CASE OF FEFILOV v. RUSSIA (European Court of Human Rights)

Last Updated on June 8, 2019 by LawEuro

THIRD SECTION
CASE OF FEFILOV v. RUSSIA
(Application no. 6587/07)

JUDGMENT
STRASBOURG
17 July 2018

FINAL
03/12/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Fefilov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena Jäderblom, President,
Branko Lubarda,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Jolien Schukking,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 26 June 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 6587/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey IgorevichFefilov (“the applicant”), on 12 December 2006.

2.  The applicant, who had been granted legal aid, was represented by Mr V. Shukhardin, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  The applicant alleged, in particular, that he had been subjected to a risk of HIV infection while serving his sentence in penal institution LIU-19 of the Republic of Mordoviya, and that his conviction had been based on his confession of 22 March 2005 obtained from him when he had had no legal representation.

4.  On 6 December 2010 the above complaints were communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1979 and before his conviction lived in Izhevsk.

6.  According to the applicant, on 18 February 2005 the police carried out a search of the applicant’s flat in connection with the murder of a law‑enforcement officer, which took place during the night of 7-8 February 2005.

7.  On 3 March and 10 March 2005 the police interviewed the applicant, in the presence of the applicant’s lawyer, about the circumstances of the murder case under investigation. No suspicions were raised against the applicant.

8.  At 6 p.m. on 22 March 2005 the applicant was apprehended on the street in Izhevsk and taken to the Ustinovskiydistrict police station of Izhevsk (УстиновскийРОВДг. Ижевска – “Izhevsk police station”). He was allegedly beaten and coerced into confessing to having committed the murder and to signing a record of his surrender and confession (явкасповинной).

9.  According to that record, at 9.50 p.m. on 22 March 2005 in office no. 312 at Izhevsk police station,a police officer, M., obtained from the applicant a confession to the crime, in accordance with Article 142 of the Code of Criminal Procedure of the Russian Federation. In particular, the record stated that at the beginning of February 2005 the applicant had been drinking alcoholic beverages in the company of a certain S. after work. At an unspecified time after midnight he left S.’s flat. On his way home he entered a nearby house to urinate. There he saw a man who made a rude remark about the applicant’s behaviour. The man was also drunk. They began to fight, in the course of which the applicant hit the man several times on the head with a knife handle, and also punched and kicked him. The latter fell down the stairs. When the applicant left the man was still lyingon the ground floor. The record further stated that the confession had been handwritten by the applicant himself without any coercion on the part of police officers, and that the applicant had been informed of Article 51 of the Constitution (the right not to give self-incriminating statements), which he had understood.

10.  The applicant furthermore wrote a similarly worded confession addressed to the Prosecutor of the Republic of Udmurtiya.

11.  At 00.05 a.m. on 23 March 2005 a record of the applicant’s arrest was drawn up.He was formally assigned the status ofa criminal suspect and was informed of all his rights, including the right to remain silent, the right to a lawyer and the right not to incriminate himself. The record contained the applicant’s handwritten note to the effect that he acceptedhis arrest, as he had committed a murder on 8 February 2005. The record further contains the applicant’s request for access to his lawyer.

12.  Later on the same day, 23 March 2005, the applicant was provided with a legal-aid lawyer and questioned as a suspect. During the questioning the applicant retracted his confession, asserting that it had been given as a result of coercion and in the absence of a lawyer. He consistently repudiated his confession throughout the ensuing proceedings.

13.  On 23 March 2005 the applicant was made to undergo a forensic medical examination, which revealed no injuries on his body aside from a scar on the edge of his hairline dating back two to three months (forensic medical examination report no. 2672).

14.  On 27 March 2005 the applicant was remanded in custody and transferred to the Izhevsk SIZO-1 remand prison.

15.  On 29 March 2005 charges of murder were brought against the applicant.

16.  On 22 April 2005 the applicant lodged a complaint with the Ustinovskiy district prosecutor’s office of Izhevsk, alleging that he had been ill-treated.

17.  On 27 May 2005 an investigator from the Ustinovskiydistrict prosecutor’s office issued a decision not to initiatecriminal proceedings against the police officers who had allegedly ill-treated the applicant.

18.  On 25 July 2005 the criminal case against the applicant was submitted to the Supreme Court of the Republic of Udmurtiya for trial.

19.  On 22 August 2005 the trial against the applicant commenced.

20.  Before the court the applicant denied committing the murder and reaffirmed that his confession had been given under pressure from police officers and in the absence of his lawyer.

21.  On 19 December 2005 the Supreme Court of the Republic of Udmurtiya convicted the applicant of murder and sentenced him to twelve years’ imprisonment. The court based the conviction on the following evidence:

–  statements by a police officer, M.,who had been involved in the investigation and who had submitted that (i) in the course of the investigation it had been determined that the murder had been committed by the applicant;and (ii)the latter had been apprehended and brought to Izhevsk police station, where he had voluntarily confessed to having committed the murder of G. and had written a statement of surrender and confession (явка с повинной), describing the details of the committed crime; no violence had been exerted on the applicant;

–  statements by a police officer, N., involved in the investigation of the murder, who submitted that (i) in the course of the investigation it had been determined that the crime had been committed by the applicant; (ii) in March 2005 the latter had been brought to the police station, where he had confessed to the murder; and(iii)a statement of surrender and confession had been drawn up in which the applicant had described in detail the circumstances under which he had committed the murder;

–  statements by a police officer, O., who submitted that (i) on 8 February 2005 he had participated in the inspection of the scene of the murder of G.; (ii) it had been established that the applicant had been involved in the crime; (iii) in March 2005 the applicant had been brought to Izhevsk police station, where he had confessed to the murder (his confession had been recorded in the statement of surrender and confession); and(iv) no violence had been applied to the applicant.

–  a statement by a police officer, S., who had participated in the inspection of the crime scene on 8 February 2005 – he submitted that (i) during the check it had been established that a man nicknamed “Gunya” [the applicant] could have committed the crime; (ii)the applicant had been apprehended by the police; (iii)the applicant had been interrogated at about 9 p.m. on 22 March 2005 by M., O., P. and himself; (iv)in the course of the interrogation the applicant had confessed to having committed the murder; and(v) no violence had been applied to him;

–  statements by a police officer, Nam., who submitted that he had learned from police officer M. that the applicant had confessed to having committed the murder of G.;

The above statements were found to be confirmed by the applicant’s statement of surrender and confession of 22 March 2005 and by statements by independent witnesses in the case, specifically:

–  statements by an anonymous witness, “Akulov”, to whom the applicant had supposedly confided about the murder on 8 February 2005; during the trial “Akulov” had been placed in a separate room, and questions from the parties had been asked through a court bailiff; the parties had heard the witness’s answers by means of a radio communication device with acoustic shielding;

–  statements by a witness, M., who had been detained together with the applicant at Izhevsk police stationduringthe night of 22-23 March 2005, and whom the applicant had supposedly told about his having committed the murder of a police officer;

–  statements by a witness, S., who submitted that (i) he had worked with the applicant as a painter and decorator since 2003; (ii)they had been drinking alcoholic beverages after work on 7 February 2005 until 10 p.m., after which they had each gone home; (iii)the following morning at 8 a.m. he had picked the applicant up and gone to work with him; (iv)he had found out about the murder of G. on the evening of 8 February 2005 from a certain M. and later from the police; (v)the applicant had had his right arm in plaster since January 2005, which had not prevented him from working; (vi) that the applicant had had a folding knife, which he had lost in January 2005; and(vii) that the applicant had been nicknamed “Gunya”;

–  statements by a witness,Ts., the applicant’s colleague and neighbour, who submitted that (i) he had been drinking alcoholic beverages with the applicant and S. until 10 p.m. on 7 February 2005, following which he had left while the applicant and S. had stayed on;(ii) he had found about the murder on 8 February 2005 from the police;(iii) he had known that the applicant was suspected of that murder;

–  statements by other witnesses with no interest in the outcome of the case;

–  the applicant’s handwritten statement of 22 March 2005 addressed to the Ustinovskiy district prosecutor’s officedescribing the circumstances of the murder;

–  therecord of the applicant’s arrest, in which the applicant noted that he accepted his arrest, as he had committed a murder;

–  records of forensic biological examinations, which did not exclude the possibility that the traces of blood on the applicant’s coat could have been the victim’s; the conclusions of those forensic biological examinations were confirmed by the record of the crime-scene examination and the record of the forensic medical examination of the victim’s corpse;

–  records of forensic chemical examinations of the fibres discovered at the crime scene, the origin of which could not be excluded as being from the clothes worn by the applicant at the time of the murder;

–  the record of the forensic medical examination, which concluded that the applicant’s having a plastered right arm did not exclude the possibility of him administering active purposeful actions with that arm;

–  the record of the applicant’s forensic psychiatric examination.

22.  The court dismissed the applicant’s allegation that his confession had been obtained through ill-treatment, referring to the statements made by the police officers and to expert report no. 2672, which had not recorded any injuries on the applicant’s body.

23.  The applicant appealed against the conviction. In his statement of appeal he submitted, in particular, that his confession was inadmissible evidence,as it had been obtained under duress and in the absence of a lawyer.

24.  On 14 June 2006 the Supreme Court of Russia dismissed the appeal. It endorsed in full the trial court’s decision concerning the admissibility of the statement of the applicant’s surrender and confession. The Supreme Court held, in particular, that the law did not require the presence of a lawyer at the moment of giving aconfession.

25.  On 4 July 2006 the applicant was transferred to correctional colony IK-8 of the Republic of Udmurtiya to serve his sentence.

26.  On 19 August 2006 the applicant was transferred to the IZ-16/2 remand centre of Kazan with ankle-joint oedema, skin erosion and fever.

27.  On 30 August 2006 the applicant was transferred to the surgical unit of that facility for medical treatment.

28.  On 25 October 2006 the applicant was transferred to penal institution LIU-19 of the Republic of Mordoviya (a medical penal establishment designed for the treatment and detention of drug addicts, alcoholics, and HIV- and tuberculosis-infected prisoners), where he underwent compulsory treatment for drug addiction until 21 November 2008.

29.  According to the applicant, there had been a high percentage of HIV‑positive detainees in the facility, some of whom had worked with the applicant at the facility’s sewing workshop. The applicant believed, therefore, that he had faced a serious risk of contamination via the working utensils (for example, scissors and sewing needles).

II.  RELEVANT DOMESTIC LAWAND PRACTICE AND RELEVANT INTERNATIONAL DOCUMENTS

A.  Detention of persons with HIV

30.  For the relevant provisions of domestic law and the relevant international documents see Artyomov v. Russia (no. 14146/02, §§ 89-91 and 96-100, 27 May 2010).

B.  The rights of suspects in police custody, and surrender and confession in criminal proceedings

1.  Relevant domestic law and practice

31.  For the relevant provisions of domestic law and practice see Turbylev v. Russia (no. 4722/09, §§ 46-56, 6 October 2015).

2.  Latest developments in domestic practice

32.  On 29 November 2016 the Plenum of the Supreme Court of the Russian Federation gave Ruling no. 55, triggering the following developments.

33.  Section 10 of the Ruling provides that before admitting in evidence a statement of surrender and confession referred to by the prosecution the trial court should examine, among other things, whether prior to that confession the defendant was informed of his rights, including the right not to incriminate himself and the right to a lawyer and whether he was given the opportunity to effectively exercise them.

34.  If the defendant changes his previous statements or retracts them on the grounds that they were obtained under duress, the trial court should take adequate and effective measures for the examination of that allegation. In doing so, courts must take into account that it is for the prosecution to refute the defendant’s allegations that his statements were obtained under duress (section 12).

35.  If there are grounds to carry out a pre-investigation inquiry into the applicant’s allegations of ill-treatment raised during the trial the court should refer them to the relevant investigation body. The undertaking of a pre-investigation inquiry does not relieve the court of the obligation to give its assessment of the results of that pre-investigation inquiry and to reflect its conclusions in the judgment (section 13).

36.  If in the course of the trial the defendant’s allegations of ill-treatment have not been refuted, statements made by him as a result of such treatment cannot be used in evidence (section 14).

C.  The procedure for re-opening of criminal proceedings

37.  For the relevant provisions of domestic law on the procedure for the reopening of criminal proceedings see Turbylev, cited above, § 57.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

38.  The applicant complained of his having been exposed to a risk of HIV infection in penal institution LIU-19 of the Republic of Mordoviya, where he had servedpart of his prison sentence between 25 October 2006 and 21 November 2008. 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.”

39.  The Government submitted that the applicant had never applied to any Russian authority (whether prison authorities, prosecutor, ombudsman or courts)with complaints regarding the conditions of his detention in penal institutionLIU-19 of the Republic of Mordoviya and hadtherefore not afforded them an opportunity to examine his complaints and, if appropriate, to offer redress.They therefore considered that he had failed to exhaust the domestic remedies and that his complaint should accordingly be rejected under Article 35 §§ 1 and 4 of the Convention. They furthermore submitted that HIV-positive inmates served their sentences in penal institutionLIU-19 under the same conditions as other prisoners. The inmates working at the LIU-19 sewing workshop, including HIV-positive inmates, were each allotted a personal sewing machine. In order to prevent the risk of the spread of HIV infection, all the premises of LIU-19 were wiped daily with disinfectants, as well as treatedwith quartz lamps twice a day for one hour. Regular counselling was given to detainees by the administration of the facility regarding risky behaviour, modes of HIV transmission and personal hygiene. All HIV-negative inmates (including the applicant during his stay there) underwent laboratory tests for HIV twice a year. There had been no instances of HIV being contracted in LIU-19. The applicant himself had not contracted HIV during his detention at LIU-19 either. The Government concluded that the complaint was manifestly ill-founded.

40.  The applicant challenged the Government’s submissions. He argued that his work at the facility’s sewing workshop had made the risk of his contracting HIV very high. The sewing machines had been outdated, the inmates had not always complied with the safety regulations and hadsometimes been injured; first-aid treatment had been provided by inmates themselves. The applicant furthermore asserted that no preventive measures had been being taken by the prison administration against the spread of HIV, and that sanitary cleaning had been very rare and ineffective. The counselling of the inmates had been very formalistic.

Admissibility

41.  The Court observes that in a number of earlier cases concerning conditions of post-conviction detention in Russia, it has examined and dismissed the Government’s objection relating to the alleged non‑exhaustion of domestic remedies by the applicants. In those cases the Court noted that the Government had failed to demonstrate the practical effectiveness of the applicants’ recourse to the domestic authorities in respect of their complaints (see Sergey Babushkinv. Russia, no. 5993/08, §§ 41-45, 28 November 2013, andMela v. Russia, no. 34044/08, §§ 37-42, 23 October 2014). In the present case the Government have not put forward any fact or argument capable of persuading the Court to reach a different conclusion. Accordingly, the Court rejects the Government’s argument as to the non-exhaustion of domestic remedies with respect to the applicant’s complaint about the conditions of his detention in penal institution LIU-19 of the Republic of Mordoviya.

42.  The Court has held on numerous occasions that to fall within the scope of Article 3 ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Tarakhel v. Switzerland[GC], no. 29217/12, § 94, ECHR 2014 (extracts)).

43.  The Court furthermore reiterates that, according to the existing international standards, segregation, isolation and restrictions on occupational and recreational activities are considered unnecessary in the case of HIV-infected persons in the community or when they are detained (see Enhorn v. Sweden, no. 56529/00, § 55, ECHR 2005‑I). When detained, they should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other relevant grounds. Adequate health care should be afforded to HIV-infected detainees, with due regard to the obligation of confidentiality. National authorities should provide all detainees with counseling on risky behaviour and modes of HIV transmission (see Artyomov, cited above, § 188, and Salmanov v. Russia, no. 3522/04, § 49, 31 July 2008).

44.  Turning to the circumstances of the present case, the Court observes that HIV-positive prisoners are held in penal institution LIU-19 under the same conditions as other prisoners. They routinely use the same amenities as all other prisoners, and some are employed at the facility’s sewing workshop. The applicant’s fears for his safety had been based mainly on the fact that he had also been employed at the sewing workshop, where he believed the risk of contamination through the working utensils, such as scissors and sewing needles,to have been particularly high.

45.  The Court notes, and it has not been disputed by the applicant, that each inmate working at the sewing workshop of penal institution LIU-19 was provided with a personal-use sewing machine, and thus the risk of HIV contamination resulting from the nature of the work performed by the applicant was minimised, if not excluded. The Court furthermorenotes that, aside from the daily disinfection of the premises, regular counseling was provided by the administration of the penal institutionregarding risky behaviour and modes of HIV transmission and the personal hygiene of inmates; twice-yearly laboratory testing of HIV-negative inmates was also undertaken. Although the applicant deplored the quality of the counseling provided by the administration of penal institution LIU-19 to inmates and the alleged irregularity of the sanitary cleaning of the premises, the case file shows that there were no instances of HIV being contracted in LIU-19 and that the applicant himself did not contract HIV during his detention at LIU‑19 either. It appears, therefore, that the measures undertaken by the administration of LIU-19 were sufficient to shield inmates from the risk of contracting HIV. In such circumstances, the Court does not find that the authorities failed to secure the applicant’s health (see Artyomov, cited above, § 190; Salmanov, cited above, § 53; and Korobov and Others v. Russia (dec.), no. 67086/01, 2 March 2006).

46.  Therefore, the Court considers that the applicant’s complaint does not disclose any appearance of a violation of Article 3 of the Convention. It follows that it is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

47.  The applicant complained under Article 6 of the Convention that the criminal proceedings against him had been unfair in so far as his conviction had been based on the confessionof 22 March 2005 obtained from him under duress and when he had had no legal representation. 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 …”

48.  The Government submitted that on 22 March 2005 the applicant had voluntarily confessed to having committed a murder. No legal representation had been afforded to the applicant at the moment when he had signed his confession in the absence of such a requirement under domestic law. The applicant’s confession had triggered his arrest as a suspect (with the drawing-up of the relevant record), upon which he had been informed of his rights and granted access to a legal-aid lawyer. All subsequent investigative actions in respect of the applicant as a suspect and as an accused were carried out initially with the participation of the legal-aid lawyer, and subsequently with the participation of a privately retained lawyer.The Government noted the absence of any proof of duress having been exercised by the police when the confessionhad been made. They referred in this connection to the findings of the forensic medical examination carried out on 23 March 2005 (which had revealed no fresh injuries on the applicant’s body), as well as to the applicant’s failure to appeal against the decision of 27 May 2005 not to institute criminal proceedings into his allegations of ill-treatment. They furthermore noted that the applicanthad challenged the admissibility of his confession during his trial but that the domestic court had found this challenge to be ill‑founded and had dismissed it. In view of the foregoing the Government considered that there had been no violation of the applicant’s defence rights or the overall fairness of the proceedings under Article 6 §§ 1 and 3 (c) of the Convention.

49.  The applicant argued that at 6 p.m. on 22 March 2005 he had been apprehended by the police in the street on suspicion of murder and brought to the police station against his will. No proof of any other possible grounds for his having been brought to the police station on that day had been put forward by the Government.He had therefore been entitled to access to legal advice from 6 p.m. on 22 March 2005. However, the police had subjected him to coercion and had forced his confession without affording him the benefit of legal advice. The confessionhad therefore constituted a disguised record of his interrogation as a suspect. As soon as the applicant had been appointed a legal-aid lawyer he had retracted his confessionand had complained about having been subjected to coercion by the police. However, no meaningful investigation into his allegations had been conducted by the domestic authorities. In such circumstances the applicant’s confession, which had been used as a basis for his conviction, had rendered the proceedings against him unfair, especially having regard to the absence of other credible evidence of his involvement in the murder.

A.  Admissibility

50.  The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Whether the applicant’s access to a lawyer was unjustifiably restricted

51.  The general principles with regard to the starting point of a “criminal charge”, the right to legal assistance, the right to be informed of that right and the privilege against self-incrimination, the waiver of the right to legal assistance, the temporary restriction of access to a lawyer for “compelling reasons”, and the impact of the procedural failings in the pre-trial stage on the overall fairness of the proceedings are set forth in the Court’s Simeonovi v. Bulgaria judgment ([GC], no. 21980/04, §§ 110-19, ECHR 2017 (extracts)).

52.  Turning to the circumstances of the present case, the Court notes that at 6 p.m. on 22 March 2005 the applicant was arrested and brought to the police station. It is apparent from the facts of the case, which are not disputed by the Government, that at the time of his confession, at 9.50 p.m. on 22 March 2005, the applicant was being held in police custody for the sole reason that he was suspected of having committed a murder. The applicant was formally assigned the status of a criminal suspect at 00.05 a.m. on 23 March 2005, when the record of his arrest was drawn up.

53.  The Court reiterates that under the Convention a person acquires the status of a suspect calling for the application of Article 6 safeguards, including the right to legal assistance, not when it is formally assigned to him, but when the domestic authorities have plausible reasons for suspecting that person’s involvement in a criminal offence (see Simeonovi, citedabove, §§ 110-11). Thepoliceofficerswere therefore obliged to afford the applicant the rights of a suspect, including access to a lawyer, from the moment of his actual arrest.

54.  The Court notes, however, that the applicant was not afforded an opportunity to benefit from legal advice until after he had signed a statement of surrender and confession and had been formally assigned the status of a suspect in the criminal case. No justification – other than that of compliance with the domestic law, which did not require the presence of a lawyer at the moment of the making of the confession – was offered by the domestic court for the applicant’s lack of access to a lawyer in police custody for several hours between the actual time of his arrest and the time when the record of his arrest was drawn up (see paragraph 24 above).

55.  In such circumstances, even if the applicant was indeed informed of his constitutional right not to incriminate himself prior to making a confession (see paragraph 9 above), having regard to the fact that he was not informed of his right to legal assistance as from the moment of his de facto arrest, the applicant cannot be considered to have validly waived his entitlement to legal assistance.

56.  In view of the foregoing, the Court finds that the applicant’s access to a lawyer from the moment of his de facto arrest was restricted, without any “compelling reason”. It will therefore proceed with the examination of the impact of this procedural failing on the overall fairness of the proceedings.

2.  Whether the overall fairness of the proceedings was ensured

57.  Where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its assessment of the overall fairness of the proceedings. The failure of the respondent Government to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 265, ECHR 2016).

58.  The relevant factors for the assessment of the impact of the procedural failings at the pre-trial stage on the overall fairness of the proceedings are set forth in the judgment of Ibrahim and Others (cited above, § 274) and reiterated in the Simeonovijudgment (cited above, § 120).

59.  The Court observes that while the applicant’s right to legal assistance from the moment of his de facto arrest was unjustifiably restricted, the applicant confessed to having committed a murder and signed the relevant statement of surrender and confession.

60.  The Court furthermore notes that as soon as the record of the applicant’s arrest was drawn up and the applicant was informed of his rights as a suspect in the criminal proceedings, including the right to legal assistance, he requested to be granted access to a lawyer. Once the applicant’s request was granted and he was appointed a legal-aid lawyer, he retracted his confession. He subsequently challenged the admissibility of his confession during the trial and on appeal, claiming that it had been obtained from him as a result of coercion exercised by the police and in the absence of a lawyer (see paragraphs 11, 12, 20 and 23 above).

61.  The Court observes, however, that the applicant’s challenge was dismissed by the domestic court mainly on the grounds that the domestic law did not require the obligatory presence of a lawyer at the moment of the making of a confession (see paragraph 24 above). That technical compliance with the domestic law undermined, if not invalidated, the applicant’s ability in practice to challenge the use of the confession obtained from him in the absence of a lawyer (see Turbylev, cited above, § 95, and Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 81, 10 November 2016).

62.  The Court furthermore observes that the applicant’s allegations to the effect that his confession had not been made voluntarily but had been the result of the ill-treatment inflicted by the police were dismissed as unsubstantiated for lack of evidence of any bodily injuries sustained by the applicant at the material time (see paragraphs 12, 17 and 22 above). However, even in the absence of any duress against the applicant at the time of his confession, the applicant’s having spent several hours in police custody without the benefit of legal advice and without his arrest having been recorded could not but have amounted to a coercive environment.

63.  Lastly, the Court observes that the applicant claimed that the domestic court had used his confession as a basis for his conviction, which, in the absence of other direct evidence of his involvement in the murder, had rendered the proceedings against him unfair (see paragraph 21 above). The Court notes that the applicant’s confession indeed provided the domestic investigating authorities with the framework around which they subsequently built their case and the focus for their search for other corroborating evidence. The Court therefore concludes that, having regard to the central position of the applicant’s confession in the prosecution’s case, it can be considered to have formed an integral and significant part of the probative evidence upon which the conviction was based (compare Ibrahim and Others, cited above, § 309, and contrast ArturParkhomenko v. Ukraine, no. 40464/05, § 87, 16 February 2017).

64.  The Court does not lose sight of the existence of other relevant factors in the assessment of the overall fairness of the proceedings against the applicant. It notes, in particular, that the applicant was not particularly vulnerable, that the evidence in the case was assessed by professional judges, and that the public interest in the prosecution of the offence imputed to the applicant was very strong. However, against the background of other relevant factors examined by the Court (see paragraphs 59-63 above), they are not capable of tipping the balance in favour of considering the proceedings fair.

65.  Having regard to the foregoing, and the failure of the Government to demonstrate convincingly why the overall fairness of the trial was not irretrievably prejudiced by the applicant’s lack of access to a lawyer from the moment of his de facto arrest, the Court finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

66.  The applicant furthermorecomplained under Article 3 of the Convention about his alleged ill-treatment after his arrest, during the pre‑trial investigation and following his admission to penal institution LIU-19; the alleged failure to provide him with medical assistance;his allegedly needless compulsory treatment for drug addiction; the conditions of his detention at the police station; and his detention in penal institutionLIU-19 alongside detainees suffering from tuberculosis. Lastly, the applicant contested under Article 6 of the Convention the admissibility of evidence relied on by the domestic court in securing his conviction and complained under Article 13 of the Convention of the lack of an effective domestic remedy against the alleged violations.

67.  Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as they are within its competence, the matters complained of do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

68.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

69.  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

70.  The applicant claimed 75,000 euros (EUR) in respect of non‑pecuniary damage.

71.  The Government considered that if the Court were to find a violation of the Convention, the Court’s judgment in this respect should in itself constitute sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.

72.  The Court finds it appropriate to award the applicant EUR 4,000, plus any tax that may be chargeable, in respect of non-pecuniary damage.

B.  Costs and expenses

73.  The applicant also claimed EUR 1,360for the costs of his legal representation before the Court.

74.  The Government considered that the applicant’s claim was excessive and invited the Court to reject it.

75.  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. In the present case, regard being had to the documents in its possession and the above criteria, and taking note of the fact that the applicant has benefited from the legal aid which has already been paid to his representative in the amount of EUR 850, the Court considers it reasonable to award the sum of EUR 510 for the proceedings before the Court, to be paid directly into the bank account of the applicant’s representative, plus any tax that may be chargeable to the applicant on that amount.

C.  Default interest

76.  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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declaresthe complaintunder Article 6 §§ 1 and 3 (c)of the Convention in respect of the use in evidence of the applicant’s confession obtained in the absence of access to a lawyer admissible and the remainder of the application inadmissible;

2.  Holdsthat there has been a violation of Article 6§§ 1 and 3 (c) of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State, at the rate applicable at the date of settlement:

(i)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 510 (five hundred and ten euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid to the bank account of the applicant’s representative;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

4.  Dismissesthe remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips                                                                 Helena Jäderblom
Registrar                                                                              President