a criminal complaint from the person ; if not, he must draw up a reasoned report and file it in the criminal complaints register .

49 . The Instruction s reproduced the rules that were in force at the time of the events (see Chernetskiy v. Russia , no. 18339/04 , § 50, 1 6 October 2014) .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

50 . The applicant complained of ill-treatment in police custody on 25-26 and 27-28 December 2002 and the lack of an effective investigation in this respect . He relied on Article 3 of the Convention, which reads as follows:

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

A. The parties ’ submissions

51 . The Government submitted that the applicant had complained of ill ‑ treatment for the first time on 29 December 2002 and that he had subsequently raised the issue again during the criminal court proceedings within the context of admissibility of evidence. They pointed out that t he task of the trial court was to determine whether or not a defendant was guilty of the offences with which he had been charged , and not to hold the alleged perpetrators liable . Referring to the case of Belevitskiy v. Russia ( no. 7296 7/01, § 63 , 1 March 2007) , the Government considered that the applicant had failed to exhaust domestic remedies in respect of his allegations of ill-treatment. He had been represented by an experienced criminal lawyer and it would not have been excessively burdensome for him to have lodge d an appeal against the refusal to institute criminal proceedings , which would be a normal avenue of exhaustion of domestic remedies in respect of his complaint. Nevertheless, he had failed to explain why he had chosen not to do so .

52 . The applicant maintained his complaint that he had been beaten up on 25 December 2002 during his arrest and that the beatings had continued there after , in order to make him si g n several self-incriminating statements. He claimed that after his second arrest on 27 December 2002 he had spent the night in the UBOP where he had received threats from police officers. He further challenged the reliability of the IVS medical records referred to by the trial court when dismissing his allegations of ill-treatment . He referred in this respect to the absence of injuries recorded on 27 December 2002 when he had been placed in the IVS for the second time, notwithstanding the authorities ’ acknowledgment that he had been injured in the course of that second arrest . He further argued that he had raised the issue of ill-treatment in his complaint against the prosecutor in September 2005 , but that the Sovetskiy District Court had dismissed it. Lastly , he had raised the issue at his trial , but it had also been dismissed as unfounded. He contended that in such circumstances , to have lodged with a court a separate complaint against the refusal of 30 January 2003 would not have remed ied his situation.

B. The Court ’ s assessment

53 . T he Court observes at the outset that the applicant complained of several episodes of ill-treatment . Firstly, he complained of being ill-treated on 25 and 26 December 2002 and , second ly, of receiving threats during his over night stay at the UBOP premises between 27 and 28 December 2002. The latter allegations were raised for the first time before the Court in his application form of 31 October 2005. The Court thus considers that this part of the complaint is inadmissible for failure to exhaust domestic remedies and in any event falls outside the six-month time-limit (see Trubnikov v. Russia ( dec. ) no. 49790/99, 14 October 2003) .

54 . As regards the applicant ’ s all egations of ill-treatment on 25 December 2002, the Court reiterates its long-standing position that an appeal to a court against a prosecutor ’ s refusal to open criminal proceedings in response to an applicant ’ s complaint of ill-treatment would be a normal avenue of exhaustion in respect of an Article 3 complaint (see, for example, Belevitskiy , cited above , § 61, and Trubnikov ( dec. ), cited above ). No such appeal was lodged by the applicant against the prosecutor ’ s refusal of 30 January 2003 in the present case. The Court further finds that the decision of 5 June 2012 not to open a criminal investigation appears no more than a mere formality . It was taken more than nine years after the decision of 30 January 2003 , and came to the same conclusions (see paragraphs 36 ‑ 38 above). In any event, the applicant did not appeal against it either , so the above reasoning is not affected.

56 . In these circumstances, the Court cannot but agree with the Government that the applicant failed to exhaust domestic remedies in respect of his complaint under Article 3 of the Convention. It must therefore be rejected under Article 35 § § 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

II . ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

57 . The appli cant complained that his detention on 25 December 2002 was incompatible with Article 5 § 1 of the Convention, the relevant parts of which read as follows :

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.”

A. The parties ’ submissions

58 . The Government acknowledged that there had been a violation of Article 92 of the Code of Criminal procedure on account of the delay in recording the applicant ’ s arrest on 25 December 2002 . H owever , they raised a preliminary objection as to the admissibility of the complaint on account of the applicant ’ s failure to challenge the accuracy of the arrest record before the domestic courts in accordance with Article 125 of the CCrP . Lastly , they indicated that although the applicant referred to his unrecorded detention on 25 December 2002 at his trial, it should not be considered as an appropriate way of exhausting domestic remedies since he did so in the context of the examination of admissibility of evidence.

59 . The applicant submitted that he had challenge d the arrest records under Article 125 of the CCrP and at trial , but to no avail. He argued that it had been established in the course of his trial that his de facto arrest had taken place at around 12 noon on 25 December 2002 , and not at 9 p.m. on that date , a nd that despite his requests to recognise that fact , the court had failed to adopt a relevant decision so that he could have received compensation for his unrecorded detention.

B. The Court ’ s assessment

60 . In assessing whether an applicant has complied with Article 35 § 1 of the Convention, it is important to bear in mind that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. However, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule (see Raush v. Russia ( dec. ), no. 17767/06, § 53, 22 March 2016; see also, mutatis mutandis , R.S. v. Hungary , no. 65290/14, 2 July 2019, § 36, both with further references).

61 . The Court first remarks that, as noted above (see paragraph 56 above ), the applicant has not pursued the question of his alleged ill ‑ treatment and unlawful detention through criminal proceedings (compare with Fartushin v. Russia , no. 38887/09 , §§ 19, 30 and 51 , 8 October 2015 ). It also does not appear that the applicant has challenged the alleged unlawfulness of this period of detention in the proceedings concerning the lawfulness and justification of his pre-trial detention, either on 27 December 2002 before the Leninskiy District Court (see paragraph 13 above), or in the context of his subsequent pre-trial detention.

62 . As regards the applicant ’ s reference during his trial to unrecorded detention, the Court observes that at that stage of the proceedings, he either referred to this unrecorded detention as an element in support of his requests to declare his self-incriminating statements inadmissible or invited the trial court to adopt a separate decision, in the context of obtaining possible compensation which he did not pursue any further (see paragraphs 28 and 59 above). The issue of the weight attached to the self-incriminating statements will be examined below under Article 6; in the present case it is enough to point out that this claim did not address questions of the lawfulness of the detention. Furthermore, the applicant provided no explanation of the reasons why he had waited for almost two and a half years before raising the issue of alleged criminal unlawfulness of this detention (compare and contrast with Rakhimberdiyev v. Russia , no. 47837/06, § 28, 18 September 2014, Aleksandr Sokolov v. Russia , no. 20364/05, § 66, 4 November 2010) . In view of this, the Court finds that in the present case the applicant brought up the issue of unlawful detention essentially as an element of defence against the criminal charges brought against him. The Court has no grounds to conclude that in the circumstances of the present case this avenue could be considered as an effective remedy in the context of Article 5.

63 . The Court finds , accordingly, that in the present case there was no “final decision” of any domestic authority with regard to the applicant ’ s complaint about the unlawfulness of h is deprivation of liberty on 25 December 2002. In such circumstances, the Court should regard the period of unlawful detention as the starting date for the calculation of the six-month period (see, for similar reasoning, Raush , cited above, § 66, and Zelenin v. Russia , no. 21120/07 , § 67, 15 January 2015 ).

64 . In these circumstances, the Court holds that the complaint under Article 5 of the Convention concerning the events of 25 December 2002 was lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention. In view of this conclusion it finds that it is unnecessary to address the Government ’ s preliminary objection.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

65 . The applicant complained that his self-incriminating statements should have been declared inadmissible evidence on the ground s that he had made them as a result of beatings by the police and in the absence of a lawyer . He relied on Article 6 §§ 1 and 3 (c) of the Convention , which, 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:

...

(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 ...”

A. Admissibility

66 . The Court notes that the complaint s are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

67 . The Government did not comment on the applicant ’ s complaint that his self-incriminating statements had been obtained as a result of his ill ‑ treatment. Notwithstanding their acknowledgment that the applicant ’ s self-incriminating statements made in the absence of a lawyer and not reiterated at trial should have been declared inadmissible in accordance with Article 75 of Russian Code of Criminal procedure, as interpreted by the Constitutional Court (see paragraph 40 above), they considered that this circumstance had not undermine d the overall fairness of the proceedings. T he applicant had been rapidly provided with a lawyer and subsequently granted access to a lawyer of his own choosing, and all investigative actions had been carried out in the presence of his counsel.

2 . The Court ’ s assessment

(a) Alleged violation of Article 6 § 1 of the Convention

( i ) General principles

( ii ) Application of the se principles to the present case

72 . In the present case, o n 9 June 2006 the Tomsk Regional Court found the applicant guilty on three counts of robbery and one murder , and sentenced him to twenty years of imprisonment. In doing so, the trial court referred, among other evidence, to his self-incriminating statements of 25 and 26 December 2002. All statements were subsequently retracted by the applicant , who claimed that they had been made under duress. He requested that his statements be declared inadmissible by the trial court. In support of this request, he referred to a refusal to open criminal proceedings of 30 January 2003 seeking to establish that his injuries had been caused to him during his arrest on 25 December 2002, to the forensic medical report of 30 December 2002 ( see paragraph s 18 and 25 above ) and the statements given by his relatives , namely his mother and his sister , who on 27 December 200 2 prior to the detention hearing , had noticed marks on him left by the beatings ( see paragraph 31 above ).

73 . The trial court did not ignore the applicant ’ s request that his self ‑ incriminating statements be declared inadmissible , and carried out an examination of his allegations of ill-treatment. It summoned and questioned a series of witnesses, notably the applicant ’ s relatives, police officers, and a clerk who had been present at the detention hearing . It also examined medical evidence, in particular the forensic m edical report and the applicant ’ s medical records from the IVS (see paragraphs 11 and 16 above) , as well as other evidence such a s video record ing s of the applicant ’ s interview as a suspect. As a result of that examination, the trial court came to the conclusion that the applicant ’ s injuries had been caused on 27 December 2002 , namely after he had made his confession statements, in the course of his second arrest when the police had had to apply force to overcome his resistence . It therefore declared the applicant ’ s self ‑ incriminating statements admissible and included them in the body of evidence against him.

77 . The trial court further referred to a certificate issued by IVS officials stating that the applicant had ha d no injuries during his detention there between 25 and 27 December 2002. However after both arrest s , that is on 25 and on 27 December 2002, the applicant ’ s medical records drawn up at the IVS mentioned that he had no injuries (see paragraphs 11 and 16 above) , whereas it is clear that at least on one occasion certain injuries should have been recorded. The trial court ’ s reliance on the certificate cannot therefore help dispel the doubts as to the applicant ’ s claims.

78 . When challenging the medical evidence referred to by the trial court , the applicant pointed out that it was inconclusive and questionable in the absence of any reports describing the circumstances of his arrest s and the necessity to use physical force against him prepared by the police officers involved in the incident (see Shamardakov v. Russia , no. 13810/04 , § 133, 30 April 2015) and without any medical examination having been carried out as soon as he had been taken to the police station ( see paragraph s 46 and 48 above , Korobov v. Ukraine , no. 39598/03, § 70, 21 July 2011 , and Chernetskiy v. Russia , no. 18339/04 , §§ 69-70, 1 6 October 2014) . The Court reiterates that this measure would have considerably facilitated the trial court ’ s examination of the applicant ’ s allegations that he was also beaten after his arrest , particularly bearing in mind that there had been a scuffle during his arrest (see, inter alia , Parnov v. Moldova , no. 35208/06, § 30, 13 July 2010, and Türkan v. Turkey , no. 33086/04, § 42, 18 September 2008). Such a medical examination would not only have ensured that he would have been fit for questioning in police custody , but would have constituted evidence showing whether the injuries were caused before the applicant had been taken to the police station and would have assisted the courts in examining the veracity of his ill-treatment allegation s (see Khani Kabbara v. Cyprus , no. 24459/12 , § 156, 5 June 2018) .

80 . T he Court concludes that in deciding to admit in evidence the applicant ’ s self-incriminating statements, the trial court based its decision on evidence the probative value of which remained questionable and open to doubt . In doing so, it disregard ed other elements put forward by the applicant and pointing at a different version . For instance, although the decision of 30 January 2003 refusing to open criminal proceedings was included in the case-file materials at the applicant ’ s request (see paragraph 25 above) , the trial court did not comment on its conclusion that the injuries recorded by the forensic expert had been inflicted on 25 December 2002.

82 . In these circumstances, the Court finds that the applicant ’ s request that his self-incriminating statements be declared inadmissible was not subject to a full, independent and comprehensive examination and assessment by the trial court. It is therefore not convinced that the applicant had an effective opportunity to challeng e the admissibility of his self ‑ incriminating statements and to effectively oppose their use.

83 . The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention.

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

84 . Having regard to the finding s relating to Article 6 § 1 of the Convention , the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 § § 1 and 3 (c) of the Convention .

I V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

85 . 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

86 . The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage.

87 . The Government contested the claim , arguing that it was unsubstantiated .

88 . The Court 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 a retrial or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine , ECHR 2005-IV). H aving regard to the fact that domestic law provides that criminal proceedings may be reopened if the Court finds a violation of the Convention, and given the position of the Russian Supreme Court, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary da mage sustained by the applicant (see Zadumov v. Russia , no. 2257/12, §§ 80-81, 12 December 2017, and most recently, Kumitskiy and Others v. Russia , nos. 66215/12 and 4 others , § 28, 10 July 2018 ).

B. Costs and expenses

89 . The applicant also claimed EUR 3,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

90 . The Government submitted that the applicant had not provided documents substantiating his expenses at the national level. Regarding the proceedings before the Court, it follow ed from the services contract that the applicant ’ s representative was entitled to payment only if the Court were to make an award in respect of the applicant ’ s claims.

91 . Having regards to the parties ’ submissions, the Court finds it appropriate to award the applicant EUR 1,000 under this heading.

C. Default interest

92 . The Court considers it appropriate that the default interest rate 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

1. Declares , unanimously, the complaints concerning the use in the trial of self-incriminating confession statements admissible and the remainder of the application inadmissible;

2. Holds , unanimously, that there has been a violation of Article 6 § 1 of the Convention;

3. Holds , unanimous ly, that there is no need to examine the complaint under Article 6 § 1 taken in conjunction with Article 6 § 3 (c) of the Convention;

4. Holds , by four votes to three, that the finding of a violation constitutes sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

5. Holds , by five votes to two,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses ;

(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 , unanimously, the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 26 November 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Paul Lemmens Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Pinto De Albuquerque, Elósegui and Felici is annexed to this judgment.

P.L. J.S.P.

JOINT DISSENTING OPINION OF JUDGES PINTO DE ALBUQUERQUE, ELÓSEGUI AND FELICI

We regret that we cannot join the majority in holding that, in the circumstances of the present case, the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. We would award some damages to the applicant in view of his obvious suffering. This is in line with previous opinions expressed by several judges, both in Russian cases such as Urazbayev v. Russia , no. 13128/06, 8 October 2019, Gorlov and Others v. Russia , nos. 27057/06 and 2 others, 2 July 2019, and in non-Russian cases such as T.W. v. Malta [GC], no. 25644/94, 29 April 1999; Abdullah Yıldız v. Turkey, no. 35164/05, 26 April 2011; Murray v. the Netherlands [GC], no. 10511/10 , 26 April 2016; and, more recently, Oddone and Pecci v. San Marino , nos. 26581/17 and 31024/17, 17 October 2019.