Last Updated on May 17, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 6033/15
Mikhail Petrovich ZAIKO
against Russia
The European Court of Human Rights (Third Section), sitting on 16 October 2018 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and FatoşAracı, Deputy Section Registrar,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mikhail PetrovichZaiko, is a Russian national, who was born in 1944 and is detained in Kirovskiy. He was represented before the Court by Mr K. Kuzmin, a lawyer practising in Primorskiy Region.
The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
According to the official version of the events, between 4 p.m. and 8 p.m. on 9 February 2014, the applicant got into a drunken fight with T. He stabbed and hit her repeatedly. As a result, T. died. Z., the applicant’s neighbour heard the screams and the noise coming from the applicant’s flat. Some two hours later someone knocked on Z.’s door. Z. opened the door and saw the applicant and his girlfriend, Sh. Both were drunk. Sh. tried to leave the building and the applicant asked her to go back to the flat. Z. helped them to open the door to their flat and saw a woman’s body on the floor. He called the police. Police Officer L. was the first to respond. He found the applicant in a severely inebriated state. Sh., who was drunk too, was crying. In response to Officer L.’s question, the applicant said that he had killed T. Then Officers P. and K arrived and arrested the applicant.
At 11.50 a.m. on 10 February 2014 Officer K. took the applicant to one of the interview rooms and suggested that the latter make a statement of confession. The applicant complied. No lawyer was present. According to the statement signed by the applicant, he had been advised of Article 51 of the Constitution of the Russian Federation and that any statement he would make might be used as evidence in the criminal case.
At 3.20 p.m. on the same date B., an investigator, questioned the applicant in the presence of Kh., who was acting as State-appointed counsel The investigator advised the applicant of his rights, including the privilege against self-incrimination. The applicant explained that on 9 February 2014 he had had an argument with T. She had hit the applicant with a stool. The applicant had grabbed a knife and stabbed T. in the chest at least three times. She had taken a couple of steps and had fallen down. The applicant had become scared. He had gone to the bedroom and fallen asleep on the floor.
On the same date at 4.40 p.m. the investigator took the applicant to the crime scene to run a reconstruction. Kh., a lawyer, was present. The applicant showed where and how T. had hit him with a wooden stool and how he had grabbed the knife and stabbed her. According to the record of the crime reconstruction, prior to the reconstruction, the applicant had been advised of his rights. The applicant refused to sign the record.
On 19 February 2014 the applicant retained Kuz., a lawyer, to represent him.
On 20 February 2014 the investigator questioned the applicant again. The latter pleaded not guilty without explaining why he had earlier confessed to the crime.
On 7 July 2014 the Kirovskiy District Court of Primorskiy Region found the applicant guilty of murder and sentenced him to seven years’ imprisonment. When questioned in court, the applicant pleaded not guilty. He submitted that he had no recollection of the events leading to T.’s death. The court relied on the statements made by Officers L., P. and K. and investigator B.; the applicant’s confession statement of 9 February 2014; and records of the applicant’s questioning by the investigator and the crime reconstruction. The court also questioned two lay witnesses who had been present during the crime reconstruction, T.’s daughter, Z., Sh. and S., who had been drinking together with the applicant on 9 February 2014 but had left prior to the applicant’s fight with T. The court also relied on forensic evidence (an external examination and autopsy of T’s body and the applicant’s medical examination report).
Following an appeal by the applicant, on 23 September 2014 the Primorskiy Regional Court upheld the judgment.
On 23 May 2016 the applicant asked for leave to appeal on points of law in respect of the judgments in his case, arguing that the courts had based their findings on evidence obtained from him without a lawyer present.
On 17 June 2016 the Presidium of the Regional Court, composed of five professional judges, reviewed the applicant’s case. The court found that the applicant’s confession made without a lawyer present and the statements made by Officers L., P. and K. and investigator B. had been inadmissible evidence and excluded them. The court further ruled that “the exclusion of that evidence had [had] no bearing on the findings concerning the applicant’s guilt”. Having reviewed the record of the applicant’s questioning in the presence of his lawyer, the crime reconstruction record and the remaining witnesses’ statements and forensic evidence, the court upheld the applicant’s conviction.
COMPLAINTS
The applicant complained under Article 6 of the Convention that the criminal proceedings in his case had been unfair. In particular, he alleged that, following his arrest, he had been questioned without a lawyer present and that the police officers had failed to advise him of the right to legal assistance and the privilege against self-incrimination. Lastly, he complained that the trial and appellate courts had based their findings on the confession statement he had given in the absence of the fair-trial guarantees.
THE LAW
The applicant alleged that the criminal proceedings in his case had fallen short of the standards set out in Article 6 of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … .
…
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[.]”
The Government considered that the applicant could no longer claim to be a victim of the alleged violation. The Presidium of the Regional Court had re-examined his case by way of an appeal on points of law, acknowledged the violation of the applicant’s rights and provided sufficient redress in the form of a new hearing of his case in which it had excluded the applicant’s confession statements and the statements made by the police officers and the investigator as inadmissible evidence.
The applicant maintained his complaint.
The Court reiterates that under Article 34 of the Convention it may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question of whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention. A decision or measure favourable to an applicant is not, in principle, sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Burdov v. Russia (no. 2), no. 33509/04, §§ 54-55, ECHR 2009).
The Court notes that in the present case the Presidium of the Regional Court, which was composed of five professional judges, unequivocally acknowledged that the admission into evidence, and reliance thereon, by the trial and appellate courts of the applicant’s confession statement made without a lawyer present and of the statements made by law-enforcement officers pertaining to the circumstances in which the applicant had confessed had been unlawful. The Presidium excluded that evidence, reviewed the remaining evidence to find it sufficient to uphold the applicant’s conviction. The applicant and his counsel took part in the hearing before the Presidium. They had an opportunity to challenge the evidence, including the applicant’s confession statement which he had made in the presence of the lawyer after having been informed, inter alia, of the right not to incriminate himself, and the Presidium had the discretion to exclude it.
In view of the above, the Court finds that the acknowledgment of the breach of the applicant’s rights and the ensuing review of his conviction by the Presidium of the Regional Court afforded the applicant sufficient and adequate redress, having the effect of rendering him “no longer a victim” of the alleged violations.
It follows that the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 November 2018.
Fatoş Aracı Alena Poláčková
DeputyRegistrar President
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