FIRST SECTION

CASE OF NECHTO v. RUSSIA

( Application no. 24893/05 )

JUDGMENT

STRASBOURG

24 January 2012

FINAL

04/06/2012

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

In the case of Nechto v. Russia ,

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

Peer Lorenzen , President, Anatoly Kovler , Elisabeth Steiner , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , Erik Møse , judges, and Søren Nielsen , Section Registrar ,

Having deliberated in private on 4 January 2012 ,

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

PROCEDURE

1 . The case originated in an application (no. 24893/05) 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 Andrey Vladimirovich Nechto (“the applicant”), on 1 June 2005 .

2 . The Russian Government (“the Government”) were represented by Mr G. Matyushkin , Representative of the Russian Federation at the European Court of Human Rights .

3 . The applicant alleged under Articles 3 and 6 of the Convention that he had been beaten up by police officers after his arrest , that he had not been able to examine some of the prosecution witnesses during the trial , that he had not been assisted by counsel during the pre-trial stage of investigation, and that the courts had erred in the assessment of evidence in the case and had based his conviction on inadmissible evidence.

4 . On 6 November 2009 the President of the First Section decided to give notice of the application to the Gove rnment. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1970 and is currently serving a prison sentence in the town of Nerchinsk , the Chita Region .

A. Arrest and alleged ill-treatment of the applicant

6 . In June 2002 the applicant was convicted of theft and involving a minor in the commission of a crime.

7 . On 1 and 2 October 2002 a series of night robberies took place on the Khabarovsk-Chita motorway in the vicinity of the town of Mogocha , the Chita Region. According to the reports of the victims, the perpetrators were five individuals travelling in two cars.

8 . At around 5.30 p.m. on 3 October 2002 the police stopped two cars corresponding to the descriptions given by the victims on the outskirts of Chita . The police arrested the applicant and three individuals who had been travelling in the cars , V., Ta. and To., on suspicion of their involvement in the recent robberies.

9 . The applicant ’ s arrest record notes the suspicion of his involvement in one of the recent robberies and the fact that a victim had already identified him as one of the perpetrators of the robbery. The record bears the applicant ’ s handwritten comment:

“I disagree with [my] arrest. I did not commit the crime ... ”

10 . The arrest record of that date contains the following pre-typed standard wording followed by the applicant ’ s signature:

“I have been informed that in accordance with Article 46 of the Code of Criminal Procedure, I have the following rights:

( 1) to know what I am suspected of, and to receive a copy of [the relevant decision];

( 2) to make comments and statements in respect of that suspicion or to refuse to make any comments and statements;

( 3) to benefit from the assistance of a lawyer from the moment defined by subparts 2 and 3 of the second paragraph of Article 49 of the Code of Criminal Procedure and to see him privately and confidentially before my first interview ...

I have also been informed that in accordance with Article 51 of the Constitution I have the right not to give evidence against myself ... ”

11 . The applicant acknowledged having received a copy of the record with his signature.

12 . After the arrest, the applicant was taken to the building of the Department for Combating Organized Crime of the Ministry of Internal Affairs of the Chita Region (“the UBOP ”).

13 . The applicant submitted that he had been punched and kicked all over his body and that a plastic bag had been put over his head to suffocate him.

14 . It appears that the policemen started to interview him on arrival, but that the applicant remained silent. According to the interview record , h e “was not mentally ready and also because of being tired” to take part in the interview. The applicant asked for a lawyer and refused to give evidence.

15 . On 4 October 2002 the applicant was brought to the temporary detention wing of the Department of the Interior of Chita (“the temporary detention wing”, изолятор временного содержания УВД г . Читы ). Upon arrival, he was examined by a nurse, who detected no injuries on his body.

16 . On 5 October 2002 the applicant was placed in remand prison IZ ‑ 75/1 in Chita .

17 . On 7 October 2002 the remand prison ’ s doctor examined the applicant and reported one bruise on the right side of the applicant ’ s rib cage. The bruise could have originated from the impact of a hard blunt object two or three days prior to the examination.

B. Criminal proceedings against the applicant

1. Pre-trial stage of proceedings

18 . It appears that on 3 October 2002 an interview with the applicant did not take place, as the applicant chose to remain silent.

19 . On the next day a police investigator conducted face-to-face confrontations between the applicant and his alleged victims , M. and Ya ., who both identified the applicant as one of the perpetrators of the robbery. In the course of the face-to-face confrontations , the applicant and the victims answered the investigator ’ s questions. The applicant took part in the confrontations , denied his involvement in the alleged robberies, but did not put any questions to the victims.

20 . Both confrontation records state that the applicant:

“ ... agreed to participate in the face-to-face confrontation in the absence of counsel ... [and that he] ... has been informed that under Article 51 of the Constitution [ that he] has a right not to give evidence against himself ... ”

21 . On 5 October 2002 the applicant was formally charged with the aggravated robbery of M. and Ya ., committed as a member of an organised group consisting of him and three other individuals, V., Ta. and To., who had travelled with him in two cars on the night of 2 October 2002.

22 . During a subsequent interview which took place on that date in the presence of his counsel , the applicant made a handwritten comment on the interview record that:

“ ... [he] refused to give evidence ... and had nothing else to explain ... ”

23 . It appears from the materials of the case file that the applicant was represented by counsel from 5 October 2002 onwards .

24 . On 24 December 2002 the applicant was additionally charged in respect of other episodes of the aggravated robbery of Sh., Zh ., Z. and Mr and Mrs G. committed by the same group on the night of 1 October 2002.

25 . During a subsequent interview which took place later on the same date in the presence of his counsel , the applicant made a handwritten comment on the interview record to the effect that:

“ ... he denied the charges ... . ”

26 . During the pre-trial stage of the proceedings , the victims Zh . and Sh., Z., Ya ., M., and Mr and Mrs G., made detailed statements about the circumstances of the robberies. In addition, photo identification parades were conducted and the victims Zh ., Ya . and Mr and Mrs G. recognised the applicant and other members of the group as the perpetrators of the robberies.

2. Court examination of the criminal case against the applicant

(a) Trial proceedings

27 . The criminal case against the applicant and his three co-accused , V ., Ta. and To. , was sent for examination on the merits to the Mogochinskiy District Court of the Chita Region (“the District Court”).

28 . During the subsequent trial , the District Court called Zh . and Sh., Mr and Mrs G., M. and Ya . to the hearing as witnesses and issued three decisions dated 22 December 2003, 4 March and 27 April 2004, in which it gave instructions to the police to locate their whereabouts and secure their attendance by force.

29 . In response to the court ’ s request, the competent police authorities carried out a search, but were unable to locate Mr and Mrs G. because they had moved away and had failed to leave any information about their whereabouts.

30 . As regards witnesses M. and Ya ., they established that both resided in the town of Krasnoyarsk, which is over three thousand kilometres away from the location of the trial. In addition, Ya . had a sick child and could not come to give evidence , whilst M., fearing for his life, categorically refused to appear in court and asked the court to examine the case on the basis of his prior statements.

31 . Witness Sh. could not appear because of his state of health and the distance of over one thousand kilometres between his home town of Irkutsk and the location of the trial. In addition, witness Sh. wrote a letter to the court and complained that unknown individuals had been calling him on the phone and making threats in connection with the proceedings. Witness Zh ., residing in Irkutsk , also refused to appear, fearing for his life, and asked the court to examine the case on the basis of his previous statements made during the pre-trial stage of the proceedings.

32 . Having analysed the information collected by the police, the District Court excused the absence of the above-mentioned witnesses, ruling that their failure to appear was for “a good reason”, and granted the prosecution ’ s motion to read out their pre-trial statements in spite of the objections of the applicant and his co-accused.

33 . On 14 July 2004 the District Court examined the evidence presented by the prosecution and, having analysed its admissibility, approved the use of the evidence, including the record of the applicant ’ s face-to-face confrontations of 4 October 2002, contained in the prosecution case file.

34 . During the trial the applicant denied his involvement in the robberies.

(b) The first-instance judgment of 17 August 2004

35 . On 17 August 2004 the District Court convicted the applicant and his co-accused of participation in three episodes of robbery committed on the Khabarovsk-Chita motorway near the town of Mogocha and sentenced him to eight years of imprisonment . The court noted that:

“The accused created an organised group which corresponded to the description given in Article 35 of the Criminal Code, [namely,] permanent links between its members, prior collusion, stability and the use of specific methods in the commission of the crimes. The group was created to [intercept newly-purchased Japanese cars being driven home] on the Khabarovsk-Chita motorway by people passing near the town of Mogocha [and to levy an unofficial “toll” on the drivers]. The attacks were directed solely at drivers who had ... a transit identification number from the town of Vladivostok [and presumably had just bought a “new” second-hand Japanese car and were driving it back home]. To carry out their attacks, the group had its own cars, acted only during the night, in a coordinated manner and daringly, made threats and substantiated them by showing [weapons], such as a shotgun, grenades, pistols ... , gave special notes confirming the payment, which also confirms that there were preliminary preparations and coordination. All of the accused were participants. No group leader was identified. The stability and organised nature of the group are also confirmed by the fact that they acted [on two consecutive nights]. That their actions were coordinated is also confirmed by the [wire-tapping records of their cell phone conversations] ... ”

36 . The court established that the group had carried out its robberies on three occasions. As regards the first episode, the court noted that on the night of 1 October 2002 the applicant and his co-accused stopped two cars belonging to and driven by Zh . and Sh., having shown them a gun. They then forced them to pay for “safe passage” through the territory of the Chita Region and compelled them to hand over a spare car tyre. The involvement of the group had been confirmed by the discovery of a small handwritten note given by the group to the victims Zh . and Sh. as a confirmation of payment and as “security” in case of any further extortion during their onward journey, which read:

“ Mazda Bongo Pulsar [the make and models of the victims ’ cars] in Mogochi were met by us [signature] . ”

37 . An expert examiner had recognised that the note had been written by To., one of the co-accused. The court also relied on the statements given by Zh . and Sh. during the pre-trial stage of the proceedings, the results of a photo identification parade during which Zh . had recognised the applicant, and the arrest and search record, which confirmed that the group had been in possession of firearms, that the applicant had travelled in one of the cars referred to by the victims, and the finding of the tyre taken away from Zh . and Sh. in possession of the group.

38 . As regards the second episode, the court noted that very shortly after the first episode , the group flagged down the car of Mr and Mrs G. and forced them to stop and pay. The co-accused collectively intimidated the victims, showing them a grenade and a gun, and also later gave them a handwritten note confirming the payment. The note contained the make and the identification number of the victims ’ car and had been recognised by an expert as having been written by To. Apart from the note and the search record confirming the finding of a mock grenade in possession of the applicant ’ s group, the court also relied on the statements made by Mr and Mrs G. during the pre-trial stage of the proceedings, the identification records according to which Mr and Mrs G. had identified the co-accused, including the applicant, and the grenade.

39 . As regards the third episode, the court pointed out that on the following night the group stopped the car of Ya . and M., who were also robbed in a similar way. The group took away a tyre mounted on a rim as well as a one-hundred-dollar bill, which was later found and identified by the investigating authorities and M., because the group subsequently used it for payment on the way to Chita. The court referred to the search record, which confirmed the finding of the mounted tyre and its subsequent identification by M.

40 . In so far as the group was also charged with the robbery of Z., an individual who had allegedly been robbed on one of the nights in question in the same area and in a similar manner, the court noted that the prosecution case was unsubstantiated, as it contained no evidence implicating the group apart from the pre-trial statement of Z. Accordingly, the court acquitted the group of that charge.

41 . In addition to the above-mentioned evidence, the court also relied on the records of the applicant ’ s telephone conversations with his co-accused in the first few days following their arrest.

42 . The court rejected the applicant ’ s arguments concerning the alleged use of torture, the denial of access to counsel and the absence of the victims of the robberies from the trial. The applicant appealed and raised those arguments on appeal.

43 . On 25 April 2005 the Chita Regional Court upheld the judgment. It stated that the first-instance court had fulfilled its duty to call the victims to the hearing, but that they had failed to appear for legitimate reason s . The appeal court also found that the first-instance court ’ s decision rejecting the applicant ’ s allegations of ill-treatment by the police as unsubstantiated had correctly been based on the materials of the case file, medical documents and the investigator ’ s decisions to discontinue the criminal proceedings (see paragraphs 44 - 61 below) . The court also examined and rejected the rest of the applicant ’ s arguments about the use of the victims ’ pre-trial statements and the alleged denial of access to his lawyer at the initial stages of the investigation.

C. The applicant ’ s attempts to bring criminal proceedings in connection with the alleged ill-treatment

1. The initial refusal to institute criminal proceedings

44 . On unspecified dates the applicant and three other of his co-accused lodged requests with the investigator to institute criminal proceedings against the UBOP officers who had allegedly beaten them up.

45 . On 14 October 2002 a medical expert examination of the applicant was conducted. The expert stated in his report ( no. 3454 ) that he had not discovered any injuries on the applicant.

46 . By decisions of 24 October 2002 and 9 June and 3 August 2003 the investigator refused to institute criminal proceedings. By a decision of 22 September 2003 the supervising prosecutor quashed the investigator ’ s refusals and ordered additional investigation into the applicant ’ s allegations of ill-treatment.

47 . On 27 September 2003 the investigator refused to institute criminal proceedings against the police officers. The investigator had questioned the policemen and convoy officers who had allegedly been involved, who had all denied the presence of any injuries on the applicant at the relevant time. At the same time, the decision mentioned that the applicant had displayed bruising on 7 October 2002 , but concluded that these injuries may have been inflicted after the applicant ’ s placement in the remand prison.

2. Criminal investigation into the events of 3 October 2002

48 . On 6 November 2003 the prosecutor quashed the decision of 27 September 2003 and instituted criminal proceedings against unidentified police officers under Article 286 of the Criminal Code.

49 . On 6 January 2004 the investigator discontinued the criminal proceedings due to the lack of evidence of a crime. He relied on the statements of the police officers denying the use of any force on the applicant, and information received from the temporary detention facility showing an absence of any complaints on the applicant ’ s part of any injuries during his detention there, and concluded that the injury had occurred on the second day of the applicant ’ s placement in the remand prison and therefore that the allegations of ill-treatment had not been supported by any evidence.

50 . On 19 February 2004 the deputy prosecutor quashed the decision of 6 January 2004 and ordered additional investigation. He indicated in the decision that it was necessary to identify and question all the individuals who had been detained with the applicant in the temporary detention facility and in the remand prison.

51 . The criminal proceedings were subsequently discontinued by the investigator ’ s decisions of 25 April, 27 May, 28 July, 22 September and 22 October 2004 and reopened by the prosecutor ’ s decisions of 27 April, 28 June, 23 August and 22 September 2004 and 18 April 2005.

52 . In the decisi ons of 27 April, 28 June and 23 August 2004 and 18 April 2005 the prosecutor referred to the need to find and question all former cellmates of the applicant from the temporary detention facility and the remand prison. In the decision of 22 September 2004 the prosecutor also considered it important to eliminate the contradictions between the statements of the applicant about beatings by the police and the statements of the temporary detention facility ’ s officers about the absence of any visible injuries on the applicant upon his arrival there.

53 . On 19 May 2005 the investigator suspended the criminal proceedings, as nobody who could be held responsible for the alleged ill-treatment of the applicant had been identified. The criminal proceedings were subsequently reopened by the prosecu tor ’ s decisions of 10 August, 2 November and 12 December 2005 and 7 November 2006 and suspended by the investigator ’ s decisions of 14 September and 9 December 2005 and 12 January 2006.

54 . The decision of 10 August 2005 once again indicated the need to identify all those who had been detained together with the applicant in the temporary detention facility.

55 . The decisions of 2 November and 12 December 2005 and 7 November 2006 referred to the necessity to establish the remand prison cells in which the applicant had been detained at the relevant time.

56 . The decisions of 2 November 2005 and 7 November 2006 also indicated the need to resolve the contradictions between the statements of the applicant about the alleged beatings and the statements of the temporary detention facility ’ s officers about the absence of injuries on the applicant. The decision of 2 November 2005 also noted the need to question the witnesses attesting to the applicant ’ s identification by the victims in the first few days following his arrest.

57 . On 26 May 2010 an expert studied the results of the applicant ’ s medical examination of 14 October 2002 and concluded ( in report no. 752 ) that the applicant had not had any injuries at the time of the examination.

58 . On 7 June 2010 the investigator discontinued the criminal proceedings concerning the alleged ill-treatment of the applicant. He noted that the applicant ’ s allegations of beatings by the police had been disproved by the results of the expert medical examination of the applicant, during which no injuries on him had been recorded.

59 . With regard to the injuries sustained by the applicant ’ s co-accused, the investigator concluded that they could have been inflicted by the victims of the crimes or by other people , including the co-accused themselves, during their detention in the remand prison. Given that the actions of unidentified individuals fell under Article 116 of the Criminal Code , the criminal proceedings were to be terminated, as the time-limit for holding those persons responsible in the present case had expired.

60 . The investigator relied on: ( i ) the statements of the doctor who had examined the applicant on 7 October 2002 and discovered a bruise on the right side of the applicant ’ s rib cage ; (ii) the findings of the expert in report no. 752 on the examination of the applicant ’ s medical records of 14 October 2002, which did not note any injuries on the applicant ; (iii) the statements of the police officers who had denied any application of force to the applicant; (iv) the statements of three of the applicant ’ s former cellmates from the remand prison and one from the temporary detention facility, who had asserted that there had been no fights in the cells; and (v) the statements of the nurse of the temporary detention facility who had examined the applicant on 4 October 2002 and had discovered no injuries.

61 . The applicant has apparently never challenged any decision to discontinue the criminal proceedings in the domestic courts.

II. RELEVANT DOMESTIC LAW AND PRACTICE

62 . Article 116 § 1 of the Criminal Code of the Russian Federation of 13 June 1996 in force as from 1 January 1997 provides that application of physical force to another person which has caused physical pain but has not resulted in any health damage shall be punishable by a fine, compulsory or correctional labour or arrest for a period of up to three months.

63 . Article 286 § 3 (a) of the Criminal Code provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens, committed with violence or the threat of violence, shall be punishable by three to ten years ’ imprisonment with a prohibition on occupying certain posts or engaging in certain activities for a period of three years.

64 . The Code of Criminal Procedure of the Russian Federation ( “ CCrP ” ) in force as from 1 July 2002 provides that a witness cannot evade the duty to appear when called by a court and that in case of evasion for no valid reason a witness can be compelled to appear (Article 56).

65 . A witness can be brought to court in case of evasion of the duty to appear without a valid reason (Article 113 of the CCrP ).

66 . According to the Directions approved by Order no. 438 of the Ministry of Internal Affairs of 21 June 2003, the local police enforce decisions on the compulsory appearance of witnesses by bringing them to court.

67 . Article 49 § 2 of the CC r P provides that an advocate is admitted to participate in the proceedings as defence counsel. It also specifies that defence counsel take part in the criminal proceedings as of the moment of the institution of a criminal case against a specific person (part 2) or as of the moment of the apprehension of the suspect if the suspect was caught in the commission of an offence (part 3).

68 . Article 144 of the CCrP provides that prosecutor s , investigator s and inquiry bodies are obliged to consider applications and information about any crime committed or being prepared , and to take a decision on that information within three days. In exceptional cases, this time-limit can be extended to ten days. The decision should be one of the following: ( a) to institute criminal proceedings ; ( b) to refuse to institute criminal proceedings ; or ( c) to transmit the information to another competent authority (Article 145 of the CCrP ) .

69 . Article 125 of the CCrP provides that the decision of an investigator or a prosecutor to dispense with criminal proceedings or to terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens ’ access to justice , may be appealed against to a district court, which is empowered to check the lawfulness and grounds of the impugned decisions.

70 . Article 213 of the C CrP provides that in order to terminate the proceedings the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor. The investigator should also notify the victim and the complainant in writing of the termination of the proceedings .

71 . According to Article 214 of the C CrP , the prosecutor c an reverse the decision of the investigator and reopen the proceedings. The proceedings can be re-opened until the time-limit for holding a p erson criminally responsible expire s .

72 . Under Article 2 2 1 of the C CrP , the prosecutor is responsible for general supervision of the investigation. In particular, the prosecutor can order that specific investigative activities be carried out, transfer the case from one investigator to another, or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies.

73 . Reading out in court of statements made by a victim or a witness at earlier stages of the proceedings is permitted upon the parties ’ consent if the victim or the witness has not appeared before the court ( Article 281 § 1 of the CCrP ). The court may, without seeking the consent of the parties, read out earlier statements by the absent victim, or the witness, in the event of : (1) the death of that victim or witness ; (2) the ir serious illness , preventing their appearance before the court ; (3) a refusal to appear by the victim or the witness if they are citizens of other States ; or (4) a natural disaster or other extraordinary circumstance preventing their appearance before the court ( Article 281 § 2 of the CCrP ).

74 . In admissibility decision no. 233-O of 27 October 2000, the Constitutional Court of Russia held that the reading out of pre-trial depositions should be considered as an exception to the court ’ s own assessment of evidence and should not upset the procedural balance between the interests of the prosecution and those of the defence. If a party insists on calling a witness whose testimony may be important to the case, the court should take all available measures to ensure this witness ’ s presence in court. When that witness is available for questioning, the reading out of his or her deposition should be considered inadmissible evidence and should not be relied upon. However, when the witness is not available for questioning, the defence should still be provided with appropriate procedural safeguards , such as challenging the deposition read out , a request to challenge it by way of examining further evidence, or through a pre-trial face-to-face confrontation between that witness and the defendant in which the latter was given an opportunity to put questions to the former (see also admissibility decision no. 548-O of 7 December 2006).

75 . In Ruling no. 29 of 27 December 2002 o n judicial practice in cases concerning theft and robbery , the Plenary Session of the Supreme Court of Russia explained that a group could be defined as “organised” if it had a stable structure, a leader and a developed plan of concerted criminal activity. It was also characterised by a division of roles between its members when preparing and carrying out a criminal act. The Supreme Court noted that when it was established that a crime had been committed by an organised group, all members of the group carried responsibility for it as perpetrators , irrespective of their individual roles in the commission of the crime.

“1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances.

...

4. New circumstances are:

...

(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:

(a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;

....”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

77 . The applicant complained that on 3 October 2002 he had been ill-treated by the police in violation of Article 3 of the Convention and that no proper investigation into this had been conducted . This Convention provision reads as follows:

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

A. The parties ’ submissions

78 . The Government argued at the outset that the applicant had failed to exhaust the available domestic remedies since he had never challenged any of the investigator ’ s decisions not to institute criminal proceedings in a court of general jurisdiction. The applicant had been able to do so because he had been timely notified about the termination of the criminal proceedings concerning his complaints of ill-treatment and about the possibility to challenge them in court and had been assisted by counsel at the pre-trial stage and during the trial. The Government argued that the length of the investigation of the alleged ill-treatment had been due to the applicant ’ s failure to complain of the alleged beatings in time.

79 . The applicant disagreed and maintained his initial complaints .

B. The Court ’ s assessment

1. Admissibility

81 . Turning to the facts of the present case, the Court notes that the applicant has never challenged any of the investigator ’ s decisions to discontinue the criminal proceedings concerning his complaints of ill-treatment in court ( paragraph 61 ). T he Court has already found that although a court itself has no competence to institute criminal proceedings, its power to annul a refusal to institute criminal proceedings and indicate the defects to be addressed appears to be a substantial safeguard against the arbitrary exercise of power by the investigating authority (see Trubnikov v. Russia ( dec .), no. 49790/99, 14 October 2003). At the same time , the Court has pointed out that the rule of exhaustion is neither absolute nor capable of being applied automatically : for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Akdivar and Others , cited above, § 69, and Aksoy , cited above, §§ 53-54) .

83 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) The alleged breach of Article 3 under its procedural limb

84 . The Court reiterates its settled case-law to the effect that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. An obligation to investigate “is not an obligation of result but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant ’ s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible.

85 . The investigation of arguable allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, among other things , a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical certificates apt to provide a full and accurate record of the injuries and an objective analysis of the medical findings, in particular as regards the cause of the injuries. Any deficiency in the investigation which undermines its ability to establish the cause of the injuries or the identity of the persons responsible will risk falling foul of this standard. The investigation into the alleged ill-treatment must be prompt. Lastly, there must be a sufficient element of public scrutiny of the investigation or its results; in particular, in all cases, the complainant must be afforded effective access to the investigatory procedure (see, among many other authorities, Assenov and Others v. Bulgaria , 28 October 1998, §§ 102 et seq., Reports 1998-VIII; Mikheyev v. Russia , no. 77617/01, §§ 107-08, 26 January 2006; and Petropoulou-Tsakiris v. Greece , no. 44803/04, § 50, 6 December 2007).

86 . Turning to the circumstances of the present case, the Court notes that from the date of the first decision refusing to investigate the incident it is clear that the applicant complained of beatings by the police no later than in the first two weeks of October 2002 (see paragraphs 44 and 46 ). By that time, the results of the applicant ’ s medical examination of 7 October 2002, which noted a bruise on the right side of the applicant ’ s rib cage , were already available to the authorities (see paragraph 17 ). The Court considers that those results, together with the applicant ’ s complaint, constituted an “arguable claim” of ill-treatment at the hands of the police and warranted an investigation by the domestic authorities in conformity with the requirements of Article 3 of the Convention.

88 . Next, the Court finds that the investigating authority routinely disregarded its duties and displayed a surprising lack of diligence in the subsequent examination of the case, to the extent that the supervising prosecutor had to issue the same instruction to identify the applicant ’ s former inmates on at least five occasions (see paragraph 52 ), the same instruction to identify the applicant ’ s cells on at least three occasions (see paragraph 55 ) and the same instruction to dissipate the discrepancies in witness statements on at least three occasions (see paragraphs 52 and 56 ). This resulted in a delay of almost two years in the execution of the first task and delays of almost of three years each in respect of the last two tasks.

89 . T he Court further notes that the initial witness statements collected in the course of the investigation contained many inconsistencies (paragraphs 52 and 56 ) which required to be dissipated by the meticulous comparison of this evidence in relation to specific details as well as a series of cross-examinations, identification parades, confrontations or possibly crime-scene reconstructions. It was important to conduct this process as fast as possible whilst the memories of what had happened were still fresh, but also in order to avoid the loss of contact with witnesses. The Court is also mindful of the important role which investigative interviews play in obtaining accurate and reliable information from suspects, witnesses and victims and, ultimately, the discovery of the truth about the matter under investigation. Observing the suspects ’ , witnesses ’ and victims ’ demeanour during questioning and assessing the probative value of their testimony forms a substantial part of the investigative process. The recollection of the events in question by the witnesses naturally fade s away over the years , and the substantial delays in carrying out these assignments in the present case added up to the initial lapse of time (paragraph 87 ) and contributed greatly towards rendering the investigation ineffective.

91 . Having regard to the foregoing, the Court does not consider that the authorities have conducted an effective investigation into the applicant ’ s allegations of ill-treatment and holds that there has been a violation of Article 3 of the Convention under its procedural limb.

(b) The alleged breach of Article 3 under its substantive limb

92 . As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and its Protocols, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 , even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V, and Assenov and Others , cited above, § 93).

93 . Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis , Klaas v. Germany , 22 September 1993, § 30, Series A no. 269). To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom , 18 January 1978, § 161, Series A no. 25).

94 . Turning to the case at hand, t he Court has regard to its findings concerning numerous deficiencies in the domestic investigation into the applicant ’ s alleged ill-treatment and, in particular, the late institution of proceedings in connection with his complaints (see paragraph 87 above).

95 . Having regard to the parties ’ submissions and all the materials in its possession, the Court considers that the evidence before it does not enable it to find beyond all reasonable doubt that the applicant was subjected to treatment contrary to Article 3, as alleged. In particular, on the next day after his arrest the applicant was examined by a nurse who failed to detect any injuries on his body (see paragraph 15 ), whilst the medical certificate issued by a doctor in the remand prison on 7 October 2002 confirming the presence of a bruise on his ribcage and diagnosing it as having appeared two or three days beforehand (see paragraph 17 ) does not correspond in full to the timing and the extent of the ill-treatment described by the applicant in his version of events (see paragraph 13 ). Furthermore, it is unclear whether and to what extent the applicant ’ s alleged ill-treatment could have resulted in any visible signs on his body.

96 . The Court notes, however, that its inability to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention derives to a considerable extent from the failure of the domestic authorities to react effectively to the applicant ’ s complaints at the relevant time (compare Gharibashvili v. Georgia , no. 11830/03, § 57 , 29 July 2008 , with further references ; and see Khashiyev and Akayeva v. Russia , nos. 57942/00 and 57945/00, § 178 , 24 February 2005 , with further references ; and Lopata v. Russia , no. 72250/01 , § § 124- 26 , 13 July 2010 ).

97 . Thus, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicant ’ s alleged ill-treatment while in police custody.

II . ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

98 . The applicant complained that the criminal proceedings against him had been unfair. In particular, he claimed that:

(a) he had not been provided with legal assistance from the moment of his arrest;

(b) the courts had used the statements of witnesses M., Ya ., Sh., Zh . and Mr and Mrs G. to convict him and that he had not been able to examine these witnesses before the court in person ; and

(c) that the domestic courts had erroneously assessed the evidence in his case and had relied on inadmissible evidence.

The Court will examine these complaints under Article 6 §§ 1 and 3 (c) and ( d) of the Convention , which, in so far as relevant, provides 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 or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same condi tions as witnesses against him ... ”

A. The parties ’ submissions

99 . The Government disagreed with the applicant and submitted that his allegation that he had been denied legal assistance after his arrest was unsubstantiated. They further argued that the criminal proceedings had been fair and that the use of pre-trial statements given by the witnesses had been lawful. In particular, the applicant had had an opportunity to put questions to victims M. and Ya . during the face-to-face confrontations conducted at the pre-trial stage. The Government further submitted that the trial court had taken all reasonable measure s to secure the attendance of the witnesses and , having excused their failure to appear, had lawfully used their pre-trial statements in convicting the applicant .

100 . The applicant maintained his original position and argued that the trial court had failed to take appropriate measures to secure the attendance of victims M., Ya ., Sh., Zh ., and Mr and Mrs G. and had unlawfully based his conviction on their pre-trial statements.

B. The Court ’ s assessment

1. Admissibility

101 . The Court notes that this part of the case is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) Legal assistance in police custody

i . General principles

102 . Article 6 § 1 of the Convention requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008; see also Dayanan v. Turkey , no. 7377/03, §§ 29-34, 13 October 2009). Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 (ibid . ). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during a police interrogation without access to a lawyer are used for a conviction.

103 . The Court further emphasises the importance of the investigation stage for the preparation of criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at trial (see Salduz , cited above, § 54). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure has tended to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure respect for the right of an accused not to incriminate himself (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-IX, and Kolu v. Turkey , no. 35811/97, § 51, 2 August 2005).

104 . Lastly, the Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver ’ s importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II). Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey , no. 32432/96, § 59, 27 March 2007, and Jones v. the United Kingdom ( dec .), no. 30900/02, 9 September 2003).

ii. The application of the above principles to the present case

105 . Turning to the circumstances of the present case, the Court observes that the applicant was arrested by the police on 3 October 2002 as a part of a group of people travelling in two cars on suspicion of their involvement in recent robberies (see paragraph 7 ). The applicant made a handwritten comment in the arrest record to the effect that he “ disagree [ d ] with [his] arrest” and that he “did not commit th e crime”. The arrest record also contained a notice informing the applicant of his rights, including the right to remain silent and to be assisted by a lawyer, which he countersigned. The notice specified that the applicant could see his lawyer only as of “the moment defined by subparts 2 and 3 of the second paragraph of Article 49 of the Code of Criminal Procedure” (see paragraphs 9 and 10 ). The applicant refused to give evidence on that day. According to him, he asked for access to a lawyer, but the request was refused and the police put serious pressure on him with a view to forcing him to confess (see paragraph 14 ).

106 . On 4 October 2002 the applicant agreed to take part in face-to- f ace confrontations with the victims of one of the robberies , M. and Ya . , and, during these confrontations, denied his involvement in the crimes at issue . He was given an opportunity to put questions to the victims, but did not have anything to ask. The confrontation record s stated that the applicant had agreed to participate in the absence of counsel and that he had been informed of his right to remain silent (see paragraph 20 ). The applicant was provided with access to his lawyer after he had been formally charged on 5 October 2002 in connection with this episode. From that moment on, he consistently refused to give any evidence to the investigator (see paragraphs 22 and 25 ). Subsequently at trial, the court admitted the record of the applicant ’ s participation in the confrontations as evidence and used it in convicting the applicant (see paragraphs 33 and 39 ).

107 . The Court first observes that the parties disagreed on whether the applicant had indeed asked for counsel after his arrest or whether he had essentially waived this right and his right to remain silent and had consented to giving evidence in the absence of his lawyer on 4 October 2002 . In this connection, the Court takes note of the undisputed fact that the applicant refused to give evidence immediately after his arrest on 3 October 2002 and that he made a number of serious allegations about pressure and coercion by the police with a view to forcing him to confess (see paragraph 12 ). The Court further observes that in addition to the allegation of duress the applicant also contended that the record of his participation in the confrontation on 4 October 2002 should have been excluded from the body of evidence at trial due to the absence of legal assistance at the relevant time (see paragraphs 33 and 42 ).

108 . Without prejudice to its findings under the substantive aspect of Article 3 of the Convention, the Court further observes that it considered that the applicant had an “arguable claim” of ill-treatment at the hands of the police (see paragraph 86 above). Regrettably, the investigation conducted by the domestic authorities failed to elucidate the circumstances in which the applicant ’ s confession had been obtained and the Court was afforded no means of clarifying those circumstances so as to dispel any doubts in that respect (see paragraph 96 ).

109 . The Court further cannot attach importance to the applicant ’ s signature on the notice informing him of his legal rights on 3 October 2002 and his agreement to participate in the confrontation in the absence of his counsel on 4 October 2002. The applicant ’ s comment was too vague and inconclusive, especially in view of his refusal to speak on 3 October 2002, whilst the notice cited Article 49 § 2 of the Code of Criminal Procedure without explaining its meaning (see paragraphs 10 and 67 ), which made it difficult for the applicant to understand whether he had the right to consult his lawyer at all at that particular moment. As regards the applicant ’ s agreement of 4 October 2002, it does not confirm that the applicant was informed at all of his right to see his counsel (see paragraph 20 ).

112 . In sum, even though the applicant had the opportunity to challenge the evidence against him at trial and subseq uently on appeal (see paragraph 43 ), the absence of a lawyer while he was in police custody irretrievably affected his defence rights.

(b) The reading out of statements made by Zh ., Sh., Ya ., M. and Mr and Mrs G. at the pre-trial stage of the proceedings

i . General principles

114 . According to the Court ’ s case-law, the right to a fair trial presupposes that all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. However, the use in evidence of statements obtained at the police inquiry or judicial investigation stages is not in itself inconsistent with paragraphs 1 and 3 (d) of Article 6, provided that the rights of the defence have been respected.

115 . As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him or her – either when the statements are made or at a later stage of the proceedings (see Saïdi v. France , 20 September 1993, § 43, Series A no. 261-C, and A.M. v. Italy , no. 37019/97, § 25, ECHR 1999-IX) . In the event that the witnesses cannot be examined and that this is due to the fact that they are missing, the authorities must make a reasonable effort to secure their presence (see Artner v. Austria , 28 August 1992, § 21 in fine , Series A no. 242 ‑ A ; Delta v. France , 19 December 1990, § 37, Series A no. 191 ‑ A ; and Rachdad v. France , no. 71846/01, § 25, 13 November 2003).

116 . Article 6 does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (see, among other authorities, Bricmont v. Belgium , 7 July 1989, § 89, Series A no. 158).

117 . However, where a conviction is based solely or to a decisive extent on statements that have been made by a person whom the accused has had no opportunity to examine or to have examined at some stage of the proceedings, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Al- Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06 , § 147 , 1 5 December 2011 , Unterpertinger v. Austria , 24 November 1986, §§ 31-33, Series A no. 110; Saïdi , cited above, §§ 43-44; Lucà v. Italy , no. 33354/96, § 40, ECHR 2001-II; and Solakov v. the former Yugoslav Republic of Macedonia , no. 47023/99, § 57, ECHR 2001-X).

ii. The application of the above principles to the present case

118 . Turning to the matter of the examination of the victims Zh ., Sh., Ya ., M. and Mr and Mrs G., the Court observes at the outset that none of these persons testified at the court hearing. However, all of them should, for the purposes of Article 6 § 3 (d) of the Convention, be regarded as witnesses because their statements during the pre-trial interviews, photo identity parades or face-to-face confrontations, as taken down by the investigating authority, were used at the trial (see paragraph 37 , 38 and 39 ). In the circumstances, the Court considers that there is no material difference between a recorded statement by a witness or the result of an identity parade on the one hand and the result of a face-to-face confrontation on the other, since all are capable of furnishing evidence against a defendant in a criminal trial (see also Mirilashvili v. Russia , no. 6293/04, § 159, 11 December 2008 ).

α. Reading out of the statements of Sh. and Zh .

120 . In this connection, the Court would note that, apart from the evidence given by witnesses Sh. and Zh ., the applicant ’ s conviction in respect of the first charge was mostly confirmed by less decisive evidence, such as the handwritten notes given by a member of the group to the victims in exchange for payment and the search records confirming the applicant ’ s group to have been in possession of the stolen car tyres and the weapons used for threatening the victims (see paragraphs 36 and 37 ). In view of the above , the Court concludes that the applicant ’ s conviction in respect of the first charge was based to a decisive extent on the pre-trial statements of witnesses Sh. and Zh . , whom the applicant had no possibility to question. Thus, he was in this respect at a disadvantage vis-à-vis the prosecution during the trial (see Vladimir Romanov , cited above, § 103 ).

β. Reading out of the statements of Mr and Mrs G.

121 . Turning to the applicant ’ s conviction for the second charge, the Court notes that the applicant had no possibility of confronting the victims, namely Mr and Mrs G., either before or during the court proceedings (see paragraphs 26 and 38 ).

122 . Similarly to the previous episode, his conviction for the robbery of Mr and Mrs G. was also principally based on the pre-trial statements given by the victims and the records of the identification made by the victims – the other pieces of evidence, such as a handwritten note and the search record, being of a secondary nature (see paragraphs 38 ). In view of the above, the Court finds that the applicant ’ s conviction in respect of the second charge was based to a decisive extent on the pre-trial statements of Mr and Mrs G. , whom the applicant had no possibility to question, thus placing him at a disadvantage vis-à-vis the prosecution during the trial.

γ. Reading out of the statements of M. and Ya .

124 . As to the question of whether the applicant ’ s conviction in respect of the third charg e – in connection with which witnesses M. and Ya . gave their evidence – was based solely, or to a decisive degree , on the evidence given by these witnesses , the Court notes that that the applicant ’ s conviction in respect of the third charge was mainly based on the evidence obtained from th o se witnesses on 4 October 2002, including their statements and the face-to-face confrontation records. The other pieces of evidence in respect of that episode, such as the search records, were of a less decisive character.

125 . T he Court finds that the applicant cannot be regarded as having had a proper and adequate opportunity to challenge the statements of M. and Ya ., which were of decisive importance for his conviction in respect of the third charge.

128 . Overall, t he Court concludes that there has been a violation of Articles 6 § 3 (d) of the Convention taken in conjunction with Article 6 § 1 in the criminal proceedings against the applicant due to the fact that his conviction was to a decisive event based on evidence he could not challenge.

(c) The applicant ’ s o ther complaints

129 . The Court reiterates its earlier findings that the absence of a lawyer while the applicant was in police custody irretrievably affected his defence rights (see paragraph 113 ) and that his conviction in respect of all three charges was to a decisive event based on evidence he could not challenge (see paragraph 128 ) .

I II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

131 . 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

132 . The applicant claimed the overall sum of 53,000 euros (EUR) for the damage allegedly sustained as a result of the violations of the Convention in his case .

133 . The Government considered the claim unsubstantiated and excessive.

134 . The Court further observes that the applicant must have suffered a certain degree of stress and frustration as a result of the violations found . The actual amount claimed is, however, excessive. Making its assessment on an equitable basis, it award s the applicant the sum of EUR 6 , 0 00 in respect of non-pecuniary damage.

B. Costs and expenses

135 . The applicant has not made any claims with regard to costs and expenses incurred before the domestic court or the Court.

C. Default interest

136 . 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 UNANIMOUSLY

1. Declares the application admissible;

2 . Holds that there has been a violation of Article 3 of the Convention under its procedural limb ;

3 . Holds that there has been no violation of Article 3 of the Convention under its substantive limb ;

4 . Holds that there has been a violation of Article 6 § 3 (c) taken in conjunction with Article 6 § 1 of the Convention on account of the absence of a lawyer while the applicant was in police custody ;

5 . Holds that there has been a violation of Article 6 § 3 (d) taken together with Article 6 § 1 of the Convention on account of the fact that the applicant ’ s conviction was to a decisive event based on evidence he could not challenge ;

6 . Holds that it is not necessary to consider the other aspects of the criminal proceedings against the applicant ;

7 . Holds

(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 6 , 0 00 ( six thousand euros ), in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant , to be converted into the Russian roubles at the rate applicable at the date of settlement;

(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;

8 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 24 January 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Peer Lorenzen              Registrar              President