Communicated on 4 February 2016

THIRD SECTION

Application no. 6033/15 Mikhail Petrovich ZAIKO against Russia lodged on 13 January 2015

STATEMENT OF FACTS

The applicant, Mr Mikhail Petrovich Zaiko , is a Russian national, who was born in 1944 and is, apparently, serving a prison term. He is represented before the Court by Mr K. Kuzmin , a lawyer practicing in the village of Kirovskiy , Primorskiy Region, Russia.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Criminal proceedings against the applicant

On 9 February 2014 the applicant committed manslaughter during a drunken fight with an acquaintance. The police arrived. The applicant was in a state of alcohol intoxication. He was not notified of the right not to self ‑ incriminate and the right to legal assistance.

In reply to a question from Officer L. the applicant stated that he had killed the victim. Apparently also in reply to the questioning, the applicant then told another officer (P.) that he had killed the victim with a knife when she had tried to hit him with a chair.

The applicant was taken to a police station. According to the testimony of Officer K. at the trial, after his arrival in the police station the applicant made a statement of surrender and confession ( явка с повинной ) admitting his guilt and providing further details of the events. This declaration was put in writing at around noon on 10 February 2014. It appears from the record that counsel was not present either during this procedure or when the applicant confessed (see below, however, the findings made by the appeal court on 23 September 2014) or that the applicant had been or was notified of his procedural rights before or after he made the statement of surrender and confession.

According to the applicant, officers L., P. and K. held intimidating “conversations” ( опросы ) with him on 9 and 10 February 2014. No counsel was present during these conversations. No written record was compiled.

In the meantime, the applicant was prosecuted for an administrative offence (see section 2 below). There is no indication that the applicant was notified of the right not to self-incriminate and to have legal assistance, either under the Code of Administrative Offences (CAO) or the Code of Criminal Procedure.

At 3 p.m. on 10 February 2014 the applicant was interviewed by an investigator and pleaded guilty. It follows from the interview record compiled on the same day that counsel was present during the interview. The record contained no notification of the procedural rights.

An investigative re-enactment was then carried out during which the applicant showed how the events had unfolded and how injuries had been caused to the victim. A lawyer was present during this investigative measure. At the end of the re-enactment, the applicant pleaded not guilty.

The applicant continued to plead not guilty at the trial, stating that he had no recollection of the events.

By judgment of 7 July 2014 Kirovskiy District Court, Primorskiy Region convicted the applicant of murder and sentenced him to seven years ’ imprisonment. The court relied on the oral testimony of officers L., P. and K. In their statements at the trial, the officers recounted the applicant ’ s pre ‑ trial statements made to them at the crime scene and in the police station, including during a “conversation”. The court also referred to the applicant ’ s pre-trial statement to the investigator, as well as the applicant ’ s statement of surrender and confession; the record of the investigative re ‑ enactment; and the applicant ’ s girlfriend ’ s testimony that the applicant had waken her up and told her that he had killed the victim.

The applicant appealed against the judgment.

On 23 September 2014 the Primorskiy Regional Court upheld the judgment. The Regional Court ruled that the confession made by the applicant in the police station and the officers ’ testimonies had been admissible. The court stated that the statement of surrender and confession had been put in writing; that this record had been signed by the applicant and counsel; and that they had made no comments, for instance concerning duress or similar treatment.

On 21 November 2014 an appeal on points of law by the applicant was dismissed by the Regional Court. On 25 December 2014 the Supreme Court of the Russian Federation dismissed a second appeal by the applicant.

2. Administrative offence case

By a judgment of 10 February 2014, a justice of the peace convicted the applicant of the administrative offence of being drunk in a public place on 9 February 2014, and sentenced him to three days ’ administrative detention.

On 18 March 2014 Kirovskiy District Court, Primorskiy Region set aside the judgment of 10 February 2014, finding that the case had not been made out since the applicant had not been in a public place on the relevant date.

B. Relevant domestic law and practice

Article 75 of the Code of Criminal Procedure classifies as inadmissible the suspect ’ s pre-trial testimony made without counsel present, where the suspect has not confirmed this testimony at the trial.

It is not acceptable under Russian law to reveal, through an investigator ’ s testimony at a criminal trial, the content of the statements that a suspect gave to him or her at a pre-trial interview without counsel present (Constitutional Court decision no. 44-O of 6 February 2004, and no. 1068-O of 19 June 2012; Appeal Section of the Supreme Court of Russia decision no. 72APU14-63 of 23 December 2014). The prohibition to use, either directly or indirectly, any such testimony is an important safeguard for the right not to self-incriminate (Constitutional Court decision no. 71-O-O of 24 January 2008; no. 1147-O-O of 23 September 2010).

See also Turbylev v. Russia (no. 4722/09 , §§ 46-56, 6 October 2015) for other relevant provisions of Russian law, in so far as applicable at the material time.

COMPLAINTS

The applicant complains under Article 6 of the Convention that he was not informed of the rights not to self-incriminate and to have legal assistance; that he had no legal assistance after his arrest; that he was prevailed upon in a coercive environment and thus incriminated himself; that he was convicted with reference to his admissions (orally to the officers on the day of the murder, in the police station and in the statement of surrender and confession, to the investigator, during the investigative re ‑ enactment) and the statements from the officers recounting his initial statements.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular:

- When was the applicant first informed of his right to legal assistance? Was such information conveyed in a manner which allowed him to understand the scope of this right, including the possibility of free legal assistance, and the significance of dispensing with the services of a lawyer? Was such a notification and his eventual waiver recorded in writing? When did the applicant first talk to a lawyer? Do the circumstances of the case disclose a violation of Article 6 § 3 (c) of the Convention?

- When was the applicant first informed of his right to remain silent or the privilege against self-incrimination? Was it before or after he made self ‑ incriminating statements? What was the exact scope of this right under Russian law? What was the exact wording by which such information was conveyed to the applicant? Was such information conveyed in a manner which allowed him to understand the scope of this right and the significance of waiving it? Was any such waiver recorded in the presence of a lawyer or after the applicant could have had access to legal advice, inter alia , on the question whether or not he should waive his any of his rights?

- Did the absence of timely notification of the procedural rights, the absence of timely provision of legal assistance and the use made of the officers ’ statements and the applicant ’ s various admissions (orally to the officers on the day of the murder, in the police station and in the statement of surrender and confession, before the investigator, during the investigative re-enactment) “irretrievably” prejudice the fairness of the proceedings, thus entailing a breach of Article 6 §§ 1 and 3 (c) of the Convention (see for comparison Pavlenko v. Russia , no. 42371/02 , §§ 114-120, 1 April 2010)? Was any such prejudice adequately compensated by the counterbalancing safeguards contained in the legislative framework and available at trial with a view to ensuring the fairness of the proceedings, including the trial judge ’ s rulings on admissibility, and the strength of the other prosecution evidence against the applicant ?