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Судебное дело "Шаркунов и Мезенцев против Российской Федерации"


Постановление Европейского суда по правам человека Шаркунов и Мезенцев против России (английский язык).

 

10.09.2010

 

                               FIRST SECTION

                 CASE OF SHARKUNOV AND MEZENTSEV v. RUSSIA

                         (Application no. 75330/01)

                                  JUDGMENT

                                 STRASBOURG

                                10 June 2010

   This  judgment  will  become  final  in  the  circumstances set out in
   Article 44  S: 2  of  the  Convention.  It may be subject to editorial
   revision.

   In the case of Sharkunov and Mezentsev v. Russia,

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

   Christos Rozakis, President,
   Nina Vaji,
   Anatoly Kovler,
   Khanlar Hajiyev,
   Sverre Erik Jebens,
   Giorgio Malinverni,
   George Nicolaou, judges,
   and Sren Nielsen, Section Registrar,

   Having deliberated in private on 20 May 2010,

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

   PROCEDURE

   1.  The  case  originated in an application (no. 75330/01) 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 two Russian nationals, Mr Vyacheslav Viktorovich
   Sharkunov  and Mr Aleksey Aleksandrovich Mezentsev ("the applicants"),
   on 20 August 2001.

   2.  The  applicants  were  represented  by Mr I. Timofeyev and then by
   Ms A. Demeneva,  lawyers  practising  in  Yekaterinburg.  The  Russian
   Government  ("the  Government")  were  represented by Mr P. Laptev and
   then   by  Mr  G. Matyushkin,  respectively  the  former  and  current
   Representatives  of  the  Russian  Federation at the European Court of
   Human Rights.

   3.  By  a  decision  of 2 July 2009 the Court declared the application
   partly admissible.

   THE FACTS

   I.  THE CIRCUMSTANCES OF THE CASE

   4.  The  applicants  were born in 1969 and 1971 respectively. They are
   serving their prison sentences in the Kurgan Region.

   A.  First applicant's arrest and detention

   1.  Alleged ill-treatment

   5.  On  5  May  1999 the first applicant (Mr Sharkunov) was brought to
   the  Organised  Crime  Unit  of  the Kurgan Regional Department of the
   Interior  in  the  town  of  Shadrinsk.  He was suspected of a Mr M.'s
   murder. As can be seen from the arrest report drawn up at 2.25 a.m. on
   6  May 1999, the applicant's family and next of kin were not informed.
   According to the applicant, the police officers placed a canvas bag on
   his  head,  beat him and administered electric shocks with the purpose
   of   extracting   a   confession  from  him.  The  applicant  made  no
   confessions.

   6.  During the same night, from 2.35 to 3.15 a.m., the first applicant
   was  brought  before  investigator P. The record of interview contains
   the following pre-typed standard wording:

   "I   have   been  informed  that  under  Article  51  of  the  Russian
   Constitution,  no  one  is  required  to  testify against himself, his
   spouse  or  next  of kin... I have also been apprised of the rights of
   the suspect during the preliminary investigation under Articles 52 and
   64 of the RSFSR Code of Criminal Procedure:

   A  suspect  has  the  following defence rights: to know the accusation
   against him; to make statements; to adduce evidence; to make requests;
   to have access to the records of investigative measures carried out in
   his  presence  and  to  have access to the file submitted to the court
   confirming the lawfulness of and reasons for remanding him in custody;
   to   lodge   challenges  and  complaints  against  the  investigator's
   decisions  and  actions;  to  read  this  record  after the interview,
   request its amendment and to make observations, which must be included
   in the record.

   I  have also been informed that under Articles 47-52 of the RSFSR Code
   of  Criminal  Procedure  a  suspect  has  a right of defence. For this
   investigative   measure  I  required  ___  counsel  (appointed  by  an
   advocates'  office;  a  lawyer  named by me; if no counsel requested -
   indicate a reason...)."

   The  applicant made a handwritten statement indicating that he did not
   require  counsel and that he would defend himself. This note bears his
   signature.

   The  record of the interview also contains another handwritten note by
   the applicant in the following terms:

   "I   have   been  apprised  of  the  content  of  Article  51  of  the
   Constitution. For the time being I refuse to speak."

   This note bears the applicant's signature.

   7.  On  the  same  night  a medical assistant in the local sobering-up
   centre  carried  out a medical check of the upper part of his body; no
   injuries were recorded. The applicant was then placed in the Shadrinsk
   temporary  detention  centre.  The applicant was examined by a medical
   assistant  and complained of "pain all over the body". Blue bruises on
   the  hip/thigh and blue injection marks on his arms were recorded. The
   medical  assistant ascribed the marks to drug addiction and withdrawal
   symptoms.  As  can be seen from the applicant's written statement made
   on  the  same  day, he had been horse riding the day before and had no
   complaints against any public official.

   8.  On  the  investigator's  order,  on  7  May 1999 the applicant was
   examined  by  a medical expert. The examination was carried out in the
   presence  of  two  convoy  officers. The report drawn up on 7 May 1999
   stated that the first applicant had no physical injuries.

   9.  On  8  May  1999  the  applicant  was  examined by paramedics, who
   concluded  that  he  was suffering from withdrawal syndrome. On 15 May
   1999  the  applicant  was  examined in relation to abdominal pains and
   pain  in  the  neck and in the thoracic spine area. It appears that he
   was given unspecified medicines.

   10.  According  to the Government, the applicant had access to counsel
   T.  on  12 May  1999,  and  on  14  May 1999 he was interviewed in the
   presence  of counsel and remained represented throughout the pre-trial
   investigation and trial.

   11.  On  17  May 1999 the applicant was transferred from the temporary
   detention centre to a remand centre.

   2.  Inquiry into the allegation of ill-treatment

   12.  On 17 May 1999 the applicant's mother lodged a complaint with the
   Supervising Prosecutor's Office of the Kurgan Region and the Shadrinsk
   town  prosecutor, alleging that her son had been ill-treated in police
   custody:

   "My son was arrested on 5 May 1999...I became aware later on that on 6
   May  1999 he had been taken to section 6 of the town department of the
   Interior  and had been severely beaten and tortured by electric shocks
   in  order  to  obtain  confessions...  Ill-treatment  continued  later
   on...The above was confirmed by my son's former counsel D. who told me
   on  7  May  that my son was being ill-treated. D. saw my son on 11 May
   and  called me, asking me to bring my son clean clothes. On 12 May the
   lawyer  told  me  that my son had been beaten again and had been given
   electric shocks... On the same day I unsuccessfully asked investigator
   P.  to let me see my son... On 14 May the investigator told me that he
   would  hand over the clean clothes to my son if I refused to take away
   the old ones, which might be needed for an expert examination... After
   the  arrest my son named the lawyers he wanted to instruct; since they
   were  not  available  the investigator should have appointed legal aid
   counsel  instead...  I  was  misled  by  the  staff  of  the temporary
   detention  centre about the withdrawal pains my son had allegedly been
   suffering  from... This did not make any sense to me... On 8 May I had
   brought  some  pain  killers  and  asked  -  in  vain - to call for an
   emergency  squad for my son...My son has a medullispinal hernia, which
   can be painful at times..."

   13.  The  complaint  was  forwarded  for  examination by the Shadrinsk
   Inter-District Prosecutor's Office. A preliminary inquiry was ordered.

   14.  During  the  inquiry  the  medical  assistant  of the sobering-up
   centre  affirmed  that  no  injuries  had  been  recorded and that the
   applicant  had  made  no complaints or allegations on 6 May 1999 at or
   around  4 a.m.  However,  according  to  the  on-duty  officer  of the
   temporary  detention centre, on 6 May 1999 at 4 a.m. the applicant had
   been  brought  to  the  temporary  detention  centre; blue bruises and
   injections  marks  were  visible  on his body; the applicant explained
   that he had sustained the bruises while horse riding and that he was a
   drug  addict. As can be seen from a statement issued on 20 May 1999 by
   the medical assistant of the temporary detention centre, on 6 May 1999
   the  applicant  complained  of  pain in the body; the examination at 8
   a.m.  revealed  blue bruises on the hip/thigh and blue injection marks
   on  his  arms;  the medical assistant ascribed these to drug addiction
   and withdrawal symptoms. According to her statement, the applicant was
   also seen on 8 May 1999 for unspecified reasons, and on 15 May 1999 on
   account  of  his complaints of pain in the neck and the thoracic spine
   area;  he had had no health-related complaints when transferred to the
   remand centre on 17 May 1999.

   15.  A  number  of officers made written statements. Officer E. stated
   that  he  had  brought  the  applicant to the Unit on 6 May 1999 at or
   around  4  p.m;  investigative  measures  had  been taken until around
   2 a.m.  in  the presence of investigator P.; thereafter, the applicant
   had been brought to the sobering-up centre for an examination and then
   to   the   temporary  detention  centre;  he  had  not  witnessed  any
   ill-treatment against the applicant (see also paragraph 52 below).

   Officer  Ba. stated that the applicant had been brought to the Unit on
   5 May  1999; investigator P. had also been present while some measures
   were  being  carried  out;  no  ill-treatment  was  inflicted  on  the
   applicant  in  the  Unit and no signs of ill-treatment were visible on
   his body.

   Senior  officer  Ya.  made  a similar statement (see also paragraph 51
   below) indicating that the applicant had been brought to the Unit on 5
   or 6 May 1999 in the afternoon.

   Officer  K. stated that the applicant had been present on the premises
   on  6 May  1999  in the afternoon and that he had seen investigator P.
   and  officers  E. and Ya. with the applicant at around 9 p.m. the same
   evening. Officer K. did not witness any ill-treatment.

   Lastly,  investigator  P.  stated that he had issued an arrest warrant
   against  the  applicant  and questioned him; no ill-treatment had been
   inflicted on the applicant; a medical expert had examined him on 7 May
   1999 and found no injuries.

   16.  By  a  decision  of  1  June  1999  the  Shadrinsk Inter-District
   Prosecutor's  Office refused to institute criminal proceedings against
   the   officers   allegedly   responsible  for  the  first  applicant's
   ill-treatment. It was established that the applicant had been arrested
   on  5  May  1999  and had been brought to the Organised Crime Unit for
   investigative  measures. Thereafter, he had been examined by a medical
   assistant  of  the sobering-up centre; no injuries had been noted. The
   applicant  was  then  brought  to  the  temporary detention centre and
   examined  by  an  "on-duty"  officer; the applicant explained that the
   bruising  on  his  hips/thighs  had  been  sustained before the arrest
   (probably  from  horse  riding); no injuries had been found during his
   placement  in  the  remand  centre  on  17  May  1999. In May 1999 the
   applicant  made  no  complaint  about his health and did not raise any
   allegations  against  any  public  official.  Nor  did  he  raise  any
   allegations  during  the inquiry that had been initiated following his
   mother's complaint.

   17.  As  can  be  seen  from the decision of 1 June 1999, "the persons
   concerned  should  be  informed  of the decision and the procedure for
   appealing  against  it". By a letter of the same date, the applicant's
   mother  was  notified  of  the  decision  and  of  the  possibility of
   appealing to a higher prosecutor.

   3.  Related proceedings

   18.  On  an  unspecified  date  Mr T. was appointed as counsel for the
   applicant.  On  15  June  1999  he  sought a copy of a search order in
   respect  of  the  applicant's  flat; he also asked the investigator to
   allow the applicant visits from his family.

   19.  A  medical  certificate  dated  17  September 1999, issued by the
   local drug addiction hospital, states that the first applicant did not
   suffer  from alcohol or drug addiction and did not require any related
   treatment while in detention.

   20.  On  21 February 2000 the first applicant complained to the Kurgan
   prosecutor's  office supervising detention facilities about the events
   of  5  and  6  May  1999 and the investigation. The applicant made the
   following statement:

   "On  5  May  1999...I  was  interrogated  in  a particularly intensive
   manner,  which I can describe if you so require. The officers tried to
   compel  me  to  make  confessions  in respect of a criminal offence in
   which  I  was  not  involved  and  of  which  I knew nothing. At night
   investigator  P.  joined in. When physical violence temporarily ceased
   and  the  bag  was  taken off my head, investigator P. compelled me to
   make  written  statements... He told me that he had witness statements
   against me... For twelve days in the temporary detention centre I made
   statements  concerning  my  alibi  on  the  day of M.'s murder and the
   alleged animosity between myself and the above witness..."

   21.  By  a  letter of 28 February 2000 the applicant was informed that
   his  renewed  complaint  had  been  dismissed  by  the Kurgan Regional
   Prosecutor's  Office  because  the  inquiry  had already resulted in a
   decision  not  to  initiate  criminal  proceedings  in relation to the
   alleged ill-treatment.

   22.  On  6  May  2000 the applicant was interviewed in the presence of
   counsel,  pleaded not guilty, sought a face-to-face confrontation with
   the second applicant and then chose to remain silent.

   23.  Between  May  and  September  2000  the  applicant  sent  several
   unspecified  complaints from the detention facility to the Kurgan Town
   Court. In April 2000 the applicant's mother complained to the regional
   prosecutor about the inquiry into the allegation of ill-treatment.

   B.  The second applicant's arrest and detention

   1.  Alleged ill-treatment

   24.  On  9  December  1999  the  second  applicant  (Mr Mezentsev) was
   brought  to the above-mentioned Organised Crime Unit in Shadrinsk from
   a detention facility in the town of Kurgan.

   25.  According  to the applicant, he remained in the police car with a
   canvas  bag  on  his  head  and received several blows from the convoy
   officers.  In  the  Unit  the  officers  connected wires to his little
   fingers  and  applied electric shocks. When he fainted they hit him on
   the  head  so  that  he  would  regain consciousness. A canvas bag was
   placed  over  his head, restricting the airflow. He could not bear the
   pain and admitted his complicity in the killing of a Mr K.

   26.  On  the  same  day,  between  7  p.m.  and  midnight,  the second
   applicant  was  questioned  by investigator P. The record of interview
   contains the following pre-typed standard wording:

   "I   have   been  informed  that  under  Article  51  of  the  Russian
   Constitution,  no  one  is  required  to  testify against himself, his
   spouse or next of kin...I have also been apprised of the rights of the
   suspect  during the preliminary investigation under Articles 52 and 64
   of the RSFSR Code of Criminal Procedure:

   A  suspect  has  the  following defence rights: to know the accusation
   against him; to make statements; to adduce evidence; to make requests;
   to have access to the minutes of investigative measures carried out in
   his  presence  and  to  have access to the file submitted to the court
   confirming the lawfulness of and reasons for remanding him in custody;
   to   lodge   challenges  and  complaints  against  the  investigator's
   decisions  and  actions;  to  read  this  record  after the interview,
   request its amendment and to make observations, which must be included
   in the record.

   I  have also been informed that under Articles 47-52 of the RSFSR Code
   of  Criminal  Procedure  a  suspect  has  a right of defence. For this
   investigative   measure  I  required  ___  counsel  (appointed  by  an
   advocates'  office;  a  lawyer  named by me; if no counsel requested -
   indicate a reason...)."

   The  applicant made a handwritten statement indicating that he did not
   require  counsel  and  that he was not waiving his right on account of
   lack of means. This note bears his signature.

   The  record of interview also contains another handwritten note by the
   applicant in the following terms:

   "I   have   been  apprised  of  the  content  of  Article  51  of  the
   Constitution.  I  agree  to  testify on the substance of the suspicion
   against me".

   This  note  bears the applicant's signature. During this interview the
   applicant  confessed  to  having  been  an  accessory  to K.'s murder,
   committed,  according  to the second applicant, by the first applicant
   (Mr  Sharkunov). The record ended with a handwritten note stating that
   the  second  applicant  had  read  the  record,  that it was correctly
   transcribed,  that  the applicant had no comment or objection to make,
   that  he had been made aware of the video recording and had no comment
   to make on it. The interview was videotaped by officer Ba.

   27.  On  15  December  1999  the  applicant  was  again  taken  to the
   Organised  Crime  Unit, where the ill-treatment, namely beating him on
   the  head,  allegedly  resumed. According to the applicant, while in a
   cell  he cut the veins in both his arms, allegedly as a protest at the
   beatings  and  pressure  put  on him. According to the Government, the
   second applicant mutilated himself because the first applicant had put
   pressure on him while in Shadrinsk remand centre no. 2.

   28.  After  the  second  applicant  had  been  provided  with  medical
   assistance,  at  an  interview  on the same day he was informed of his
   rights  and  pleaded  innocent; he declined legal assistance "for this
   interview" and refused to testify.

   2.  Inquiry into the allegation of ill-treatment

   29.  On  17 December 1999 the second applicant lodged a complaint with
   the  Regional Prosecutor's Office, alleging that he had been forced to
   confess  to  the  murder  and  to make false accusations against other
   persons:

   "I  urge  you to carry out an inquiry and to stop the unlawful methods
   of  investigation  used  against  me  by the officers of the Organised
   Crime  Unit. As a result of these, I was forced to made confessions on
   9  December 1999. I complained to the regional prosecutor's office but
   subsequently learnt that the complaint had not been forwarded... On 15
   May 1999 I was brought to the Unit again and was forced to incriminate
   myself  and  others  of various crimes. To overcome my resistance, the
   officers  offered a visit from my family in exchange for a confession;
   this  was  a  form of psychological pressure...Since I could not stand
   the pressure I cut my veins with a razor blade I found in the cell..."

   30.  On  19 January 2000 the applicant amended his statement, alleging
   that  electric  shocks  had been administered on 9 December 1999; that
   the  waiver  of  legal assistance had been imposed on him; that he had
   been  told  to be natural during the videotaping and to answer in line
   with the previously discussed version of the relevant events.

   31.  An  inquiry  was  ordered  in  relation to the second applicant's
   allegation  of ill-treatment. Officer E. stated that the applicant had
   been   brought   to  the  Organised  Crime  Unit  for  interview  with
   investigator  P.;  the  interview  was videotaped; no ill-treatment or
   pressure  had  been  used against the applicant (see also paragraph 52
   below).  A  similar statement was made by senior officer Ya. (see also
   paragraph  51  below). To a statement in similar terms investigator P.
   added  that  while  the  applicant  had  not requested counsel for the
   interview  on  15 December  1999  he  had expressed the wish to have a
   consultation  with a lawyer later on in the remand centre. Officer Ba.
   confirmed  that he had videotaped the interview on 9 December 1999 and
   that he had seen no beatings.

   32.  The  prosecutor  also  obtained  a  written  statement  from  the
   applicant  alleging that during his transfer to the Unit on 9 December
   1999  he  had  a  canvas  bag  on  his head; in the Unit he had cables
   attached   to   his   fingers   and  that  electric  shocks  had  been
   administered.  The  applicant  alleged that on 15 December 1999 he had
   received  several blows from Unit officers; that he could not identify
   them  as  he  had  a  canvas bag on his head; and that in reply to his
   request for counsel investigator P. had told him to write to the local
   bar association.

   33.  On 27 January 2000 the applicant was examined by a medical expert
   who  found  scars on his forearms and concluded that these scars could
   have  been  self-inflicted  on  15  December  1999. The expert did not
   record  any  traces  of  electric  torture  or  blows  to  the  second
   applicant's head.

   34.  On  28 January  2000  the  Shadrinsk District Prosecutor's office
   refused  to  institute criminal proceedings in relation to the alleged
   ill-treatment. The prosecutor relied on the above-mentioned statements
   and  the  expert report. He also noted that the applicant had not made
   any complaint while in the remand centre and that no injuries had been
   recorded there. The decision states that "the persons concerned should
   be  informed  of  the decision and the procedure for appealing against
   it".

   3.  Related proceedings

   35.  On  31  January  2000  the  second  applicant asked for legal-aid
   counsel,  referring  to the lack of means to retain one. The applicant
   was  questioned  in  the  presence  of  counsel on 4 February 2000 and
   retracted  the  confession  made  on  9 December  1999  as given under
   duress.

   36.  On  5  May  2000  investigator  M., who was also in charge of the
   criminal  case  against  the  applicant, refused to institute criminal
   proceedings,  dismissing  as  unsubstantiated  the  second applicant's
   renewed complaint of ill-treatment.

   37.  On  10  May  2000  the  second  applicant  was interviewed in the
   presence of counsel and, having been apprised of the privilege against
   self-incrimination, asserted his innocence and remained silent.

   38.  On 5 June 2000 the investigator rejected a number of applications
   by  the  defence,  indicating,  inter  alia,  that  the  allegation of
   ill-treatment  had  previously  been dismissed after the inquiries and
   that  the  case file contained the relevant decisions not to institute
   criminal proceedings.

   39.  The  applicant  sent unspecified complaints to the Shadrinsk Town
   Court from the detention facility in March 2000 and to the Kurgan Town
   Court between June and December 2000.

   C.   Other relevant facts and the trial

   1.  Pre-trial proceedings

   40.  In  November 1999 and February 2000 the police questioned a Mr V.
   in the framework of unrelated criminal proceedings. It appears that he
   was  informed  of his rights and declined the legal assistance offered
   to him. In substance, he stated that he had served as a driver for the
   applicants  on the day when K.'s murder had been committed and that he
   had  heard  about  another  murder,  allegedly  committed by the first
   applicant. V.  also  stated  that  "in  winter  1998-1999"  the second
   applicant had set a car on fire on the first applicant's instructions;
   the  latter had unsuccessfully tried to extort a sum of money from the
   car  owner;  the  first  applicant had then allegedly told V. that the
   second  applicant  had  broken  the  car  window,  thrown  a bottle of
   gasoline  in  the  car  and  set  it on fire. V. confirmed his earlier
   statements   during  a  face-to-face  confrontation  with  the  second
   applicant.  However,  on  19  April  2000  V. retracted his statement,
   alleging  ill-treatment in November 1999 and February 2000. It appears
   that  the  authorities refused to initiate a criminal case against the
   officers.

   41.  At  the  pre-trial  stage,  a  Ms S. was interviewed as a witness
   regarding the arson charges against the applicants. She identified the
   second applicant from his general facial traits, in a line-up of three
   persons,  as  the  person she had first seen "in or around March 1998"
   when  he  had  tried  to set a car on fire in the yard of the block of
   flats  where  she  lived;  the  second  time was when he broke the car
   window  and spilt gasoline in it. A lawyer and two attesting witnesses
   were present at the line-up.

   42.  The  applicants and V. were accused of several criminal offences,
   including  murder  and arson. The first applicant was charged with two
   counts of murder, two counts of instigation to destruction of property
   by  arson,  unlawful  possession of firearms and extortion. The second
   applicant  was  charged  with  murder and two counts of destruction of
   property by arson. The first count of destruction of property by arson
   was  based  on  the  statement  of  the victim of the arson attack who
   alleged  that  he  had  had  "tensions" with the first applicant. That
   statement  was  partly  confirmed  by witness Ch. The second count was
   based,  in  particular,  on  S.'s  statement,  an  eyewitness  who had
   identified the second applicant as the arsonist.

   2.  Trial

   43.  On 19 July 2000 the Kurgan Regional Court held the first hearing.
   The applicants pleaded not guilty to the murder and arson charges. The
   second  applicant  stated  that  his confession of 9 December 1999 had
   been  obtained  under  duress  after hours of torture. The applicants'
   co-defendant V. also stated that he had been severely beaten by police
   officers and, in consequence, had falsely denounced the applicants. He
   submitted  that  the  officers had beaten him on the upper part of his
   body but that the blows had left no traces.

   44.  Ms  S.  was  called  to  testify  at the trial in relation to the
   second  arson case (concerning the events in February 1998). According
   to  a  report  dated  21 July 2000, a bailiff came to her home but she
   refused  to  appear  before  the trial court, alleging that she had to
   nurse her underage child.

   45.  By  a  judgment  of 4 September 2000 the Regional Court found the
   first applicant guilty on two counts of murder, unlawful possession of
   firearms  and  on  the  second  count of instigation to destruction of
   property by arson and sentenced him to twenty years' imprisonment. The
   second  applicant  was  found  guilty  on  the  second  count  of  the
   destruction  of  property  by  arson  and  of  complicity in the above
   murder,  and  sentenced  to  sixteen  years'  imprisonment.  The court
   acquitted  the second applicant of another arson count (concerning the
   events  in  January  1998) and discontinued the related prosecution on
   that count against the first applicant.

   46.  On  the  murder  charges  the  trial  court  relied on the second
   applicant's  confession, various testimonies by other persons, certain
   forensic  reports  and  physical  evidence.  The  court  dismissed the
   defendants'  allegations  of  ill-treatment as unsubstantiated because
   "no  injuries had been identified on the applicants' bodies during the
   preliminary investigation".

   47.  On  the  second  arson  charge,  the  trial  court relied on V.'s
   pre-trial   statement   (see   paragraph  40  above),  S.'s  pre-trial
   identification  report  of  the  second applicant as the arsonist (see
   paragraph  41  above);  the  victim's  and a witness's statements that
   there had been "tensions" between the first applicant and the victim.

   48.  The  applicants  appealed,  alleging,  inter alia, that the trial
   court  had failed to summon various witnesses and had wrongly assessed
   some  pieces  of evidence, including the self-incriminating statements
   made  by  the  second applicant and other persons. On 2 April 2001 the
   Supreme  Court  of  the  Russian  Federation  upheld,  in essence, the
   judgment  of  4 September 2000. The charge against the first applicant
   of  unlawful  possession of a gas pistol was dropped. The appeal court
   considered that the trial court had rightly referred to S.'s statement
   because  that  person  had  seen  the second applicant set fire to the
   victim's  car and had identified him as the arsonist. The appeal court
   also  noted  that  S.'s  statement and a statement from another person
   confirmed that there had been tensions between the first applicant and
   the victim.

   49.  On  19 September 2001 the Presidium of the Supreme Court, sitting
   in  its  supervisory-review capacity, acquitted the first applicant of
   unlawful  possession  of firearms and reduced his sentence to nineteen
   years and six months.

   D.  Subsequent events

   50.  In  2005,  in  reply to requests from the deputy President of the
   Regional  Court,  the  Kurgan  Town Court and the Shadrinsk Town Court
   stated that in 1999 and 2000 they had not received any complaints from
   the   applicants   against  the  administrations  of  remand  centres,
   investigating  or  prosecuting authorities or the police department or
   its units (see also paragraphs 23 and 39 above).

   51.  In  June  2005 Mr Ya., senior officer of the Organised Crime Unit
   at the relevant time, made a written statement (see also paragraphs 15
   and  31  above), indicating that Mr V. had named the applicants as his
   accomplices  in a number of offences. Thereafter, the second applicant
   was  brought  from  Kurgan  remand  centre no. 1 to Shadrinsk and made
   confessions in respect of murdering victim K. and some other offences.
   The  second applicant was questioned by investigator P. in relation to
   the  murder;  Officer  Ya. was in charge of the video recording of the
   interview; Officer Ba. was also present. The second applicant was then
   brought  to Kurgan remand centre no. 2. A week later he was brought to
   the  Unit for questioning and a visit from his family. However, in the
   meantime, he cut his veins and was admitted to hospital for treatment.
   On  the  same  day  he  was brought back to the Unit and retracted his
   earlier  confessions  in  the presence of investigator P. and chose to
   remain  silent.  The  applicant was brought back to the remand centre.
   Subsequently, it was established that the first applicant had tried to
   compel  the  second  applicant to retract his confessions. Officer Ya.
   also  stated  that in May 1999 the first applicant had been brought in
   for questioning. After his refusal to testify, he had been taken for a
   medical examination (for unspecified reasons) and had then been placed
   in  the  temporary  detention centre of Shadrinsk. Both applicants had
   lodged  numerous  complaints against various officers of the Organised
   Crime  Unit.  However, the inquiries had disclosed no unlawful actions
   on  their  part.  Except  for  the murder of K., the other episodes of
   criminal  activity  had been dealt with by the Shadrinsk office of the
   Interior.

   52.  In  June  2005  Mr  E.,  a police officer in 1999, made a written
   statement  (see also paragraphs 15 and 31 above) according to which he
   had  arrested  the  first applicant in May 1999 and brought him to the
   Organised  Crime Unit for questioning. No physical force had been used
   against  him.  Mr  E.  stated  that  he might have convoyed the second
   applicant from Kurgan remand centre no. 1, but without recourse to any
   physical force or pressure.

   II.  RELEVANT DOMESTIC LAW AND PRACTICE

   A.  Judicial review

   53.  The Constitution of the Russian Federation provides, in so far as
   relevant:

                                 Article 46

   "Everyone shall be guaranteed judicial protection of his or her rights
   and freedoms."

   "Decisions  and  actions  or lack of action of State bodies, bodies of
   local  self-government,  public  associations  and  officials  may  be
   appealed against in court..."

   54.  The  1993  Judicial Review Act (Federal Law No. 4866-1 on appeals
   against acts and decisions infringing individual rights and freedoms),
   as  amended in 1995, provides for a judicial avenue for claims against
   public  authorities,  except  for  those  for which the Constitutional
   Court  is  competent  or  for  which  another  procedure is prescribed
   (section  3).  The  Act states that a decision or omission by a public
   authority  or  official  can  be  challenged  before  a  court  if  it
   encroaches on an individual's rights or freedoms or unlawfully imposes
   an obligation or liability on that individual. In such proceedings the
   court  is  entitled  to declare the impugned act, decision or omission
   unlawful,  to  order  the  public  authority  to  act in a certain way
   vis--vis  the  individual,  to  lift  the  liability  imposed  on  the
   individual or to take other measures to restore the infringed right or
   freedom.  If  the  court  finds the impugned act, decision or omission
   unlawful,  this  gives  rise  to a civil claim for damages against the
   State.

   55.  Under  the 1960 Code of Criminal Procedure (CCrP), as in force at
   the  relevant  time, a prosecutor, investigator or judge was competent
   to  examine complaints and information about any offence committed and
   to  open or refuse a criminal investigation, or to transmit the matter
   to a competent authority (Article 109). A prosecutor's refusal to open
   a  criminal  investigation could be appealed to a higher prosecutor; a
   judge's refusal could be challenged before a higher court (Article 113
   S: 4).

   56.  On  29  April  1998  the  Constitutional  Court  of  the  Russian
   Federation invalidated Article 113 S: 4 of the Code because it did not
   allow  for judicial review of a prosecutor's or investigator's refusal
   to institute criminal proceedings. The Constitutional Court ruled that
   Parliament  should  amend  the  legislation  on  criminal procedure by
   inserting  a  possibility  of  review.  It  also  held that until such
   amendments  were  enacted, the national authorities, including courts,
   should  directly  apply  Article 46  of  the  Constitution requiring a
   judicial  review  of  administrative acts. The ruling was published in
   May 1998.

   57.  In  a ruling of 14 January 2000 the Constitutional Court declared
   unconstitutional  several provisions of the RSFSR CCrP authorising the
   courts  to  initiate  criminal proceedings of their own motion. In the
   same  ruling  the  Constitutional  Court reiterated that a court could
   carry  out  a judicial review of an investigating authority's decision
   to open a criminal case, to refuse to initiate criminal proceedings or
   to  discontinue  such  proceedings,  in particular on a complaint of a
   person that his or her constitutional rights had been breached by such
   a decision. The ruling was published in February 2000.

   B.  Legal assistance in criminal proceedings

   58.  Under  Article  52 of the RSFSR CCrP, a suspect has the following
   rights:   a  right  to  know  the  accusation  against  him;  to  make
   statements; to have access to the record of investigative measures; to
   lodge  complaints;  from  the time of the arrest to have meetings with
   counsel, his next of kin or other persons.

   59.  Article  47  of  the  RSFSR  CCrP  provided  that  counsel  could
   participate  in  the  proceedings  from  the  time  when  a person was
   informed  of the charges against him or her. If a suspect was arrested
   or  detained,  counsel  could  participate in the proceedings from the
   time  when  the  suspect  was  given  access  to  the arrest record or
   detention  order. In  its  ruling  of  27  June  2000  (no. 11-П)  the
   Constitutional  Court held that Article 47 of the CCrP was contrary to
   the  Constitution  in  so  far  it  excluded  the possibility of legal
   representation  at  the very first stages of the proceedings, that is,
   before  any  charges  were  brought  or before access was given to the
   arrest/detention record.

   60.  The   participation   of   counsel  was  mandatory  in  pre-trial
   proceedings  from the date on which charges were brought in respect of
   offences  punishable by the death penalty and in the court proceedings
   concerning  such  offences  (Article 49 of the RSFSR CCrP). If counsel
   was  not  retained by the person concerned, the authority in charge of
   the  case  had  to appoint one (ibid). The defendant could waive legal
   assistance;  such a waiver could be opposed by the authority in charge
   of  the  case  if  the case concerned offences punishable by the death
   penalty (Article 50 of the Code).

   61.  Article 59 of the Criminal Code provided for the death penalty as
   a  punishment for particularly serious criminal offences against human
   life, such as aggravated murder.

   C.  Admissibility of evidence

   62.  Article 21 of the Constitution guarantees the protection of human
   dignity  and  prohibits  torture,  violence  and inhuman and degrading
   treatment  and  punishment.  Article 117 of the Criminal Code punishes
   torture,  in  particular  when inflicted in order to compel the person
   concerned  to make statements or to perform other acts contrary to the
   person's  will,  as  a punishment or for other ends. Article 20 of the
   RSFSR Code of Criminal Procedure prohibited compelling another to make
   a  statement  through  the  use of violence, threats or other unlawful
   means   against   the   accused  or  other  persons  involved  in  the
   proceedings.

   63.  Article 50 S: 2 of the Russian Constitution prohibits reliance in
   a  court  of  law  on evidence obtained in breach of federal law. In a
   ruling  of  31 October  1995  the Plenary Supreme Court of Russia held
   that  such  a  breach  occurred  when  the  gathering and admission of
   evidence  resulted  in  a  violation  of the constitutional rights and
   freedoms  or  of  the  criminal  law  procedure,  as  well as when the
   gathering  and  admission  of evidence was carried out by an authority
   lacking  competence  or  acting in breach of the applicable procedural
   rules (point 16).

   64.  Article  69 S: 3 of the RSFSR Code of Criminal Procedure provided
   at  the  time  that  evidence  obtained  unlawfully should be declared
   devoid  of  legal  force  and  should  not  serve  as  a  basis  for a
   prosecution  or  for proving relevant circumstances such as the damage
   caused by the criminal offence.

   D.  Reopening of criminal proceedings

   65.  Article  413 of the 2001 Code of Criminal Procedure provides that
   criminal  proceedings  may  be reopened if the European Court of Human
   Rights has found a violation of the Convention.

   THE LAW

   I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

   66.  The applicants complained that they had been ill-treated while in
   police custody and that there had been no effective investigation into
   their  complaints,  in  breach  of  Article  3 of the Convention. This
   provision reads as follows:

   "No  one  shall  be  subjected  to  torture or to inhuman or degrading
   treatment or punishment."

   A.  Exhaustion of domestic remedies

   67.  The  Government  submitted  that  the  applicants  had  failed to
   exhaust  domestic  remedies  (see  also  paragraph  50  above). In the
   Government's  submission,  the applicants "should have exercised their
   right under Article 46 of the Russian Constitution by way of an action
   under  the  1993 Judicial Review Act against the refusals to prosecute
   [officers]".

   68.  The  applicants argued that at the relevant time there had been a
   judicial  practice of declining jurisdiction under the Judicial Review
   Act  in  relation  to  appeals  against refusals to institute criminal
   proceedings.

   69.  In the admissibility decision of 2 July 2009 the Court decided to
   join this matter to the merits.

   70.  The  Court  first  observes  that  it  is uncontested between the
   parties  that  the  applicants raised their grievances in substance at
   the  national  level,  thus  affording  the  national  authorities  an
   opportunity to redress any alleged violations (see Satk v. Turkey (no.
   2), no. 60999/00, S:S: 27-29, 8 July 2008).

   71.  Second,  as regards the Judicial Review Act, the Court notes that
   the  parties  did  not clarify whether the applicants or their counsel
   had  been able to obtain in good time a copy of the relevant decisions
   not   to   prosecute   the   officers  regarding  the  allegations  of
   ill-treatment.  However,  this matter is not determinative because the
   Government  have  neither  submitted any evidence that this remedy had
   any prospect of success in view of the then existing judicial practice
   nor  any  explanation  as to how it could have provided the applicants
   with   adequate   redress.   Therefore,   the   Government   have  not
   substantiated  their  contention  that  the  remedy the applicants had
   allegedly  failed  to use was an effective one (see Khamila Isayeva v.
   Russia, no. 6846/02, S: 100, 15 November 2007). Thus, the Government's
   objection should be dismissed. Lastly, it is noted that the Government
   did  not  put  forward  any argument concerning any remedies under the
   Russian  criminal-law  procedure. The Court is thus not called upon to
   make any findings in that regard.

   72.  The  Court  will now turn to the substance of the complaints made
   by  the applicants, namely, the allegations of ill-treatment by agents
   of the State.

   B.  Merits of the complaints

   1.  First applicant (Mr Sharkunov)

   73.  The  Government  submitted  that the first applicant had not been
   ill-treated,  and  explained  his  injuries with reference to his drug
   addiction.

   74.  The  first  applicant alleged that he had been ill-treated by way
   of  electric shocks and suffocation in a canvas bag. The ill-treatment
   had  been  aimed at obtaining his confession regarding M.'s murder and
   had  been  carried out in the presence of investigator P. As a result,
   the applicant had sustained scratches and bruises on the inside of his
   thighs  and  injuries  on  the  forearms. Contrary to the authorities'
   findings,  there had been no convincing proof of any drug addiction or
   withdrawal syndrome.

   75.  The  Court  reiterates  that  Article 3 enshrines one of the most
   fundamental values of democratic societies. In assessing evidence in a
   claim  of a violation of Article 3 of the Convention, the Court adopts
   the  standard  of proof "beyond reasonable doubt" (see Avar v. Turkey,
   no. 25657/94,  S: 282, ECHR 2001-VII). Such proof may, however, follow
   from  the  coexistence  of  sufficiently  strong, clear and concordant
   inferences  or of similar unrebutted presumptions of fact (see Ireland
   v.  the  United Kingdom, judgment of 18 January 1978, S: 161, Series A
   no. 25). The  Court  is sensitive to the subsidiary nature of its task
   and  recognises  that  it  must be cautious in taking on the role of a
   first-instance   tribunal   of   fact,  where  this  is  not  rendered
   unavoidable  by  the  circumstances  of  a particular case (see, among
   others,  McKerr  v.  the  United Kingdom (dec.), no. 28883/95, 4 April
   2000). Nonetheless, the Court applies a particularly thorough scrutiny
   for  allegations of proscribed treatment in breach of Article 3 of the
   Convention (see Avar, cited above, S: 283).

   76.  The  ill-treatment complained of by the first applicant consisted
   of  a  canvas bag being put on his head, beatings and electric shocks.
   The  certificate  issued  by  a  medical  assistant  in  the temporary
   detention centre noted blue bruises on his legs and injection marks on
   his  arms.  Nonetheless, a number of elements in the case raise doubts
   as to whether the applicant suffered ill-treatment in May 1999.

   77.  The  Court  observes  at  the  outset  that the applicant did not
   complain  about  the  alleged  ill-treatment  immediately after it had
   allegedly  occurred.  The  complaint  was  lodged  by  the applicant's
   mother. She did so on 17 May 1999, that is, some eleven days after the
   alleged  ill-treatment.  Although the Court accepts that detainees may
   have  reasons  to fear reprisals for their complaints against officers
   under  whose  control they find themselves at the time, no explanation
   was  given in the present case for the passive attitude on the part of
   the  applicant. Moreover, it appears that on 14 May 1999 at the latest
   the applicant was able to see counsel and could thus have conveyed via
   him his grievances regarding the alleged ill-treatment.

   78.  In  that  connection,  it  is noted that the applicant's mother's
   complaint  did  not  contain  any  detailed description of the alleged
   ill-treatment  based  on  first-hand  experience by the applicant (see
   paragraph  12 above). Nor is it apparent from the material in the case
   file  before  the Court that after that date the applicant amended his
   mother's  statement  to  make  it  more  detailed  and consistent (see
   paragraphs  12,  20  and  45  above;  see  also evik v. Turkey (dec.),
   no. 57406/00,   10 October  2006).  There  is  no  match  between  any
   available  description  of  the  beatings and the injuries identified.
   Moreover,  the  applicant himself explained at the national level that
   the  bruises  had  resulted  from  horse  riding.  Thus, the available
   material   was   not  sufficient  to  substantiate  the  ill-treatment
   described,  in brief and general terms, by the applicant's mother (see
   Ahmet Mete v. Turkey (no. 2), no. 30465/02, S: 33, 12 December 2006).

   79.  Lastly,  the Court does not have to take a stance on the issue of
   the  alleged  drug  addiction since as such it does not corroborate or
   refute the allegation of ill-treatment made by the applicant. In other
   words,  there  is  insufficient  information  to determine whether the
   marks  on  the  applicant's  arms  resulted  from  the  application of
   electric shocks or injections.

   80.  In the circumstances, there is no material in the case file which
   could  call  into  question  the  findings  in  the certificate of the
   temporary  detention centre or add probative weight to the allegations
   before the Court. In particular, it does not appear that the applicant
   requested or was refused permission to see another doctor during or at
   the  end of his custody period in the temporary detention centre, that
   is, after 17 May 1999. In conclusion, the material before the Court is
   not  sufficient  to  enable  it  to  conclude  that  the applicant was
   subjected to ill-treatment as alleged.

   81.  The  Court  also  reiterates  that  Article  3  of the Convention
   requires  the  authorities to investigate allegations of ill-treatment
   when  they  are  "arguable"  and  "raise  a reasonable suspicion" (see
   Assenov  and Others v. Bulgaria, judgment of 28 October 1998, S:S: 101
   and  102,  Reports  of  Judgments  and Decisions 1998-VIII). The Court
   considers  that  the investigation carried out in the present case was
   acceptable. The inquiry was opened as soon as the national authorities
   became  aware  of  the  matter and was carried out promptly. The Court
   concludes  that  the  procedural  obligation of the authorities of the
   respondent  State  under Article 3 of the Convention cannot be said to
   have been breached.

   82.  There  has  accordingly  been  no  violation  of Article 3 of the
   Convention in respect of Mr Sharkunov.

   2.  Second applicant (Mr Mezentsev)

   83.  The  Government  submitted that the second applicant's allegation
   of  ill-treatment  had  been  investigated  and  that  the allegations
   concerning  events  on  9 December 1999 were unfounded. On 15 December
   1999  the  applicant  had  inflicted  injuries on himself with a razor
   blade;  the  medical examination had revealed no other injuries on his
   body.  The  above-mentioned  allegations  had  also  been examined and
   rejected  as unfounded by the national courts during the determination
   of the criminal charges against him.

   84.  The  second  applicant  submitted  that  he  had  had no suicidal
   tendencies  and  that  the  self-inflicted  injuries had resulted from
   previous  ill-treatment  at  the  hands  of police officers. The first
   applicant  had  not  compelled the second applicant to change his plea
   because  they  had  been detained in different facilities at the time.
   The  medical  examination  had  been  carried out belatedly so that no
   traces  of  the  electric  shocks remained. No special medical devices
   such  as  an  encephalograph had been used for the examination. One of
   the  complaints  about  the ill-treatment was examined by investigator
   M.,  who  was  also  in charge of the criminal case against the second
   applicant.

   85.  The ill-treatment complained of by the second applicant consisted
   of  a  canvas  bag  being put on his head, beatings and electric shock
   treatment.  Nonetheless, applying the principles cited in paragraph 75
   above  and having examined the available material, the Court considers
   that  it  has  not  been  established beyond reasonable doubt that the
   applicant was subjected to degrading or inhuman treatment in breach of
   Article  3  of  the  Convention.  Nor is there any sufficient basis to
   support  his  claim  that  he  caused himself injuries due to previous
   ill-treatment  (see  paragraph  27  above).  In view of the above, the
   Court considers that the measures taken by the national authorities in
   relation to his complaints were sufficient in the circumstances of the
   case.

   86.  There  has  therefore  been  no  violation  of  Article  3 of the
   Convention in respect of Mr Mezentsev.

   II.  ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

   87.  The  applicants complained under Article 6 of the Convention that
   the  criminal  proceedings against them had been unfair. They referred
   to  the  absence of legal counsel during their initial interrogations;
   the  trial  court's  reliance  on  the  second  applicant's confession
   allegedly  made under duress at the pre-trial stage of the proceedings
   and  without  legal advice, in connection with the murder charges. The
   applicants  also  referred  to  the  impossibility  of  obtaining  the
   attendance   and   examination  of  witness  S.  in  relation  to  the
   arson-related charges.

   88.  Article  6  of  the  Convention,  in the relevant parts, 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:

   ...

   (b)  to  have  adequate time and facilities for the preparation of his
   defence;

   (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;

   (d)  to  examine  or have examined witnesses against him and to obtain
   the  attendance  and  examination of witnesses on his behalf under the
   same conditions as witnesses against him;..."

   A.  The parties' submissions

   1.  The applicants

   89.  The  applicants  submitted that the waiver of legal assistance at
   the  initial  stage  of the investigation had not been valid since the
   participation  of  counsel  had  been  mandatory  under  the  national
   legislation  (see  paragraph  60  above).  The investigator could have
   rejected  the  above waiver. In any event, the applicants had not been
   provided  with  any counsel whose services they could waive. Nor could
   any  counsel  be  retained  at  night  time,  when the applicants were
   arrested and interviewed.

   90.  The  applicants  also  argued that the authorities had not made a
   reasonable effort to bring the prosecution witness S. before the trial
   court  for  examination  as  a  witness.  The excuse put forward by S.
   should  not  have  been  accepted.  Moreover,  the bailiff's report in
   respect of Ms S. had not been signed by S. or any witnesses.

   2.  The Government

   91.  The   Government  submitted  that  after  his  arrest  the  first
   applicant  had  been informed of his rights, including the right to be
   represented  and to remain silent. He had acknowledged in writing that
   he  waived  legal  representation.  On  the  same  day  he had pleaded
   innocent and refused to give any further statements. On 12 May 1999 he
   had  been  interviewed  in  the  presence  of counsel and had remained
   represented throughout the pre-trial investigation and trial.

   92.  As  to  the  second  applicant, the Government submitted that the
   officers  had  duly  informed him of his right to legal assistance and
   the privilege against self-incrimination, as required under Article 52
   of  the  RSFSR  Code  of  Criminal Procedure (see paragraph 58 above).
   Despite this notice, he had waived his right to legal assistance. This
   fact  was  confirmed  by  his  signature  on the interview record of 9
   December  1999.  The  second  applicant  had  reiterated his waiver on
   15 December  1999.  Later on, he had been provided with counsel D. The
   second  applicant's  confession  had  been examined by the trial court
   together  with  the other evidence. As the confession was corroborated
   by that evidence, the court had declared it reliable and valid.

   93.  Lastly, the Government submitted that S. had been served with the
   summons  for  the  hearing  on 19 June 2000. As she had defaulted, the
   court had ordered that she be brought to the hearing. However, in view
   of  the need to look after her child, she had been exonerated from the
   obligation  to  appear  before  the court. The applicants had filed no
   objections  or  applications  in  that  respect.  In  any  event, S.'s
   pre-trial  statement had not been read out at the trial as it had lost
   most  of its evidentiary value in view of her failure to appear before
   the  court.  The  court had delivered its judgment on the basis of the
   "other relevant, reliable and sufficient evidence".

   B.  The Court's assessment

   1.  General principles

   94.  The  Court  reiterates that, in accordance with Article 19 of the
   Convention,  its  only  task  is  to  ensure  the  observance  of  the
   obligations   undertaken   by   the  Parties  in  the  Convention.  In
   particular,  it  is not competent to deal with an application alleging
   that  errors  of  law  or fact have been committed by domestic courts,
   except  where  it  considers  that  such  errors might have involved a
   possible  violation  of  any of the rights and freedoms set out in the
   Convention. While Article 6 guarantees the right to a fair hearing, it
   does  not lay down any rules on the admissibility of evidence as such,
   which is primarily a matter for regulation under national law (see, as
   a  recent  authority,  Bykov  v. Russia [GC], no. 4378/02, S: 88, ECHR
   2009-...).

   95.  It  is  therefore  not  the  role of the Court to determine, as a
   matter  of  principle,  whether  particular  types  of  evidence - for
   example,  evidence  obtained unlawfully in terms of domestic law - may
   be admissible or, indeed, whether the applicant was guilty or not. The
   question which must be answered is whether the proceedings as a whole,
   including  the way in which the evidence was obtained, were fair. This
   involves an examination of the "unlawfulness" in question and, where a
   violation  of another Convention right is concerned, the nature of the
   violation found (ibid, S: 89).

   96.  In  determining  whether  the  proceedings  as a whole were fair,
   regard  must  also  be  had  to whether the rights of the defence were
   respected. It must be examined in particular whether the applicant was
   given  the opportunity of challenging the authenticity of the evidence
   and of opposing its use. In addition, the quality of the evidence must
   be  taken  into  consideration, including whether the circumstances in
   which it was obtained cast doubt on its reliability or accuracy (ibid,
   S: 90).

   97.  Furthermore,  the Court reiterates that in order for the right to
   a  fair trial to remain sufficiently "practical and effective" Article
   6  S: 1 of the Convention requires that, as a rule, access to a lawyer
   should be provided as from the first interrogation of a suspect by the
   police,  unless  it  is  demonstrated  in  the light of the particular
   circumstances  of  each  case  that  there  are  compelling reasons to
   restrict  this  right (see Salduz v. Turkey [GC], no. 36391/02, S: 55,
   27  November  2008).  Even  where compelling reasons may exceptionally
   justify  denial of access to a lawyer, such restriction - whatever its
   justification  -  must  not unduly prejudice the rights of the accused
   under  Article  6.  The  rights  of  the  defence will in principle be
   irretrievably  prejudiced  when  incriminating  statements made during
   police  interrogation  without  access  to  a  lawyer  are  used for a
   conviction  (ibid.;  see  also  Panovits  v. Cyprus, no. 4268/04, S:S:
   84-86,  11  December  2008,  and Pishchalnikov v. Russia, no. 7025/04,
   S:S: 90-92, 24 September 2009).

   2.  Application of the principles in the present case

   (a)  Legal  assistance  in  police  custody and use of evidence at the
   trial

   98.  The   Court   will  first  examine  the  applicants'  allegations
   concerning  the  absence of legal counsel for the initial questioning,
   and  the  trial  court's reliance on the second applicant's confession
   made  at the pre-trial stage of the proceedings allegedly under duress
   and without legal advice.

   99.  The Court reiterates that in the present case it has been alleged
   that  the  second  applicant  made self-incriminating statements under
   physical  duress  and  psychological pressure exerted on him by police
   officers  and interrogators. However, the Court has found no violation
   of  Article  3  of the Convention in that connection (see paragraph 85
   above). In so far as Article 6 is concerned, the Court notes that when
   convicting the applicants on the murder charges the trial court relied
   on  the  second  applicant's  confession  together with testimonies by
   witnesses,  certain  forensic reports and physical evidence. The court
   dismissed    the   defendants'   allegations   of   ill-treatment   as
   unsubstantiated  because  "no  injuries  had  been  identified  on the
   applicants' bodies during the preliminary investigation".

   100.  The  Court  observes  at the outset that Russian law at the time
   prohibited   reliance  on  evidence  obtained  by  ill-treatment  (see
   paragraphs  62  -  64 above). The Court finds no reason to consider in
   the  present  case  that  the  available  procedure for contesting the
   relevant  evidence  on this account and for opposing its admission and
   use  was  ineffective  or  failed  to  provide  sufficient  procedural
   guarantees.  Thus,  the Court is not ready to conclude that the second
   applicant's  pre-trial  statement  was tainted by the alleged physical
   violence or threats.

   101.  The  Court  notes that the applicants also argued that there had
   been  a  violation  of  their right to legal assistance at the initial
   stage  of  the  investigation  and  it  was thus unfair to rely on the
   second applicant's admissions made in the absence of legal assistance.

   102.  The   Court   reiterates   in   that   connection  that  in  the
   admissibility   decision   it  decided  to  join  to  the  merits  the
   Government's  objection  concerning  the  waiver of the right to legal
   assistance at the initial stage of the criminal investigation.

   103.  The  Court observes that the second applicant was brought from a
   detention  facility to the Organised Crime Unit for questioning by the
   investigator  on  9 December  1999.  He  made  confessions  which were
   prejudicial  to  himself  and the first applicant. As can be seen from
   the  interview  record, the second applicant waived his right to legal
   assistance,  adding  that  the  waiver  was  not  related to a lack of
   financial  means. He was interviewed again on 15 December 1999, waived
   legal  assistance  "for  this  meeting" and chose to remain silent. It
   appears,  however,  that  in  reply  to  his  request  for counsel the
   investigator  told  him  to  write  to  the local bar association (see
   paragraphs  31  and  32  above).  On 31 January 2000 he asked for free
   legal  assistance,  referring to a lack of means. He was provided with
   counsel soon afterwards.

   104.  The Court notes that as a matter of principle Russian law at the
   time,  as interpreted by the Constitutional Court, afforded a right to
   legal  assistance  from  the  time  of arrest (see paragraph 59 above;
   compare Dayanan v. Turkey, no. 7377/03, S:S: 32 and 33, ECHR 2009-...,
   and  Bouglame  v.  Belgium  (dec.), no. 16147/08, 2 March 2010). It is
   further  noted  that  as  can  be  seen  from  the interview record of
   9 December  1999  the  second  applicant was informed of the privilege
   against  self-incrimination  and  the  right  to legal assistance. The
   record  contains  his handwritten note to this effect. As also follows
   from this note, the applicant chose to waive legal assistance for this
   interview  for reasons unrelated to his financial situation. This note
   was  signed  by  the  second  applicant. The waiver on 9 December 1999
   concerned  a specific "investigative measure", namely, the applicant's
   interview with the investigator.

   105.  The  Court  also observes that the national courts discussed the
   matter   of  legal  assistance.  Having  found  no  violation  of  the
   applicable  rules,  the  trial  judge  admitted the second applicant's
   pre-trial admission as evidence and referred to it together with other
   physical and witness evidence presented at the trial.

   106.  The  Court  reiterates that neither the letter nor the spirit of
   Article  6 of the Convention prevents a person from waiving of his own
   free  will,  either  expressly  or  tacitly,  the  entitlement  to the
   guarantees  of a fair trial (see Hermi v. Italy [GC], no. 18114/02, S:
   73,  ECHR  2006-XII).  However,  such  a  waiver  must, if it is to be
   effective  for  Convention  purposes, be established in an unequivocal
   manner  and  be  attended  by minimum safeguards commensurate with its
   importance (ibid).

   107.  The  Court considers that the circumstances of the case disclose
   that  the  second  applicant  expressly  and  unequivocally waived the
   privilege against self-incrimination and the right to legal assistance
   on  9  December  1999  (see, by contrast, Sava v. Turkey, no. 9762/03,
   S:S: 65-71, 8 December 2009).

   108.  The  Court  further  observes that the second applicant does not
   complain  that  he  was  unrepresented  between  15 December  1999 and
   4 February  2000 (see paragraphs 31, 32 and 35 above). The Court notes
   in  that connection that the second applicant made it clear only on 31
   January  2000  that  he  had  insufficient means to retain counsel, as
   opposed  to his earlier statement on 9 December 1999. In any event, it
   is  not apparent from the case file that the second applicant made any
   statement or admission between 15 December 1999 and 4 February 2000.

   109.  The foregoing considerations have led the Court to conclude that
   there  has  been  no  violation of Article 6 of the Convention on that
   account.

   110.  In so far as the first applicant made no statement or admissions
   after  his  arrest  in  May 1999, the Court considers that there is no
   need  to  make  separate  findings  in respect of him in so far as the
   issue of legal assistance is concerned.

   (b)  Examination of a witness

   111.  Turning  to  the  matter  of  the  examination  of  a witness in
   connection  with the arson-related charges against the applicants, the
   Court  observes  at  the  outset  that  S.  did not testify at a court
   hearing.  However,  she should, for the purposes of Article 6 S: 3 (d)
   of  the  Convention,  be  regarded  as a witness because her statement
   during   the   identity   parade  procedure,  as  taken  down  by  the
   investigating  authority, was used at the trial. In the circumstances,
   the  Court  considers  that there was no material difference between a
   recorded  deposition by a witness and the result of an identity parade
   since both are capable of furnishing evidence against a defendant in a
   criminal  trial (see also Mirilashvili v. Russia, no. 6293/04, S: 159,
   11 December 2008).

   112.  In  finding  the  second  applicant  guilty  of  destruction  of
   property  by  arson,  the trial court relied on S.'s identification of
   him  as  the  arsonist. The trial court also referred to the pre-trial
   statement  by the applicants' accomplice (see paragraph 40 above). The
   remaining  witness  statements  referred to by the trial court without
   any  further  discussion  of  their probative value were secondary, in
   particular  in  so  far  they  mostly  concerned the assessment of the
   relationship between the victim and the first applicant.

   113.  The  Court  reiterates  that  the  use in evidence of statements
   obtained  at  the  stage  of  the  police  inquiry  and  the  judicial
   investigation  is  not  in  itself inconsistent with those provisions,
   provided  that  the  rights  of  the defence have been respected. As a
   general  rule,  they  require  that the defendant be given an adequate
   opportunity  to  examine  a  witness  against him or have that witness
   examined,  either  when he or she makes statements or at a later stage
   (see Van Mechelen and Others v. the Netherlands, 23 April 1997, S: 51,
   Reports  1997-III, and Ldi v. Switzerland, 15 June 1992, S: 49, Series
   A no. 238). Indeed, it may prove necessary in certain circumstances to
   refer  to  statements made before the trial. If the defendant has been
   given  an  adequate  opportunity  to  challenge  the statements, their
   admission  in  evidence will not in itself contravene Article 6 S:S: 1
   and 3 (d) of the Convention (see, for instance, Belevitskiy v. Russia,
   no. 72967/01, S: 117, 1 March 2007).

   114.  However,  where  a  conviction  is based solely or to a decisive
   extent  on statements that have been made by a person whom the accused
   has had no opportunity to examine or to have examined at some stage of
   the proceedings, the rights of the defence are restricted to an extent
   that  is  incompatible  with the guarantees provided by Article 6 (see
   Unterpertinger  v. Austria, 24 November 1986, S:S: 31-33, Series A no.
   110; Sadi v. France 20 September 1993, S:S: 43-44, Series A no. 261-C;
   Luc  v.  Italy,  no. 33354/96, S: 40, ECHR 2001-II; and Solakov v. the
   former  Yugoslav  Republic  of  Macedonia,  no. 47023/99,  S: 57, ECHR
   2001-X). The  Court  also  reiterates  that where the impossibility of
   examining  witnesses  or  having them examined is due to the fact that
   they  are  absent  or  otherwise  missing, the authorities must make a
   reasonable  effort  to  secure  their presence (see Bonev v. Bulgaria,
   no. 60018/00, S: 43, 8 June 2006).

   115.  The  Court notes that S. made her pre-trial statements during an
   interview  to the investigating authority and also during the identity
   parade   (see  paragraph  41  above).  Indeed,  as  submitted  by  the
   Government,  the  trial  court  did  not  refer  to  the record of her
   pre-trial  interview  with  the  investigative authority. Instead, the
   trial  court  relied  on  the  identification  report. It has not been
   submitted,  and the Court does not consider, that besides seeking S.'s
   examination  at the trial the second applicant failed to use any other
   procedural means for effectively contesting the incriminating evidence
   received  from  S.  (see,  mutatis  mutandis,  Craxi v. Italy (no. 1),
   no. 34896/97,  S:S:  90-93,  5  December 2002). The available material
   before  the  Court  does not disclose that every reasonable effort was
   made  to bring S. before the trial court (see paragraph 44 above). Nor
   do the circumstances of the case disclose any valid excuse for failure
   to  comply with the court summons. This being so, the second applicant
   was  not  afforded  an effective opportunity to examine S. or have her
   examined  at another stage of the proceedings (see Melnikov v. Russia,
   no. 23610/03, S:S: 74-81, 14 January 2010).

   116.  There  has  therefore been a violation of Article 6 S:S: 1 and 3
   (d)  of  the Convention in relation to the impossibility to examine or
   have examined witness S. in connection with the arson-related charges.

   117.  As  regards  the first applicant, in the Court's view, it cannot
   be  said  that S.'s testimony served for convicting him of instigation
   to  destruction of property by arson. Indeed, the first applicant made
   no   specific   submissions  as  to  the  way  in  which  the  alleged
   impossibility  to  examine her at the trial impinged upon the fairness
   of the proceedings in respect of him.

   III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

   118.  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

   119.  Each   applicant   claimed  7,000  euros  (EUR)  in  respect  of
   non-pecuniary damage.

   120.  The Government contested that claim.

   121.  Having  regard  to  the nature of the violation found, the Court
   awards  the  second  applicant  EUR  1,800 in respect of non-pecuniary
   damage, plus any tax that may be chargeable.

   122.  In  addition, as regards the findings under Article 6 S:S: 1 and
   3  (d)  of  the  Convention,  the  Court  also reiterates that when an
   applicant  has been convicted despite an infringement of his rights as
   guaranteed  by  Article  6  of  the  Convention,  he should, as far as
   possible,  be  put in the position in which he would have been had the
   requirements of that provision not been disregarded, and that the most
   appropriate  form  of redress would, in principle, be the reopening of
   the   relevant   proceedings  if  requested  (see  Somogyi  v.  Italy,
   no. 67972/01,   S: 86,   ECHR   2004-IV,   and   Bocos-Cuesta  v.  the
   Netherlands,  no. 54789/00, S: 82, 10 November 2005).  The Court notes
   in  this connection that Article 413 of the Code of Criminal Procedure
   provides  that  criminal  proceedings may be reopened if the Court has
   found a violation of the Convention.

   B.  Costs and expenses

   123.  The  applicants  made no claim for reimbursement of any costs or
   expenses.  The  Court  is thus not called to make any award under this
   head.

   C.  Default interest

   124.  The  Court  considers  it  appropriate that the default interest
   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.  Dismisses  the  Government's  argument  concerning  exhaustion  of
   domestic  remedies  in respect of the applicants' complaints regarding
   ill-treatment;

   2.  Holds  that  there  has  been  no  violation  of  Article 3 of the
   Convention in respect of the first applicant;

   3.  Holds  that  there  has  been  no  violation  of  Article 3 of the
   Convention in respect of the second applicant;

   4.  Holds  that  there  has been a violation of Article 6 S:S: 1 and 3
   (d) of the Convention in respect of the second applicant;

   5.  Holds

   (a)  that  the respondent State is to pay the second applicant, within
   three  months  of  the  date  on  which  the judgment becomes final in
   accordance  with  Article 44 S: 2  of  the  Convention, EUR 1,800 (one
   thousand eight hundred euros), plus any tax that may be chargeable, in
   respect  of non-pecuniary damage, to be converted into Russian roubles
   at the rate applicable at the date of settlement;

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

   6.  Dismisses   the  remainder  of  the  applicants'  claim  for  just
   satisfaction.

   Done  in English, and notified in writing on 10 June 2010, pursuant to
   Rule 77 S:S: 2 and 3 of the Rules of Court.

   Sren Nielsen Christos Rozakis
   Registrar President

   26 SHARKUNOV AND MEZENTSEV v. RUSSIA JUDGMENT

   SHARKUNOV AND MEZENTSEV v. RUSSIA JUDGMENT 26


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