THIRD SECTION
\nCASE OF FEFILOV v. RUSSIA
\n(Application no. 6587\/07)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n17 July 2018<\/p>\n
FINAL
\n03\/12\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Fefilov v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Chamber composed of:<\/p>\n Helena J\u00e4derblom, President, Having deliberated in private on 26 June 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The 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 (\u201cthe Convention\u201d) by a Russian national, Mr Sergey IgorevichFefilov (\u201cthe applicant\u201d), on 12 December 2006.<\/p>\n 2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by Mr\u00a0V. Shukhardin, a lawyer practising in Moscow. The Russian Government (\u201cthe Government\u201d) were represented by Mr\u00a0G.\u00a0Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.<\/p>\n 3.\u00a0\u00a0The 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.<\/p>\n 4.\u00a0\u00a0On 6 December 2010 the above complaints were communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1979 and before his conviction lived in Izhevsk.<\/p>\n 6.\u00a0\u00a0According to the applicant, on 18 February 2005 the police carried out a search of the applicant\u2019s flat in connection with the murder of a law\u2011enforcement officer, which took place during the night of 7-8 February 2005.<\/p>\n 7.\u00a0\u00a0On 3 March and 10 March 2005 the police interviewed the applicant, in the presence of the applicant\u2019s lawyer, about the circumstances of the murder case under investigation. No suspicions were raised against the applicant.<\/p>\n 8.\u00a0\u00a0At 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 (\u0423\u0441\u0442\u0438\u043d\u043e\u0432\u0441\u043a\u0438\u0439\u0420\u041e\u0412\u0414\u0433. \u0418\u0436\u0435\u0432\u0441\u043a\u0430 \u2013 \u201cIzhevsk police station\u201d). He was allegedly beaten and coerced into confessing to having committed the murder and to signing a record of his surrender and confession (\u044f\u0432\u043a\u0430\u0441\u043f\u043e\u0432\u0438\u043d\u043d\u043e\u0439).<\/p>\n 9.\u00a0\u00a0According to that record, at 9.50 p.m. on 22 March 2005 in office no.\u00a0312 at Izhevsk police station,a police officer, M., obtained from the applicant a confession to the crime, in accordance with Article\u00a0142 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.\u2019s 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\u2019s 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.<\/p>\n 10.\u00a0\u00a0The applicant furthermore wrote a similarly worded confession addressed to the Prosecutor of the Republic of Udmurtiya.<\/p>\n 11.\u00a0\u00a0At 00.05 a.m. on 23 March 2005 a record of the applicant\u2019s 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\u2019s handwritten note to the effect that he acceptedhis arrest, as he had committed a murder on 8\u00a0February 2005. The record further contains the applicant\u2019s request for access to his lawyer.<\/p>\n 12.\u00a0\u00a0Later 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.<\/p>\n 13.\u00a0\u00a0On 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).<\/p>\n 14.\u00a0\u00a0On 27 March 2005 the applicant was remanded in custody and transferred to the Izhevsk SIZO-1 remand prison.<\/p>\n 15.\u00a0\u00a0On 29 March 2005 charges of murder were brought against the applicant.<\/p>\n 16.\u00a0\u00a0On 22 April 2005 the applicant lodged a complaint with the Ustinovskiy district prosecutor\u2019s office of Izhevsk, alleging that he had been ill-treated.<\/p>\n 17.\u00a0\u00a0On 27 May 2005 an investigator from the Ustinovskiydistrict prosecutor\u2019s office issued a decision not to initiatecriminal proceedings against the police officers who had allegedly ill-treated the applicant.<\/p>\n 18.\u00a0\u00a0On 25 July 2005 the criminal case against the applicant was submitted to the Supreme Court of the Republic of Udmurtiya for trial.<\/p>\n 19.\u00a0\u00a0On 22 August 2005 the trial against the applicant commenced.<\/p>\n 20.\u00a0\u00a0Before 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.<\/p>\n 21.\u00a0\u00a0On 19 December 2005 the Supreme Court of the Republic of Udmurtiya convicted the applicant of murder and sentenced him to twelve years\u2019 imprisonment. The court based the conviction on the following evidence:<\/p>\n –\u00a0\u00a0statements 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 (\u044f\u0432\u043a\u0430 \u0441 \u043f\u043e\u0432\u0438\u043d\u043d\u043e\u0439), describing the details of the committed crime; no violence had been exerted on the applicant;<\/p>\n –\u00a0\u00a0statements 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;<\/p>\n –\u00a0\u00a0statements by a police officer, O., who submitted that (i) on 8\u00a0February 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.<\/p>\n –\u00a0\u00a0a statement by a police officer, S., who had participated in the inspection of the crime scene on 8 February 2005 \u2013 he submitted that (i)\u00a0during the check it had been established that a man nicknamed \u201cGunya\u201d [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\u00a0p.m. on 22\u00a0March 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;<\/p>\n –\u00a0\u00a0statements 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.;<\/p>\n The above statements were found to be confirmed by the applicant\u2019s statement of surrender and confession of 22 March 2005 and by statements by independent witnesses in the case, specifically:<\/p>\n –\u00a0\u00a0statements by an anonymous witness, \u201cAkulov\u201d, to whom the applicant had supposedly confided about the murder on 8 February 2005; during the trial \u201cAkulov\u201d 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\u2019s answers by means of a radio communication device with acoustic shielding;<\/p>\n –\u00a0\u00a0statements by a witness, M., who had been detained together with the applicant at Izhevsk police stationduringthe night of 22-23\u00a0March 2005, and whom the applicant had supposedly told about his having committed the murder of a police officer;<\/p>\n –\u00a0\u00a0statements 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\u00a0February 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 \u201cGunya\u201d;<\/p>\n –\u00a0\u00a0statements by a witness,Ts., the applicant\u2019s 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\u00a0February 2005 from the police;(iii) he had known that the applicant was suspected of that murder;<\/p>\n –\u00a0\u00a0statements by other witnesses with no interest in the outcome of the case;<\/p>\n –\u00a0\u00a0the applicant\u2019s handwritten statement of 22\u00a0March 2005 addressed to the Ustinovskiy district prosecutor\u2019s officedescribing the circumstances of the murder;<\/p>\n –\u00a0\u00a0therecord of the applicant\u2019s arrest, in which the applicant noted that he accepted his arrest, as he had committed a murder;<\/p>\n –\u00a0\u00a0records of forensic biological examinations, which did not exclude the possibility that the traces of blood on the applicant\u2019s coat could have been the victim\u2019s; 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\u2019s corpse;<\/p>\n –\u00a0\u00a0records 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;<\/p>\n –\u00a0\u00a0the record of the forensic medical examination, which concluded that the applicant\u2019s having a plastered right arm did not exclude the possibility of him administering active purposeful actions with that arm;<\/p>\n –\u00a0\u00a0the record of the applicant\u2019s forensic psychiatric examination.<\/p>\n 22.\u00a0\u00a0The court dismissed the applicant\u2019s allegation that his confession had been obtained through ill-treatment, referring to the statements made by the police officers and to expert report no.\u00a02672, which had not recorded any injuries on the applicant\u2019s body.<\/p>\n 23.\u00a0\u00a0The 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.<\/p>\n 24.\u00a0\u00a0On 14 June 2006 the Supreme Court of Russia dismissed the appeal. It endorsed in full the trial court\u2019s decision concerning the admissibility of the statement of the applicant\u2019s 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.<\/p>\n 25.\u00a0\u00a0On 4 July 2006 the applicant was transferred to correctional colony IK-8 of the Republic of Udmurtiya to serve his sentence.<\/p>\n 26.\u00a0\u00a0On 19 August 2006 the applicant was transferred to the IZ-16\/2 remand centre of Kazan with ankle-joint oedema, skin erosion and fever.<\/p>\n 27.\u00a0\u00a0On 30 August 2006 the applicant was transferred to the surgical unit of that facility for medical treatment.<\/p>\n 28.\u00a0\u00a0On 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\u00a0November 2008.<\/p>\n 29.\u00a0\u00a0According to the applicant, there had been a high percentage of HIV\u2011positive detainees in the facility, some of whom had worked with the applicant at the facility\u2019s 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).<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAWAND PRACTICE AND RELEVANT INTERNATIONAL DOCUMENTS<\/p>\n A.\u00a0\u00a0Detention of persons with HIV<\/strong><\/p>\n 30.\u00a0\u00a0For the relevant provisions of domestic law and the relevant international documents see Artyomov v. Russia (no.\u00a014146\/02, \u00a7\u00a7\u00a089-91 and 96-100, 27\u00a0May 2010).<\/p>\n B.\u00a0\u00a0The rights of suspects in police custody, and surrender and confession in criminal proceedings<\/strong><\/p>\n 1.\u00a0\u00a0Relevant domestic law and practice<\/em><\/p>\n 31.\u00a0\u00a0For the relevant provisions of domestic law and practice see Turbylev v. Russia (no.\u00a04722\/09, \u00a7\u00a7\u00a046-56, 6\u00a0October 2015).<\/p>\n 2.\u00a0\u00a0Latest developments in domestic practice<\/em><\/p>\n 32.\u00a0\u00a0On 29 November 2016 the Plenum of the Supreme Court of the Russian Federation gave Ruling no.\u00a055, triggering the following developments.<\/p>\n 33.\u00a0\u00a0Section 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.<\/p>\n 34.\u00a0\u00a0If 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\u2019s allegations that his statements were obtained under duress (section 12).<\/p>\n 35.\u00a0\u00a0If there are grounds to carry out a pre-investigation inquiry into the applicant\u2019s 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).<\/p>\n 36.\u00a0\u00a0If in the course of the trial the defendant\u2019s 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).<\/p>\n C.\u00a0\u00a0The procedure for re-opening of criminal proceedings<\/strong><\/p>\n 37.\u00a0\u00a0For the relevant provisions of domestic law on the procedure for the reopening of criminal proceedings see Turbylev, cited above, \u00a7\u00a057.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 38.\u00a0\u00a0The 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\u00a0October 2006 and 21\u00a0November 2008. He relied on Article\u00a03 of the Convention, which reads as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n 39.\u00a0\u00a0The 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\u00a035\u00a0\u00a7\u00a7\u00a01 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.<\/p>\n 40.\u00a0\u00a0The applicant challenged the Government\u2019s submissions. He argued that his work at the facility\u2019s 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.<\/p>\n Admissibility<\/strong><\/p>\n 41.\u00a0\u00a0The Court observes that in a number of earlier cases concerning conditions of post-conviction detention in Russia, it has examined and dismissed the Government\u2019s objection relating to the alleged non\u2011exhaustion 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\u2019 recourse to the domestic authorities in respect of their complaints (see Sergey Babushkinv. Russia, no. 5993\/08, \u00a7\u00a7\u00a041-45, 28 November 2013, andMela v. Russia, no.\u00a034044\/08, \u00a7\u00a7\u00a037-42, 23\u00a0October 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\u2019s argument as to the non-exhaustion of domestic remedies with respect to the applicant\u2019s complaint about the conditions of his detention in penal institution LIU-19 of the Republic of Mordoviya.<\/p>\n 42.\u00a0\u00a0The 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, \u00a7\u00a094, ECHR\u00a02014 (extracts)).<\/p>\n 43.\u00a0\u00a0The 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.\u00a056529\/00, \u00a7\u00a055, ECHR 2005\u2011I). 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, \u00a7\u00a0188, and Salmanov v. Russia, no.\u00a03522\/04, \u00a7\u00a049, 31\u00a0July 2008).<\/p>\n 44.\u00a0\u00a0Turning 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\u2019s sewing workshop. The applicant\u2019s 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.<\/p>\n 45.\u00a0\u00a0The 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\u201119 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\u2019s health (see Artyomov, cited above, \u00a7\u00a0190; Salmanov, cited above, \u00a7\u00a053; and Korobov and Others v.\u00a0Russia (dec.), no.\u00a067086\/01, 2\u00a0March 2006).<\/p>\n 46.\u00a0\u00a0Therefore, the Court considers that the applicant\u2019s 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 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 47.\u00a0\u00a0The 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\u00a0March 2005 obtained from him under duress and when he had had no legal representation. The Court will examine his complaint under Article 6 \u00a7\u00a7 1 and 3 (c), which, in so far as relevant, provides:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights: …<\/p>\n (c)\u00a0\u00a0to defend himself in person or through legal assistance of his own choosing …\u201d<\/p>\n 48.\u00a0\u00a0The 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\u2019s 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\u2019s body), as well as to the applicant\u2019s failure to appeal against the decision of 27\u00a0May 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\u2011founded and had dismissed it. In view of the foregoing the Government considered that there had been no violation of the applicant\u2019s defence rights or the overall fairness of the proceedings under Article\u00a06\u00a0\u00a7\u00a7\u00a01 and 3 (c) of the Convention.<\/p>\n 49.\u00a0\u00a0The applicant argued that at 6 p.m. on 22\u00a0March 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\u00a0March 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\u2019s 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.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 50.\u00a0\u00a0The Court considers that this complaint is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0Whether the applicant\u2019s access to a lawyer was unjustifiably restricted<\/em><\/p>\n 51.\u00a0\u00a0The general principles with regard to the starting point of a \u201ccriminal charge\u201d, 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 \u201ccompelling reasons\u201d, 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\u2019s Simeonovi v. Bulgaria judgment ([GC], no.\u00a021980\/04, \u00a7\u00a7\u00a0110-19, ECHR 2017 (extracts)).<\/p>\n 52.\u00a0\u00a0Turning to the circumstances of the present case, the Court notes that at 6 p.m. on 22\u00a0March 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\u00a0March 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\u00a0a.m. on 23\u00a0March 2005, when the record of his arrest was drawn up.<\/p>\n 53.\u00a0\u00a0The Court reiterates that under the Convention a person acquires the status of a suspect calling for the application of Article\u00a06 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\u2019s involvement in a criminal offence (see Simeonovi, citedabove, \u00a7\u00a7\u00a0110-11). Thepoliceofficerswere therefore obliged to afford the applicant the rights of a suspect, including access to a lawyer, from the moment of his actual arrest.<\/p>\n 54.\u00a0\u00a0The 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 \u2013 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 \u2013 was offered by the domestic court for the applicant\u2019s 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).<\/p>\n 55.\u00a0\u00a0In 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.<\/p>\n 56.\u00a0\u00a0In view of the foregoing, the Court finds that the applicant\u2019s access to a lawyer from the moment of his de facto arrest was restricted, without any \u201ccompelling reason\u201d. It will therefore proceed with the examination of the impact of this procedural failing on the overall fairness of the proceedings.<\/p>\n 2.\u00a0\u00a0Whether the overall fairness of the proceedings was ensured<\/em><\/p>\n 57.\u00a0\u00a0Where 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 \u00a7\u00a7 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\u00a0others, \u00a7 265, ECHR 2016).<\/p>\n 58.\u00a0\u00a0The 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, \u00a7\u00a0274) and reiterated in the Simeonovijudgment (cited above, \u00a7\u00a0120).<\/p>\n 59.\u00a0\u00a0The Court observes that while the applicant\u2019s 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.<\/p>\n 60.\u00a0\u00a0The Court furthermore notes that as soon as the record of the applicant\u2019s 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\u2019s 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).<\/p>\n 61.\u00a0\u00a0The Court observes, however, that the applicant\u2019s 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\u2019s ability in practice to challenge the use of the confession obtained from him in the absence of a lawyer (see Turbylev, cited above, \u00a7\u00a095, and Sitnevskiy and Chaykovskiy v. Ukraine, nos.\u00a048016\/06 and 7817\/07, \u00a7\u00a081, 10\u00a0November 2016).<\/p>\n 62.\u00a0\u00a0The Court furthermore observes that the applicant\u2019s 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\u2019s 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.<\/p>\n 63.\u00a0\u00a0Lastly, 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\u00a021 above). The Court notes that the applicant\u2019s 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\u2019s confession in the prosecution\u2019s 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, \u00a7\u00a0309, and contrast ArturParkhomenko v.\u00a0Ukraine, no.\u00a040464\/05, \u00a7\u00a087, 16\u00a0February 2017).<\/p>\n 64.\u00a0\u00a0The 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.<\/p>\n 65.\u00a0\u00a0Having 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\u2019s 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 \u00a7\u00a7 1 and 3 (c) of the Convention in the present case.<\/p>\n III.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n 66.\u00a0\u00a0The applicant furthermorecomplained under Article 3 of the Convention about his alleged ill-treatment after his arrest, during the pre\u2011trial 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\u00a013 of the Convention of the lack of an effective domestic remedy against the alleged violations.<\/p>\n 67.\u00a0\u00a0Having 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.<\/p>\n 68.\u00a0\u00a0It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35\u00a0\u00a7\u00a7\u00a03\u00a0(a) and\u00a04 of the Convention.<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 69.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 70.\u00a0\u00a0The applicant claimed 75,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 71.\u00a0\u00a0The Government considered that if the Court were to find a violation of the Convention, the Court\u2019s judgment in this respect should in itself constitute sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.<\/p>\n 72.\u00a0\u00a0The Court finds it appropriate to award the applicant EUR\u00a04,000, plus any tax that may be chargeable, in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 73.\u00a0\u00a0The applicant also claimed EUR 1,360for the costs of his legal representation before the Court.<\/p>\n 74.\u00a0\u00a0The Government considered that the applicant\u2019s claim was excessive and invited the Court to reject it.<\/p>\n 75.\u00a0\u00a0According to the Court\u2019s 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\u00a0510 for the proceedings before the Court, to be paid directly into the bank account of the applicant\u2019s representative, plus any tax that may be chargeable to the applicant on that amount.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 76.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe complaintunder Article\u00a06\u00a0\u00a7\u00a7\u00a01 and 3 (c)of the Convention in respect of the use in evidence of the applicant\u2019s confession obtained in the absence of access to a lawyer admissible and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6\u00a7\u00a7 1 and 3 (c) of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article\u00a044\u00a0\u00a7\u00a02 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:<\/p>\n (i)\u00a0\u00a0EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 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\u2019s representative;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 17 July 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stephen Phillips\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Helena J\u00e4derblom
\nBranko Lubarda,
\nDmitry Dedov,
\nPere Pastor Vilanova,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nJolien Schukking,
\nMar\u00eda El\u00f3segui, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n