Lexploria

Information Note on the Court’s case-law 224

December 2018

Rodionov v. Russia - 9106/09

Judgment 11.12.2018 [Section III]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Article 6-3-c

Defence through legal assistance

Failure to inform applicant of his right to a lawyer between his apprehension and placement in police custody, affecting the overall fairness of the proceedings: violation

Article 10

Article 10-1

Freedom to receive information

Seizure of newspapers and magazines sent to a prisoner by relatives: violation

Facts – The applicant, who was suspected of drug trafficking as part of an organised gang, had his telephone tapped. On 15 August 2006 at 8.10 p.m. he was stopped in his vehicle by officials of the Federal Drug Control Agency (FSKN). He was immediately handcuff ed and questioned. At around 9.50 p.m. the inspection of his vehicle was completed and the applicant signed the record. At around 11.30 p.m. he was taken to the FSKN premises. On 16 August 2006, between 4 and 5 a.m., the applicant was interviewed. At 2.45 p.m. the record of his placement in police custody was served on him. He was subsequently charged and remanded in custody. On 13 October 2008 he was sentenced to twelve years’ imprisonment.

In the proceedings before the Court the applicant complained, amon g other matters, that the criminal proceedings had been unfair because he had not been informed of his right to legal assistance during the initial phase of the proceedings. He also complained of the seizure, while he was in detention, of the newspapers an d magazines sent to him by his relatives.

Law

Article 6 §§ 1 and 3 (c)

(i) Starting-point for the application of Article 6 – The applicant’s apprehension by FSKN officials on 15 August 2006 at 8.10 p.m. had been based on suspicions that he had committed the criminal offence of drug trafficking as part of an organised gang. The FSKN officials had immediately taken operational m easures with the involvement of the applicant. Hence, at the time of his apprehension, the applicant had already faced a “criminal charge” and could claim the protection of Article 6 of the Convention. From that point in time, the right to legal assistance and the right to be notified of that right, as well as the right to remain silent and the privilege against self-incrimination, guaranteed by Article 6 §§ 1 and 3 of the Convention, had become immediately enforceable.

(ii) Whether the applicant was infor med of his right to a lawyer, his right to remain silent and his right not to be compelled to incriminate himself, and whether he waived those rights – While the pre-printed part of the record drawn up on 15 August at 9.50 p.m. following the inspection of the applicant’s vehicle had enumerated the rights of which he had allegedly been notified, it did not mention the right to legal assistance. Nor was there anything to demonstrate that the applicant had been informed of that right verbally by the FSKN offic ials. Hence, when he was apprehended, the applicant had not been informed beyond doubt of his right to a lawyer for the purposes of Article 6 § 3 (c). Accordingly, even though the applicant had not expressly requested the assistance of a lawyer at the time of his apprehension, he could not be said to have implicitly waived his right to legal assistance, as he had not been informed promptly of that right.

The pre-printed part of the record in question stated that the “suspect” had been notified of his right not to be compelled to incriminate himself. However, that reference had not been sufficient to enable the applicant to foresee in a “knowing and intelligent” manner the consequences of his conduct should he choose not to remain silent. Furthermore, there w as nothing to show that he had been given an individualised explanation of his situation or his procedural rights.

It was not until 16 August 2006, at 14.45 p.m., when the record of the applicant’s arrest was drawn up, that he had been officially notified of his arrest and of the suspicions against him, and of all his procedural rights as a person suspected of committing an offence. Therefore, for a period of 18 hours and 55 minutes after being apprehended on 15 August 2006 at 8.10 p.m., the applicant had n ot been duly informed of his right to legal assistance, his right to remain silent and his right not to be compelled to incriminate himself. Consequently, he could not reasonably be said to have waived those rights on a valid basis. The applicant’s right t o legal assistance had therefore been restricted.

The present case illustrated a practice on the part of the Russian authorities, observed by the Court in several cases, of delaying conferring the formal status of suspect on persons who had been apprehende d, thereby depriving them of the effective exercise of their rights.

(iii) Whether there were “compelling reasons” for restricting access to a lawyer – As the Government had not cited any exceptional circumstances, there had been no “compelling reason” su ch as to justify restricting the applicant’s access to a lawyer following his apprehension. Furthermore, the domestic legislation, as interpreted by the Constitutional Court, concerning access to a lawyer for persons who had been apprehended and were de f acto under arrest, did not explicitly provide for any exceptions to the applicability of that right.

(iv) Whether the proceedings taken as a whole were fair – The Government’s arguments focused on the fact that the applicant had had legal representation a s of 16 August 2006 at 3 p.m., but did not demonstrate to what extent the absence of a lawyer for the first 18 hours and 55 minutes following his apprehension had influenced the fairness of the proceedings taken as a whole. This finding sufficed for the Co urt to conclude that the Government had not rebutted the presumption that the criminal proceedings against the applicant had been unfair. However, it considered it necessary to make some additional observations in that regard.

Between 15 August 2006 at 8.1 0 p.m. and 16 August 2006 at 2.45 p.m., the prosecuting authorities had gathered certain items of evidence which were subsequently used as evidence for the prosecution in the criminal proceedings against the applicant. The applicant’s statements, made imme diately after his apprehension, had been obtained following questions put to him by the FSKN officials, who suspected him of involvement in drug trafficking. Hence, those questions amounted to the questioning of the applicant without prior notification of his procedural rights.

The national courts had not examined on the merits the applicant’s request for the evidence obtained immediately after his apprehension, when he did not have legal assistance, to be excluded. Consequently, they had not examined the a dmissibility of the evidence containing the self-incriminating statements obtained from the applicant while his right to legal assistance was restricted. The courts had not sought to determine whether the applicant had waived his defence rights on a valid basis.

Furthermore, the applicant’s conviction in connection with the events of 15 August 2006, characterised by the domestic courts as the preparation for sale of very large quantities of drugs, had been based to a large extent on the record of the inspec tion of the applicant’s vehicle, which contained self-incriminating statements obtained from the applicant in breach of his procedural rights.

In view of the foregoing considerations and the cumulative effect of the procedural shortcomings in the applicant ’s trial, the failure to notify the applicant of his right to a lawyer, his right to remain silent and his right not to be compelled to incriminate himself, coupled with the restriction of his access to legal assistance between 15 August 2006 at 8.10 p.m. and 16 August 2006 at 2.45 p.m., had irretrievably prejudiced the overall fairness of the proceedings.

Conclusion : violation (unanimously).

Article 10: The applicant complained, among other matters, of the seizure by the prison authorities of the newspaper s and magazines sent to him by his relatives. The Court considered in that regard that the seizure amounted to interference with the applicant’s right to receive information within the meaning of Article 10 of the Convention. It therefore had to determine whether the interference had been justified.

There was nothing to suggest that the material seized had been liable to present a danger to the well-being and lives of others, to disturb order in the prison or to be used to commit offences. Likewise, it had not been demonstrated that the fact that the applicant was receiving publications had entailed additional costs for the prison authorities. Under domestic legislation, prisoners were entitled to receive and make use of newspapers and magazines, provided th at these were purchased through the prison management. It was precisely because that condition had not been satisfied in the instant case that the domestic courts had upheld the decision to seize the newspapers and magazines sent to the applicant by his re latives. However, that condition and its application by the domestic authorities in the applicant’s case had not met any pressing social need; accordingly, the measure in question had not been “necessary in a democratic society”.

Conclusion : violation (un animously).

The Court also held unanimously that there had been a violation of Article 3 on account of the applicant’s conditions of detention, the conditions in which he had been transferred to and from the courtroom and his placement in a metal cage duri ng trial; a violation of Article 13 taken together with Article 3 on account of the lack of effective domestic remedies in that regard; a violation of Article 5 § 3 on account of the lack of sufficient reasons for the applicant’s continued pre-trial detent ion; a violation of Article 5 § 4 on account of the absence of a speedy review; a violation of Article 8 on account of the tapping of the applicant’s telephone and the recording of his telephone conversations; a violation of Article 13 taken together with Article 8 on account of the lack of effective domestic remedies in that regard; and a violation of Article 34 on account of the opening by the prison staff of letters sent to the applicant by the Court.

Article 41: EUR 12,700 in respect of non-pecuniary da mage.

(As regards Article 6, see also Ibrahim and Others v. the United Kingdom [GC], 50541/08 et al., 13 September 2016, Information Note 199 ; Simeonovi v. Bulgaria [GC], 21980/04, 12 May 2017, Information Note 207 ; Beuze v. Belgium [GC], 71409/10, 9 September 2018, Information Note 223 ; and the Factsheet on Police arrest and assistance of a lawyer . As regards Article 10, see also Mesut Yurtsever and Others v. Turkey , 14946/08 et al., 20 January 2015, Info rmation Note 181 ; Kalda v. Estonia , 17429/10, 19 January 2016, Information Note 192 ; and Jankovskis v. Lithuania , 21575/08, 17 January 2017, Information Note 203 )

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