Information Note on the Court’s case-law 189

October 2015

Turbylev v. Russia - 4722/09

Judgment 6.10.2015 [Section I]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Article 6-3-c

Defence through legal assistance

Use in evidence of “statement of surrender and confession” obtained as a result of ill-treatment and without access to a lawyer: violation

Facts – In 2005 the applicant was arrested on suspicion of having committed a robbery. While in police custody, he confessed to having participated in the crime and signed a record of his “surrender and confession” which had been drawn up by the police. When questioned in the presence of a lawyer the following day, the applicant retracted the confession, explaining that he had made it as a result of ill-treatment by the police. A criminal investigation into the alleged ill-treatment was opened in 2005. The proceedings were subsequently terminated and reopened on several occasions before being eventually terminated in 2007. In the same year, the applicant was convicted and sentenced to six years’ imprisonment. The judgment was upheld on appeal and the Supreme Court ultimately dismissed a request for supervisory re view.

Law – Article 6 §§ 1 and 3 (c): In their submissions to the Court the Government had acknowledged that the applicant had been subjected to ill-treatment at the hands of the police in breach of Article 3 of the Convention and had not disputed that his confession statement had been obtained as a result of such treatment. However, they had argued that the confession was not the sole evidence on which the applicant’s conviction was based and that other evidence adduced by the prosecution would in any even t have secured his conviction. In the Court’s view, however, the right not to be subjected to torture or to inhuman or degrading treatment or punishment was an absolute right, permitting no exception in any circumstances. Therefore, the use in criminal pro ceedings of evidence obtained in breach of Article 3 rendered the proceedings automatically unfair, irrespective of the probative value of the confession statements and irrespective of whether their use was decisive in securing the defendant’s conviction.

In addition, before giving a “statement of surrender and confession” the applicant was not informed of the right to legal assistance. The absence of a requirement, under domestic law, of access to a lawyer for a statement of surrender and confession was us ed to circumvent his right as a de facto suspect to legal assistance and to secure the admission of his statement, obtained without legal assistance, in evidence to establish his guilt. This had irretrievably prejudiced the rights of the defence. Even assu ming that the applicant was informed of the right not to incriminate himself before making his statement, he could not be said to have validly waived his privilege against self-incrimination in view of the Court’s finding that the statement was made as a r esult of ill-treatment by the police. It followed that the domestic courts’ use in evidence of the statement of the applicant’s surrender and confession obtained as a result of his ill-treatment in violation of Article 3 and in the absence of access to a l awyer had rendered the applicant’s trial unfair.

Conclusion : violation (unanimously).

The Court also found, unanimously, a violation of Article 3 in its substantive and procedural aspects on account of the applicant’s ill-treatment suffered during his poli ce custody and on account of the ineffective investigation into the related complaints.

Article 41: EUR 20,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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