Lexploria

Communicated on 30 November 2020 Published on 21 December 2020

THIRD SECTION

Application no. 69816/17 Danila Andreyevich GOROKHOV against Russia and 9 other applications (see list appended)

A. The circumstances of the cases

The applicants are all Russian nationals living in various regions of the Russian Federation. Between 2015 and 2018 they were prosecuted for and subsequently convicted of different criminal offences.

When convicting the applicants, the domestic courts relied on their self ‑ incriminating statements given in the absence of a lawyer shortly after their de facto arrest by police or in the course of operative search activities or investigative actions.

The applicants ’ personal details and information on their convictions, evidence used and their procedural status when making self ‑ incriminating statements appear in the Appendix.

B. Relevant domestic law and practice

The relevant domestic law and practice on admissibility of confession statements given in the absence of a lawyer are summarised in cases of Turbylev v. Russia (no. 4722/09 , §§ 46-56, 6 October 2015), and Rodionov v. Russia ( no. 9106/09, §§ 68-76, 11 December 2018).

1. The position of the Supreme Court of the Russian Federation

On 29 November 2016 the Plenum of the Supreme Court of the Russian Federation delivered Ruling no. 55, section 10 of which 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 that confession the defendant was informed of his or her rights, including the right not to incriminate oneself and the right to a lawyer and whether he or she was given the opportunity to effectively exercise them.

2. The position of the Constitutional Court of the Russian Federation

On 18 July 2017 the Constitutional Court of the Russian Federation in its Ruling no. 1543-O reaffirmed its Ruling no. 44-O of 6 February 2004 that the domestic courts do not have the right to interview the police officers about the contents of the suspect ’ s and accused ’ s statements for the purpose of reproducing the contents of those statements ( с целью восстановления содержания этих показаний ) , thus, the possibility of any, whether direct or indirect, use of the information contained in those statements should be excluded.

COMPLAINTS

The applicants complain under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 about unfairness of criminal proceedings on account of the use of their self ‑ incriminating statements made in the absence of a lawyer shortly after their de facto arrest by police or in the context of operative-search activities or investigative measures.

Mr Fedorov (application no. 11566/18) complains additionally under Article 6 § 1 of the Convention about alleged unfairness of the criminal proceedings, as his conviction was based on evidence planted by police.

COMMON QUESTION

Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 of the Convention? In particular, having regard to the fact that the applicants were not assisted by a lawyer when they made statements to the police and to the principles adopted by the Grand Chamber in the case s of Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, §§ 255-74, 13 September 2016), and Beuze v. Belgium ([GC], no. 71409/10, §§ 119 ‑ 50, 9 November 2018) , has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention ?

CASE SPECIFIC QUESTION

Application no. 11566/18

Did the applicant have a fair hearing in the determination of the criminal charge against him in accordance with Article 6 § 1 of the Convention taking into account his allegation that his conviction was based on planted evidence (see Bykov v. Russia [GC], no. 4378/02, §§ 89-90, 10 March 2009; and Sakit Zahidov v. Azerbaijan , no. 51164/07 , §§ 46-59, 12 November 2015)? In particular,

(a) What was the reason for the applicant ’ s arrest and subsequent body search?

(b) Was the applicant ’ s arrest and body search conducted in accordance with domestic rules of criminal procedure?

(c) Why was the applicant ’ s body search performed at the police station several hours after his arrest, but not immediately at the time of his arrest outdoors?

(d) Was the applicant subjected to narcotics identification tests? If so, how were those tests carried out?

(e) Did the national courts address the applicant ’ s arguments as regards the quality of evidence obtained during his body search, in particular, whether the circumstances in which it was obtained cast doubt on its reliability or accuracy?

APPENDIX

No.

Application

no.

Date of introduction

Applicant ’ s name

Date of birth

Place of residence

Nationality

Represented by

Applicant ’ s conviction

Evidence obtained allegedly in violation of the right to legal assistance and used for conviction

Applicant ’ s procedural status when making self-incriminating statements

69816/17

15/09/2017

Danila Andreyevich GOROKHOV

1991Astrakhan

Russian

Aleksandr Andreyevich KUZMIN

Convicted on 13/12/2016

by the Leninskiy District Court of Astrakhan

of an attempted drug dealing in conspiracy,

upheld on appeal

on 16/03/2017

by the Astrakhan Regional Court

Self-incriminating statements given in the course of

at 04.05 p.m. on 14/06/2016,

at 10.00 a.m. on 16/06/2016,

at 05.00 p.m. on 16/06/2016

Testimonies of the police officers Mr S. and Mr K. and attesting witnesses Mr P. and Mr I. on statements given by the applicant in the course of

on 14/06/2016,

on 14/06/2016

Testimonies of the police officer Mr D. on statements given by the applicant

on 16/06/2016

Stopped outdoors for a routine traffic police check ( alleged driving unfastened), drugs noticed in the car and police officers were called to come for further investigative actions

Arrested

at 12.50 p.m.

on 14/06/2016

Brought to the police department no. 2 of Astrakhan ( ОП-2 УМВД России по г. Астрахань )

at 08.20 p.m.

on 14/06/2016

Administrative arrest record drawn up on suspicion of disorderly conduct

at 08.20 p.m.

on 14/06/2016

Administrative conviction for disorderly conduct

on 16/06/2016

(2 days ’ administrative arrest)

Criminal arrest record drawn up

at 08.30 p.m.

on 16/06/2016

in the absence of a lawyer

Access to a lawyer granted

at 08.50 p.m.

on 16/06/2016

72828/17

04/10/2017

Anastasiya Alekseyevna NOVIKOVA

1997Leninsk

Russian

Dmitriy Arkadyevich DENISOV

Convicted on 24/04/2017

by the Kirovskiy District Court of Astrakhan

of attempted drug dealing in conspiracy,

upheld on appeal

on 06/07/2017

by the Astrakhan Regional Court,

amended in part on cassation appeal on

01/10/2019

by the Presidium of the Astrakhan Regional Court

Self-incriminating statements given in the course of

at 04.02 a.m. on 30/06/2016,

at 10.00 a.m. on 30/06/2016,

at 09.10 p.m. on 01/07/2016

Testimonies of the police officer Mr T. and attesting witness Ms S. on statements given by the applicant in the course of

on 30/06/2016

Testimonies of the police officer Mr K. and attesting witnesses Mr G. and Mr L. on statements given by the applicant in the course of

on 30/06/2016

Arrested

in her flat by police officers of a specialised police unit armed and masked in the course of the operative-search activity “Observation”

at 03.30 a.m.

on 30/06/2016

Brought to the police station no. 4 of the Ministry of the Interior in Astrakhan

( ОП № 4 УМВД России по г. Астрахани )

at 01.00 p.m.

on 30/06/2016

Administrative arrest record drawn up on suspicion of disorderly conduct

at 01.00 p.m.

on 30/06/2016

Administrative conviction

for disorderly conduct

on 02/07/2016 (5 days ’ administrative arrest)

Criminal arrest record drawn up

at 07.45 p.m.

on 05/07/2016

Access to a lawyer granted at unspecified time

on 05/07/2016

11566/18

09/02/2018

Denis Valeryevich FEDOROV

1981St Petersburg

Russian

Artem Aleksandrovich RASSOKHIN

Convicted on 25/05/2017

by the Leninskiy District Court of St Petersburg

of unlawful storage of drugs without intent to sell,

upheld on appeal

on 04/09/2017

by the St Petersburg City Court

Self-incriminating statement given in the course of

at 04.00 a.m. on 08/10/2015

Testimonies of the police officer Mr L. on statements given by the applicant in the course of

on 08/10/2015

Reiterated on 08/10/2015 in the interview as a suspect in the presence of a State-appointed lawyer Ms K.

Arrested

outdoors on suspicion of disorderly conduct

at 01.15 a.m.

on 08/10/2015

Brought to the police station no. 77 of the Department of the Ministry of the Interior in the Admiralteyskiy District of St Petersburg ( 77 отдел полиции УМВД по Адмиралтейскому району г. Санкт ‑ Петербург )

at 01.25 a.m.

on 08/10/2015

Administrative arrest record drawn up

at around 01.25 a.m.

on 08/10/2015

Administrative conviction for disorderly conduct

on 08/10/2015 (a fine)

Released

at 03.40 a.m.

on 08/10/2015

Institution of the criminal case against the applicant

at 04.00 p.m.

on 08/10/2015,

applicant under an obligation not to leave his place of residence

Access to a lawyer granted

at 04.35 p.m.

on 08/10/2015

(State-appointed lawyer Ms K.)

20361/18

25/04/2018

Andrey Andreyevich YERMOLAYEV

1988Astrakhan

Russian

Bolpash Serikovna TARANOVA

Convicted on 31/08/2017

by the Volodarskiy District Court of the Astrakhan Region

of inflicting grievous bodily injuries that led to the victim ’ s death,

upheld on appeal

on 02/11/2017

by the Astrakhan Regional Court

Self-incriminating statements given in the form of

at 4.30 p.m. on 14/06/2016

Testimonies of the police officer Mr U. on statements given by the applicant in the form of

on 14/06/2016

Arrested

at work on suspicion of having committed a murder

at around 10.30 p.m.

on 12/06/2016

Brought to the local administration of the village Novokrasnoe , Volodarskiy District of the Astrakhan Region

( сельсовет с. Новокрасное , Володарский район Астраханской области )

at around 11.30 p.m.

on 12/06/2016

Brought to the Volodarskiy police department of the Astrakhan Region ( Володарский ОВД Астраханской области )

at around 08.30 a.m.

on 13/06/2016

Administrative arrest record drawn up on suspicion of disorderly conduct on the street

on 13/06/2016

Criminal arrest record drawn up

on 15/06/2016

Access to a lawyer granted

at 10.35 a.m.

on 15/06/2016

(Mr G.)

50518/18

10/10/2018

Sergey Vladimirovich KUZNETSOV

1982Novyy Urengoy

Russian

Convicted on 06/02/2018

by the Buguruslanskiy District Court of the Orenburg Region

of several counts of an attempted drug dealing,

upheld on appeal

on 10/04/2018

by the Orenburg Regional Court

Self-incriminating statements given in the course of the applicant ’ s

on 29/05/2017,

on 29/05/2017 and 30/05/2017

Testimonies of the police officers Mr A., Mr D., Mr P., Mr T. and attesting witnesses Mr Tat. and Mr K. on statements given by the applicant in the course of

on 29/05/2017,

on 29/05/2017 and 30/05/2017.

Confessed in illegal acquisition of drugs for personal use from the beginning and further on, never confessed in drug dealing.

Arrested

outdoors in the course of the operative-search activity “Observation”

on 29/05/2017

Brought to the police department Buguruslanskiy of the Ministry of the Interior in the city of Buguruslan in the Orenburg Region

( МО МВД РФ Бугурусланский г. Бугуруслан Оренбургской области )

in the morning

of 30/05/2017

Administrative arrest record drawn up

(no information about the charges)

at 10.00 a.m.

on 30/05/2017

Criminal arrest record drawn up

at 09.05 p.m.

on 31/05/2017

Access to a lawyer granted

on 31/05/2017

11438/18

19/02/2018

Sergey Vladimirovich KIBISHEV

1962Miasskoye , Chelyabinsk Region

Russian

Convicted on 19/05/2017

by the Krasnoarmeyskiy District Court of the Chelyabinsk Region

of drug dealing and smuggling of drugs,

upheld on appeal

on 07/09/2017

by the Chelyabinsk Regional Court

Self-incriminating statements given in the course of the applicant ’ s

at 04.00 p.m. on 02/12/2015,

at 04.35 p.m. on 02/12/2015,

at 06.39 p.m. on 02/12/2015,

at 11.45 a.m. on 03/12/2015

Testimonies of the attesting witness Ms G. on statements given by the applicant in the course of

on 02/12/2015

Testimonies of the attesting witness Mr Kh . on statements given by the applicant in the course of

on 02/12/2015

Evidence excluded

Testimonies of the police officer Mr Y., Sh., L. on statements given by the applicant in the course of

on 02/12/2015,

on 02/12/2015

were declared inadmissible by the appeal court on the ground that according to the Criminal Code of Procedure police officers could be interviewed at trial only about the circumstances of the conduction of the procedural action to decide on the admissibility of evidence, but not to find out the contents of the testimonies of defendants and other interviewed persons.

Arrested

outdoors in the course of the operative-search activity “Observation”

at 03.45 p.m.

on 02/12/2015

Brought to the police station, Chelyabinsk Region Department of the Federal Drug Control Service ( Управление ФСКН России по Челябинской области )

at unspecified time

on 02/12/2015

Criminal arrest record drawn up

at unspecified time

on 03/12/2015

Access to a lawyer granted

at 08.30 p.m.

on 03/12/2015

(Ms K.)

40544/18

13/08/2018

Yegor Vyacheslavovich SAFONOV

1991Novosibirsk

Russian

Convicted on 02/11/2017

by the Novosibirskiy District Court of the Novosibirsk Region

of drug dealing and of an attempted drug dealing,

upheld on appeal

on 06/04/2018

by the Novosibirsk Regional Court

Self-incriminating statements given in the course of the applicant ’ s

at 06.10 p.m. on 19/03/2016,

at 06.40 p.m. on 19/03/2016

Testimonies of the police officer Mr Sh. and attesting witness Mr Kh . on statements given by the applicant in the course of

on 19/03/2016,

on 19/03/2016

Evidence excluded

A statement of surrender and confession given on 19/03/2016 was declared inadmissible by the trial court, as the applicant had not been informed about his rights under Article 51 of the Constitution, his procedural rights, and was not provided with an opportunity to retain a lawyer.

Arrested

outdoors in the course of the operative-search activity “Observation”

at 05.25 p.m.

on 19/03/2016

Brought to the Novosibirsk Region Department of the Federal Drug Control Service

( УФСКН РФ по НСО )

on 19/03/2016

Access to a lawyer granted

at 02.23 a.m.

on 20/03/2016

(State-appointed lawyer Ms P.)

Criminal arrest record drawn up

at 02.23 a.m.

on 20/03/2016

54784/18

12/11/2018

Kirill Valeryevich KOLESNIKOV

1991Plavsk

Russian

Maksim Yuryevich IZHIKOV

Convicted on 19/12/2017

by the Kuntsevskiy District Court of Moscow

of several counts of drug dealing and an attempted drug dealing,

upheld on appeal

on 24/05/2018

by the Moscow City Court

Self-incriminating statements given in the course of

at 08.05 p.m. on 17/02/2017,

from 08.30 p.m. on 17/02/2017

Testimonies and report of the police officers Mr P., Mr V., Mr K., Mr R., Mr D., Mr Kap ., Mr Y., Mr Z., Mr Sh. and attesting witnesses Mr N., Mr S. on statements given by the applicant in the course of

on 17/02/2017,

on 17/02/2017

Reiterated at 06.20 a.m. on 18/02/2017 in the interview as a suspect in the presence of a State-appointed lawyer Mr G., and at 07.10 a.m. on 18/02/2017 in the interview as an accused in the presence of the same lawyer.

Arrested

outdoors on the suspicion of involvement in the drug related crimes

at 05.00 p.m.

on 17/02/2017

Brought to the police station in the district of Kuntsevo , Moscow ( ОМВД России по району Кунцево г. Москвы )

at 05.00 p.m.

on 17/02/2017

Access to a lawyer granted

at 06.00 a.m.

on 18/02/2017

(State-appointed lawyer Mr G.)

Criminal arrest record drawn up

at 06.00 a.m.

on 18/02/2017

Access to a lawyer of own choosing Mr P. granted

in the afternoon

on 18/02/2017

58027/18

26/11/2018

Aleksey Vadimovich

FEDULOV

1986Yugra

Russian

Aleksandr Viktorovich VALYAVSKIY

Convicted on 14/03/2018 by the Sovetskiy District Court of Krasnodar

of attempted drug dealing,

upheld on appeal on 30/05/2018

by the Krasnodar Regional Court

Self-incriminating statements given in the course of

at 09.20 p.m. on 12/09/2016,

at 11.10 p.m. on 12/09/2016

Arrested

outdoors in the course of the operative-search activity “Observation”

at 08.00 p.m.

on 12/09/2016

Brought to the Krasnodar Department of the Federal Security Service

( Управление ФСБ России по Краснодарскому краю )

at unspecified time on 13/09/2016

Access to a lawyer granted

at unspecified time

on 14/09/2016 (Mr K.)

Criminal arrest record drawn up

at 11.25 p.m.

on 14/09/2016

10.

1175/19

28/11/2018

Yegor Igorevich ORLOV

1991St Petersburg

Russian

Yevgeniy Valentinovich SHEIN

Convicted on 15/03/2018

by the Kirovskiy District Court of St Petersburg

of an attempted drug dealing,

upheld on appeal

on 21/08/2018

by the St Petersburg City Court

Self-incriminating statements given in the course of the applicant ’ s

at 02.50 a.m. on 21/03/2017,

at 11.20 a.m. on 21/03/2017,

at 01.20 p.m. on 21/03/2017

Testimonies of the police officers Mr Y., Mr I. on statements given by the applicant in the course of

on 21/03/2017

Testimony of the police officer Mr Ch. on statements given by the applicant in the course of

on 21/03/2017,

on 21/03/2017

Testimonies of the police officer Mr K. on statements given by the applicant in the course of his

on 21/03/2017,

Testimony of the attesting witness Mr P. on statements given by the applicant in the course of

on 21/03/2017

Testimony of the attesting witnesses Mr S. and Mr I. on statements given by the applicant in the course of

on 21/03/2017

Arrested

outdoors in the course of the operative-search activity “Observation”

at 00.25 a.m.

on 21/03/2017

Brought to the police station no. 8 of the Ministry of the Interior in the Kirovskiy district of

St Petersburg

( 8 отдел полиции УМВД России по Кировскому району г. Санкт ‑ Петербург )

at 01.47 a.m.

on 21/03/2017

Access to a lawyer granted

after 06.00 p.m.

on 21/03/2017

(Ms Sh.)

Criminal arrest record drawn up

at 06.40 p.m.

on 21/03/2017

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GOROKHOV v. RUSSIA and 9 other applications

GOROKHOV v. RUSSIA and 9 other applications

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