Access to a lawyer
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Rights of suspects in police custody 46. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “CCrP”) provides that suspects have the right of access to a lawyer from the moment of their de facto arrest and that statements given by them without a lawyer and not confirmed in court are inadmissible evidence. It states, in particular, as follows: Article 46. The Suspect “ 4. The suspect shall have the right: ... ( 3) to avail himself or herself of the advice of defence counsel from the moment stipulated by ... and Article 49 § 3 (3) of the present Code, and to have a private and confidential visit from him or her before the suspect ’ s first interrogation ... ” Article 49. Counsel for the Defence “ 3. Counsel for the defence shall take part in the criminal case: ... ( 3) as from the moment of the actual arrest of the person suspected of having committed a crime ...” Article 51. Compulsory participation of counsel for the defence “1. The participation of counsel for the defence in criminal proceedings shall be compulsory if: (1) the suspect or accused has not waived his right to legal assistance pursuant to the procedure established by Article 52 of the present Code ... ” Article 75. “ 2. The following constitutes inadmissible evidence: (1) Statements by the suspect or accused given in the absence of the counsel for the defence in the course of pre-trial proceedings in the criminal case, ... which have not been confirmed in court ... ” 47. Article 51 of the Constitution of the Russian Federation provides that no one may be required to incriminate himself or herself, his or her spouse or close relatives. 48. Article 48 § 2 of the Constitution states that everyone arrested, detained or accused of a crime shall enjoy the right to have the assistance of a defence counsel from the moment of arrest, detention or bringing charges, respectively. 49. In its ruling no. 11 ‑ P of 27 June 2000 the Constitutional Court of the Russian Federation held as follows: “2. ... Under the Constitution of the Russian Federation, the right in question [under Article 48 § 2 of the Constitution] is directly applicable and the assistance of (defence) counsel does not depend on the formal recognition of the individual as a suspect or an accused person. Nor does it depend on the moment when any procedural act by an investigation authority, inquiry authority or a prosecutor ’ s office is carried out; furthermore, the Constitution of the Russian Federation does not empower the federal legislature to impose restrictive conditions on the exercise of this right. Article 48 § 2 of the Constitution of the Russian Federation clearly specifies the essential characteristics of an individual who actually needs legal assistance because his constitutional rights, primarily the right to liberty and security of the person, are restricted, including in the case of criminal prosecution seeking to establish his guilt. Thus, the constitutional right to have the assistance of (defence) counsel extends to the individual from the moment of actual restriction of his rights. Within the literal meaning of the provisions enshrined in Articles 2, 45 and 48 of the Constitution of the Russian Federation, the right to qualified legal assistance is guaranteed to any person, irrespective of his or her formal status in the proceedings and whether or not he or she is officially declared to be detained or under suspicion, if duly authorised authorities have subjected the person to measures that actually restrict the individual ’ s liberty and security of person, including freedom of movement. These measures involve keeping a person in custody by officials, forcibly bringing or delivering him or her to the inquiry or investigation office, holding incommunicado, and any other actions that significantly restrict the liberty and security of the person. ... 3. ... Insofar as the constitutional right to have the assistance of (defence) counsel may not be restricted by federal law, terms such as ‘ detained ’, ‘ accused ’ and ‘ bringing charges ’ are to be construed within their constitutional meaning rather than within the more narrow meaning ascribed to them in the Code of Criminal Procedure of the RSFSR. Ensuring the exercise of this constitutional right necessitates consideration of both the status in proceedings and the actual situation of the person facing public criminal prosecution. Moreover, the very fact of criminal prosecution and, accordingly, accusatory activity undertaken against a particular person may be proven by a decision to institute criminal proceedings against the person, investigative actions in his or her regard (search, identification, interrogation, etc.), and other measures aiming at his exposure or indicating the existence of suspicions against him or her ( inter alia, by informing the individual, under Article 51 § 1 of the Constitution of the Russian Federation, of the right not to incriminate himself or herself). In so far as these actions are intended to establish facts and circumstances proving the guilt of the prosecuted person, he or she should be given an immediate opportunity to seek assistance of (defence) counsel. This creates the conditions enabling him or her to properly understand his or her rights and responsibilities, any charges brought against him or her, and, consequently, to defend himself or herself effectively. These conditions also ensure that the evidence obtained during the investigation will not later be found inadmissible (Article 50 § 2 of the Constitution of the Russian Federation). ... Pursuant to Article 14 of the International Covenant on Civil and Political Rights and Articles 5 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, access to legal assistance is seen as an indispensable guarantee of the right to defence in case of criminal prosecution. These international instruments establish that everyone who is arrested or detained is to be informed promptly of the reasons for his arrest and any charge against him, is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court, and is entitled to a fair and public hearing and to defend himself in person or through legal assistance of his own choosing.” By the above ruling the Constitutional Court declared Article 47 § 1 of the RSFSR Code of Criminal Procedure of 27 October 1960 (in force until 1 July 2002) unconstitutional. It found that by providing for the right to legal assistance from the moment that the arrest record or the detention order was read out to the suspect, rather than from the moment of arrest as guaranteed by Article 48 of the Constitution, Article 47 § 1 made the exercise of the right to legal assistance dependent on the discretion of the prosecuting authorities. The Constitutional Court later referred to the above ruling and stressed the validity of its findings in that ruling for other situations where operative ‑ search measures, aimed at the establishment of facts and circumstances incriminating the relevant person, such as an interview, had been conducted (decisions no. 327-O of 9 June 2005, no. 473-O of 20 December 2005 and no. 924-O-O of 15 November 2007). B. Surrender and confession in criminal proceedings 50. The CCrP provides as follows: Article 74. Evidence “2. The following shall be admitted as evidence: (1) statements by the suspect and accused; (2) statements by the victim and witness; (3) findings and statements by the expert; (4) real evidence; (5) records of investigative and judicial acts; (6) other documents.” Article 140. Events giving rise to and grounds for opening a criminal case “1. A criminal case may be opened in the event of: ( a) a complaint of a crime; ( b) surrender and confession; ... 2. Sufficient information disclosing the elements of a crime shall serve as a ground for opening a criminal case.” Article 141. Complaint of a crime “1. A complaint of a crime can be made in a verbal or written form. ... 3. A verbal complaint of a crime shall be entered into a record, which is to be signed by the complainant and by the person taking the complaint. The record must contain data about the complainant and his or her identification documents. ... 6. The complainant shall be warned about his or her criminal liability for perjure pursuant to Article 306 of the Criminal Code of the Russian Federation, which is noted in the record and signed by the applicant. ” Article 142. Surrender and confession “1. A statement of surrender and confession ( заявление о явке с повинной ) is a voluntary statement by a person about a crime which he or she has committed. 2. A statement of surrender and confession can be made in a written, as well as a verbal form. A verbal statement shall be taken and entered into a record under the procedure provided for by paragraph 3 of Article 141 of the present Code.” 51. The Supreme Court of the Russian Federation regards a statement of surrender and confession, provided for by Article 142 of the CCrP, as evidence, in the form of “other documents” provided for by Article 74 § 2 (6) of the CCrP (see, for example, the Supreme Court ’ s judgments on appeal no. 89-o04-29sp of 16 July 2004, no. 50-o05-15 of 23 June 2005, no. 46-O09-3 of 5 March 2009, no. 48-O09-39 of 25 May 2009 and no. 209 ‑ O10-3SP of 20 May 2010 ). 52. The Supreme Court has stated that the law does not require access to a lawyer for a statement of surrender and confession to be made and that, therefore, the objection on that ground to the admissibility of such a statement as evidence should fail (see the Supreme Court ’ s judgments on appeal no. 56-o04-77 of 23 March 2005, no. 67 ‑ O06 ‑ 5 of 29 June 2006, no. 29 ‑ O08 ‑ 18SP of 15 December 2008 and no. 201 ‑ FGE13 ‑ 2SP of 25 July 2013 ). 53. The Supreme Court has therefore ruled that the provisions of Article 75 § 2 (1) of the CCrP (see paragraph 46 above) did not apply to a statement of surrender and confession ( see the Supreme Court ’ s judgment on appeal no. 50-o04-82sp of 23 March 2005 ). 54. In respect of the allegation that Article 142 and/or other provisions of the CCrP provided a basis for the admission in evidence of statements of surrender and confession obtained at pre-trial proceedings in the absence of a lawyer, the Constitutional Court of the Russian Federation reiterated the findings in its ruling no. 11 ‑ P of 27 June 2000 (see paragraph 4 9 above) and stated that Article 49 § 3 of the CCrP defined the moment from which counsel for the defence took part in the criminal proceedings (see paragraph 46 above). The constitutional right to legal assistance arose from the moment when the relevant person ’ s rights were actually restricted, for example when measures which effectively restricted his or her rights to liberty and security, including his or her freedom of movement, were undertaken by competent authorities ( decisions on inadmissibility no. 1280 ‑ O of 17 July 2012, no. 638-O of 20 March 2014, no. 1338-O of 24 June 2014, no. 2380 ‑ O of 23 October 2014 and no. 2787 ‑ O of 23 December 2014 with a reference to earlier decision no. 1522-O-O of 17 November 2009 ). Therefore, the provisions of Articles 91 and 92 of the CCrP, which regulated the grounds for and the procedure of the suspect ’ s arrest, did not deprive the arrested person of the right to legal assistance from the moment of his or her actual arrest or other restrictions of his or her rights (decisions on inadmissibility no. 234-O of 20 June 2006, no. 245 ‑ O ‑ O of 20 March 2008, no. 1579-O-O of 17 November 2011 and no. 1280 ‑ O of 17 July 2012 ). 55. The Constitutional Court noted that Article 142 of the CCrP did not contain provisions which would authorise the restriction of the rights to liberty and security, including the freedom of movement, of a person making a statement of surrender and confession. For this reason Article 142 of the CCrP did not provide for the presence of a lawyer. However, it did not exclude the right of a person to make such statement in the presence of a lawyer, either ( see decisions on inadmissibility no. 326-O of 14 October 2004, no. 1280-O of 17 July 2012, no. 638-O of 20 March 2014, no. 1338 ‑ O of 24 June 2014, no. 2380-O of 23 October 2014 and no. 2787-O of 23 December 2014 ). Article 142 did not contain norms which would be inconsistent with the general provisions of the criminal procedural law concerning, in particular, the requirements for and the procedure to examine the admissibility of evidence. Those general provisions were to apply if a statement of surrender and confession was read out at the trial (decisions on inadmissibility no. 326-O of 14 October 2004, no. 391-O of 20 October 2005, no. 285-O-O of 22 March 2011, no. 1448 ‑ O ‑ O of 20 October 2011, no. 1901-O of 18 October 2012 and no. 2173-O of 25 September 2014). 56. Under the Criminal Code of the Russian Federation, the act of surrender and confession is considered a mitigating circumstance in sentencing (Article 61). The Plenary Supreme Court of the Russian Federation indicated in its Ruling no. 2 of 11 January 2007 that if a statement by an individual concerning a crime committed by him or her was used, together with other evidence, in securing his or her conviction, that statement might be considered as a statement of surrender and confession – a mitigating circumstance for the purpose of sentencing – even if the person altered his statements in the course of the investigation or trial. The fact that a person made a statement about a crime following his or her arrest on suspicion of having committed that crime did not exclude considering such a statement as a mitigating circumstance in sentencing. C. Procedure for re-opening of criminal proceedings 57. Article 413 of the Code, setting out the procedure for re-opening of criminal cases, reads, in so far as relevant, as follows: “1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances. ... 4. New circumstances are: ... (2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to: (a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms; (b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 58. The applicant complained that he had been subjected to inhuman and degrading treatment in police custody in order to make him confess to the crime. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 59. The Government acknowledged that the applicant ’ s rights guaranteed by Article 3 of the Convention had been violated and that the domestic remedies had been ineffective in his case. 60. The Government further stressed that the domestic legal system did, in principle, provide for effective remedies for victims of police ill ‑ treatment. Firstly, there was an effective criminal-law remedy, notably a criminal investigation into the allegations of ill-treatment by police officers which could lead to the conviction of police officers. The Government referred to and submitted a series of judgments delivered by courts in 2008 ‑ 2010 in different regions (the Astrakhan, Kemerovo, Lipetsk, Moscow, Rostov and Ryazan regions and the Republics of Tatarstan and Khakasiya), in which police officers from criminal investigation units and other police staff had been convicted under Article 286 of the Criminal Code of crimes which could qualify as violations of Article 3. The Government submitted further that investigative authorities ’ acts and decisions, in particular refusals to open a criminal case, were open to judicial review under Article 125 of the Code of Criminal Procedure. Lastly, civil judicial remedies existed in order to complain about decisions and acts of State organs and their officials and to request compensation for the damage caused. A. Admissibility 61. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that the Government do not plead non-exhaustion of domestic remedies and that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicant ’ s ill-treatment in police custody 62. The Court notes that the Government have acknowledged a violation of Article 3 in the present case. It has no reason to hold otherwise. 63. After the time spent in police custody the applicant was found to be injured (see paragraphs 13, 16 and 19 above). No plausible explanation was provided for his injuries. The investigative authority ’ s finding that the applicant had committed an act of self-harm was based on the account of events put forward by the police officers, notably G., who, in the applicant ’ s submissions, was the officer who had used physical violence against him, and K., who had allegedly been in the room with G. when the applicant ’ s injuries were sustained. The investigative authority ’ s failure to verify the two versions of the origin of the applicant ’ s injuries by using such investigative means as confrontations and identification parades, as pointed out repeatedly by the supervising authorities (see paragraphs 22 and 25 ‑ 26 above), casts doubt on the unconditional preference it gave to the police officers ’ version. Furthermore, the finding of self ‑ harm does not accord with the forensic medical expert ’ s conclusion as to the origin of the injuries, which excluded the possibility that the injuries could have been caused as a result of a fall, that is by a single impact from a flat surface, as was also noted by the supervising authority (see paragraph 22 above), and suggested that they could have been caused by blows from blunt hard objects with a limited contact surface. Lastly, no explanation was provided by the investigative authority for the injuries to the applicant ’ s back. 64. Having regard to the detention facilities ’ medical records and the forensic medical expert ’ s conclusions, the injuries to the applicant ’ s face, back and knees are consistent with his allegations that he was punched and kicked and that his head was struck against the wall with such force that he lost consciousness. These injuries, unaccounted for within the domestic proceedings and acknowledged by the Government, must therefore be considered attributable to a form of ill ‑ treatment for which the authorities were responsible. 65. Strong inferences can be drawn from the evidence to the effect that the ill ‑ treatment occurred during the applicant ’ s questioning by the police officers about the circumstances of the crime of which he was suspected and that, as a result, the applicant signed the statement of his surrender and confession, which he retracted on the following day as soon as he was given access to a lawyer. The ill-treatment can be regarded as having caused the applicant, who was in a state of particular vulnerability, considerable fear, anguish and mental suffering and driven him to act against his will. Having regard to the nature and circumstances of the ill ‑ treatment, the Court finds that it amounted to inhuman and degrading treatment (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII; Gäfgen v. Germany [GC], no. 22978/05, § § 87-93, ECHR 2010; Nasakin v. Russia, no. 22735/05, § § 51-55, 18 July 2013; and Mostipan v. Russia, no. 12042/09, § § 58-61, 16 October 2014). 66. There has therefore been a violation of Article 3 under its substantive head. 2. The State ’ s obligation to conduct an effective investigation 67. The applicant, who was found to be injured after the time spent in police custody, stated during his first questioning as a suspect on the following day, in the presence of a lawyer, that he had been subjected to ill ‑ treatment by police officers in order to obtain his confession to the crime (see paragraph 14 above). Three days later he reiterated his complaint before the judge who was examining the investigator ’ s application for his detention on remand (see paragraph 15 above). On the same day his counsel lodged an application with the investigative authority requesting prosecution of those responsible for the applicant ’ s ill ‑ treatment (ibid.). On the following day the applicant ’ s injuries were again recorded on his arrival at the pre-trial detention facility (see paragraph 16 above). 68. The authorities were thus made promptly and sufficiently aware of the applicant ’ s allegation that he had been subjected to ill-treatment in police custody. The allegation was supported by the detention facilities ’ records of his injuries and confirmed by forensic medical evidence, obtained as a result of the very first steps undertaken by the investigative authority charged with the pre ‑ investigation inquiry into his alleged ill ‑ treatment (see paragraph 19 above). The allegation was therefore credible and gave rise to an obligation on the State to carry out an effective investigation. 69. The Government have acknowledged that no such investigation took place. The Court, as with regard to the violation of Article 3 in its substantive aspect (see paragraphs 62 and 66 above), has no reason to hold otherwise. 70. Indeed, the authorities did not open a criminal case until 5 December 2005, that is, more than three months after they had been made sufficiently aware of the applicant ’ s alleged ill-treatment. The prosecutor instituted criminal proceedings on the grounds that the applicant ’ s version of his ill ‑ treatment by the police officers, which was not excluded on the facts, could only be verified by way of a full investigation for which it was necessary to open a criminal case, given that there was sufficient information disclosing elements of a crime under Article 286 § 3 (a) of the Criminal Code (see paragraph 22 above). According to the prosecutor, the pre ‑ investigation inquiry had not reliably established the circumstances in which the applicant had sustained his injuries. In particular, it was not possible in the course of the pre ‑ investigation inquiry to carry out an identification parade, which would have enabled the applicant to identify the police officer who had assaulted him – even though the applicant “would most likely [have been] able to identify [ him ] ” – or a confrontation between them (ibid.). 71. The Court has previously found in Lyapin v. Russia that in the context of the Russian legal system, if credible allegations of treatment proscribed under Article 3 of the Convention are made, then it is incumbent on the authorities to open a criminal case and conduct a proper criminal investigation in which the whole range of investigative measures are carried out and which – according to the Government (see paragraph 60 above) – constitutes an effective remedy for victims of police ill ‑ treatment under domestic law. It is not possible to establish within the framework of a “pre ‑ investigation inquiry” the facts of a case, particularly the identity of persons who could have been responsible for the ill-treatment. A “pre ‑ investigation inquiry” alone is not capable of leading to the punishment of those responsible, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators, which may then be examined by a court. Confronted with numerous cases of this kind against Russia, the Court has held that it was bound to draw stronger inferences from the mere fact of the investigative authority ’ s refusal to open a criminal investigation into credible allegations of serious ill ‑ treatment in police custody. This was indicative of the State ’ s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, § § 129 and 132 ‑ 36, 2 4 July 2014 ). 72. The above findings are fully applicable to the present case. On the facts, the Court notes that the information which the prosecutor assessed as sufficient for bringing criminal proceedings on 5 December 2005 was in the investigative authority ’ s hands shortly after the applicant ’ s ill ‑ treatment. Hence, nothing can explain the three - month delay in commencing the criminal investigation into the applicant ’ s complaint. The Court considers that such a delay could not but have had an adverse impact on the investigation, undermining the investigative authority ’ s ability to secure the evidence concerning the alleged ill ‑ treatment (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001; Kopylov v. Russia, no. 3933/04, § 137, 29 July 2010; Eldar Imanov and Azhdar Imanov v. Russia, no. 6887/02, § 99, 16 December 2010; and Shishkin v. Russia, no. 18280/04, § 100, 7 July 2011). 73. The ensuing proceedings were marred by the investigative authority ’ s failure to carry out a complete investigation, as was repeatedly pointed out by its own hierarchy (see paragraph 25 above). They ended with the decision to terminate them on the same ground – lack of elements of a crime in the acts of the police officers – and for the same reason – the statements by police officers ’ G. and K. submitting that the applicant had hit his own face against the wall – as in its initial refusal to open a criminal case and the previous decisions to terminate the proceedings, each of which was set aside as unlawful and unfounded. There is no indication in the materials before the Court that even such obvious investigative measures as identification parades and confrontations, the importance of which was twice noted by the investigators ’ superiors, were conducted in the course of the investigation (see paragraphs 22 and 25 above). Equally, the forensic medical expert ’ s conclusion that the applicant ’ s injuries could not have been caused by a single impact from a flat surface, to which the investigative authority ’ s attention was drawn in the decision to open a criminal case (see paragraph 22 above), was ignored (see paragraph 26 above). 74. The Court finds that the significant delay in opening the criminal case and commencing a full criminal investigation into the applicant ’ s credible assertion of ill ‑ treatment at the hands of the police, as well as the lack of any meaningful process during the flawed investigation conducted thereafter, show that the authorities did not take all reasonable steps available to them to secure the evidence and did not make a serious attempt to find out what had happened (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 - IV, and Assenov and Others v. Bulgaria, 28 October 1998, §§ 103 et seq., Reports of Judgments and Decisions 1998-VIII). They thus failed in their obligation to conduct an effective investigation into the applicant ’ s ill ‑ treatment in police custody. 75. By failing in its duty to carry out an effective investigation, the State fostered the police officers ’ sense of impunity. The Court stresses that a proper response by the authorities in investigating serious allegations of ill ‑ treatment at the hands of the police or other similar agents of the State in compliance with the Article 3 standards is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts (see, among other authorities, Gasanov v. the Republic of Moldova, no. 39441/09, § 50, 18 December 2012; Amine Güzel v. Turkey, no. 41844/09, § 39, 17 September 2013; and Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013). 76. In view of the foregoing, the Court concludes that there has been a violation of Article 3 of the Convention under its procedural head also. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 77. The applicant complained that his right to a fair trial, guaranteed by Article 6 of the Convention, had been infringed by the use of the confession extracted from him as a result of ill-treatment in police custody, when he had no access to a lawyer. The Court will examine his complaint under Article 6 §§ 1 and 3 (c), which, in so far as relevant, provides: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ... ” 78. The Government contested that argument. They pointed out that the statement of the applicant ’ s surrender and confession was not the sole evidence on which his conviction was based. His guilt had been sufficiently proved by other evidence in the case. 79. In reply to the Court ’ s questions concerning the relevant domestic law, the Government submitted that while police officers carrying out operative ‑ search activities had no right to question an arrested person ( проводить допрос задержанного ), they could obtain from a suspect a statement of his surrender and confession ( получить явку с повинной ). The surrender and confession was regulated by Articles 141 and 142 of the Code of Criminal Procedure, which did not provide for the relevant person ’ s access to counsel for the defence. According to the Code of Criminal Procedure, Article 75 § 2 (1) of the Code was not applicable to the statement of surrender and confession. However, self-incriminating statements given in the absence of a lawyer by a person who later became a suspect or accused were to be declared inadmissible evidence, if subsequently retracted, pursuant to that provision. The Government did not submit information in support of their observations about the domestic courts ’ practice in respect of Article 75 § 2 (1) of the Code, despite being invited to do so by the Court. A. Admissibility 80. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that the Government do not plead non-exhaustion of domestic remedies and that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. General principles 81. The Court reiterates that its duty, under Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, this being primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140). 82. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002 ‑ IX; and Gäfgen, cited above, § 163). 83. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected, in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use (see Panovits v. Cyprus, no. 4268/04, § 82, 11 December 2008). In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (ibid.). Indeed, where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Allan, cited above, § 47 ). 84. The right to silence and the privilege against self ‑ incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006 ‑ IX ). 85. Lastly, the Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver ’ s importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II). 2. Application of the above principles in the present case 86. The Court observes that the police reopened criminal proceedings into the unsolved robbery of commercial premises on the basis of information reported by Ms R. about, inter alia, the applicant ’ s alleged involvement in the robbery. The applicant was taken to the police station and interviewed by police officers about the circumstances of the crime. He was subjected to ill ‑ treatment (see paragraph 66 above) and confessed to having participated in the crime. His confession was documented by police officer G. in the statement recording his surrender and confession. That record states that the applicant had been informed of Article 51 of the Constitution of the Russian Federation (see paragraph 10 above). Once given access to a lawyer on the following day during his first questioning as a suspect by the investigator, the applicant retracted his confession statement, asserting that it had been given as a result of his ill ‑ treatment by the police officers. He consistently repudiated his confession throughout the ensuing proceedings, in which he was represented by a lawyer. He was able to challenge the admissibility of the statement as evidence at his trial on two grounds, which he has now raised before this Court. Firstly, he asserted that the confession statement had been extracted from him as a result of his ill ‑ treatment by the police officers, and, secondly, that it had been obtained without him having access to a lawyer. The trial court regarded his confession as admissible evidence, considering that the allegations of his ill ‑ treatment were unsubstantiated, that access to a lawyer had not been required by domestic law and that the applicant had been informed of the right not to incriminate himself. In convicting the applicant the trial court relied to a significant extent on his confession (see paragraphs 38-39 above). In the appeal and the supervisory review proceedings the Supreme Court of the Komi Republic and the Supreme Court of the Russian Federation endorsed the trial court ’ s findings in full. 87. The Court notes, firstly, that no assessment was made by the trial court of the medical and witness evidence submitted by the applicant to support his objection on the ground of duress (see paragraph 36 above). In relying on the police officers ’ statements denying any wrongdoing on their part and on the internal police inquiry dismissing the applicant ’ s allegations, the court attached no significance to the police officers ’ obvious interest in the applicant ’ s allegations of ill ‑ treatment being rejected. Overall, the trial court ’ s reasoning for its dismissal of the applicant ’ s objection displays a failure to conduct its own independent assessment of all the relevant factors with a view to ascertaining whether there were reasons to exclude from evidence the applicant ’ s confession statement, allegedly “tainted” by a violation of Article 3 of the Convention, so as to ensure the fairness of the trial, and instead indicates its reliance on the decision of the investigative authority (see paragraphs 37 ‑ 38 above), which the Court has found to have been based on an investigation which did not meet the Article 3 requirements (see paragraph 74 above). This lack of a careful assessment of the quality of the impugned evidence ( the applicant ’ s confession statement ) and the circumstances in which it was obtained, which cast doubts on its reliability and accuracy, was not remedied by the higher courts. In consequence, the applicant ’ s confession obtained as a result of his inhuman and degrading treatment (see paragraph 65 above) was used by the domestic courts as evidence of the applicant ’ s guilt. In so doing, the domestic courts legalised the police officers ’ efforts to use a “statement of surrender and confession” to document the applicant ’ s confession, obtained under duress, after his apprehension on suspicion of having committed a crime, contrary to the meaning envisaged for such a statement in Article 142 of the Code of Criminal Procedure (voluntary statement by a person about a crime he or she has committed, see paragraph 50 above). 88. The Government, which acknowledged that the applicant had been subjected to ill-treatment in breach of Article 3, did not dispute that the applicant ’ s confession statement had been obtained as a result of such treatment. Rather, they 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 event have secured the applicant ’ s conviction. 89. The Court reiterates that within the Convention system it has long been recognised that the right under Article 3 not to be subjected to torture or to inhuman or degrading treatment or punishment enshrines one of the fundamental values of democratic society. It is an absolute right, permitting of no exception in any circumstances (see Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 59, ECHR 2001 ‑ XI). Therefore, the use in criminal proceedings of evidence obtained in breach of Article 3 always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see Jalloh, cited above, § 99 ). 90. Confession statements obtained in violation of Article 3 are inherently unreliable. Furthermore, their use in criminal proceedings is often the reason for which the acts of ill ‑ treatment are committed in the first place. Taking such statements into consideration in finding a person guilty is incompatible with the guarantees of Article 6 (see Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). The admission of confession statements obtained in violation of Article 3 renders the proceedings as a whole 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 (see Gäfgen, cited above, §§ 166 and 173, and El Haski v. Belgium, no. 649/08, § 85, 25 September 2012 ). 91. The Court has already found in paragraph 65 above that the applicant ’ s confession was obtained as a result of the inhuman and degrading treatment to which he was subjected in police custody. The Government ’ s objection that the applicant ’ s confession was not the sole or decisive evidence should therefore be dismissed. 92. The Court notes further that before giving the “ statement of surrender and confession” the applicant was not informed of the right to legal assistance. No justification – other than compliance with the domestic law – was offered by the domestic courts for the applicant ’ s initial lack of access to a lawyer in police custody. According to the domestic courts in the applicant ’ s case, no prior access to a lawyer was required in order to make a statement of surrender and confession. The subsequent use of such a statement in evidence at the trial could not therefore be contested on the ground of the lack of legal advice (see paragraphs 42 and 44-45 above). Such a position complied with the Supreme Court ’ s case ‑ law on the issue (see paragraphs 51-53 and 5 6 above). 93. The Court reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial. Early access to a lawyer at the investigation stage of the proceedings serves as a procedural guarantee of the privilege against self ‑ incrimination and a fundamental safeguard against ill-treatment, given the particular vulnerability of the accused at that stage of the proceedings (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008; Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 263, 21 April 2011; and Martin v. Estonia, no. 35985/09, § 79, 30 May 2013). In order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz, cited above, § 55). A systematic restriction of the right of access to legal assistance, on the basis of statutory provisions, is sufficient in itself for a violation of Article 6 to be found (see Salduz, cited above, § 56; and Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009). 94. The Court observes that irrespective of whether the applicant confessed before or after his arrest was formally recorded (see paragraphs 10 and 12 above), it follows from the facts of the case, which are not disputed by the Government, and in particular from the police officers ’ statements, that at the time of his confession the applicant was being held in police custody for the sole reason that he was suspected of having participated in the robbery, that suspicion being based on information reported to the police by Ms R. (see paragraphs 6-8 and 32-33 above). The police officers were therefore obliged to provide him with the rights of a suspect, access to a lawyer being one such right (see, mutatis mutandis, Brusco v. France, no. 1466/07, §§ 46 ‑ 55, 14 October 2010 ). This would also correspond to the domestic criminal procedural - law requirement that the right of access to a lawyer arises from the moment of actual arrest (see paragraph 46 above), which accords with the Constitutional Court ’ s interpretation of the right to legal assistance as arising from the moment of actual restriction of one ’ s constitutional rights, in particular the right to liberty and security, and not from the moment of the formal recognition of one ’ s status as a suspect or one ’ s detention (see paragraphs 48-49 and 54- 55 above). 95. The absence of a domestic - law requirement of access to a lawyer for a statement of surrender and confession was used as leeway to circumvent the applicant ’ s right as a de facto suspect to legal assistance and to admit his statement of surrender and confession, obtained without legal assistance, in evidence to establish his guilt. This has irretrievably prejudiced the rights of the defence. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings and the possibility of challenging the admissibility of the evidence at issue at the trial and on appeal could remedy the defects which had occurred during police custody. 96. Even assuming that the applicant had been informed of the constitutional right not to incriminate himself before making his confession statement, as was found by the domestic courts, he cannot be said to have validly waived his privilege against self-incrimination in view of the Court ’ s finding that he had given his confession statement as a result of his inhuman and degrading treatment by the police. In any event, no reliance can be placed on the mere fact that the applicant had been reminded of his right to remain silent and signed the relevant record (see Salduz, cited above, § 59; and Płonka v. Poland, no. 20310/02, § 37, 31 March 2009), especially because the record cited Article 51 of the Constitution without explaining its meaning. Furthermore, since the lack of access to a lawyer in the present case resulted from the systemic application of legal provisions, as interpreted by the domestic courts, and the applicant was not informed of the right to legal assistance before signing the statement of his surrender and confession, the question of the waiver of the right to legal assistance is not pertinent. 97. The Court concludes 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 lawyer has rendered the applicant ’ s trial unfair. 98. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 99. Lastly, the applicant complained, relying on Article 13 of the Convention, about other alleged violations of his rights in the criminal proceedings against him, such as delays in delivering the judgment and in scheduling the appeal hearing, changes in the composition of the bench and the dismissal of his applications for supervisory review of the case. Having regard to all the material in its possession and in so far as these complaints fall within the Court ’ s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 100. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 101. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage. 102. The Government considered the above sum excessive. 103. Making its assessment on an equitable basis and having regard to the nature of the violations found, the Court awards the applicant EUR 20,000, plus any tax that may be chargeable. B. Costs and expenses 104. The applicant also claimed RUB 150,000 for the legal costs incurred at the preliminary investigation and before the domestic courts in the criminal proceedings against him and EUR 3,000 for those incurred before the Court. 105. The Government contested the claims on the ground that there was no proof that they had actually been incurred. 106. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court is satisfied that the legal-services contract concerning the domestic proceedings and the legal-services contract concerning the proceedings before the Court, concluded between the applicant and his lawyer, created legally enforceable obligations to pay the amounts indicated therein. It notes, however, that although remedying the violations of Article 6 found by the Court in the present case was the largest part of the legal work in the domestic proceedings, the amount indicated in the former contract also covered other legal work, not relevant to the violations of the Convention found. It also notes that not all of the complaints submitted by the applicant were declared admissible by the Court. Regard being had to the above considerations, the documents in its possession and the criteria in its case-law, the Court considers it reasonable to award the sum of EUR 2,500 for legal costs in the domestic proceedings and the sum of EUR 2,800 for the proceedings before the Court, plus any tax that may be chargeable on the total amount, to be paid directly into the bank account of the applicant ’ s representative. C. Default interest 107. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, both on account of the applicant’s ill-treatment and on account of the ineffective investigation into the related complaints. It also held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention, finding that the admission of the statement of “surrender and confession” as evidence had rendered the applicant’s trial unfair. The Court observed in particular that the absence of a requirement, under Russian law, of access to a lawyer for such a statement had been used to circumvent the applicant’s right as a de facto suspect to legal assistance. This situation had resulted from the systematic application of legal provisions, as interpreted by the domestic courts. Moreover, in failing to conduct an independent careful assessment of the “quality” of the statement as evidence, and instead relying on the investigative authority’s findings, the domestic courts had legalised the police officers’ use of a statement of “surrender and confession” to document the applicant’s confession obtained as a result of his inhuman and degrading treatment after his apprehension on suspicion of having committed a crime.