THIRD SECTION

DECISION

Application no. 46775/14 Mikhail Viktorovich GOLUBEV against Russia

The European Court of Human Rights (Third Section), sitting on 26 April 2022 as a Committee composed of:

Darian Pavli, President, Andreas Zünd, Mikhail Lobov, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 46775/14) against Russia 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 Mikhail Viktorovich Golubev, as indicated in the Appendix;

the decision to give notice of the complaint concerning his unfair conviction to the Russian Government (“the Government”), initially represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The applicant was prosecuted and convicted for two murders committed on 3 June and on 19 November 2012 of two women with whom he had been living, i.e. his companion Ms M. and his elderly distant relative Ms. V. He never denied the first murder. As regards the second murder combined with rape and sexual assault, he retracted his initial confession of 20 November 2012 at the trial on the ground that it had been made under pressure shortly after his arrest and without a lawyer.

2. On 25 September 2013 the Irkutsk Regional Court convicted the applicant for both murders. On 26 December 2013 the federal Supreme Court upheld the conviction. The domestic courts refused to exclude his confession of 20 November 2012. They first observed that the applicant reiterated his statements in the presence of a lawyer on several occasions, that is on 20 and 21 November 2012, 21 May, 22 July and 25 July 2013, when he again confessed to the second murder but for the first time denied sexual assault. They further referred to the hard evidence in support of the applicant’s guilt, namely the clothes found at his place of residence with the traces of the second victim’s blood. They rejected the defence argument that these clothes did not belong to him after having heard the witness presented by the defence as their possible owner. The trial court heard other witnesses, including another potential suspect designated by the defence and witnesses referred to by defence to confirm the applicant’s alleged alibi. Finally, the trial court rejected the applicant’s allegations of pressure and ill ‑ treatment after his arrest after having examined the refusal to open a criminal investigation of 22 September 2013 and after having requested different medical documents from various detention facilities where the applicant had been detained at the time of the events complained of. Neither the enquiry nor the medical certificates confirmed the applicant’s allegations.

THE COURT’S ASSESSMENT

3. The general principles concerning the right to legal assistance are summarised in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-50, 9 November 2018 ), in which the Court once again reiterated that its primary concern was to evaluate the overall fairness of criminal proceedings.

4. In the present case, even applying a very strict scrutiny in its assessment, the Court finds that the applicant failed to demonstrate that the overall fairness of the proceedings complained of had been irretrievably prejudiced by the initial absence of legal advice (ibid., § 145). There is no indication – and the applicant did not suggest otherwise - that his initial confession had led the authorities to discover any other incriminating evidence, provided them with the narrative of what happened or framed the process of evidence-gathering (see Artur Parkhomenko v. Ukraine , no. 40464/05, § 87, 16 February 2017). It further observes that once provided with a lawyer, the applicant did not deny his initial statements but reiterated them on several occasions, nor did he request that the records of these subsequent interviews be excluded from the body of evidence. The Court cannot see any reasonable justification why once provided with a lawyer the applicant did not seek immediately to exclude his confessions as inadmissible. The applicant only requested his initial confession statement to be excluded at the trial, where he apparently also raised for the first time allegations of pressure and ill-treatment at the investigation stage (compare with Nadezhkin v. Russia (dec.) [Committee], no. 39644/06, § 28, 3 November 2020, with further references).

5. Although the domestic courts refused to declare the applicant’s initial confession inadmissible, the applicant assisted by a counsel had an opportunity to put forward in open court his version of the events, adduce evidence and contest the evidence submitted by the prosecution. In particular, the trial court examined the applicant’s alibi but found that it was not confirmed by the collected evidence. It questioned a person designated by the applicant as another possible suspect as well as other witnesses regarding this person’s whereabouts, heard yet another person who allegedly was the owner of the clothes with traces of the victim’s blood, instructed the prosecutors to carry out an examination of the applicant’s allegations of ill-treatment. On this latter point, they not only referred to the results of the prosecutor’s enquiry but also questioned attesting witnesses who had seen the applicant at that time in person and granted requests aimed at collection of possible medical evidence. On the contrary, the applicant provided no explanation as to why he had not initiated proceedings in relation to alleged ill-treatment at domestic level, in particular once he had been granted access to a lawyer. Thus, the Court cannot but conclude that the applicant failed to substantiate his allegations of ill-treatment (see Korablev v. Russia (dec.) [Committee], no. 43713/06, § 29, 13 February 2018).

6. Admittedly, the applicant argues in his observations that his initial confession influenced the domestic courts’ assessment of other evidence and arguments of the defence. In the absence of further details, this statement alone amounts to the applicant’s disagreement with the way the domestic courts assessed the evidence before them. However, this issue falls outside of the Court’s jurisdiction (see for a similar approach Fomin v. Russia (dec.), [Committee], no. 15524/08, § 63, 6 March 2018).

7. Hence, having assessed all relevant elements, the Court does not consider that it has been established that the applicant’s right of access to a lawyer was restricted on 20 November 2012 to such an extent so as to irretrievably prejudice the overall fairness of the criminal proceedings against him.

8. It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 May 2022.

Olga Chernishova Darian Pavli Deputy Registrar President

Appendix

Application no. Case name Introduction date

Applicant’s name Year of birth Place of residence Nationality

Representative’s name Location

Procedure

Circumstances of the arrest and confession

46775/14

Golubev v. Russia

02/06/2014

Mikhail Viktorovich GOLUBEV 1984 Ognenny Russian

Oksana Vladimirovna PREOBRAZHENSKAYA Strasbourg

Partial decision Legal aid

Arrested at 1.00 p.m. on 20/11/2012 Confession statement at unspecified time shortly after on 20/11/2012 Arrest record drawn up at 6.51 p.m. on 20/11/2012 (confession confirmed for the record, a lawyer Ms M.)

Location (police station where the applicant was apprehended) – police department, city of Zima, Irkutsk Region ( Зиминский ОВД Иркутской области )