ECHR ruling of December 11, 2018 in the case of Rodionov v. Russia (application N 9106/09).
In 2009, the complainant was assisted in preparing an application. Subsequently, the application was communicated to the Russian Federation.
The case was successfully considered a application about the failure to notify about the right to defense from the moment of actual detention to the time of drawing up a protocol of detention, which affected the fairness of the trial as a whole. In the case of a violation of the requirements of paragraph 1 and subparagraph "c" of paragraph 3 of Article 6, Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant's phone, suspected of trafficking in narcotic drugs as part of an organized group, was put on an interception. On 15 August 2006, at 20.10, the applicant, who was in his car, was detained by officers of the Federal Drug Control Service (hereinafter - the Federal Drug Control Service). The applicant was immediately handcuffed, and he was interviewed. The inspection of the applicant's car was completed at 21.50, and the applicant signed the inspection report. At 11.30 pm the applicant was taken to the Federal Drug Control Service premises. On 16 August 2006, from 4 to 5 am, the applicant was interviewed. At 14.45 the applicant was presented with a report of his arrest. Then the applicant was charged and a preventive measure in the form of detention was chosen. On 13 October 2008 the applicant was sentenced to 12 years in prison.
The applicant complained to the European Court, among other things, about the unfairness of the criminal proceedings due to the failure to notify him of his right to use the assistance of a lawyer at the initial stage of the proceedings. The applicant also complained about the seizure of his newspapers and magazines sent to him by his relatives while in custody.
QUESTIONS OF RIGHT
Regarding compliance with paragraph 1 and subparagraph "c" of paragraph 3 of Article 6 of the Convention. (i) Regarding the commencement of Article 6 of the Convention. The detention of the applicant by the Federal Drug Control Service on August 15, 2006, at 20.10, was based on his suspicion of committing a crime, namely, illegal drug trafficking in an organized group. Employees of the Federal Drug Control Service immediately began to implement operational activities with the participation of the applicant. Consequently, at the time of his arrest the applicant was already prosecuted under a “criminal charge” and could have been entitled to the protection afforded by Article 6 of the Convention. On August 15, 2006, at 20.10, the right to use the assistance of a lawyer, as well as the right to be notified of such a right and the right to remain silent and not to testify against himself, arising from paragraphs 1 and 3 of Article 6 of the Convention, should have been granted to the applicant immediately.
(ii) Whether the applicant was notified of the right to use the help of counsel, as well as the right to remain silent and not to testify against himself, and whether he refused these rights. Although the pre-printed part of the protocol, drawn up on 15 August 2006, at 21.50, based on the results of the search of the applicant's car, contained a list of rights that were explained to him, the right to use the assistance of a lawyer was not mentioned in it. In addition, there is no evidence that the applicant was verbally notified of this right by the Federal Drug Control Service. Thus, during the detention, the applicant was not undoubtedly informed of his right to use the assistance of counsel in the sense of Article 6 § 3 (c) of the Convention. Consequently, even if the applicant did not directly ask for a defense attorney at the time of his arrest, he cannot be considered to have silently renounced his right to use the assistance of a defense attorney, since he did not receive information about this in a timely manner.
In the pre-printed part of the relevant protocol it was mentioned that the “suspect” was explained his right not to incriminate himself. However, this reference was not sufficient to allow the applicant to "consciously and reasonably" foresee the consequences of his actions, if he chose not to remain silent. In addition, there is no evidence that the applicant received individual clarifications about his situation or about his procedural rights.
Only on August 16, 2006, at 14.45, when drawing up the arrest record, was the applicant formally notified of his arrest and suspicion of him, and all his procedural rights were explained to him as a person suspected of committing a crime. Thus, the applicant was not properly notified of his right to use the assistance of a lawyer, to remain silent and not to testify against himself for 18 hours and 55 minutes, which had elapsed since his actual detention on August 15, 2006, at 20.10, and as a result , could not reasonably be considered as properly waived these rights. Accordingly, the applicant’s right to use the assistance of counsel was restricted.
This case is an example of the practice of the authorities of the respondent state, which was revealed by the European Court in several cases and consisting in delaying the registration of the suspect’s status with regard to the detained person, which makes it impossible for the latter to effectively exercise his rights.
(iii) Whether there were “compelling reasons” to restrict access to the assistance of counsel. Since the authorities of the Russian Federation did not report exceptional circumstances, there was thus no “weighty reason” to justify restricting the applicant's access to the assistance of a lawyer after his arrest. In addition, the legislation of the Russian Federation regulating the access of the detained person in a situation of actual detention to the assistance of a lawyer, in the interpretation given by the Constitutional Court of the Russian Federation, did not explicitly provide for exceptions to the exercise of this right.
(iv) Whether the fairness of the procedure as a whole has been observed. The arguments of the Government concerned the legal representation of the applicant, which he used from 15:00 on 16 August 2006, but did not demonstrate to what extent the absence of a lawyer for 18 hours 55 minutes after the applicant’s arrest affected the validity of the criminal proceedings in whole This circumstance would be sufficient for the European Court to establish that the authorities of the Russian Federation did not refute the presumption of unfairness of the criminal proceedings against the applicant. In this regard, the Court has found it necessary to make a few additional observations.
Between August 15, 2006, 20.10, and August 16, 2006, 14.45, the authorities that carried out the criminal prosecution received a number of information, which was later used as evidence of the charges in the criminal proceedings against the applicant. The applicant's testimony, given immediately after his arrest, was obtained when answering questions from the Federal Drug Control Service officers who suspected him of involvement in drug trafficking. Thus, these questions should be equated to the interrogation without prior explanation to the applicant of his procedural rights.
The courts of the Russian Federation did not consider on the merits the petition of the applicant to exclude evidence obtained immediately after his arrest in the absence of counsel. Consequently, the courts of the respondent State did not investigate the admissibility of evidence containing the applicant’s self-incriminating evidence obtained at the time when his right to use the assistance of counsel was restricted. The courts of the Russian Federation did not attempt to establish whether the applicant had appropriately denied his rights of defense.
The applicant's conviction for the episode of August 15, 2006, qualified by the courts of the respondent state as preparation for the sale of narcotic drugs on a large scale, was largely based on the protocol of the search of the applicant's car, containing his self-incriminating evidence obtained in violation of his procedural rights.
In view of the foregoing and cumulative effect of procedural shortcomings made during the proceedings against the applicant, failure to notify the applicant of the right to use the assistance of counsel, the right to remain silent and not to testify against himself, as well as restricting his access to legal aid from August 15, 2006 ., 20.10, until August 16, 2006, 14.45, caused irreparable damage to the fairness of the proceedings as a whole.
RESOLUTION
In the case of a violation of the requirements of paragraph 1 and subparagraph "c" of paragraph 3 of Article 6 of the Convention (adopted unanimously).
Regarding compliance with Article 10 of the Convention. The applicant also complained about the administration of the penitentiary institution of newspapers and magazines sent to him by his relatives. The European Court therefore decided that this exemption could be considered as an interference with the applicant's exercise of the right to receive information within the meaning of Article 10 of the Convention, and he must determine whether this interference was justified.
There are no grounds to believe that the seized copies could pose a danger to the health and lives of others, disrupt the order in the remand prison or be used to commit crimes. In addition, no evidence was provided that the applicant’s receipt of the print media entailed additional costs for the administration of the detention facility. The legislation of the Russian Federation allowed persons in custody to receive and use periodical press publications, provided that they were acquired through the administration of the place of detention. It is because of the non-fulfillment of this condition in the present case that the courts of the respondent state confirmed the validity of the seizure of newspapers and magazines sent to the applicant by his relatives. However, this condition and its application by the authorities of the Russian Federation in relation to the applicant did not meet any pressing social need, and as a result, the contested measure was not “necessary in a democratic society”.
RESOLUTION
The case was a violation of Article 10 of the Convention (adopted unanimously).
The European Court also unanimously found a violation of Article 3 of the Convention in connection with the conditions of the applicant's detention, his transportation to court and back, his placement in a metal cage during court hearings in his criminal case. He also unanimously acknowledged a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention in connection with the lack of effective domestic remedies for complaints of violation of Article 3 of the Convention, Article 5 § 3 of the Convention due to the insufficient grounds for extending the applicant's detention, article 4 5 of the Convention due to the lack of immediate control, Article 8 of the Convention in connection with the interception and recording of the telephone conversations of the applicant, Article 13 of the Convention in conjunction with 8 of the Convention due to the lack of effective domestic remedies for complaints of violation of Article 8 of the Convention, as well as of Article 34 of the Convention as a result of the opening of letters sent to the applicant by the European Court of Justice of the penitentiary institution.
COMPENSATION
In application of Article 41 of the Convention. The European Court awarded the applicant EUR 12,700 in respect of non-pecuniary damage.