Lexploria

Communicated on 27 June 2017

THIRD SECTION

Application no. 58607/11 Andrey Sergeyevich CHERNYSHEV against Russia and 4 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 2010 and 2014 they were prosecuted for and subsequently convicted of different criminal offences. Their personal details appear in the Appendix.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

All the applicants were first arrested by the police on suspicion of having committed different criminal offences and brought to police stations. Shortly after, they made confession statements (« явк a с повинной »). In each case, after that statement, an arrest record was drawn up, the applicant received status of a criminal suspect and was informed of all his rights, including the right to remain silent, the right to a lawyer and the privilege against self-incrimination.

Later on the applicants were provided with a lawyer, either appointed for them or of their own choosing. While being interviewed in the presence of their lawyers three of the applicants ( Mr Azarsanov , application no. 63160/13, Mr Borokov , application no. 33661/14, and Mr Bogatyrev , application no. 62836/15) retracted their confessions. The other two ( Mr Chernyshev , application no. 58607/11, and Mr Glodev , application no. 77924/11) retracted their confessions at a later stage.

At trial, all the applicants denied wholly their confessions, arguing that they had been obtained by the police in the absence of a lawyer. Their arguments were rejected by the domestic courts for two main reasons. First, the domestic legislation does not require a lawyer ’ s presence for “surrender with confession”. Second, the applicants ’ confession statements were confirmed by other, circumstantial, evidence. The domestic courts ’ judgments contain more or less detailed analysis in this respect (for more information see the Appendix).

All the applicants further complain about physical and/or psychological pressure put on them by the police and their unsuccessful attempts to complain about it.

Mr Chernyshev (application no. 58607/11) also indicates that at the time of his initial questioning by the police which resulted in his confession he was severely intoxicated.

B. Relevant domestic law and practice

The relevant domestic law and practice in respect of confession statements given in the absence of a lawyer are summarised in the case of Turbylev v. Russia ( Turbylev v. Russia , no. 4722/09 , §§ 46-56, 6 October 2015).

The relevant domestic law and practice in respect of inadequate conditions of detention in different detention facilities are summarised in the cases of Ananyev and Others v. Russia ( Ananyev and Others v. Russia, nos. 42525/07 and 60800/08 , §§ 120-68, 10 January 2012) and Sergey Babushkin v. Russia (Sergey Babushkin v. Russia , no. 5993/08 , §§ 48-58, 28 November 2013 ).

COMPLAINTS

The applicants complain under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 that their rights of defence in criminal proceedings were violated, as their initial confessions – which formed the basis of their criminal conviction – were obtained in breach of their right to a lawyer.

Mr Chernyshev (application no. 58607/11) and Mr Glodev (application no. 77924/11) in addition complain under Article 3 of the Convention about inadequate conditions of detention in different detention facilities.

COMMON QUESTION TO THE PARTIES

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, were the applicants ’ defence rights and the principle of fair proceedings (as enshrined in Article 6 §§ 1 and 3 (c) of the Convention) respected, given their submissions that the domestic courts convicted them, inter alia , on the basis of confessions they had made in the absence of a legal representative?

In order to answer the question, the Government are requested to provide the following information:

( a ) As regards the applicants ’ arrest by the police

1. Were any of the applicants in a vulnerable state at the moment of their arrest (e.g. intoxicated)? The Government are requested to provide copies of the applicants ’ medical examination immediately after their arrests, if any.

2. Are there specific requirements/formalities the police should comply with, in order to ensure the admissibility at trial of a confession statement made by a person arrested by the police?

3. When (date and time) did each of the applicants first have access to a lawyer? Were these lawyers of the applicants ’ own choosing or State appointed lawyers? In the latter case, was this State appointed lawyer chosen by an investigator or sent by a Bar association?

4. Did any of the applicants waive their right to a lawyer when making their confession statements and if so, was such waiver established in an unequivocal manner and attended by minimum procedural safeguards ( Sejdovic v. Italy [GC], no. 56581/00, ECHR 2006 ‑ II; Talat Tunç v. Turkey , no. 32432/96, § 59, 27 March 2007; and Jones v. the United Kingdom ( dec. ), no. 30900/02, 9 September 2003 ) ? Was the applicants ’ right to a lawyer restricted and if so, on what basis and what were the compelling reasons thereof?

The Government are requested to provide copies of the register of persons escorted to police stations ( к нига / журнал учета лиц , доставленных в отдел внутренних дел ) and of detained persons ( р еестр лиц , подвергнутых задержанию ) for the dates of detention as claimed by the applicants, records of the applicants ’ initial questioning by the police and copies of other relevant documents indicating the timing of their arrest, their first confession statement given to the police, information that they had been notified about their right to be legally represented, the appointment of a lawyer and other relevant documents.

( b ) As regards the pre-trial (investigation) stage

5. During the pre-trial investigation, have each of the applicants:

- confirmed or retracted his initial confession statement; and/or

- refused to testify; and/or

- actively cooperated with the investigative authorities; and/or

- suggested an alternative version of the events by providing a new testimony, and if so, whether and what investigative steps had been taken by the investigative authorities to verify this new version?

6. When the applicants first retracted their confession statements, did it take place before or after they had access to a lawyer and in particular a lawyer of their own choosing?

The Government are requested to provide a copy of the relevant documents and indicate in particular whether each time (investigative activity concerned) a lawyer, and what lawyer (State appointed or of own choosing) was present.

( c ) As regards the trial and appeal stages

7. When did the applicants first challenge the admissibility of their confession statements before the trial courts? Did they have a possibility/ obligation to raise this issue at the preliminary hearing? Does the legislation provide for a possibility for the trial court to exclude inadmissible evidence from the body of evidence?

8. Did the applicants have a genuine opportunity to challenge the admissibility of their confession statements? In particular, were the police officers present when the applicants had made their confession statements questioned by the trial court or did the applicants have a possibility to present an alternative version of the events and did the trial court take measures to examine it?

9. Did the domestic courts give an appropriate answer to the applicants ’ requests to declare their confession statements inadmissible and did they duly reason their decisions to maintain them in the files (see Vanfuli v. Russia , no. 24885/05 , § 104, 3 November 2011 , and Nechto v. Russia , no. 24893/05, § 111, 24 January 2012) ?

10. To what extent were the applicants ’ convictions based on other evidence (direct and/or circumstantial) (see Pakshayev v. Russia , no. 1377/04, §§ 29-34, 13 March 2014) ?

CASE SPECIFIC QUESTIONS

Applications nos. 58607/11 and 77924/11

Did the material conditions of the applicant ’ s detention, in particular the personal space available in the cell, the time allowed outside the cell and the sanitary conditions, amount to inhuman or degrading treatment under Article 3 of the Convention (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08 , §§ 120-68, 10 January 2012, Sergey Babushkin v. Russia , no. 5993/08 , §§ 48-58, 28 November 2013) ?

APPENDIX I

No.

Application

no .

Lodged on

Applicant name

date of birth

place of residence

nationality

represented by

Details about arrest, confession given, arrest record drawn up

Location

(police station where the applicant was arrested)

Confession reiterated/retracted

Date of the trial and appeal courts ’ judgments

58607/11

14/04/2011

Andrey Sergeyevich CHERNYSHEV

27/12/1974

Nizhniy Tagil

Russian

Arrested

at 11 a.m.

on 13/12/2010

Confession statement at 11 p.m.

on 13/12/2010

Arrest record drawn up

at unspecified time

on 13/12/2010

Police department, Verkhnaya Salda , Sverdlovsk Region ( ОВД г. Верхняя Салда , Свердловская область )

Reiterated on 13/12/2010 (during an interview as a suspect in the presence of a State-appointed lawyer)

Retracted on 05/03/2011 (during an interview as a suspect refused to testify in the presence of the same lawyer and denied his guilt), 10/03/2011, 25 /03/2011 (during interviews as an accused refused to testify and denied his guilt).

Verkhnesaldinskiy Town Court of the Sverdlovsk Region

31/05/2011

Sverdlovsk Regional Court

17/08/2011

77924/11

29/11/2011

Aleksey Viktorovich GLODEV

27/02/1971

Ustye

Russian

Arrested

after 6 p.m.

on 22/06/2010

Confession statement

in the afternoon

on 24/06/2010

Arrest record drawn up

at unspecified time

on 24/06/2010

Police department, Sovetskiy district, Tambov

( ОВД Советского района г. Тамбов )

Reiterated on 24/06/2010 (during an interview as a suspect)

Retracted on 25/06/2010 (during the hearing on the restraint measure)

Reiterated on 25/06/2010 (during an additional interview as a suspect, during a reconstruction of the crime), on 01/07/2010 (during an interview as an accused and a confrontation interview with a witness Mr K.)

Retracted on 26/07/2010 (during a confrontation interview with a witness Mr T.)

Sovetskiy District Court of Tambov

16/03/2011

Tambov Regional Court

31/05/2011

63160/13

16/09/2013

Akhmed Valeriyevich AZARSANOV

03/09/1978

Kokhma

Russian

Irina Anatolyevna BIRYUKOVA

Arrested

at around 6 p.m.

on 27/04/2011

Confession statement at 9.20 a.m.

on 28/04/2011

Arrest record drawn up

at 01.30 p.m.

on 28/04/2011

Ivanovskoye police department , Moscow

( отдел полиции по району Ивановское г. Москвы )

Retracted on unspecified date (during an interview as a suspect), on 05/05/2011 (during an interview as an accused in the presence of a lawyer)

18/12/2012

Moscow City Court

21/03/2013

Supreme Court of the Russian Federation

33661/14

19/04/2014

Kazbek Zaurbiyevich BOROKOV

05/05/1979

Cherkessk

Russian

Kazbek TOKHCHUKOV

Arrested

at 07.40 p.m.

on 25/01/2012

Confession statement

at 08.48 p.m.

on 26/01/2012

Arrest record drawn up

at 10.42 p.m.

on 26/01/2012

Centre on Counteracting Extremism of the Ministry of Interior of the Republic of Karachayevo-Cherkessia

( Центр противодействия экстремизму МВД России по Карачаево-Черкесской республике)

Retracted on 26/01/2012 (during an interview as a suspect in the presence of a lawyer Mr T.), on 28/01/2012 (during a reconstruction of the crime in the presence of the same lawyer), on 29/02/2012 (during an interview as an accused in the presence of the same lawyer), on 10/07/2012 (during an interview as an accused, refused to testify, in the presence of the same lawyer)

30/07/2013

Supreme Court of the Republic of Karachayevo-Cherkessia

24/10/2013

Supreme Court of the Russian Federation,

62836/15

04/12/2015

Igor Alekseyevich BOGATYREV

10/06/1969

Novoshakhtinsk

Russian

Arrested

at unspecified time

on 17/07/2011

Confession statement

at 01.25 p.m.

on 17/07/2011

Arrest record drawn up

at unspecified time

on 17/07/2011

Police department, Novoshakhtinsk , Rostov Region ( отдел МВД России по г. Новошахтинску Ростовской области )

Retracted on unspecified dates (during an interview as a suspect in the presence of a lawyer), on 28/09/2011 (during an interview as an accused in the presence of a lawyer)

31/01/2013

Novoshakhtinskiy District Court of the Rostov Region

02/09/2014

Rostov Regional Court

10/06/2015

Supreme Court of the Russian Federation

APPENDIX II

List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention)

No.

Application no.

Lodged on

Applicant name

date of birth

place of residence

nationality

represented by

Facility Start and end date Duration

Sq. m. per inmate

Specific grievances

58607/11

14/04/2011

Andrey Sergeyevich CHERNYSHEV

27/12/1974

Nizhniy Tagil

Russian

IZ-66/3 Nizhniy Tagil

13/03/2011 to

19/09/2011

0 year(s) and 7 month(s)

1.8 m²

Not provided with an individual sleeping place and had to share one with inmates.

Electric light and TV on 24/7.

Toilet not separated from living area.

Those using toilet were in view of inmates and guards.

Dinner table located close to toilet.

Poor food quality.

No ventilation.

Hot in summer.

The air heavy with cigarette smoke.

Daily walk for one hour.

77924/11

29/11/2011

Aleksey Viktorovich GLODEV

27/02/1971

Ustye

Russian

IVS Tambov

22/06/2010 to 25/06/201

6 m²

Solitary confinement.

No windows and no fresh air.

No ventilation.

No food or beverages provided.

No toilet.

IZ-68/1 Tambov

25/06/2010 to 21/06/2011

2.3 m²

Not provided with an individual sleeping place and had to share one with inmates.

No ventilation.

No toiletries.

Poor food quality.

Dim electric light.

No hot water.

Inadequate separation of toilet from living area.

Toilet without a flushing system.

Daily walk for 45-60 minutes.

Walking yard of 13-18 m² for 8-10 inmates.

Lack of sitting places in the walking yard.

Weekly shower for 30-45 minutes.

Insufficient number of shower heads (5 pieces).

Convoy cell of the Sovetskiy District Court of Tambov

25/01/2011 and 15/02/2011

1.5 m²

No windows or ventilation

IK-4 Rabochiy Tambov Region

21/06/2011 to

12/10/2012

1 year(s) and 4 month(s)

160-165 m² /

110 sleeping places / 100 inmates /

1.6 m² per inmate /

4 lavatory pans

Walking yard of 180-190 m² for 40-50 inmates.

Lack of sitting places in the walking yard.

Weekly shower for 1-2 hours.

Insufficient number of shower heads (6 pieces).

IK-3 Zeleniy Tambov Region

12/10/2012

23/05/2016

150 m² /

100 sleeping places / 118 inmates /

1.3 m² per inmate /

3 lavatory pans

Walking yard of 190-200 m² for 30-40 inmates.

Lack of sitting places in the walking yard.

Weekly shower for 2 hours.

Insufficient number of shower heads (5 pieces).

Poor food quality.

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CHERNYSHEV v. RUSSIA

CHERNYSHEV v. RUSSIA

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